On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 84-10-1449.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 11, 2012 -
Before Judges Grall, Simonelli and Accurso.
In 1985, the State offered defendant Milton P. Durham a plea agreement to resolve a thirty-two count indictment charging defendant with "burglary, terroristic threats, kidnapping, aggravated sexual assaults, an attempted aggravated sexual assault, abuse of children, and unlawful possession of CDS." State v. Durham, A-1877-85 (App. Div. Nov. 4, 1987) (slip op. at 2). Defendant committed the crimes during a home invasion in which he confined seven children in a bedroom and compelled five of them to engage in sexual conduct by threatening them with an imitation firearm.
Defendant accepted the agreement, which called for him to plead guilty to five counts - fifteen, eighteen, twenty-one, twenty-four and twenty-seven - charging aggravated sexual assault involving five children under the age of thirteen, N.J.S.A. 2C:14-2a(1), and the State to dismiss the other charges. Durham, supra, slip op. at 2. Count fifteen involved a child defendant compelled to "perform fellatio on him" and the remaining counts involved two different pairs of children whom he compelled to perform fellatio on one another. Ibid.
At the time of the plea, the prosecutor, citing N.J.S.A. 2C:44-1f(2), explained that the agreement was to have counts eighteen, twenty-one, twenty-four and twenty-seven treated as "crimes of the second degree as opposed to first degree." He stressed, "That is only for those four counts." The judge interrupted and inquired: "Do I understand that this would not - would not refer to count fifteen, however?" The prosecutor said that was correct, and the judge clarified: "That would remain a first degree?" The prosecutor confirmed it would.
The judge then turned to defendant, advised him that he would be pleading guilty to a first-degree crime on count fifteen, described the sanctions associated with such a crime, and asked if defendant was aware of that. Defendant responded, "Yes." The judge further explained the sentences associated with the four second-degree crimes, and he then advised defendant that he would have the discretion to impose a parole ineligibility term of up to thirty years.
The plea form defendant signed listed the five counts to which defendant would plead on separate lines. In the margin to the left of that list was the following handwritten note: "*AS AMENDED TO SECOND DEGREE: AS TO COUNTS 15, 18, 21, 24 & 27." Consistent with the colloquy at the time of the plea, however, the "*" only appeared in front of the four lines referring to counts eighteen, twenty-one, twenty-four and twenty-seven.
Prior to sentencing, defendant moved to vacate his guilty plea, but that motion was denied. He was sentenced to an aggregate term of forty years, twenty to be served prior to parole. The aggregate term is comprised of a twenty-year term for count fifteen, and ten-year terms for the remaining counts. The sentences on defendant's convictions for each pair of children he compelled to engage in sexual conduct with one another are concurrent with one another yielding an aggregate ten-year term for each pair. The aggregate ten-year term for the first pair is consecutive to the twenty-year sentence on count fifteen, and the aggregate ten-year term for the second pair is consecutive to the ten-year sentence for the first pair.
On direct appeal, we affirmed defendant's sentence and the denial of his motion to vacate the plea. Id. at 9-12. In addressing the motion to vacate, we noted that the judge had "elicited defendant's acknowledgement of a full understanding of the consequences of his pleas." Id. at 7. The Supreme Court denied certification. State v. Durham, 110 N.J. 186 (1988).
Subsequently, we affirmed the denial of defendant's petition for post-conviction relief. State v. Durham, A-5566-90 (App. Div. June 22, 1992). The Supreme Court denied certification. 130 N.J. 597 (1992).
This appeal is from the denial of a motion to correct an "illegal sentence" filed in September 2009. In that motion, defendant contended that his sentence on count fifteen was illegal because the plea form indicated that count fifteen would be treated as a crime of the second degree. Judge Donio denied the motion, explaining that "both the plea form and the plea transcript indicate count fifteen was to remain a first-degree offense, while only counts eighteen, twenty-one, twenty-four and twenty-seven were to be amended to second degree offenses."
Defendant further asserted that he understood the maximum sentence he would receive was twenty years with no period of parole ineligibility. Judge Donio concluded that defendant's asserted misunderstanding did ...