State v. Perez
| Decision Date | 02 February 2015 |
| Citation | 106 A.3d 1212,220 N.J. 423 |
| Parties | STATE of New Jersey, Plaintiff–Respondent, v. Richard PEREZ, a/k/a Jose R. Perez, Defendant–Appellant. |
| Court | New Jersey Supreme Court |
James K. Smith, Jr., Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney).
Megan B. Kilzy, Assistant Prosecutor, argued the cause for respondent (Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney).
In April 2011, defendant Richard Perez pled guilty to child luring and endangering the welfare of a child. During the plea colloquy, the State introduced text messages in which defendant expressed a desire to engage in explicit sexual activity with the thirteen-year-old victim. The messages, however, did not propose a specific meeting time or place. In response to leading questions from counsel, defendant admitted that he had “attempt[ed] to lure a child whose initials are N.C. to a place where the two of [them] might engage in sexual activity.”
The court accepted the guilty plea and sentenced defendant to extended terms of ten years' imprisonment on the luring count and a concurrent five years' imprisonment on the endangering count, both to be served in their entirety. The extended terms were imposed pursuant to N.J.S.A. 2C:43–6.4, which applies to individuals who commit an enumerated offense while serving parole supervision for life (PSL). At the time of his offense, defendant was serving a special sentencing condition of community supervision for life (CSL).
In this appeal, as in State v. Gregory, 220 N.J. 413, 106 A. 3d 1207, 2015 WL 405236 (2015) and State v. Tate, 220 N.J. 393, 106 A. 3d 1195, 2015 WL 405339 (2015), both decided this date, the Court assesses the sufficiency of the factual basis of defendant's guilty plea. In addition, we consider the legality of the extended-term sentences imposed on defendant. We conclude that defendant's admissions during the plea colloquy, in combination with the text messages introduced at the hearing, established a sufficient factual basis to support his guilty plea to child luring. On the other hand, the imposed sentences are illegal. Defendant was subject to CSL at the time he committed both offenses. CSL and PSL are distinct special post-sentence supervisory schemes for certain sex offenders. The extended term authorized for those who commit statutorily designated offenses while serving the special sentencing condition of CSL does not preclude parole. We, therefore, affirm the conviction on the child-luring count and remand for resentencing on both counts.
On July 9, 2010, defendant Richard Perez placed three phone calls, each going unanswered, to a thirteen-year-old boy (N.C.). Later that evening, defendant sent N.C. a series of four text messages:
Without sending a response, N.C. showed the text messages to his grandfather, who contacted the police.
A Hudson County Grand Jury returned an indictment charging defendant with second-degree child luring, in violation of N.J.S.A. 2C:13–6, and third-degree endangering the welfare of a child, in violation of N.J.S.A. 2C:24–4(a).
On April 13, 2011, defendant pled guilty to both counts. At the plea hearing, the following exchange took place:
On September 23, 2011, represented by different counsel, defendant moved to withdraw his plea. The trial court denied the motion and proceeded with sentencing.
The trial court sentenced defendant to extended terms of ten years' imprisonment with a ten-year parole disqualifier on the luring count and a concurrent five years' imprisonment with a five-year parole disqualifier on the endangering count. Both extended terms were imposed pursuant to N.J.S.A. 2C:43–6.4(e), which, in relevant part, provides the following: “A person who, while serving a special sentence of parole supervision for life imposed pursuant to this section, commits a violation of ... [N.J.S.A. 2C:13–6 and N.J.S.A. 2C:24–4 ] ... shall be sentenced to an extended term of imprisonment [.]” At the time of the incident in question, defendant was serving a sentence of CSL stemming from a 1998 conviction for aggravated sexual assault and imposed pursuant to an earlier version of N.J.S.A. 2C:43–6.4. A 2003 amendment replaced all references to “community supervision for life” with “parole supervision for life.” See L. 2003, c. 267, § 1 (eff. Jan. 14, 2004).
Defendant filed a notice of appeal. He advanced two arguments before the Appellate Division: first, that the trial court should not have accepted defendant's plea to luring because there was no evidence he had tried to entice the child to “meet” him at a “place,” and second, that the extended-term sentences were illegal because defendant was serving CSL, not PSL.1
The Appellate Division affirmed the conviction and sentences. According to the panel, “[a]lthough a specific location was not identified in the allocution, and may not have even been determined by defendant before he abandoned his plan, the legislative history indicates that such specificity is not required by the statute.” Rather, “[i]t is sufficient if the evidence showed defendant's intent generally ‘to meet or appear at any other place’ for the purpose of engaging in sexual acts ‘with or against the child.’ ” (Quoting N.J.S.A. 2C:13–6 ).
The appellate panel noted that since its enactment, the child-luring statute has been amended multiple times to expand the scope of its protection. According to the panel, “[t]he legislative history makes clear the primary intent of the statute is to create greater protection for children by expanding the reach of the statute and by increasing the penalties associated with the crime's commission.”
Addressing the sentence, the panel reasoned that the word-for-word substitution of “parole” for “community” suggests that the amendment was “a matter of form and not substance.” All that changed was the phrase used to describe a defendant's status. The panel further relied on State v. Jamgochian, 363 N.J.Super. 220, 227, 832 A. 2d 360 (App.Div.2003), in which the Appellate Division held that “the nature of community supervision for life [is] the functional equivalent of life-time parole.”
We granted defendant's petition for certification, State v. Perez, 213 N.J. 568, 65 A. 3d 835 (2013).
In the present appeal, defendant renews the same arguments presented to the Appellate Division. He continues to assert that his guilty plea to luring was not supported by an adequate factual basis.
Specifically, defendant contends that he was not guilty of child luring “because his entreaties never reached the point of trying to lure or entice the boy into meeting him.” While conceding that his first text message “clearly indicates a desire to have sex with the boy,” defendant argues that his conduct does not satisfy the “geographic component” of the child-luring statute.
Turning to the sentence, defendant contends that the imposition of mandatory extended terms without parole eligibility, based on his CSL status, constitutes a violation of the United States and New Jersey Constitutions' prohibitions against ex post facto penal laws. U.S. Const. art. I, § 10, cl. 1 ; N.J. Const., art. IV, § 7, ¶ 3.
The State responds that there was an adequate factual basis. It asserts that the text messages provide a clear indication of defendant's attempt to entice the child from his home to engage in sexual conduct. This intention is further substantiated by defendant's admissions during the plea colloquy. Referring to this Court's decision in State v. Perez (Manuel), the State notes that the purpose of the luring statute is “to ‘criminalize the early stages of what may develop into a kidnapping or a sex offense.’ ” 177 N.J. 540, 548, 832 A. 2d 303 (2003) . The State urges that defendant's conduct was “exactly what the statute was intended to protect against.” Furthermore, the State argues that legislative history reflects a broadening of the statute's language and supports a more generalized interpretation of “place” that captures an attempt to meet “somewhere,” and does not require a specific or identifiable place.
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...supervision for life (PSL). L. 2003, c. 267, § 1. The amendment was more than "a simple change in nomenclature," State v. Perez, 220 N.J. 423, 441, 106 A.3d 1212 (2015), and significantly increased penal consequences for violations of the conditions of supervision. See State v. Hester, 233 ......
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