On appeal from the Superior Court of New Jersey, Law Division, Union County.
Approved for Publication March 25, 1996.
Before Judges Stern, Wallace and Newman. The opinion of the court was delivered by Wallace, Jr., J.A.D. Stern, J.A.D., Concurring.
The opinion of the court was delivered by: Wallace
The opinion of the court was delivered by
Defendant was indicted for the murder of E.N., contrary to N.J.S.A. 2C:11-3a(1) and/or (2) (count one); distribution of cocaine to a minor, contrary to N.J.S.A. 2C:35-5a(1) and 2C:35-8 (count two); and endangering the welfare of a child, contrary to N.J.S.A. 2C:24-4a (count three). In a separate indictment, defendant was charged with possession of heroin, contrary to N.J.S.A. 2C:35-10a(1). Defendant entered into a plea agreement with the State. In accordance with the plea agreement defendant pled guilty to aggravated manslaughter, a lesser included offense of murder, and possession of heroin. He also pled guilty to an accusation charging him with employment of a juvenile in a drug distribution scheme, contrary to N.J.S.A. 2C:35-6. The State, for its part of the agreement, recommended that counts two and three of the indictment be dismissed. The trial Judge accepted defendant's pleas, and imposed a thirty year term of imprisonment with fifteen years of parole ineligibility for the manslaughter charge, a concurrent five year term for the possession of heroin charge, and a consecutive ten-year term with five years of parole ineligibility for employing a juvenile in a drug distribution scheme. Defendant's aggregate sentence was forty years in prison with twenty years of parole ineligibility. The remaining counts were dismissed.
Defendant filed a notice of appeal and the matter was placed on our sentencing calendar pursuant to R. 2:9-11. Following argument, we requested that the issues raised be fully briefed.
On appeal, defendant essentially claims: (1) there was an insufficient factual basis for the plea to using a juvenile in a drug distribution scheme; (2) the remaining sentences imposed cannot be disturbed without violating principles of double jeopardy; and (3) the sentence was excessive. We find no basis to disturb defendant's guilty plea and sentence.
It is not necessary to set forth the facts in detail. Briefly, on September 25, 1991, defendant took three year old E.N., his fiancee's son, with him on a trip from their home in Milton, Delaware to New Jersey and New York. Defendant took the trip to purchase heroin in New York for his personal use and for the use of his fiancee upon his return to Delaware. During the trip defendant purchased and consumed heroin in New Jersey and New York. Defendant and E.N. stayed with defendant's family in Irvington one night, spent several nights in various motels, and stayed at least one night in defendant's car. He disciplined E.N. by hitting him, sometimes with his hand or fist. According to defendant, he beat E.N. because he "was angry [that E.N.] kept messing up his clothes, messing on himself and messing on the floor in the motel room." Defendant acknowledged that by mistreating E.N. in this manner, he was creating a "substantial risk of causing him harm or death...." On the final night of E.N.'s life, defendant beat E.N., who then "messed" his pants again. Defendant washed E.N. and put him to bed. E.N. began vomiting. Defendant merely placed the covers over E.N. and sat on the foot of the bed. The next morning E.N. did not respond when defendant tried to wake him. Defendant drove to his mother's house and told his mother and sister that he thought E.N. was dead. Defendant's sister returned to the motel with him where she confirmed that E.N. was dead. The police were contacted and defendant was arrested.
Defendant contends that his conviction and sentence for employing a juvenile in a drug distribution scheme must be vacated because there was not an adequate factual basis to support his guilty plea to the charge. The State disputes this contention and cites R. 3:9-3(f) in support of its argument that defendant's unconditional guilty plea bars him from raising the claim.
Initially, we are satisfied that defendant may challenge this conviction despite his failure to enter a conditional plea pursuant to R. 3:9-3(f), or otherwise move to dismiss the accusation. The challenge to the existence of a factual basis for a plea is not waived by a guilty plea. See State v. Lightner, 99 N.J. 313, 315-16, 491 A.2d 1273 (1985); State v. Butler, 89 N.J. 220, 224, 445 A.2d 399 (1982).
At the plea hearing, defendant gave the following sworn testimony that formed the basis of his plea of guilty to employing a juvenile in a drug distribution scheme:
THE COURT: All right. Let us go to the employing a juvenile in a drug distribution scheme.
Q. Mr. , referring back to your statement with regard to picking up [E.N.] in Delaware and bringing him into New Jersey. Did there come a point in time from September the 25th through September the 30th that you drove into New York and you purchased an amount of narcotics?
Q. And, in fact, you purchased what you understood to be heroin; is that right?
Q. And you bought several decks of heroin; ...