Opinion
DOCKET NO. A-3738-14T3
12-21-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. DUNCAN E. JONES a/k/a EARL JONES, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Elizabeth C. Jarit, Assistant Deputy Public Defender, of counsel and on the brief). Diane Ruberton, Acting Atlantic County Prosecutor, attorney for respondent (Sevan Biramian, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3. Before Judges Sabatino and Haas. On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 13-11-2935. Joseph E. Krakora, Public Defender, attorney for appellant (Elizabeth C. Jarit, Assistant Deputy Public Defender, of counsel and on the brief). Diane Ruberton, Acting Atlantic County Prosecutor, attorney for respondent (Sevan Biramian, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Duncan E. Jones appeals from his conviction of second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a), and the trial court's denial of his pre-sentencing motion to withdraw his guilty plea to that offense. Because the colloquy at the plea proceeding lacks a sufficient factual basis for the charged offense, we remand for further proceedings.
The State's allegations concern defendant's conduct with an eleven-year-old girl who was in his apartment at the same time as his own minor daughter. According to the plea colloquy, defendant allowed the minor victim to see his penis while he was urinating in the bathroom, knowing that she was watching him. He also admitted that he wrestled with the child with her riding on his back, causing him to be aroused. That behavior prompted the child to pull down her own pants and expose her genitals to defendant. He then took her hand and attempted to place it on his exposed penis.
At the time of sentencing, defendant made an oral motion to withdraw his plea, which the trial court rejected. The court sentenced defendant consistent with the plea agreement to a six-year custodial term, subject to Megan's Law requirements and parole supervision for life.
After defendant appealed, this court granted the State's request to remove this matter from the excessive sentencing calendar and instead have merits briefs filed. In his brief, defendant raises the following points:
POINT I
JONES' PLEA MUST BE VACATED BECAUSE 1) THE FACTUAL BASIS IS INSUFFICIENT TO SUSTAIN A CONVICTION FOR SECOND-DEGREE ENDANGERING, 2) JONES WAS MISINFORMED ABOUT THE CONSEQUENCES OF HIS PLEA, AND 3) THE COURT ERRED IN DENYING JONES' MOTION TO WITHDRAW HIS PLEA.
A. Jones' factual basis was insufficient to establish the crime of second-degree endangering the welfare of child because Jones did not assume a general and ongoing responsibility for the care of the child.
B. Because Jones was misinformed that he did not fall under the auspices of the SVPA, his plea was not knowing.
C. The trial court erred in denying Jones' pre-sentencing motion to withdraw his plea.
POINT II
A REMAND FOR RESENTENCING IS REQUIRED BECAUSE THE COURT GAVE NO STATEMENT OF REASONS FOR THE FINDING OF AGGRAVATING FACTORS.
REPLY POINT I
BECAUSE THE FACTUAL BASIS MUST COME FROM THE LIPS OF THE DEFENDANT, RELIANCE ON EXTRINSIC DOCUMENTS TO ESTABLISH THE ELEMENTS OF THE OFFENSE IS IMPROPER.
REPLY POINT II
WHETHER JONES FALLS UNDER THE PURVIEW OF THE SVPA IS NOT A MOOT ISSUE.
We focus our attention on defendant's contention that the plea colloquy was deficient in establishing the necessary elements of second-degree child endangerment. As we held not long ago in State v. McInerney, 428 N.J. Super. 432, 442 (App. Div. 2012), certif. denied, 214 N.J. 175 (2013), a second-degree grading of that particular offense requires that the defendant had assumed a general and ongoing responsibility for the care of the child victim, and was not merely acting as a babysitter. See also N.J.S.A. 2C:24-4(a)(1) and (2) (restricting second-degree endangering to an offender "having a legal duty for the care of a child or who has assumed responsibility for the care of a child"). Absent such a proven legal duty or responsibility, the offense is a crime of the third degree. Ibid.
Here, the transcript of the October 30, 2014 plea colloquy does not provide a sufficient factual basis to establish that defendant, at the time of the offense, had undertaken a responsibility for the child beyond that of a babysitter. The judge who presided over the plea hearing astutely noted that the State had not specifically charged in the pertinent count of the indictment that defendant had assumed such an elevated supervisory responsibility for the child. However, the follow-up questions posed thereafter to defendant on this subject during the plea colloquy did not elicit sufficient facts to establish that defendant had acted in a more significant capacity than simply a temporary babysitter. Defendant only acknowledged that he was "the adult in the home" at the time and that he "was acting as caregiver of some kind . . . acting in the place of a parent[.]" As McInerney and other case law instruct, second-degree child endangerment is confined only to defendants who have "assumed a general and ongoing responsibility for the care of the child" and who "established a continuing or regular supervisory or caretaker relationship with the child[.]" Id., 428 N.J. Super. at 442-44 (internal citations omitted) (emphasis added); see also State v. Galloway, 133 N.J. 631, 658 (1993). By comparison, in McInerney a baseball coach who had supervised children in parental matters unrelated to coaching was held to have assumed such a continuing or regular supervisory responsibility. Ibid.
Here, the plea colloquy only established that defendant was taking care of the child victim and his daughter in his home on this particular day. A continuing or regular supervisory or caretaker relationship with the child victim was not established. Counsel at the plea hearing failed to follow up with questions to defendant that addressed this key subject bearing on the grading of the offense.
Rule 3:9-2 requires that each element of the charged offense be addressed in the plea colloquy in order for the court to properly accept a valid guilty plea. See State v. Campfield, 213 N.J. 218, 231 (2013). As the Supreme Court emphasized in Campfield, it "is essential to elicit from the defendant a comprehensive factual basis, addressing each element of a given offense in substantial detail, when a defendant is pleading guilty to that offense." Id. at 236. In this manner, "courts can be 'satisfied from the lips of the defendant that he committed the acts which constitute the crime.'" State v. Slater, 198 N.J. 145, 155 (2009) (internal citations omitted). "Simply put, a defendant must acknowledge facts that constitute the essential elements of the crime." State v. Gregory, 220 N.J. 413, 420 (2015).
Although the factual basis elicited in the plea colloquy was sufficient to establish a factual basis for defendant's guilt of third-degree child endangerment, it was not adequate to support a more stringent second-degree grading of that offense. The State attempts to remedy this deficiency on appeal by providing in their appendix a copy of the police report in this case, which reflects that the child victim had stated that defendant had been tutoring her in his home. However, that information needed to be placed on the record, and amplified concerning the supervisory nature and regularity of the relationship, at the time of the plea colloquy and acknowledged under oath by defendant. Consequently, the plea to the second-degree offense remains defective. See Shepard v. United States, 544 U.S. 13, 16, 125 S. Ct. 1254, 1257, 161 L. Ed. 2d 205, 211 (2005) (holding that, in determining the sufficiency of a guilty plea for burglary, an appellate court is "generally limited to examining the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented"); accord State v. Gelman, 195 N.J. 475, 481 n. 2 (2008) (applying Shepard and these principles).
For these reasons, this matter must be remanded to afford the defendant the opportunity to either (1) withdraw his guilty plea and have the entire indictment, which includes other charged offenses, reinstated for trial, or (2) have a sufficient factual basis for second-degree endangerment acknowledged on the record by defendant, or (3) some other post-remand disposition negotiated by the prosecution and defense counsel.
If the remand results in a renewed guilty plea with an amplified factual basis, we also call for the trial court to address more conclusively with the parties whether defendant will be subject to potential future civil commitment under the Sexually Violent Predator Act, ("SVPA"), N.J.S.A. 30:4-27.26. At the plea hearing, defendant was mistakenly informed that he would not be subject to future commitment under the SVPA as a matter of law because he had not pled guilty to one of the specific predicate offenses enumerated in the SVPA. See N.J.S.A. 30:4-27.26. However, apart from the sexual offenses enumerated in the statute, a convicted offender alternatively may be eligible under the SVPA for commitment, if he or she committed "any offense for which the court makes a specific finding on the record that, based on the circumstances of the case, the person's offense should be considered a sexually violent offense." N.J.S.A. 30:4-27.26(b). See In re Commitment of J.M.B., 197 N.J. 563, 576-78 (2009).
We recognize that the trial court had not made such an express finding, and that the assistant prosecutor has not represented on appeal that the State will seek future civil commitment of defendant based on this particular endangering conviction. Nevertheless, the question of defendant's future non-exposure to civil commitment under the SVPA should be resolved definitively on the record as part of the remand proceedings, assuming he is not acquitted at a trial. See also State v. Bellamy, 178 N.J. 127, 138 (2003) (requiring that defendants be adequately informed at the time of their guilty pleas of their future eligibility for SVPA civil commitment). The apparent lingering confusion over this SVPA concern furnishes an additional justification for providing defendant with the option of withdrawing his plea and having the indictment reinstated.
We need not at this time address defendant's final point that his sentence is excessive and that the trial court failed to give a sufficient statement of reasons for the applicable aggravating factors. See State v. Fuentes, 217 N.J. 57, 81 (2014) (requiring specificity in the application of the sentencing factors). If defendant pleads guilty to an offense again or is convicted after a new trial on remand, the trial court will have the opportunity to amplify its reasons and overall analysis of the aggravating and mitigating factors at a resentencing.
Remanded for further proceedings consistent with this opinion. The trial court shall schedule a hearing within the next sixty days, at which time defendant may elect to withdraw his guilty plea and have the indictment reinstated, or some other resolution may be placed on the record. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION