On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 96-07-1128.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern and Waugh.
Defendant Rodney Roberts appeals the dismissal of his petition for post-conviction relief (PCR). We reverse and remand for an evidentiary hearing.
We discern the following facts and procedural history from the record. Roberts was charged with first-degree aggravated sexual assault, N.J.S.A. 2C:14-2, and second-degree kidnapping, N.J.S.A. 2C:13-1, in connection with a rape that occurred on May 8, 1996. He pled guilty to the second-degree kidnapping charge on July 16, 1996, admitting that he held a seventeen-year-old female against her will, intending to assault her. By the time of the plea, the police had a sworn statement from the victim, in which she had identified Roberts as her assailant on the basis of a photographic array.
Roberts was sentenced to incarceration for seven years, concurrent with a violation of parole sentence of three years.
The aggravated sexual assault charge was dismissed. The violation of parole resulted from Roberts' arrest for second- degree robbery, N.J.S.A. 2C:15-1, on May 25, 1996, as the result of which he pled guilty to third-degree theft, N.J.S.A. 2C:20-3, and received a concurrent sentence of three years. No appeal followed those pleas and sentences.
In May 2000, Roberts' application for parole was denied by a panel of the New Jersey State Parole Board (Board). He was given a twenty-seven month parole-eligibility date. The Board upheld the panel's decision in December 2000. No appeal followed that decision.
However, in January 2001, Roberts filed a pro se motion seeking to withdraw his guilty plea pursuant to Rule 3:9-3(e). In his certification in support of the motion, Roberts made the following factual assertions:
7. On the date of July 16, 1996, the State offered defendant a plea, recommending that it would dismiss the offense of Sexual Assault, down grade the kidnapping to second degree, and recommend that a 7 year term be imposed (with no parole ineligibility) to be served concurrent to the parole violation, and the Theft offense (the May 25, 1996, Robbery was down graded to Theft and a 3 year term imposed pursuant to a plea agreement Acc. No. A936-6-96).
8. Defendant was assured by defense counsel, the State, and the court that the offense of sexual assault would be removed from the record and dismissed "with prejudice," and could not be used to penalize defendant in any future proceedings.
9. Under this false advise the defendant entered a plea of Guilty to the offense of Kidnapping, and gave a factual basis "only" to the offense of Kidnap[ping].
10. On the date of July 26, 1996, defendant was sentenced to a term of 7 years to be served concurrent with the parole violation, and the Theft.
11. On the date of April 16, 1998, defendant appeared before New Jersey Parole Board for a parole release hearing. Parole was denied based on the fact that defendant's record indicated that the dismissed offense of sexual assault was the controlling offense in my files, and the circumstances [of] the offense indicated that "Defendant had forced a 17 year old girl into a secluded area and forced her to have sex with him, stating that [I] defendant would blow off her head if she did not comply."
12. Defendant attempted to inform the parole members that the offense in question was dismissed from the complaint and no factual basis was given to support such allegations. The only offense of guilt was a Kidnap[ping], 2nd. degree, wherein "No harm came to the alleged victim."
13. On the date of May 25, 2000, defendant was again seen by the Parole Board, and again parole was denied based on the impression that the circumstances of the dismissed offense [were] controlling the record and the sexual assault occurred. Claiming that as long as the court and the Department of Corrections included the information in the record, then the circumstances surrounding the offense could be used to deny parole.
Although the criminal records manager in Essex County sent the motion to the Public Defender for the assignment of counsel as an application for PCR, the motion was denied the following day without counsel having been assigned. In a letter dated January 18, 2001, the trial judge stated that he was denying the motion because "[t]here is absolutely no basis to support" it.
He added that Roberts should appeal the Board's denial of parole if he believed it was "improper." No ...