On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 04-02-0237.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 24, 2007
Before Judges Sapp-Peterson and Messano.
Defendant Ronald Blackwell appeals from the judgment of conviction entered 1) after his guilty plea to two counts of sexual assault in the second degree, N.J.S.A. 2C:14-2(c); and 2) after two findings of contempt made by the trial judge during defendant's sentencing. Defendant raises two points for our consideration.
THE DENIAL OF DEFENDANT'S PRE-SENTENCE MOTION TO WITHDRAW HIS GUILTY PLEA WAS AN ABUSE OF THE TRIAL COURT'S DISCRETION.
THE JUDGMENTS OF CONTEMPT MUST BE VACATED BECAUSE THE TRIAL [COURT] FAILED TO FOLLOW THE REQUISITE PROCEDURES.
We have considered these arguments in light of the record and applicable legal standards. We reject defendant's first argument and affirm that portion of the Judgment of Conviction regarding the sexual assaults. However, because the trial judge failed to follow the necessary procedures required by Rule 1:10-1 and -2, we vacate defendant's convictions and the sentences imposed for the two contempts.
Defendant was charged in Atlantic County Indictment 04-02-0237 with six counts of sexual assault in the second degree, N.J.S.A. 2C:14-2(c); two counts of criminal sexual contact in the fourth degree, N.J.S.A. 2C:14-3; endangering the welfare of a child in the third degree, N.J.S.A. 2C:24-4(a); and terroristic threats in the third degree, N.J.S.A. 2C:12-3(a). At the time, defendant was thirty-one years of age, and the victim, the same young woman identified in all counts of the indictment, was alleged to be between the ages of thirteen and sixteen.*fn1 On October 24, 2005, after a jury was selected and as opening statements were about to be made, defendant decided to retract his not guilty plea and to plead guilty to two counts of sexual assault.
The matter was scheduled for sentencing on January 6, 2006. However, in the interim, defendant refused to attend his scheduled evaluation at the Adult Diagnostic and Treatment Center (Avenel), and filed a pro se motion to withdraw his previously-entered guilty pleas and to discharge his attorney.*fn2
After indicating that he wished to proceed pro se and to withdraw his plea, the defendant acknowledged that he had not attended the Avenel evaluation. The judge explained,
[If] [y]ou think I'm going to go through your whole case and all the discovery, I'm not. All I'm going to do is look at a transcript to see if your plea was entered knowingly and voluntarily, that's it. I'm not going to hear your case. You're not going to manipulate the system to get a mini trial out of your motion to vacate a plea. Just so you understand. Okay? So you['re] going to represent yourself?
Defendant indicated that he would undergo the Avenel assessment, but insisted that he wished to represent himself at sentencing.
The judge indicated that he would consider the defendant's request again at the time of sentencing, and that, for the moment, ...