On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 05-01-0384.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Skillman and Parrillo.
Defendant was indicted for aggravated sexual assault, in violation of N.J.S.A. 2C:14-2(a)(2)(c); sexual assault, in violation of N.J.S.A. 2C:14-2(c)(1); aggravated criminal sexual contact, in violation of N.J.S.A. 2C:14-3(a); endangering the welfare of a child, in violation of N.J.S.A. 2C:24-4(a); and terroristic threats, in violation of N.J.S.A. 2C:12-3(a).
Defendant entered into a plea agreement under which he agreed to plead guilty to an amended charge of endangering the welfare of a child, and the State agreed to dismiss the other charges set forth in the indictment. The State also agreed to recommend that defendant be sentenced to five years of non-custodial probation. The trial court sentenced defendant in accordance with the plea agreement to a five-year term of probation.
Defendant did not appeal from this sentence, which was imposed on March 31, 2006. On September 28, 2006, defendant filed a motion to withdraw his plea, which was denied. Defendant did not appeal from that denial.
On October 16, 2009, defendant filed a petition for post- conviction relief. Defendant claimed that he had not provided an adequate factual basis for his plea and therefore his conviction had to be "vacated."
The State filed its answer to the petition on February 16, 2010, which was beyond the sixty-day period provided by Rule 3:22-9 for answering a petition for post-conviction relief.
Based on that late answer, defendant filed a motion on February 18, 2010, for what he described as a "judgment upon the pleadings," by which he sought to vacate his conviction or, alternatively, to bar consideration of the State's answer to his petition.
The trial court heard argument on both this motion and the petition on February 19, 2010. The court denied defendant's motion based on the State's late filing of its answer.
Defendant's counsel then requested a continuance to file an amended petition. The court denied this request. After defendant's counsel indicated that he had no further argument to present, the trial court delivered an oral ...