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State ex rel S.M.

July 17, 2009

STATE OF NEW JERSEY IN THE INTEREST OF S.M., A MINOR.


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Warren County, Docket Nos. FJ-21-521-01 and FJ-21-522-01.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 16, 2008

Before Judges Gilroy and Chambers.

Appellant S.M. appeals from the June 9, 2008 order of the Family Part that denied his motion to withdraw his August 14, 2001 pleas of guilty to two acts of juvenile delinquency. We affirm in part; reverse in part; and remand to the trial court for further proceedings consistent with this opinion.

On August 14, 2001, appellant, then thirteen years of age, pled guilty, pursuant to a plea agreement, to offenses which, if committed by an adult, would constitute sexual assault, N.J.S.A. 2C:14-2c, and endangering the welfare of a child, N.J.S.A. 2C:24-4a. In exchange for defendant's pleas, the State dismissed two additional charges of sexual assault and two charges of criminal sexual contact. On disposition, the trial court placed appellant on probation for a period of three years and ordered him to comply with Megan's Law registration requirements. N.J.S.A. 2C:7-2 to -5.

On October 11, 2002, appellant pled guilty to unrelated offenses which, if committed by an adult, would constitute sexual assault, N.J.S.A. 2C:14-2c; attempted sexual assault, N.J.S.A. 2C:14-2c; endangering the welfare of a child, N.J.S.A. 2C:24-4a; aggravated criminal sexual contact, N.J.S.A. 2C:14-3a; criminal sexual contact, N.J.S.A. 2C:14-3b; criminal trespass, N.J.S.A. 2C:18-3b; and violation of probation on the August 14, 2001 charges. On disposition, the court committed appellant to two years at the Pinelands Residential Community Home and placed him on probation for a term of three years.

On October 24, 2005, after release from the Pinelands Residential Community Home, appellant, then seventeen years of age, was adjudicated delinquent in Pennsylvania for an offense which, if committed by an adult, would constitute indecent assault. On disposition, the court committed appellant to the Northampton County Juvenile Justice Center Treatment Unit. On release, appellant was transferred to Warren County and adjudicated delinquent on September 26, 2006, on a violation of probation offense based on his juvenile adjudication in Pennsylvania. On the same day, the court revoked appellant's probation and committed him to the Juvenile Justice Center for a term of two years. As of that date, appellant had pled guilty to offenses which, if committed by an adult, would constitute seven sexual assaults on seven different victims.

On November 13, 2007, the trial court entered an order temporarily committing appellant to the Special Offenders Unit Annex, pursuant to the Sexually Violent Predators Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38, pending a final hearing on the State's application for appellant's commitment under the SVPA.

On April 8, 2008, appellant filed a motion to withdraw his guilty pleas of August 14, 2001.*fn1 On June 9, 2008, Judge John Coyle entered an order, supported by an oral decision, denying the motion.

On appeal, appellant raises the same arguments presented in the trial court.

POINT I.

THE JUVENILE/APPELLANT SHOULD BE PERMITTED TO WITHDRAW FROM HIS GUILTY PLEA-THE JUVENILE WAS NOT UNDER OATH PURSUANT TO [R.] 3:9-2.

POINT II.

THE JUVENILE/APPELLANT SHOULD BE PERMITTED TO WITHDRAW FROM HIS GUILTY PLEA-NO PARENT/GUARDIAN WAS PRESENT ON THE RECORD DURING THE ENTRY OF THE GUILTY PLEA AS REQUIRED BY [R.] 5:20-4.

POINT III.

THE JUVENILE/APPELLANT SHOULD BE PERMITTED TO WITHDRAW FROM HIS GUILTY PLEA-HE WAS NOT ADVISED OF HIS EXPOSURE TO THE SEXUALLY VIOLENT PREDATOR ACT (SVPA).

POINT IV.

THE JUVENILE/APPELLANT SHOULD BE PERMITTED TO WITHDRAW FROM HIS GUILTY PLEA-THE JUVENILE WAS NOT ADVISED ABOUT THE PENAL CONSEQUENCES OF MEGAN'S LAW.

POINT V.

THE JUVENILE/APPELLANT SHOULD BE PERMITTED TO WITHDRAW FROM HIS GUILTY PLEA-THERE WAS AN INSUFFICIENT FACTUAL BASIS TO SUPPORT THE PLEA.

POINT VI.

THE JUVENILE/APPELLANT SHOULD BE PERMITTED TO WITHDRAW FROM HIS GUILT PLEA-A MOTION TO WITHDRAW A GUILTY PLEA MAY BE MADE TO CORRECT A MANIFEST INJUSTICE.

I.

Motions to withdraw guilty pleas are governed by Rule 3:21-1. Accordingly, "a plea may only be set aside in the exercise of the court's discretion," and if the motion is made after sentencing, the "defendant[] must show [his or her] conviction was manifestly unjust in appealing to the court's broad discretion." State v. Slater, 198 N.J. 145, 156 (2009). In meeting his or her burden, a "defendant[] must show more than a change of heart. A 'whimsical change of mind,' by the defendant or the prosecutor, is not an adequate basis to set aside a plea." Id. at 157 (quoting State v. Huntley, 129 N.J. Super. 13, 18 (App. Div.), certif. denied, 66 N.J. 312 (1974)). Simply stated, a defendant must "'present some plausible basis for his [or her] request, and his [or her] good faith in asserting a defense on the merits, so the trial judge is able to determine whether fundamental fairness requires a granting of the motion.'" State v. ...


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