On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 04-07-1245-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 14, 2007
Before Judges S.L. Reisner and Lyons.
Defendant Edward Milius appeals from a forty-year sentence imposed by the trial judge, comprised of two consecutive twenty-year sentences, following defendant's agreement to a plea bargain that called for a maximum aggregate sentence of twenty years. Having concluded that the sentence was imposed based on a mistaken understanding as to the plea agreement, we reverse and remand for a new sentencing hearing.
Defendant was arrested and charged with repeatedly molesting a young girl under the age of thirteen, over a period of three years. He agreed to plead guilty to two counts of first degree aggravated sexual assault, N.J.S.A. 2C:14-2a. The terms of the written plea form are virtually illegible, but appear to refer to the plea as "open ended." At defendant's plea hearing on November 15, 2004, the prosecutor described the plea bargain as "the defendant is pleading guilty open-ended; the only recommendation by the State is that both counts run concurrent, and sentencing will be left to the judge's discretion." However, when the judge reviewed with defendant the terms of the plea deal, he described a different agreement. After noting that the State had agreed to dismiss two counts of the indictment, the court engaged defendant in the following colloquy:
[The court]: But the plea otherwise is open-ended; and what that means is that sentencing will be left entirely to the Court's discretion. That means that I could impose ten years, which is the minimum, or 20 years, which is the maximum, and the only promise that's made is that the sentences on each of the offenses will be concurrent with each other. Do you understand that?
The prosecutor made no objection to the plea agreement terms as the judge stated them. Defendant was also advised that he would be evaluated to determine whether he should be sentenced to Avenel as a repetitive and compulsive sex offender. At the conclusion of the hearing the judge indicated that "[a]ny and all promises made to induce this plea are limited to those that are set forth on the record. And [defendant] fully understands the parameters of this plea agreement."
On February 10, 2005, Dr. Singer issued the report of his evaluation of defendant, opining that defendant was a repetitive and compulsive sex offender who "would accept sex offender treatment albeit reluctantly" and that he had "the psychological resources to benefit from such treatment." Dr. Singer also opined that "[defendant's] pattern of sexual offending behaviors, from the psychological evidence generated, convincingly satisfies the necessary elements for sentencing under the purview of the New Jersey Sex Offender Act."
Defendant was not sentenced until August 12, 2005. At the beginning of the hearing, the judge questioned whether defendant was amenable to treatment at Avenel, in light of defendant's statements to Dr. Singer about his ambivalence. In response to the judge's questions, defendant's counsel assured the judge that defendant was "[a]bsolutely" willing to accept treatment. Defense counsel also withdrew the objections that he had initially raised concerning the factual basis for Dr. Singer's report, and he clarified that although defendant ...