February 3, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ROBERT RANKIN, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 05-10-4008.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 5, 2011
Before Judges Fisher and Sapp-Peterson.
Defendant appeals his conviction, following the entry of a guilty plea to third-degree attempted burglary, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:18-2. We reverse and remand for trial or further proceedings.
On April 1, 2005, police were dispatched to an apartment on Black Horse Pike in Blackwood on a report that an individual, later identified as defendant, was attempting to break into an apartment where the victim, his former girlfriend, was house- sitting. Police apprehended defendant, who claimed that "he attempted to get into the apartment because he thought his girlfriend was in danger." Police observed pry marks on the front door and found a metal crowbar in the back of defendant's pickup, which was parked in front of the apartment.
In addition to third-degree criminal attempt to commit burglary, a grand jury indicted defendant for third-degree terroristic threats, N.J.S.A. 2C:12-3(a) and (b) (Count Two), and fourth-degree criminal contempt, N.J.S.A. 2C:29-9(b) (Count Three). On September 25, 2006, defendant appeared before the trial court with counsel. Pursuant to a negotiated plea agreement, counsel advised that defendant would plead guilty to third-degree criminal attempt to commit burglary in exchange for a recommendation from the State that he would receive a three- year probationary sentence. The sentence would also include a condition that he obtain drug counseling and not have any uninitiated contact with the victim. Defendant acknowledged his obligation to pay all appropriate fines and penalties and waived his right to a jury trial and also to appeal.
On July 11, 2008, the court sentenced defendant in accordance with the terms of the agreement, and defendant once again waived his right to appeal. However, on November 6, 2008, defendant filed a notice of appeal. On July 29, 2009, defendant's appeal was placed on the sentencing calendar pursuant to Rule 2:9-11.
At oral argument, defense counsel, relying upon State v. Marquez, 277 N.J. Super. 162, 169 (App. Div. 1994), certif. denied, 141 N.J. 99 (1995), argued that defendant's conviction could not stand because he did not enter the premises where the victim was house-sitting with the purpose to commit an offense therein. On July 31, 2009, by our own motion, we transferred this matter "to the regular calendar for briefing of the issue raised at Sentencing Oral Argument." Defendant raises the following points for our consideration:
POINT I UNDER STATE V. MARQUEZ, 277 N.J. SUPER. 162 (APP. DIV. 1995), RANKIN'S ATTEMPTED ENTRY INTO THE APARTMENT IN VIOLATION OF A RESTRAINING ORDER DID NOT ESTABLISH A PURPOSE TO COMMIT AN OFFENSE THEREIN.
POINT II IN LIGHT OF RANKIN'S TESTIMONY TO THE CONTRARY, THE JUDGE WAS NOT PERMITTED TO INFER THAT RANKIN HAD A PURPOSE TO COMMIT AN ACT OF DOMESTIC VIOLENCE INSIDE THE APARTMENT. MOREOVER, EVEN IF THE JUDGE HAD BEEN PERMITTED TO DRAW SUCH AN INFERENCE, IT IS CLEAR THAT HE DECLINED TO DO SO, AND THAT HIS DECISION TO ACCEPT RANKIN'S GUILTY PLEA WAS BASED SOLELY ON THE EXISTENCE OF THE RESTRAINING ORDER.
A. THE JUDGE WAS NOT PERMITTED TO INFER A PURPOSE TO COMMIT DOMESTIC VIOLENCE.
B. BY THRICE REFUSING TO ACCEPT RANKIN'S GUILTY PLEA, THE JUDGE CLEARLY INDICATED THAT . . . HE DID NOT BELIEVE THAT RANKIN INTENDED TO COMMIT AN ACT OF DOMESTIC VIOLENCE.
Prior to accepting a guilty plea, the judge presiding over the proceeding must be satisfied that the defendant has provided an adequate factual basis for that plea. State v. Barboza, 115 N.J. 415, 421 n.1 (1989). Rule 3:9-2 requires the judge taking the plea to personally address a defendant in order to determine whether there is a factual basis for the plea. Ibid. The factual basis must contain every element of the crime to which a defendant is pleading guilty. State ex rel. T.M., 166 N.J. 319, 333-34 (2001). Here, defendant pled guilty to attempted burglary, which requires a factual basis establishing that defendant attempted to enter into the premises where the victim was house-sitting with the purpose to commit an offense therein. N.J.S.A. 2C:5-1 and N.J.S.A. 2C:18-2. An attempt is committed if the conduct is purposeful with the objective to cause a particular result. State v. Smith, 322 N.J. Super. 385, 399 (App. Div.), certif. denied, 162 N.J. 489 (1999). Defendant was questioned a number of times before the court ultimately accepted the plea.
The court's first attempt to secure a factual basis for the plea was as follows:
Q. On or about April 1, 2005, last year, you were in Gloucester Township?
Q. And did you go into an apartment ... on the Black Horse Pike?
Q. Whose apartment was it, do you know?
A. ... It's a friend of my friend.
Q. Did you have permission of the person who lived there to go into the apartment?
A. At the time, no.
Q. And you went in there. What were you going to do?
A. I didn't go in.
After further questioning, the court remarked, "We don't
have a plea." The assistant prosecutor next attempted to elicit
a factual basis from defendant:
Q. You were waiting for someone else to come. Was that [R.C.]?
Q. She's your girlfriend?
Q. You had a domestic incident with her earlier that evening, correct?
Q. Did you want to wait so you could finish that night?
A. No, it wasn't nothing like that. She called my cell phone. The court once again remarked that this was not sufficient and expressed the view that any attempt to elicit a plea should be withdrawn. However, defense counsel requested the opportunity to "ask one or two questions." The following colloquy occurred between defendant and his attorney with additional questions posed by the court thereafter:
Q. Mr. Rankin, when you tried to enter the house -- you're a plumber, correct?
Q. You used one of your tools from your tools, crowbar?
Q. No one was home at the time?
[DEFENSE COUNSEL]: We submit on that.
BY THE COURT:
Q. Now, assuming you had used your crowbar and forced the door and got in, what were you going to do?
A. Went there to --
Q. To do what?
A. To see the girl. That's it. I wasn't going to fight her.
Q. I don't care if you're arguing. That's not a plea.
A. I was drinking, sir, and I --
Q. Sir, listen to me.
A. I'm sorry.
Q. First thing you do is sit down with your lawyer and read Count 1 again and see what it says near the end. Before you get to the contrary to the provisions, read purposely did attempt. I'll read it to you.
"Did purposely attempt to unlawfully enter the structure of [P.B.] ... [located on] Black Horse Pike with the purpose to commit an offense therein.["]
What offense was it your purpose to commit if you had successfully gotten in the door?
[DEFENSE COUNSEL]: One second, Judge. Judge, may I question the defendant for the [c]court, please?
THE COURT: Go ahead.
BY [DEFENSE COUNSEL]:
Q. You had had a domestic dispute with [R.C.] earlier that day, correct?
Q. As a matter of fact, she has a restraining order against you, correct?
Q. When you entered that home with the crowbar[,] you were quite upset, correct?
Q. You had entered that home in order to continue this domestic dispute the two of you had?
Q. There was already a restraining order against you, correct?
[DEFENSE COUNSEL]: We submit on that.
THE COURT: Who got the restraining order?
[ASSISTANT PROSECUTOR]: [R.C.].
THE COURT: Who's [R.C.]?
[ASSISTANT PROSECUTOR]: His girlfriend.
THE COURT: This apartment belonged to [P.B.]?
[ASSISTANT PROSECUTOR]: [R.C.] was staying there, Judge, according to the discovery. That was who he had --
THE COURT: Did the order prohibit him from seeing her no matter where she was, correct?
[ASSISTANT PROSECUTOR]: Yes.
In Marquez, we emphasized that we "did not believe that the Legislature could have intended that every entry which violates a domestic violence restraining order, without other requisite elements constitutes the crime of burglary." 277 N.J. Super. at 169. We concluded that in order to sustain a burglary conviction, there must be proof that a defendant intended to commit a separate offense subsequent to the entry into the structure. Ibid. Marquez also involved a defendant who was subject to a domestic violence retraining order at the time of the entry. Id. at 167. Because the circumstances surrounding the defendant's purpose were "ambiguous," we reversed the conviction and remanded for a new trial. Id. at 169.
Based upon our review of the record here, we are constrained to reach a similar conclusion. As an initial observation, defendant repeatedly stated that he did not enter with the purpose to harm the victim. He first indicated that he was responding to a cell phone call for help. When asked whether he was waiting for his girlfriend, with whom earlier he had a domestic dispute, "so you could finish that night[,]" defendant responded, "[n]o, it wasn't nothing like that. She called my cell phone." Further, when asked to assume that he had used his crowbar and forced the door and got in, he stated that he intended to "see the girl. That's it. I wasn't going to fight her." Finally, when asked whether he entered the home "in order to continue this domestic dispute the two of you had[,]" defendant stated, "Right."
At best, defendant admitted to attempting to break into the premises with the intent to continue an undescribed domestic dispute. Whether that "domestic dispute" would include committing an act of domestic violence, N.J.S.A. 2C:25-12, some other offense under the Criminal Code, or no offense at all, is unclear from this record. Hence, we are left, at best, with defendant's factual basis establishing nothing more than violation of a restraining order by attempting to have contact with the alleged victim, the type of factual basis we have squarely rejected under Marquez. 277 N.J. Super. at 169.
In view of our decision, it is unnecessary to address the remaining arguments advanced by defendant in support of this appeal.
Reversed and remanded for trial or other proceedings. We do not retain jurisdiction.
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