July 30, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
CHRISTOPHER R. LILAND, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Warren County, Indictment No. 03-11-0388-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 20, 2006
Decided January 25, 2007
Remanded by the Supreme Court on June 15, 2007
Resubmitted July 18, 2007
Before Judges Stern and Sabatino.
In our opinion filed on January 25, 2007, we affirmed defendant's conviction and sentence for a violation of fourth degree failure to verify an address as required by Megan's Law, in violation of N.J.S.A. 2C:7-2(a) and (e).*fn1
Following the filing of our opinion, defendant petitioned for certification. The Supreme Court granted the petition and summarily remanded the matter to us. The Supreme Court's order reads:
A petition for certification of the judgment in A-6343-03 having been submitted to this Court, and the Court having considered the same;
It is ORDERED that the petition for certification is granted, limited solely to the effect of defendant's conditional guilty plea, and in respect of that issue the matter is summarily remanded to the Appellate Division for its reconsideration on the merits after having clarified the nature of the charge to which defendant pled guilty on March 23, 2004.
The negotiated plea form is not presented in either party's appendix, but there is no question that when defendant entered his guilty plea on March 23, 2004, the plea was entered with the understanding, in the judge's words, that defendant was "going to appeal a motion which I denied this morning and should that appeal be successful . . . may withdraw this guilty plea." The motion was for a hearing as to whether defendant should be relieved of his obligation to register under Megan's Law. See In re Registrant J.G., 169 N.J. 304 (2001). Defendant then entered a plea for "fail[ing] to verify" his address with the Chief of Police of the municipality in which he resided "as of February 14th, 2003." (Emphasis added). He acknowledged that he "fail[ed] to register as of February 14th, 2003," notwithstanding he was aware that he "had an obligation to register." (Emphasis added). We will assume, for present purposes, as the defendant claimed in his petition for certification, that he pled guilty to failing to verify his address.
The issue before us now is the nature of the exception to the plea waiver rule in terms of the issue preserved for appeal. See R. 3:9-3(f). See also, e.g., State v. Knight, 183 N.J. 449, 471 (2005). It is clear to us, as it was to the defendant at the time he filed his brief before us, that the issue related to whether defendant was required to register under Megan's Law so as to be obligated to verify his address. In defendant's words, the issue raised before us on the direct appeal was:
THE TRIAL COURT ERRED IN DENYING MR. LILAND'S MOTION TO CONDUCT A HEARING TO DETERMINE WHETHER MR. LILAND WAS REQUIRED TO REGISTER UNDER MEGAN'S LAW AND WHETHER HE SATISFIED THE REQUIREMENTS FOR EXEMPTION AS SET FORTH IN IN RE REGISTRANT J.G.
a. The trial court failed to consider that Mr. Liland received erroneous advice from his attorney as well as the judge in Morris County with regard to his obligation to register under Megan's Law.
We adhere to our initial opinion in that we continue to agree with the trial judge that raising of an issue concerning the obligation to register under J.G., if a J.G. hearing would have been requested, should not be a subject which can be raised nunc pro tunc, or as within time, after indictment for failure to verify. Similarly, whatever advice defendant may have received in Morris County after the date embodied in this indictment cannot impact on what he did not do previously.
However, defendant may have pled guilty to a crime that did not exist at the time of the alleged offense, see Gyori,*fn2 supra, and defendant would at least have a claim for ineffective assistance of counsel if he did. Moreover, our rules allow a challenge that "an indictment or accusation fails to charge an offense" may be raised "on appeal." R. 3:10-2(d). Despite footnote 2 of our original opinion, defendant ultimately raised the Gyori issue in his petition for certification. Accordingly, we remand to the Law Division to:
1. definitively determine the crime to which defendant pled guilty; and
2. consider the application and impact of State v. Gyori if the crime was failure to verify.*fn3
Remanded for further proceedings consistent with this opinion.