On appeal from Superior Court of New Jersey, Law Division, Criminal Part, Hudson County, Indictment Nos. 04-05-0720, 04-05-0846, and 04-07-1116.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE COMMITTEE ON OPINIONS
Submitted January 13, 2010
Before Judges Graves and Newman.
On January 23, 2008, defendant Marquis Gilchrist pled guilty to first-degree aggravated sexual assault, in violation of N.J.S.A. 2C:14-2(a) (count one of Indictment No. 04-07-1116).
In exchange for his plea, the State agreed to recommend that defendant's sentence would not exceed fifteen years with an eighty-five percent period of parole ineligibility, pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The State also recommended concurrent sentences for two other offenses*fn1 and agreed to dismiss additional charges. On May 23, 2008, defendant was sentenced consistent with the plea agreement. The court imposed a fifteen-year prison term for aggravated sexual assault with a mandatory period of parole ineligibility under NERA; concurrent sentences were imposed on the burglary and resisting arrest charges; and appropriate fines, penalties, and Megan's Law conditions were imposed.
On appeal, defendant presents the following arguments:
THE SECOND TRIAL JUDGE ERRED IN DETERMINING THAT DEFENDANT WAS COMPETENT ONLY MONTHS AFTER THE FIRST TRIAL JUDGE FOUND HIM INCOMPETENT, PARTICULARLY WHERE THE SECOND JUDGE DID NOT CONSIDER THE EVALUATIONS AND OPINIONS WHICH THE FIRST JUDGE HAD FOUND CREDIBLE IN REACHING THE OPPOSITE CONCLUSION.
DEFENDANT'S GUILTY PLEA WAS INVALID; HE SHOULD HAVE BEEN PERMITTED TO WITHDRAW IT BEFORE SENTENCING.
REMAND FOR HEARING AND CONSIDERATION OF DEFENDANT'S SUPPRESSION MOTION IS REQUIRED (WITH DIRECTION THAT THE TRIAL COURT HOLD THE ...