On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 03-06-2228.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 17, 2007
Before Judges Lisa and Simonelli.
Defendant Ricky Davis appeals from the November 30, 2004, order denying his motion to withdraw his guilty plea. He also appeals his sentence. On this appeal, defendant raises the following arguments:
THE COURT BELOW ERRED IN DENYING THE DEFENDANT'S MOTION, WHICH WAS MADE PRIOR TO SENTENCING, TO WITHDRAW HIS GUILTY PLEA. POINT TWO THE SENTENCE IMPOSED WAS EXCESSIVE AND NOT IN CONFORMANCE WITH THE CODE OF CRIMINAL JUSTICE.
On December 3, 2002, defendant threatened three women with a box cutter. He struck two of the women, cut the third with the box cutter and forced her to participate in cunnilingus. On June 18, 2003, a grand jury indicted defendant for the following offenses: first degree aggravated sexual assault while armed with a weapon, contrary to N.J.S.A. 2C:14-2a(4) (count one); second degree aggravated assault, contrary to N.J.S.A. 2C:12-1b(1) (counts two, seven, eleven); third degree criminal restraint, contrary to N.J.S.A. 2C:13-2 (count three); fourth degree unlawful possession of a weapon, contrary to N.J.S.A. 2C:39-5d (counts four, eight, twelve); third degree possession of a weapon for unlawful purposes, contrary to N.J.S.A. 2C:39-4d (counts five, nine, thirteen); and third degree terroristic threats, contrary to N.J.S.A. 2C:12-3a (counts six, ten, fourteen).
On January 6, 2004, Frank J. Dyer, Ph.D., evaluated defendant. In a report, dated January 14, 2004, Dr. Dyer opined that defendant's: "reading comprehension is only at grade 2.2"; "intellectual functioning was found to lie within the borderline retarded range"; reading scores and word recognition skills "strongly indicates a severe learning disability"; and "severe learning disability primarily affecting his reading comprehension is also consistent with mild neurological impairment." Dr. Dyer did not opine that defendant was unable to understand the nature of a plea bargain or the consequences of entering a guilty plea.
Defendant entered a negotiated retraxit plea of guilty to counts one and eleven.*fn1 In exchange for defendant's guilty plea, the State agreed to a sentence not to exceed twenty-two years, subject to the provisions of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and Megan's Law, N.J.S.A. 2C:7-1 to -19, and to dismiss the remaining counts.
On February 27, 2004, defendant, then represented by counsel, appeared at a plea hearing before Judge F. Michael Giles. Defendant's attorney did not raise any issue regarding defendant's inability to voluntarily, knowingly and intelligently enter the guilty plea. During the plea hearing, Judge Giles reviewed the Plea Form. Defendant acknowledged he could be incarcerated for twenty years on count one and a maximum of ten years on count eleven; reviewed the form with his attorney, who helped him answer the twenty-four questions on the form; circled the answers; and signed page three. Defendant also stated he understood by pleading guilty he was giving up his right to a trial, and he responded affirmatively when asked if he voluntarily gave up his rights.
Judge Giles also reviewed the Supplemental Plea Form for NERA Cases. Defendant acknowledged he discussed the form with his attorney and she explained the following to him: he would have to serve at least eighty-five percent of his sentence before being eligible for parole; would have to serve a mandatory five years of parole supervision; his parole could be revoked if he violated and he could be returned to prison to serve all or any portion of the remaining period of parole supervision even if he completed his jail term. Defendant signed the form.
Judge Giles also reviewed the Supplemental Plea Form for Sexual Offenses. Defendant answered, "Yes," to Question 2, which asked:
Do you understand if the examination reveals that your conduct is characterized by a pattern of repetitive and compulsive behavior, the judge may sentence you to confinement at the Adult Diagnostic and Treatment Center for a program of specialized treatment for your mental condition?
Defendant also answered, "Yes," to Question 4.c., which asked:
Do you understand if you are sentenced to the Adult Diagnostic and Treatment Center . . . .
c. that you could spend more time in treatment than you would spend if sentenced to state prison?
In addition, defendant acknowledged that he understood what the judge meant when he said that defendant might be required to go to the ADTC in Avenel to determine if his conduct is repetitive or compulsive. The judge also questioned defendant as follows:
THE COURT: Well, just in case you don't, repetitive means that you may be inclined -- after the doctor examines you and speaks to you, you may be inclined to commit sexual offenses again. Compulsive means that you may have some kind of psychological psychiatric problem which causes you to commit sexual offenses. The doctor will make that determination. If the doctor makes that determination that you are either repetitive or compulsive, I'll have to sentence you -- sentence you to an institution, where they will treat you for those kind of problems. If the doctor says no, he is not a repetitive or compulsive offender, he's not had any offenses like this in his background before, then you'll be sentenced to State prison, and that's where you'll serve your sentence. Do you understand?
THE COURT: Now, the form also tells you that you could challenge the findings made by the doctor and the medical professionals. And it tells you about if you are sentenced to a treatment facility what your parole guidelines are. All right?
Now, you've had -- you -- you reviewed that form with your lawyer, is that right?
THE COURT: And that -- is that your signature on the bottom of that page?
THE COURT: Do you have any questions ...