Before Judges Pressler, Kestin and Alley.
The opinion of the court was delivered by: Pressler, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 26, 2000
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County.
This appeal implicates the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, which requires imposition of a mandatory parole ineligibility term of eighty-five percent of the term imposed if defendant has been convicted of a violent crime of the first or second degree as defined by section d. of that statute. The appeal requires us to address the nature, scope and evidentiary premises of the hearing that section e. requires the judge to hold after conviction, and particularly after a guilty plea, in order to determine the applicability of the Act. The specific question before us is whether a NERA sentence may be predicated on an element of a crime with which defendant has not been charged. We hold that it may not.
This is the context in which the issue arises. Three separate indictments were returned against defendant. The first two charged various third- and fourth-degree theft offenses, and one of them also charged a third-degree burglary. The third indictment arose out of events that occurred in 1997 when defendant was nineteen years old. He was charged in that indictment with first-degree aggravated sexual assault against L.T., then a minor less than thirteen years old, by reason of an act of sexual penetration, N.J.S.A. 2C:14-2a(1); first- degree aggravated sexual assault against L.T., in that he committed an act of sexual penetration during the course of committing or attempting to commit a burglary, N.J.S.A. 2C:14-2a(3); second-degree sexual assault against L.T. in that he committed an act of sexual penetration by using physical force or coercion, N.J.S.A. 2C:14-2c(1); second-degree burglary in that he entered a structure with the purpose to commit an offense and in the course of committing the offense inflicted bodily injury on L.T., N.J.S.A. 2C:18-2; and third-degree burglary in that he entered a structure with the purpose to commit an offense, N.J.S.A. 2C:18-2.
Pursuant to a plea agreement, defendant pleaded guilty to the count in one of the theft indictments charging fourth-degree uttering a forged instrument, N.J.S.A. 2C:21-1, and to the count in the other theft indictment charging third-degree burglary, N.J.S.A. 2C:18-2. With respect to the aggravated sexual assault indictment, he pleaded guilty to first-degree aggravated sexual assault by reason of the victim's age. The State's undertaking was to recommend a ten-year sentence on the aggravated sexual assault and concurrent sentences on the two lesser crimes. The State also made clear at the plea proceeding its intention to move for NERA sentencing on the first-degree crime. The plea was accepted and the remaining charges dismissed. At the sentencing hearing and in aid of its NERA motion, the State produced L.T., who testified that defendant had raped her by the use of physical force. Defendant testified that he did not know the victim's age and that the sexual act was consensual and had been preceded by the victim's having cooked him lunch and the two of them then sitting on the couch watching television. The judge accepted the victim's brief testimony, encompassing three and a half transcript pages, and then imposed a NERA sentence.
In challenging the judgment of conviction, defendant raises the following issues:
I. THE SENTENCE IMPOSED UNDER THE 85% RULE MUST BE VACATED BECAUSE THE COURT APPLIED AN INCORRECT STANDARD OF PROOF AND DEFENDANT DID NOT PLEAD GUILTY TO A CRIME INVOLVING FORCE. (Not Raised Below)
II. THE MATTER MUST BE REMANDED BECAUSE DEFENDANT WAS INCORRECTLY ADVISED ABOUT THE PENAL CONSEQUENCES OF HIS PLEA.
We find substantial merit in defendant's first argument.
The first- and second-degree violent crimes to which NERA applies are specifically defined by section d. of the Act, which provides in full as follows:
For purposes of this section, "violent crime" means any crime in which the actor causes death, causes serious bodily injury as defined in subsection b. of N.J.S. 2C:11-1, or uses or threatens the immediate use of a deadly weapon. "Violent crime" also includes any aggravated sexual assault or sexual assault in which the actor uses, or threatens the immediate use of, physical force.
For purposes of this section, "deadly weapon" means any firearm or other weapon, device, instrument, material or substance, whether animate or inanimate, which in the manner it is used or is intended to be used, is known ...