State v. G.L.

• Court: Superior Court of New Jersey
• Writing for the Court: Before Judges WEFING, PAYNE and BAXTER.
• Citation: 19 A.3d 1017,420 N.J.Super. 158
• Decision Date: 20 May 2011
• Parties: STATE of New Jersey, Plaintiff–Respondent,v.G.L., Defendant–Appellant.

420 N.J.Super. 158
19 A.3d 1017

STATE of New Jersey, Plaintiff–Respondent,
v.
G.L., Defendant–Appellant.

Superior Court of New Jersey, Appellate Division.

Submitted March 1, 2011.Decided May 20, 2011.

[19 A.3d 1018]

Yvonne Smith Segars, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief).John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Catherine A. Foddai, Senior Assistant Prosecutor, of counsel and on the brief).Appellant filed a pro se supplemental brief.Before Judges WEFING, PAYNE and BAXTER.

The opinion of the court was delivered by

PAYNE, J.A.D.

[420 N.J.Super. 159] In 1995, defendant, G.L., at age seventeen, pled guilty to conduct that, had he been an adult, would have constituted first-degree aggravated sexual assault on a twelve-year-old in violation of N.J.S.A. 2C:14–2a(1). ¹ As a result of the offense, defendant, who was given a three-year suspended sentence and two years of probation, was subject to Megan's Law, N.J.S.A. 2C:7–1 to –23, which had been enacted in the previous year and was effective on October 31, 1994. Accordingly, defendant registered with the Bergen County Prosecutor's Office on December 21, 1995.

In 1998, defendant was indicted for failure to re-register pursuant to Megan's Law, N.J.S.A. 2C:7–2, having moved to Florida without registering there, as required, and without notifying the prosecutor in New Jersey of the move, although defendant alleges that he did inform his probation officer. Following indictment, defendant was extradited from Florida and pled guilty to the charge of failure to register. At sentencing, defendant stated to the judge:

I'm sorry about not register[ing]. I really am. If I'd a known that I had to register every year, I would have to save myself from this because I was starting [420 N.J.Super. 160] life in Florida just recently. We [defendant's family] got a pizzeria and everything and I don't want to go to jail for not registering. And I—I must say I am sorry for not registering and it won't happen again. I mean I'm going to register every year and every change of address. That I can promise you.

Following defendant's statement, the judge noted that defendant “did originally register but apparently did not quite understand his obligation. So I find it a technical violation.” He therefore imposed, in accordance with the plea agreement, a sentence of ninety days in county jail, together with appropriate fines and penalties.

However, on July 21, 2000, defendant again violated the registration requirements of Megan's Law. On October 12, 2000, he pled guilty to an accusation charging fourth-degree failure to register pursuant to N.J.S.A. 2C:7–2, and on December 5, 2000, he was sentenced to three years of probation for failure to register and for violation of a probationary sentence imposed as the result of other charges. When, in 2001, defendant again violated probation and incurred new charges, the judge imposed a four-year custodial sentence for violation of probation, two counts of third-degree theft from the person and aggravated assault on a police officer.

Thereafter, defendant wrote to the prosecutor, among others, seeking to have his

[19 A.3d 1019]

1995 plea vacated because he was not informed of its Megan's Law consequences. Following an investigation, the prosecutor determined that it was questionable whether defendant's plea was knowing and voluntary.² After consultation with the victim and defense counsel, the plea was vacated and defendant was permitted to plead to fourth-degree child abuse, in violation of N.J.S.A. 9:6–3, an offense that is not subject to Megan's Law. In supplying a factual basis for the new plea, [420 N.J.Super. 161] defendant admitted that he had performed digital penetration and cunnilingus on the twelve-year-old victim.

Approximately one year later, defendant moved to have his convictions for failure to register vacated. However, his unopposed motion was denied on the ground that the convictions for failure to register were based upon an adjudication that was in full force and effect at the time that the failures took place and therefore were validly entered. This appeal followed.

On appeal, defendant argues through counsel:

THE RELEVANT CIRCUMSTANCES OF THE PRESENT CASE JUSTIFY VACATING THE DEFENDANT'S PREVIOUS CONVICTIONS FOR FAILING TO REGISTER AS A SEX OFFENDER BASED UPON FUNDAMENTAL FAIRNESS.

Counsel argues that the purpose of vacating defendant's 1995 plea was “to eliminate any ramifications” caused by his 1995 Megan's Law plea. Further, he notes that it was the prosecutor who, after receipt of defendant's correspondence and resulting investigation, proposed a solution to the problem raised by defendant and obtained the consent of the victim and defense counsel to implementing that solution. Additionally, during the 2007 proceeding in which his 1995 plea was vacated, defendant had asked whether, as a result, anyone would be able to learn that he had been a Megan's Law offender, and he was informed that an order would be signed “to remove him from Megan's Law.” Although it does not appear that defendant's subsequent convictions for failure to register were considered at the time, defendant now argues that, as a matter of fundamental fairness, those convictions should be vacated, as well, so as to completely erase the sex-offender stigma from defendant's name.

In contrast, the State argues that the fact that defendant's adjudication of delinquency for aggravated sexual assault, which triggered the registration requirement, was vacated in 2007 is irrelevant to defendant's 1998 and 2000 convictions for failure to register. In support of that position, the State relies on a factually analogous California decision in In re Watford, 186 Cal.App.4th 684, 112 Cal.Rptr.3d 522 (3d Dist.), review denied, [420 N.J.Super. 162] 2010 Cal. LEXIS 10454 (2010).³ In addition, the State contends that the doctrine of fundamental fairness is inapplicable in the present circumstances.

In a pro se reply brief, defendant addresses the State's position and presents the following additional arguments:

POINT ONE

[19 A.3d 1020]

MISINTERPRETATION OF THE FACTS AND PROSECUTOR'S ARGUMENT CAN SERVE TO WRONGFULLY SWAY THE APPELLATE COURT.

POINT TWO

WHY THE FAIRNESS DOCTRINE SHOULD APPLY IN FAVOR OF THE DEFENDANT.

POINT THREE

THE STATE MISUSED CASE LAW AS PRECEDENT.

Defendant argues that he was denied due process in connection with his 1995 guilty plea when the judge, prosecutor and defense counsel failed to advise him that he would be required to register as a sex offender for life before he entered his plea and in connection with his sentencing, and the advice provided by his probation officer regarding registration did not cure the initial due process violation. Had he been made aware of the consequences of his plea, he never would have entered into it, and thus he would not have been subject to charges arising from his failure to register. Defendant additionally argues that it was fundamentally unfair to later arrest him for failure to comply with sentencing requirements that were not set forth on the record by the sentencing judge and that were the result of an uninformed plea.⁴ As a final matter, defendant seeks to...