On certification to the Superior Court, Appellate Division, whose opinion is reported at 213 N.J. Super. 587 (1986).
For reversal and remandment -- Chief Justice Wilentz, and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. Opposed -- None. The opinion of the Court was delivered by Pollock, J.
This case concerns whether the trial court must inform a defendant of the parole consequences of a sentence to the Adult Diagnostic and Treatment Center (ADTC or Avenel) before accepting a guilty plea pursuant to a plea agreement. We also must determine the standard of proof by which the trial court must determine the propriety of an Avenel sentence. In the Law Division, immediately after being sentenced, defendant moved to withdraw his guilty plea because he had not been informed of the consequences of the plea. The trial court denied the motion, and the Appellate Division affirmed. 213 N.J. Super. 587 (1986). We granted certification, 107 N.J. 86 (1987), and now reverse the judgment of the Appellate Division. We hold that Rule 3:9-2 requires the trial court to inform sex offenders of the possibility and parole consequences of a sentence to Avenel. Furthermore, we find no violation of defendant's right of substantive due process or of the prohibition against cruel and unusual punishment under either the United States or New Jersey constitutions.
On February 7, 1985, defendant pled guilty to second-degree sexual assault, contrary to N.J.S.A. 2C:14-2c(5). At the plea hearing, defendant admitted that in 1983 he engaged in sexual intercourse with the teenage daughter of the woman with whom he was then involved. Defendant and the victim's mother had lived together from time to time, but were living apart at the time of the offense. At that time, defendant was thirty-five years old, and the victim was between thirteen and sixteen years of age.
In exchange for the defendant's plea, the State dismissed charges of first-degree sexual assault, endangering the welfare of a child, and hindering apprehension. The State also agreed to recommend a maximum sentence of seven years without a period of parole ineligibility.
In accordance with Rule 3:9-2, the trial court stated that second-degree sexual assault "carries a penalty as much as ten years imprisonment of which as much as half, five years could be without eligibility for parole, a fine of as much as $100,000 or both." Defendant affirmed that he understood those consequences. After ascertaining that defendant understood that the recommended seven-year sentence could carry a parole ineligibility period of three and one-half years, the trial court concluded that defendant's plea was voluntary and knowing, and accepted the plea. Although the trial court had not previously mentioned the possibility of a sentence to Avenel, immediately after accepting the plea, the court raised that possibility and directed an evaluation of the defendant.
The Avenel staff psychologist who examined the defendant characterized defendant's conduct as repetitive, compulsive behavior necessitating treatment at Avenel. At his own request, defendant was also examined by a private psychiatrist, who concluded that defendant's conduct was "an isolated incident and not evidence of any compulsive behavioral trend." On July 15, 1985, the trial court held a hearing to determine defendant's psychiatric status. The court found that defendant "needs treatment much more than he needs a prison sentence," agreed with the Avenel staff psychologist's determination, and concluded that defendant was a repetitive sex offender.
Ten days later, on July 25, 1985, the trial court sentenced defendant to seven years at Avenel. The court also ordered defendant to pay $25 to the Violent Crimes Compensation Board, and noted that defendant was entitled to credit for the 423 days he had spent in jail. The court then advised defendant that an Avenel patient is released when the parole board is "satisfied that he has benefitted from therapy." That advice referred to the statutory standard for release when "it shall appear to the satisfaction of the State Parole Board, after recommendation by a special classification review board appointed by the commissioner that such person is capable of
making an acceptable social adjustment in the community." N.J.S.A. 2C:47-5.
Defendant immediately protested, and the following colloquy occurred:
THE DEFENDANT: Your Honor, the plea bargain -- the reason I made the plea bargain, I understood the agreement was seven years, minimum of 14 months, no extended parole.*fn1
THE DEFENDANT: That's why I accepted the plea bargain. It was not to exceed beyond 14 months.
THE COURT: I'm not sure I understand you.
THE DEFENDANT: Well, I made Mr. Flynn brought the plea bargain down and he explained to me the agreement on the plea bargain was seven years, a minimum of 14 months, and not extended beyond 14 months. That's what I understood him. That's why I accepted the plea bargain.
If I had known it was going to extend beyond the 14 months, I would have retracted my plea and. . . .
Defense counsel promptly moved to withdraw the plea, but the court rejected the motion, stating: "I'm satisfied that Mr. Howard was telling me the truth when he told me that he was guilty of the crime. So I see no basis for retraction of the plea."
Defendant was sentenced to Avenel, but could not be sent there because of severe overcrowding. Consequently, he was placed on a waiting list and remained in the Monmouth County Jail. While defendant was incarcerated in the county jail, he filed a motion for resentencing or implementation of his sentence. He requested immediate transfer to Avenel or equivalent treatment while in the county jail. In the alternative, defendant requested resentencing to a seven-year State Prison term or to probation with outpatient psychological counseling. On February 14, 1986, the trial judge denied defendant's motion. Two months later, defendant was transferred to Avenel.
Thereafter, on November 19, 1986, the Appellate Division affirmed the imposition of the original sentence. It rejected
defendant's contention that he should be resentenced to prison or allowed to withdraw his plea because of the trial court's failure to inform him of the possibility and implications of the ADTC sentence. 213 N.J. Super. at 590-92. The court recognized the difference between an Avenel sentence, in which parole eligibility is indeterminate, and an ordinary sentence to State Prison, in which "the flat parole eligibility term is one-third of the term of imprisonment." N.J.S.A. 30:4-123.51; N.J.A.C. 10A:71-3.2(c)2. Hence, the Appellate Division noted, if defendant had been sentenced to State Prison, his parole eligibility would have arisen after twenty-eight months. 213 N.J. Super. at 590. In addition, the Appellate Division referred to State v. Kovack, 91 N.J. 476 (1982), in ...