On appeal from Superior Court of New Jersey, Law Division, Essex County.
Michels, Baime and Wallace. Baime, J.A.D.
This appeal requires us to construe N.J.S.A. 2C:35-6, which provides that an adult who employs a person "17 years of age or younger" in a drug distribution scheme is guilty of a second-degree crime. At issue is whether the phrase "17 years of age or younger" includes a juvenile who has attained the age of 17 but has not yet reached his 18th birthday. We hold that an adult who hires a juvenile less than 18 years of age to distribute drugs violates the statutory prohibition.
The salient facts are not in dispute. Defendant pleaded guilty to possession of cocaine (N.J.S.A. 2C:35-10a(1)) and employing a juvenile in a drug distribution scheme (N.J.S.A. 2C:35-6). As part of his factual basis for entering the plea, defendant acknowledged that he "used S.G.," a 17 year old juvenile, "as a lookout" while preparing to sell a large quantity of cocaine. Satisfied that defendant's decision not to contest the charges was voluntary and supported by the facts, the Law Division Judge accepted the guilty plea. In accordance with the terms of the plea agreement and the provisions of N.J.S.A.
2C:35-12, defendant was sentenced to a custodial term of seven years with a four year parole disqualifier on the violation of N.J.S.A. 2C:35-6. A concurrent four year sentence was imposed on the simple possession count. The court directed that the sentences be served concurrently with terms previously imposed on convictions for other offenses. On motion of the prosecutor, the remaining charges were dismissed.*fn1
Defendant did not appeal. Instead, he filed a petition for post-conviction relief in the Law Division, contending that his plea was not voluntary because it was predicated upon an erroneous interpretation of N.J.S.A. 2C:35-6. Specifically, defendant asserted that S.G., the juvenile he had hired as a lookout, was 17 years and some months old when the crime was committed. He contended that the statutory phrase "17 years of age or younger" was not intended to include within its purview individuals who passed their 17th birthday. So posited, defendant claimed that his plea was involuntary and unsupported by an adequate factual basis. Alternatively, defendant asserted that he was denied gap-time credit for time served under a prior custodial term pursuant to N.J.S.A. 2C:44-5b(2). The Law Division dismissed defendant's petition on the ground that both arguments could have been advanced in a direct appeal and were thus barred under R. 3:22-3. This appeal followed.
Preliminarily, we address the State's argument that defendant was procedurally barred from challenging the validity of his plea and the sentence imposed because he did not file a direct appeal from his conviction. Among other things, R. 3:22-3 states that a petition for post-conviction relief is not a
"substitute for appeal." A petition "may not be filed while . . . appellate review . . . is available." Ibid. The rule has been applied with varying degrees of firmness. See, e.g., State v. Allen, 99 N.J. Super. 314, 239 A.2d 675 (Law Div.1968). Several exceptions have emerged. In some cases, the nature of the defendant's claim requires development of facts which do not appear in the record. Post-conviction relief proceedings provide the appropriate vehicle for resolution of factual disputes in these instances. See, e.g., State v. Preciose, 129 N.J. 451, 460-61, 609 A.2d 1280 (1992); State v. Dixon, 125 N.J. 223, 262, 593 A.2d 266 (1991); State v. Savage, 120 N.J. 594, 609-12, 577 A.2d 455 (1990). In a slightly different context, arguments not raised in prior proceedings have been held to be cognizable by way of a post-conviction petition where "enforcement of the bar would result in fundamental inJustice," R. 3:22-4(b), or where "denial of relief would be contrary" to the federal or state constitution, R. 3:22-4(c).
In this context, it is at least arguable that defendant's contention required further factual exposition with reference to S.G.'s age and respecting whether the plea was voluntary. Our Supreme Court has said, "failure to elicit a factual basis for [a] plea is not necessarily of constitutional dimension and thus does not render illegal a sentence imposed without such a basis." State v. Mitchell, 126 N.J. 565, 577, 601 A.2d 198 (1992). However, "[a] factual basis is constitutionally required . . . when there are indicia . . . that the defendant does not understand enough about the nature of the law as it applies to the facts of the case to make a truly 'voluntary' decision on his own." Ibid.; see also State v. Barboza, 115 N.J. 415, 423, 558 A.2d 1303 (1989). As we understand it, that is the essence of ...