On appeal from the Superior Court of New Jersey, Law Division, Morris County, Indictment No. 09-06-00601.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lihotz and Waugh.
Defendant J.P. appeals his conviction for third-degree endangering the welfare of a child, entered following his guilty plea, and the imposed custodial sentence. On appeal, he asserts:
DEFENDANT'S FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO DUE PROCESS AND THE EFFECTIVE ASSISTANCE OF COUNSEL WERE VIOLATED BECAUSE DEFENDANT'S PLEA AGREEMENT WAS NOT ENTERED INTO WITH FULL KNOWLEDGE OF THE CONSEQUENCES OF THE PLEA.
A. THE COURT'S COLLOQUY AT THE TIME OF THE PLEA MAKES CLEAR THAT THE TRIAL JUDGE FAILED TO ENSURE THAT DEFENDANT PLED GUILTY WITH AN UNDERSTANDING OF THE CONSEQUENCES OF HIS PLEA.
B. THE RECORD INDISPUTABLY REFLECTS THAT TRIAL COUNSEL FAILED TO RENDER EFFECTIVE ASSISTANCE OF COUNSEL TO DEFENDANT BY MATERIALLY MISINFORMING DEFENDANT OF THE CONSEQUENCES OF HIS PLEA.
THE TRIAL COURT ERRED IN FAILING TO PROPERLY APPLY THE AGGRAVATING AND MITIGATING FACTORS DURING SENTENCING, IN VIOLATION OF DEFENDANT'S FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO DUE PROCESS, AND THE SENTENCE MUST BE VACATED.
Following our review of the arguments presented in light of the record and applicable law, we affirm.
Defendant, age forty-four, was charged with three second-degree offenses related to the sexual touching of his ten-year old stepdaughter. Pursuant to a plea agreement, he plead guilty to an amended charge of third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a, and the State agreed to dismiss the sexual assault charges.
A disagreement arose between the State and defendant precluding a recommended sentence. The court permitted legal memoranda to be filed, advocating the applicable law and sentencing consequences of defendant's guilty plea. Because defendant had "no prior criminal record," counsel advanced the position defendant was "entitled to the presumption against incarceration should he plead guilty to the third count of the indictment alleging third degree endangering the welfare of a child." The State did not file a memorandum to the court.
The plea agreement correctly set forth the maximum prison term for the charged third-degree offense as five years. Section thirteen of the standard plea form did not include a recommended sentence, rather it stated "Both sides free to speak[;] State to argue for a state prison term." Section thirteen also referred to section twenty-one of the plea form, which included:
The defense has submitted a [s]entencing
[a]dvisement to the trial court setting forth . . . the applicable law and statutory authority concerning [d]efendant's sentence. The defense will request no state ...