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State v. D.D.M.

May 4, 1995


On certification to the Superior Court, Appellate Division.

Chief Justice Wilentz and Justices Pollock, O'Hern, Garibaldi, and Stein join in this opinion. Justice Coleman did not participate. The opinion of the court was delivered by Handler, J.

The opinion of the court was delivered by: Handler

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

State of New Jersey v. D.D.M. (A-32/33-94)

Argued November 29, 1994 -- Decided May 4, 1995

HANDLER, J., writing for a unanimous Court.

In November 1977, D.D.M. pled guilty to an Ocean County indictment that charged him with sexual offenses against his seven-year-old son. At the plea hearing, D.D.M. was reluctant to acknowledge the actual commission of misconduct as required by Court Rule 3:9-2. After the parties conducted an unrecorded side-bar conference with the Judge, D.D.M.'s plea was accepted. The Judge ordered an assessment of D.D.M. by the Adult Diagnostic Center at Avenel (Avenel).

On December 1, 1977, before the completion of the Avenel report, D.D.M. was charged in a Monmouth County indictment with sexual offenses against a three-year-old girl.

Avenel concluded that D.D.M. was a compulsive and repetitive sex offender in its report on the Ocean County offenses.

D.D.M. pled guilty to two counts of the Monmouth indictment on February 27, 1978. He was again referred to Avenel for a report.

On March 13, 1978, D.D.M. was sentenced to Avenel on the Ocean County offense, for a term not to exceed ten years. Because statutory and case law mandated a fifteen-year maximum term, D.D.M.'s sentence was illegal. The sentence was corrected on April 10, 1978. D.D.M. appealed the sentence, but that appeal was dismissed on November 30, 1978, for lack of prosecution.

On May 8, 1978, Avenel submitted its report in the Monmouth County matter, recommending that D.D.M. be sentenced to that facility. At that time, D.D.M. was already serving his Ocean County sentence at Avenel.

On May 18, 1978, D.D.M. was sentenced to two concurrent three-year terms for the Monmouth County offenses. That sentence was made consecutive to the Ocean County sentence. D.D.M. did not appeal the Monmouth County sentence.

Beginning in 1985, D.D.M. filed several post-conviction relief (PCR) applications. On December 23, 1993, the Appellate Division reversed the denial of PCR relief in the Monmouth County case and remanded the matter to have the Monmouth and Ocean County sentences run concurrently. The Appellate Division affirmed the denial of PCR in the Ocean County matter. The net result was that D.D.M. was eligible for immediate release from Avenel.

The Supreme Court granted the State's petition for certification and stayed the judgment of the Appellate Division. D.D.M.'s cross-petition for certification from the affirmance of the Ocean County sentence was also granted.

HELD : Defendant is not entitled to post-conviction relief on a claim of illegality of his sentence. Defendant's post-conviction relief applications, filed more than seven years after his conviction and sentencing, were time-barred under Rule 3:22-4.

1. Under the circumstances, the trial court's failure to spell out the factual basis of D.D.M.'s plea in Ocean County did not constitute an improper acceptance of his guilty plea sufficient to invalidate his conviction and to render his sentence illegal. (pp. 12-15)

2. The evidence in the record does not demonstrate that the plea in Ocean County was improvidently entered or that the sentence ultimately imposed violated the terms of the plea agreement. (pp. 15-17)

3. D.D.M.'s first PCR application in Ocean County was filed in 1983, more than seven years after his sentencing. Not having established excusable neglect, his application was time-barred. (p. 17)

4. D.D.M. waited eleven years before claiming that he expected his Monmouth and Ocean County sentences to be concurrent rather than consecutive. That long delay negates any inference that the sentences as imposed were not in accordance with D.D.M.'s expectations. (pp. 17-19)

5. Defendant has not presented the compelling and extenuating circumstances necessary to demonstrate excusable neglect for the delay in the filing of the Monmouth County PCR. Further, the record does not support D.D.M.'s contention that he was promised a ten-year prison term in exchange for his Ocean County plea. (pp. 21-24)

The judgment of the Appellate Division is AFFIRMED IN PART, REVERSED IN PART.



This appeal involves two petitions for post-conviction relief. The petitions relate to sentences on unrelated convictions for sexual offenses against young children committed in different counties. Each petition was determined and denied by the court that imposed the original sentence. Petitioner filed separate appeals from the respective trial court judgments, and the Appellate Division consolidated the appeals. Considering the underlying sentences to be interrelated and believing that one sentence was illegal and that both sentences in combination were unjust, the Appellate Division granted partial relief.

Under the Rules of Court, petitions for post-conviction relief are subject to time and procedural limitations that, if applicable, would foreclose relief. In light of the decision of the Appellate Division, we are asked to determine if defendant is entitled to post-conviction relief on grounds of illegality in the imposition of the original sentences or manifest inJustice.


The petitions for post-conviction relief (sometimes referred to as "PCR") relate to criminal proceedings that originated in Ocean County and Monmouth County almost twenty years ago.

We deal first with the indictments, pleas and sentences.


On June 30, 1977, Ocean County Indictment No. 491-76 charged defendant (also referred to as "petitioner" with willfully committing an act of indecency towards and tending to debauch the morals and manners of D.M., contrary to N.J.S.A. 2A:114-2 (incestuous conduct between parent and child). Specifically, defendant was accused of committing fellatio on his seven-year-old son. On August 10, 1977, defendant entered a plea of not guilty by mail.

On November 1, 1977, defendant entered a retraxit plea of guilty to the Ocean County offense. The "Statement by Defendant," completed and signed by both defendant and his attorney, stated that "the court could impose a sentence of not more than 15 years or a fine of not more than $1,000 or both." The Statement also underscored "the Judge is not bound by those promises. If he decides not to follow the recommendations, you will be allowed to take back your guilty plea and plead not guilty. "

The transcript of the plea hearing indicates defendant's desire to plead guilty; however, the defendant was reluctant to acknowledge the actual commission of misconduct in accordance with Rule 3:9-2. The court explained the necessity for the defendant to provide a factual basis for the plea. At that point, the county prosecutor requested a side-bar conference, which, contrary to Rule 1:2-2, was neither recorded verbatim nor its substance noted on the record. Following that side-bar conference, ...

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