State v. Rodriguez

• Decision Date: 20 May 1981
• Citation: 430 A.2d 957,179 N.J.Super. 129
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Victor RODRIGUEZ, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 129

179 N.J.Super. 129

430 A.2d 957

STATE of New Jersey, Plaintiff-Respondent, v. Victor RODRIGUEZ, Defendant-Appellant.

Superior Court of New Jersey, Appellate Division.

Submitted April 28, 1981.

Decided May 20, 1981.

Tomar, Kamensky & Smith, Trenton, for defendant-appellant.

James R. Zazzali, Atty. Gen., for plaintiff-respondent (John J. Degnan, former Atty. Gen., and James T. O'Halloran, Deputy Atty. Gen., of counsel and on the brief).

Before Judges MATTHEWS, MORTON I. GREENBERG and COLEMAN.

The opinion of the court was delivered by

MATTHEWS, P. J. A. D.

This appeal raises two issues: (1) whether N.J.S.A. 2C:44-1(e), which establishes a presumption of nonimprisonment for first-time offenders convicted of an offense other than a crime of the first or second degree, applies to a first-time offender who pleads guilty to a crime of the second degree but is sentenced pursuant to N.J.S.A. 2C:44-1(f)(2) as if he committed a crime of the third degree; and (2) if not, whether defense counsel's erroneous advice that defendant, if sentenced pursuant to N.J.S.A. 2C:44-1(f)(2), would most likely receive a noncustodial sentence, vitiates an otherwise valid guilty plea.

In November 1979 defendant was charged in Mercer County with one count of aggravated sexual assault, in violation of N.J.S.A. 2C:14-2(a)(5), and one count of sexual assault, in violation of N.J.S.A. 2C:14-2(c)(5).

On March 3, 1980 defendant appeared before a Law Division judge for the purpose of entering a retraxit plea of guilty to the sexual assault charge pursuant to a plea agreement under which the State agreed to dismiss the charge of aggravated sexual assault and to make no recommendation as to sentence, other than an agreement not to take an appeal if defendant were sentenced for a third degree crime pursuant to N.J.S.A. 2C:44-1(f)(2). At the time the plea was entered, the judge questioned defendant regarding his understanding of the penal consequences of the plea:

THE COURT: And do you also understand that by pleading guilty, you are enabling the Court to sentence you up to the maximum prescribed by law? The maximum would be ten years and/or a $100,000 fine or both.

THE DEFENDANT: I understand.

THE COURT: Has any specific promise been made to you as to what the sentence might be?

THE DEFENDANT: Not really.

THE COURT: And the prosecutor has indicated that if I felt it could be reduced from a second degree crime to a third degree crime in other words, from a ten-year sentence to a five-year sentence, that they would not appeal that decision; is that your understanding?

THE DEFENDANT: Yes.

Defendant, then age 28, admitted at the time of the plea to having intercourse with the victim, age 13, but asserted that she had asked him to have intercourse with her; defendant also stated that he did not know her age but that she appeared to him to be at least 16 years old.

Defendant was sentenced on June 5, 1980. The sentencing judge noted that sexual assault in violation of N.J.S.A. 2C:14-2(c)(5) is a crime of the second degree. Under the authority of N.J.S.A. 2C:44-1(f)(2), however, he imposed a sentence appropriate to a crime of the third degree: a term of four years, as provided by N.J.S.A. 2C:44-1(f)(1). He imposed the sentence:

... basically for punishment purposes. I do not find sufficient mitigating circumstances for me to impose a lesser sentence. This was a crime involving a 13 year old child. And under those circumstances, the court feels that the sentence is necessary.

Neither defendant nor his counsel objected to the sentence imposed or sought to withdraw the plea.

I

Defendant entered a plea of guilty to sexual assault, in violation of N.J.S.A. 2C:14-2(c)(5). That statute defines sexual assault as "an act of sexual penetration with another person (where) ... (t)he victim is at least 13 but less than 16 years old and the actor is at least 4 years older than the victim." Sexual assault is a crime of the second degree. N.J.S.A. 2C:14-2(c). The judge sentenced defendant under N.J.S.A. 2C:44-1(f)(2), which states:

In cases of convictions for crimes of the first or second degree where the court is clearly convinced that the mitigating factors substantially outweigh the aggravating factors and where the interest of justice demands, the court may sentence the defendant to a term appropriate to a crime of one degree lower than that of the crime for which he was convicted. If the court does impose sentence pursuant to this paragraph, or if the court imposes a noncustodial or probationary sentence upon conviction for a crime of the first or second degree, such sentence shall not become final for 10 days in order to permit the appeal of such sentence by the prosecution. (Emphasis supplied)

N.J.S.A. 2C:44-1(f)(1) requires that:

... (w)hen a court determines that a sentence of imprisonment be imposed, it shall, except for murder or kidnapping, sentence the defendant to a term of 15 years for a crime of the first degree, to a term of 7 years for a crime of the second degree, to a term of 4 years for a crime of the third degree and to a term of 9 months for a crime of the fourth degree unless the preponderance of aggravating factors or preponderance of mitigating factors, as set forth in subsections a. and b., weighs in favor of higher or lower terms within the limits provided in 2C:43-6.

Defendant contends that the sentencing judge erred in imposing the presumptive four-year term of imprisonment for a crime of the third degree. Defendant argues that, as a first-time offender "sentenced as if he had been found guilty of a third degree offense," he is entitled to the benefit of N.J.S.A. 2C:44-1(e), which provides:

The court shall deal with a person convicted of an offense other than a crime of the first or second degree, who has not previously been convicted of an offense, without imposing sentence of imprisonment unless, having regard to the nature and circumstances of the offense and the history, character and condition of the defendant, it is of the opinion that his imprisonment is necessary for the protection of the public under the criteria set forth in subsection a. (Emphasis supplied)

We disagree. Although both subsection (e) and subsection (f)(2) of N.J.S.A. 2C:44-1 allow the judge to balance mitigating and aggravating factors and to impose a lesser punishment than the offender would otherwise receive, subsection (f)(2) applies to persons convicted of a first or second degree offense, whereas subsection (e) applies to persons convicted of an offense other than a crime of the first or second degree. Thus, subsection (f)(2) and subsection (e) serve substantially the same purpose but in regard to different classes of offenders.

Defendant here entered a guilty plea to a crime of the second degree. The sentencing judge apparently was convinced that the mitigating factors substantially outweighed the aggravating factors, and thus sentenced defendant to a term appropriate to a crime of one degree lower than the crime for which defendant was convicted: N.J.S.A. 2C:44-1(f)(2). Since defendant was not convicted of a third degree offense, the judge did not err in refusing to apply N.J.S.A. 2C:44-1(e). Had he done so, defendant would have received a double benefit: the balance of the aggravating and mitigating circumstances surrounding the crime would...