On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 00-04-0638.
Before Judges Stern, Lefelt and Payne.
The opinion of the court was delivered by: Stern, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 12, 2003
Defendant was charged in a three-count indictment with aggravated sexual assault, N.J.S.A. 2C:14-2a(1); sexual assault, N.J.S.A. 2C:14-2b; and endangering the welfare of a minor, N.J.S.A. 2C:24-4a. On May 30, 2001, he entered a guilty plea to count two of the indictment, which alleged second-degree sexual assault. In exchange, the State recommended that counts one and three of the indictment be dismissed and that defendant receive a"flat""five year prison term." It was further agreed that the No Early Release Act did not apply,*fn1 but that Megan's Law was applicable.
Prior to sentencing, defendant moved to withdraw his guilty plea. The motion was argued simultaneously with a"Horne hearing" (see State v. Horne, 56 N.J. 372 (1970)) on May 10, 2002, at which time defendant challenged the finding of the Adult Diagnostic and Treatment Center at Avenel that he qualified as a repetitive and compulsive sex offender within the meaning of N.J.S.A. 2C:47-3.
On June 14, 2002, the plea judge denied defendant's motion to withdraw his guilty plea. The judge also found that defendant was a"repetitive [and] compulsive" sex offender, and"qualifi[ed] for sentencing at the Avenel [Diagnostic and] Treatment Center" ("Avenel"). The judge then found that the mitigating factors outweighed the aggravating factors and sentenced defendant to a term of"five years to the custody of the Commissioner of the Department of Corrections to be served at the Avenel Adult Diagnostic Center."*fn2 The judge also ordered that defendant was subject to community supervision for life and was to register in accordance with Megan's Law.
On this appeal defendant argues:
POINT I THE COURT ERRED IN DENYING DEFENDANT'S REQUEST TO WITHDRAW HIS GUILTY PLEA.
POINT II IN ORDER FOR A DEFENDANT TO BE SENTENCED AS A SEX-OFFENDER UNDER 2C:47-1, ET SEQ., A JURY MUST FIND THAT HE MEETS THE STATUTORY CRITERIA BEYOND A REASONABLE DOUBT. (Not Raised Below)
POINT III THE COURT ERRED IN FINDING THAT LUCKEY MET THE STATUTORY CRITERIA FOR AN AVENEL SENTENCE BY A PREPONDERANCE OF THE EVIDENCE.
We remand for further proceedings. While the denial of a motion to withdraw a negotiated guilty plea entered on the eve of, or during, trial is rarely overturned, recent opinions filed by our appellate courts, which affect matters still on direct appeal, warrant reconsideration of the motion by the trial court. However, we reject defendant's contention that the findings prerequisite to an Avenel commitment must be made by a jury.
There is no claim that the factual basis for the guilty plea was inadequate. To the contrary, the defendant admitted having a child under ten years of age perform oral sex upon him. However, defendant contends, as he did before the trial court, that his motion to withdraw should have been granted because he had an alibi that he was unable to present due to pressure placed upon him by his previous attorney to plead guilty. On his motion to withdraw his plea, defendant asserted he"gave a statement falsely [to the police] admitting my involvement in the incidents" because he was told he"would be placed in jail without bail" if he did not, and"would be beat up in jail by the prison population." He further claimed that he advised counsel that he was not living at his mother's home, where the alleged events took place,"during the time that the incidents allegedly occurred." Defendant also asserted that counsel advised him that"if I did not plead guilty I would be put on trial the very next day [and] had 24 hours to line up all my witnesses," who"were then living out of the state of New Jersey." Defendant certified that counsel also stated"that if I lost at trial I would receive a sentence of 40 years in jail." Defendant also claimed that he gave"a factual basis that was untrue" as he"could not possibly line up all of [his] witnesses in 24 hours and because [he] was scared of going to jail for 40 years." He maintained that counsel advised him that he had to repeat the story he told the police to the judge, during the presentence interview and at Avenel to get the five-year sentence, and that he"would get into more trouble if [he] did not keep repeating the same story." Finally, at the hearing on the motion, defendant's new counsel explained that defendant's fear stemmed from the fact he was"beaten up in the military because of his [homosexual] sexual orientation" and that a police detective was aware of that in soliciting his admission.
In denying the motion to withdraw the negotiated plea, the trial judge found that there was a sufficient"factual basis for the plea" and that it was made"voluntarily and intelligently." He also noted that it was entered after a"plea cut off" order was relaxed, R. 3:9-3(g), and the trial had actually"begun." The plea transcript does not reveal that the trial had commenced, but the judge's statement to that effect is not contested before us. The plea transcript does reveal that the"plea cut off" was relaxed due to"changed circumstances" including"the age and condition of the victim of tender years." Moreover, the motion to withdraw was not filed for almost eleven months after the plea. Defendant did not appear on the original sentencing date, which was carried until after his arrest pursuant to a warrant issued by the sentencing judge.
Rule 3:21-1 governs motions to withdraw a plea of guilty and states that it"shall be made before sentencing, but the court may permit it to be made thereafter to correct a manifest injustice." Rule 3:21-1. Nevertheless, the burden rests on the defendant to establish why the motion to withdraw his or her guilty plea should be granted. As we have said:
[I]t is clear that the burden rests on defendant, in the first instance, to present some plausible basis for his request, and his good faith in asserting a defense on the merits, so the trial judge is able to determine whether fundamental fairness requires a granting of the motion. Any other approach would automatically require a trial judge to grant such motions, and strip him of any discretion in the matter. Liberality in exercising discretion does not mean an abdication of all discretion. [State v. Huntley, 129 N.J. Super. 13, 17, certif. denied, 66 N.J. 312 (1974).]
Thus, the trial court has considerable discretion in entertaining such a motion, and our review must recognize the discretion to which the trial court's decision is due. State v. Bellamy, 178 N.J. 127, 135 (2003); State v. Deutsch, 34 N.J. 190, 197 (1961). See also State v. Smullen, 118 N.J. 408, 417 (1990). In considering the motion, the timing of the plea and the fact it was a negotiated disposition, terminating the need for trial, are factors that must be considered. As the Supreme Court has said:
Although the judge's discretion to vacate a guilty plea is liberally exercised when the defendant's motion, as here, is made before sentencing, in weighing such a motion the possibility of prejudice to the State must be considered. See State v. Deutsch, supra, 34 N.J. at pp. 198, 201, 204. If a defendant represented by counsel were permitted to withdraw a guilty plea which he voluntarily and knowingly entered after his trial had started, as the defendant in this case is trying to do, the efficient and orderly administration of justice would be impeded. Criminal calendars would become increasingly congested and the State's efforts to effectively prosecute lawbreakers would be seriously hampered by the delays. It is a difficult task at best for the State to assemble its witnesses and prepare its case for a trial on a ...