June 27, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ERIC S. MILES, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Camden County, Indictment Nos. 2979-08-03 and 2300-06-02.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 31, 2007
Before Judges Wefing, Yannotti and Messano.
Defendant Eric S. Miles was charged by the Camden County grand jury in Indictment 2979-08-03 with two counts of second-degree sexual assault, in violation of N.J.S.A. 2C:14-2c(4). He was also charged in Indictment 2300-06-02 with seventeen offenses, including murder and second-degree possession of a firearm by someone not permitted to possess same, in violation of N.J.S.A. 2C:39-7b.
Based upon two prior convictions, defendant was eligible for an extended term of imprisonment as a persistent offender pursuant to N.J.S.A. 2C:44-3a. Defendant pled guilty to one count of second-degree sexual assault and was sentenced to ten years of imprisonment, with a five-year period of parole ineligibility. He pled guilty to the firearm charge and was sentenced to an extended term of twenty years of imprisonment, with a ten-year period of parole ineligibility, the sentence to run consecutively to that imposed on the sexual assault conviction. Various statutory penalties were imposed.
On appeal, defendant raises two points for our consideration.
DEFENDANT PROVIDED AN INADEQUATE FACTUAL BASIS FOR HIS GUILTY PLEA TO SEXUAL ASSAULT.
THE SENTENCES IMPOSED ARE MANIFESTLY EXCESSIVE.
After careful consideration of these contentions in light of the record and applicable legal standards, we affirm.
Defendant argues that his guilty plea to the sexual assault charge was fatally flawed because an essential element of the crime charged -- his age in relation to the age of the victim --was never adduced at the time he provided his factual basis to the judge. He argues his conviction on that charge, therefore, must be vacated and the matter returned for trial. State v. Barboza, 115 N.J. 415, 427 (1985).
N.J.S.A. 2C:14-2c(4) provides
c. An actor is guilty of sexual assault if he commits an act of sexual penetration with another person under any one of the following circumstances:
(4) The victim is at least 13 but less than 16 years old and the actor is at least four years older than the victim.
It is undisputed defendant admitted that between January and June 1996, he had sexual intercourse with the victim, who was only fifteen years old at the time. He argues before us that his age was never adduced, and, hence, there was no basis to conclude he was at least four years older than she.
R. 3:9-2 requires the judge to "question the defendant personally . . . and determine[e] by inquiry of the defendant and others, in the court's discretion, that there is a factual basis" before accepting the guilty plea. The judge may also, "[i]n addition to [his] inquiry of the defendant . . . accept a written stipulation of facts, opinion, or state of mind that the defendant admits to be true, provided the stipulation is signed by the defendant, defense counsel, and the prosecutor." Ibid.
We have recently noted that "[t]he requirement [of a factual basis for the guilty plea] is designed in part to protect a defendant who is willing to plead guilty 'without realizing that his conduct does not actually fall within the charge.'" State v. Pineiro, 385 N.J. Super. 129, 137 (App. Div. 2006) (quoting Barboza, supra, 115 N.J. at 421.) In In the Interest of T.M., 166 N.J. 319 (2001), the Supreme Court noted that while a factual basis is required,
[t]hat does not mean that a court must follow a prescribed or artificial ritual. To the contrary, because different criminal charges and different defendants require courts to act flexibly to achieve constitutional ends, a factual basis, established either through inquiry of others, which a defendant acknowledges, or through direct admission by the defendant, should be examined in light of all surrounding circumstances and in the context of an entire plea colloquy. [Id. at 327.]
Our review of all the surrounding circumstances in this particular case leads to the inescapable conclusion that there was a sufficient factual basis to accept defendant's guilty plea.
At the beginning of the plea proceedings, the judge recited the charges contained in the indictment, specifically that defendant "committed an act of sexual penetration upon an individual . . . age 15 . . . being at least four years older than the victim." Defendant clearly stated he understood the charge. At the time he entered his guilty plea, one of the forms executed by defendant, defense counsel and the prosecutor was a "Stipulation of Extended Term Sentencing" in which the parties agreed that defendant 1) was eligible for an extended term of imprisonment as a persistent offender, pursuant to N.J.S.A. 2C:44-3a, and 2) waived the requirement of a formal motion by the State. In that form, defendant stipulated his date of birth was March 2, 1966, which would have made him twenty-nine or thirty at the time of the sexual assault. Lastly, at the time of sentencing, the judge also possessed the pre-sentence investigation report which included defendant's date of birth, as did the police reports and criminal complaints contained therein.
Finally, given the vast difference in ages, the judge was capable of determining by defendant's physical appearance that he was at least four years older than the victim. As we noted in State v. Collins, 262 N.J. Super. 230, 236 (App. Div. 1993), "[t]here will . . . be occasions when defendant's physical appearance will permit the jury to determine beyond a reasonable doubt that defendant's age is the required age set forth in the statute." See also State v. Lassiter, 348 N.J. Super. 152, 162 (App. Div. 2002) (noting that age can be proven by inferences or physical appearance).
In sum, based upon the defendant's appreciation of the specific allegations of the charge, the various documentary proofs of defendant's age, and the judge's ability to observe defendant's physical appearance, we conclude that defendant's "acknowledgement of facts constituting the essential elements of the crime" "understood in light of all [the] surrounding circumstances," State v. Sainz, 107 N.J. 283, 293 (1987), demonstrates there was an adequate factual basis for acceptance of the plea.
Defendant raises the following issues regarding his sentence: 1) the judge improperly "double counted" defendant's prior convictions using them both as a basis to impose an extended term and as aggravating factors to impose the maximum term for each offense; 2) the judge failed to mention the nature and circumstances of the offenses; 3) the judge failed to give adequate reasons for the consecutive sentences imposed; 4) certain statutory penalties were not enacted until after the events charged in the indictment and could not be imposed as part of the sentence; 5) re-sentencing is required by State v. Natale, 184 N.J. 459 (2005) and State v. Pierce, 188 N.J. 155 (2006).
The State acknowledges that the so-called SANE penalty, N.J.S.A. 2C:43-3.6, and LEOTEF penalty, N.J.S.A. 2C:43-3.3, were enacted into law after the sexual assault took place. It concedes that these penalties could not have been part of defendant's sentence on Indictment 2929-08-03 and, therefore, the penalties must be vacated and defendant's judgment of conviction must be amended.
We are not persuaded by the balance of defendant's arguments. Here, the judge imposed the sentence that was contemplated by the express terms of defendant's plea bargain. Although this resulted in an aggregate sentence of thirty years, fifteen of which must be served without parole, it is significantly less than defendant faced on the two indictments.
The judge found aggravating factors three (the risk that the defendant would commit another offense), six (the extent of the defendant's prior criminal record and the seriousness of the offenses of which he was convicted), and nine (the need for deterring the defendant and others from violating the law). N.J.S.A. 2C:44-1a(3), (6), and (9). He found no mitigating factors. The judge specifically concluded the nature of the present offenses, serious crimes involving the sexual assault of a young woman and the possession of a firearm, not simply defendant's prior record, supported those findings. Moreover, the pre-sentence report indicated defendant had other indictable convictions in addition to those that supported his sentencing as a persistent offender pursuant to N.J.S.A. 2C:44-3a. Although the trial judge may have more artfully expressed the reasons for the sentence he imposed, we find no abuse of his discretion.
Defendant argues that the judge failed to adequately explain his rationale for consecutive sentences as required by State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014, 106 S.Ct. 1193, 89 L.Ed 2d 308 (1986). However, as we recently noted in similar circumstances, although
[n]o explicit assessment of the Yarbough factors was made in support of imposition of a consecutive sentence, [ ] the reasons are self evident. These were separate crimes committed on separate occasions and the plea agreement itself called for consecutive sentences. [State v. Soto, 385 N.J. Super. 247, 257 (App. Div.), certif. denied, 188 N.J. 491 (2006).]
Here the reasons for consecutive sentences, in full accordance with the plea bargain, are self-evident. Defendant was convicted of two separate crimes separated by more than five years. The consecutive sentences imposed were appropriate.
Lastly, based upon our holding in Soto, we reject defendant's request to be re-sentenced in accordance with Natale and Pierce. In Soto, consistent with the plea bargain struck, we upheld defendant's eighteen-month sentence with a period of eighteen months parole ineligibility even though it exceeded the prior "presumptive term" and was the statutory maximum for the crime. Soto, supra, 385 N.J. Super. at 254. We noted,
By agreeing to a plea agreement containing a sentencing recommendation of eighteen months with an equivalent parole disqualifier, rather than proceeding to trial, defendant waived any objection that the eighteen-month base sentence was excessive. The base sentence was within the statutory range for the offense, albeit the maximum of that range. If defendant had an objection to such a sentence, he should have raised it during negotiations with the State for the plea agreement or before the sentence was pronounced. Defendant cannot legitimately complain that the sentence was unexpected or that he received a sentence other than that for which he explicitly negotiated. [Id. at 255.]
Here, defendant received exactly what he bargained for and is not entitled to re-sentencing.
Affirmed. Remanded solely to amend defendant's judgment of conviction on Indictment 2979-08-03 consistent with this opinion. We do not retain jurisdiction.
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