December 15, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
LAWRENCE SPEED, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 06-01-0038.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 12, 2009
Before Judges Miniman and Waugh.
Defendant Lawrence Speed appeals his conviction, following a guilty plea, for third-degree endangering the welfare of a child, contrary to N.J.S.A. 2C:24-4(a), as well as the resulting sentence of three-years incarceration, subject to the provisions of Megan's Law, N.J.S.A. 2C:7-1 to -19.*fn1 He also appeals the denial of his motion to withdraw his plea. We reverse.
In a two count indictment returned by the Cumberland County Grand Jury on January 11, 2006, Speed was charged with second-degree aggravated sexual assault, contrary to N.J.S.A. 2C:14-2(c)(4), and fourth-degree criminal sexual contact, contrary to N.J.S.A. 2C:14-3(b).*fn2 Both charges were based on allegations that Speed, who was then nineteen years old, had sexual intercourse with a female victim who was at least thirteen years old, younger than sixteen years old, and at least four years younger than Speed. It appears from the record that the victim made inconsistent assertions as to the voluntariness of her relationship with Speed.*fn3
Speed was offered and accepted the opportunity to plead guilty to a single count of endangering the welfare of a minor, N.J.S.A. 2C:24-4(a), which is a third-degree crime, with a recommendation for a three-year custodial sentence. He entered his guilty plea on May 1, 2006. The plea judge accepted the plea based upon the following factual basis.
DIRECT EXAMINATION BY [Defense Counsel]:
Q: Mr. Speed, back on September 10, 2005, were you in Bridgeton?
Q: And, do you know somebody with the initials of [victim's initials]?
Q: Now, you know we can only use the initials. Okay? All right. Now, this person who is [victim's initials], at the time that you were with her, was she less than 16 years old?
Q: But, she was at least 13 years old;
-- A: Yes.
Q: -- is that right? And, at that very same time, how old were you?
Q: And, what if anything did you do that makes you guilty of endangering the welfare of a child?
A: I had sexual intercourse with her. [Defense Counsel]: Nothing further, Your Honor.
THE COURT: All right. At this time, I find that there is a sufficient factual basis for the plea. I find it was made freely, voluntarily, without coercion, with adequate representation of counsel, and knowing waiver of trial. I'll accept it and schedule sentencing once the Avenel evaluation has been completed.
As required by N.J.S.A. 2C:47-1, Speed was evaluated at the Adult Diagnostic and Treatment Center (ADTC) in Avenel. The ADTC report determined that Speed's conduct was not "characterized by a pattern of repetitive, compulsive behavior" as required by N.J.S.A. 2C:47-3(a) for incarceration and treatment at the ADTC.
Based upon other information contained in the report, specifically his denial of guilt and his IQ testing, as well as his belief that his defense counsel had coerced him into entering the plea, Speed sought to file a motion to withdraw his plea on October 25, 2006. Although the motion filed by Speed's then counsel was sent to the Prosecutor, it was not actually filed with the court. It appears from the record that there was an issue of conflict between Speed and his attorney, based upon the allegation of coercion, so the plea judge instructed defense counsel to seek substituted counsel to file the motion with the court.
Speed appeared for sentencing on November 3, 2006, before the same judge who had taken the guilty plea. By that time, he was represented by new counsel. The judge was unwilling to adjourn the sentencing to allow new counsel to file the motion to withdraw the plea. The judge proceeded and imposed the recommended three-year sentence.
Speed subsequently filed his motion to withdraw the plea. The motion was opposed by the State. The same judge heard the motion on August 10, 2007. Because there had been an attempt to file the motion prior to sentencing, the judge considered it as if the motion had been so filed. See 3:21-1. He denied the motion.
This appeal followed.
Speed raises the following issues on appeal:
POINT I: THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING THE DEFENDANT'S PRESENTENCE MOTIONS TO WITHDRAW THE GUILTY PLEA. U.S. CONST. AMENDS. V, VI, VIII, AND XIV; N.J. CONST. ART. I, ¶¶ 1, 10.
POINT II: THE TRIAL COURT ABUSED ITS JUDICIAL DISCRETION IN ACCEPTING DEFENDANT'S GUILTY PLEA WHERE THE FACTUAL BASIS OMITTED ANY REFERENCE TO DEFENDANT'S STATE OF MIND ON THE OFFENSE DATE.
POINT III: THE TRIAL JUDGE ABUSED HIS DISCRETION IN IMPOSING AN EXCESSIVE SENTENCE BY FAILING TO PROPERLY CREDIT DEFENDANT WITH A MITIGATING FACTOR.
We turn first to Speed's contention that the factual basis he gave when he entered the plea was inadequate. The gist of Speed's argument is that his "factual plea did not illustrate that he was aware of the fact that his conduct endangered the welfare of the child at the time the offense was committed." (Emphasis in original).
The statute to which Speed pled, N.J.S.A. 2C:24-4(a) (emphasis added), provides:
Any person having a legal duty for the care of a child or who has assumed responsibility for the care of a child who engages in sexual conduct which would impair or debauch the morals of the child, or who causes the child harm that would make the child an abused or neglected child as defined in R.S. 9:6-1, R.S. 9:6-3 and P.L. 1974, c. 119, § 1
(C. 9:6-8.21) is guilty of a crime of the second degree. Any other person who engages in conduct or who causes harm as described in this subsection to a child under the age of 16 is guilty of a crime of the third degree.
Because Speed had no duty, legal or assumed, to care for the victim, his conduct falls under the "any other person" provision contained in the last sentence.
Speed relies on State v. Demarest, 252 N.J. Super. 323, 327-34 (App. Div. 1991), which held that a violation of the same statute required that the State prove "knowing" conduct. The State points out, correctly, that Demarest involved the abuse or neglect aspect of the statute. However, in Demarest, the State had conceded that "defendant's argument would be correct if he had been charged with the form of endangering the welfare of a child proscribed by the first part of N.J.S.A. 2C:24-4(a), namely, 'engag[ing] in sexual conduct which would impair or debauch the morals of the child.'" Id. at 327.
The Model Jury Charge with respect to N.J.S.A. 2C:24-4(a) supports Speed's contention that the "knowing" element of the offense relates to knowledge that his conduct would tend to impair or debauch the morals of the victim. The Model Jury Charge provides, in part:
The third element that the State must prove beyond a reasonable doubt is that defendant engaged in the sexual conduct knowing that it would impair or debauch the morals of the child. Sexual conduct which would impair or debauch the morals of the child is conduct which tends to corrupt, mar, or spoil the morals of a child under sixteen (16) years of age. The State does not have to show that the sexual conduct actually impaired or debauched the morals of (name of victim). In analyzing the proofs to determine whether the evidence demonstrates that defendant's conduct would tend to impair or debauch the morals of the child, evaluate the proofs in the context of objectively reasonable contemporary standards. I have previously defined the concept of "knowing" for you.
In State v. Hackett, 166 N.J. 66, 80 (2001), the Supreme Court relied upon essentially the same language from an earlier version of the model charge, as well as pre-Code case law, in determining that "it is not necessary for the State to show that the sexual conduct actually resulted in impairing or debauching the morals of the child." It was implicit in the Court's ruling that an element of the offense was proof that a defendant engaged in the sexual conduct "knowing" that it "would tend to impair or debauch the morals of the child."
Speed's response to the question "what if anything did you do that makes you guilty of endangering the welfare of a child" was not sufficient to satisfy the requirement that he admit to knowledge, at the time of the offense, that his conduct would "tend to impair or debauch" the victim's morals. He admitted to sexual intercourse, but not to knowing that the conduct would tend to impair the victim's morals at the time of the offense. Consequently, there was an inadequate factual basis for the plea.
Because we have determined that there was an insufficient factual basis for the plea, we vacate the plea and reverse the judgment of conviction. We remand for further proceedings consistent with this decision. Consequently, we need not reach the other issues raised on appeal.
Reversed and remanded.