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State of New Jersey v. D.M.B

January 22, 2013

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
D.M.B., DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 95-02-0493.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 24, 2012 -

Before Judges Sapp-Peterson and Nugent.

Defendant, pro se, appeals from the trial court order denying his motion to withdraw his negotiated guilty plea to one count of attempted murder and one count of aggravated sexual assault. We affirm.

In a February 2, 1995 indictment, an Essex County grand jury charged defendant with (1) first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(3) (Count One); (2) first-degree robbery, N.J.S.A. 2C:15-1 (Count Two); (3) second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (Count Three); (4) first-degree attempted murder, N.J.S.A. 2C:11-3 and 5-1 (Count Four); (5) third-degree terroristic threats, N.J.S.A. 2C:12-3 (Count Five); and (6) third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (Count Six). As a result of a negotiated plea agreement, defendant pled guilty to first-degree attempted murder and first-degree aggravated sexual assault. In exchange, the State agreed to dismiss the remaining charges of the indictment and to recommend a fifteen-year custodial sentence that included a five-year period of parole ineligibility. The plea agreement also included a Supplemental Plea Form for Sexual Offenses that defendant signed. In signing the form, defendant acknowledged that the trial court, as part of the sentence, could sentence him to confinement at the Adult Diagnostic Treatment Center (ADTC) "for a program of specialized treatment" if, following an examination, defendant's conduct was "characterized by a pattern of repetitive and compulsive behavior" and that such a sentence could result in confinement greater than a sentence to state prison.

On August 1, 1995, defendant underwent an evaluation at the ADTC from which a report was issued advising the court that defendant was eligible for confinement at the ADTC. Sentencing occurred on September 22, 1995, during which the court mistakenly advised defendant he was not eligible for sentencing at the ADTC. Neither the State nor defense counsel corrected the court's mistaken belief, despite the court's inquiry to both counsel whether there were "[a]ny additions or corrections." Moreover, defense counsel specifically requested that the court "sentence [defendant] first of all to a state prison term as opposed to the Avenel term. He is doing fine with the medication and all he is on now, I assume that will continue in the state prison setting."

The court sentenced defendant to an aggregate fifteen-year state prison term in accordance with the plea agreement. Nearly nine years later, on July 21, 2004, defendant filed a notice of appeal, which he apparently failed to pursue.

During the course of his state prison term, defendant made six appearances before the State Parole Board between 2000 and 2002, which appearances ultimately resulted in the denial of parole to defendant, despite a 2002 psychological evaluation that concluded, although defendant's recidivist risk scores were in the moderate to medium high range, defendant was "NOT APPROPRIATE FOR REFERRAL" for treatment under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. The following year, authorities presented defendant with an "SVP Consent and Release of Information" form, affording defendant the opportunity to consent to an interview and evaluation regarding possible commitment under the SVPA. Defendant did not consent, opting to instead await court hearings.

In 2003, as defendant was approaching completion of his fifteen-year sentence, the State filed a petition for involuntary commitment to the Special Treatment Unit (STU) on grounds that he was a sexually violent predator who posed a danger if released into the community. The State supported its petition "by submitting to the court two clinical certificates . . . one of which [was] p[re]pared by a psychiatrist."

On March 8, 2004, Judge Serena Perretti, J.S.C., civilly committed defendant to the STU under the SVPA. Defendant filed a motion to vacate his guilty plea on December 17, 2010. Judge Robert H. Gardner issued a letter opinion and order denying defendant's application on March 28, 2011. The present pro se appeal ensued.

A motion to withdraw a guilty plea may be filed at any time, although different standards apply to disposition of the motion, depending upon whether the motion is filed prior to sentencing or post-sentencing. State v. Slater, 198 N.J. 145, 158 (2009). In either context, however, the decision granting or denying such a motion is committed to the sound discretion of the motion judge. State v. Bellamy, 178 N.J. 127, 135 (2003). This discretionary determination requires the court to "weigh the policy considerations which favor the finality of judicial procedures against those which dictate that no man be deprived of his liberty. . . ." State v. Johnson, 182 N.J. 232, 237 (2005). Post-sentencing motions to withdraw a guilty plea are subject to the "manifest injustice" standard of Rule 3:21-1. State v. Hayes, 205 N.J. 522, 535 (2011). In such cases, if a defendant wishes to withdraw a guilty plea, the "[c]court weighs more heavily the State's interest in finality and applies a more stringent standard." State v. McQuaid, 147 N.J. 464, 487 (1997).

Defendant does not argue that the guilty plea was not entered knowingly and voluntarily, or that he failed to understand the uniqueness of his plea, or that there was an inadequate factual basis. State v. ex rel. T.M., 166 N.J. 319, 327 (2001) (finding that guilty plea not entered voluntarily and knowingly violates due process and is constitutionally defective); State v. Smullen, 118 N.J. 408, 417 (1990) (holding that defendant should be permitted to withdraw his guilty plea if all of its material terms and relevant consequences were not fully understood); State v. McDonald, 211 N.J. 4, 34 (2012) (stating that inadequate factual basis is a sufficient ground for withdrawal of defendant's guilty plea). Rather, defendant argues that his plea agreement with the State constituted an enforceable contract, clear of any ambiguities, and given its contractual nature, a plea agreement contains all elements of the contract and is "governed by the contract law of the State, not by criminal statutes." Accordingly, defendant urges that once a plea agreement has been executed by the parties, "nothing new, regardless of its nature, may be added to the contract[.]" In short, defendant contends that his civil commitment was not part of the plea agreement and, therefore, his subsequent commitment ...


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