State v. Thomas, DOCKET NO. A-1022-18T3

CourtSuperior Court of New Jersey
Writing for the CourtPER CURIAM
PartiesSTATE OF NEW JERSEY, Plaintiff-Respondent, v. HARRY L. THOMAS, Defendant-Appellant.
Decision Date20 December 2019
Docket NumberDOCKET NO. A-1022-18T3

STATE OF NEW JERSEY, Plaintiff-Respondent,
v.
HARRY L. THOMAS, Defendant-Appellant.

DOCKET NO. A-1022-18T3

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Argued telephonically November 22, 2019
December 20, 2019


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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 Mayer and Enright.

On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Accusation No. 18-02-0253.

Robin K. Lord argued the cause for appellant (Robin Kay Lord and Helmer, Conley and Kasselman, PA, attorneys; Robin Kay Lord and Patricia B. Quelch, of counsel and on the brief).

Jennifer Bentzel Paszkiewicz, Assistant Prosecutor, argued the cause for respondent (Scott A. Coffina, Burlington County Prosecutor, attorney; Jennifer Bentzel Paszkiewicz, of counsel and on the brief).

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PER CURIAM

Defendant appeals from a July 27, 2018 order deeming his plea agreement valid and denying his motion to withdraw his guilty pleas. We affirm.

We need only summarize the facts pertinent to this appeal. In December 2017, defendant was charged with committing a number of offenses against five prepubescent girls, including: first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1); three counts of second-degree sexual assault, N.J.S.A. 2C:14-(2)(b); and one count of second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a)(1). Defendant initiated pre-indictment plea negotiations with the State and pled guilty two months after being charged.

Defendant faced up to sixty-five years in prison and $800,000 in fines, as well as additional assessments upon conviction for the offenses to which he pled guilty. However, in exchange for his guilty pleas, the State agreed to dismiss all remaining charges against defendant and recommended a twenty-year prison term with a twenty-year period of parole ineligibility on the first-degree charge of aggravated sexual assault, consistent with the "Jessica Lunsford Act" (JLA), N.J.S.A. 2C:14-2(a), (d). The plea agreement further allowed defendant to seek a fifteen-year prison term with a fifteen-year period of parole ineligibility on this charge.

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Due to the lengthy prison sentence contemplated for the aggravated sexual assault charge, the State recommended nonspecific prison terms on the four other charges listed in the plea agreement and recommended all sentences run concurrent to one another. Moreover, defendant consented to a waiver of his right to appeal and to a no-contact order regarding the victims and their families. Defendant also stipulated he would be subject to a five-year parole supervision period and Megan's Law requirements, N.J.S.A. 2C:7-1 to -23, upon his release, as well as the possibility of civil commitment for life on the aggravated sexual assault charge.

At the plea hearing, defense counsel notified the trial court that during his first meeting with his client, defendant made it "quite clear that [he] wished to resolve this matter pre-indictment, not so much for his sake," but in "consideration of . . . the families of the victims." In response to questioning from the court, defendant confirmed he was seventy-four years old, was fluent in English, held a Master's degree and two honorary doctorates, and was not under the influence of any substance impacting his ability to make decisions. Additionally, defendant testified no one threatened or coerced him to enter the plea deal. When asked if his attorney answered all his questions and if he was satisfied with counsel's representation, defendant answered, "[y]es."

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Next, the trial judge carefully explained the ramifications of the plea agreement before defendant pled guilty. She specifically advised defendant, "there's going to be an aggregate sentence of somewhere between fifteen, do fifteen [years], and twenty, do twenty [years], based on all of these charges, essentially." Further, she instructed defendant he would have to submit to an evaluation at the Avenel Adult Diagnostic and Treatment Center (ADTC) and be subject to "all the Megan's Law requirements," which would include registration. Defendant affirmed he understood his exposure for imprisonment, as well as various other consequences flowing from the plea agreement.

Due to delayed reporting by the victims, defendant was not arrested until years after committing his offenses. Thus, immediately before he pled guilty, defendant testified he could not remember the exact dates and times of his offenses, but that he did not dispute "what [the victims] were saying" when he submitted to a police interview after the allegations "all came to light." Moreover, he agreed with defense counsel that it "remains the truth today" that he did not dispute his victims' allegations.

To provide a factual basis for the first-degree aggravated sexual assault charge, defendant admitted that on or about August 1, 2014, he committed "an

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act of digital penetration" on K.V.1 who was approximately nine-years old at the time. Next, he stipulated that on or about August 1, 2010, he "committed an act of sexual contact" upon nine-year-old M.S., which involved "a touching of the genitals or private areas" of the victim. He also testified that on or about August 1, 2000, when J.D. was approximately eight years old, he "did commit an act of sexual contact" upon her by "touching her genitals or vaginal area." Additionally, defendant affirmed that on August 1, 2010, when G.V. was roughly seven years old, he "did commit an act of sexual contact" upon her by "touching of the genitals or private areas." Lastly, defendant testified that on various days between 2008 and 2010, when he had a legal duty to watch K.C. (a minor born in 2000), he engaged in sexual conduct with her. He admitted to exposing himself to K.C., thereby impairing or debauching her morals. Further, defendant confirmed each offense occurred in Medford Township.

The trial judge found there was an adequate factual basis for each of the charges and that defendant entered into the plea agreement freely, knowingly and voluntarily. Accordingly, she accepted defendant's guilty pleas and fixed a tentative sentencing date, subject to defendant being evaluated at the ADTC.

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After defendant pled guilty, he engaged new counsel and moved to withdraw his guilty plea under State v. Slater, 198 N.J. 145 (2009). He also moved to vacate the plea agreement, insisting it called for an illegal sentence because it did not provide for a specific prison term on the aggravated sexual assault charge. The judge denied his motion on July 27, 2018.

She then heard from victims and their family members, as well as defendant, who expressed remorse for the "pain [he had] caused." Defendant added:

I don't understand why I did those things. I would never hurt them, but I did . . . . I accept full responsibility . . . . And if ever my family needs to know that I'm sorry, I want them to know now. And that I . . . never, never in my wildest dreams thought that I would cause such pain to the people I love.

When defense counsel spoke at sentencing, she acknowledged her client "has a sickness . . . . It's something he couldn't control, according to the licensed experts at Avenel."

After conducting a qualitative aggravating and mitigating factor analysis, and weighting those factors, the judge found the higher end of the sentencing range was appropriate. She sentenced defendant to an eighteen-year prison term, with an eighteen-year period of parole ineligibility and a five-year period of parole supervision on the aggravated sexual assault charge. Further, she

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sentenced defendant to an eight-year prison term on the remaining charges, subject to a three-year period of parole ineligibility. Standard fines, fees and penalties also were imposed for each charge. The judge directed that all sentences run concurrent to one another.

On appeal, defendant raises the following arguments:

POINT I: THE TRIAL COURT ACCEPTED AN INVALID PLEA.

POINT II: DEFENDANT'S PLEA IS INVALID BECAUSE THE FACTUAL BASIS DOES NOT SUPPORT ALL ELEMENTS OF THE CRIMES CHARGED IN COUNTS [ONE, TWO, THREE AND FOUR]. (Not raised below).

POINT III: THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING DEFENDANT'S MOTION TO WITHDRAW HIS GUILTY PLEA.

We reject these arguments.

As to Point I, we note the JLA imposes a term of imprisonment of twenty-five years to life, with a period of parole ineligibility of at least twenty-five years, on an offender convicted of aggravated sexual assault when, as is the case here, a victim is less than thirteen years old. N.J.S.A. 2C:14-2(a)(1). However, the statute permits a prosecutor, "in consideration of the interests of the victim,"

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to waive the twenty-five-year mandatory minimum and extend an offer under a plea agreement whereby a defendant can be sentenced to "a specific term of imprisonment of not less than fifteen years, during which the defendant shall not be eligible for parole." N.J.S.A. 2C:14-2(d) (emphasis added). If the sentencing court accepts such a negotiated plea agreement, it must sentence the defendant in accordance with that agreement. Id.

Our Supreme Court recently upheld the constitutionality of N.J.S.A. 2C:14-2(d), stating it "does not violate the separation of powers doctrine, provided that the State presents a statement of reasons explaining its decision to depart from the twenty-five-year mandatory minimum sentence specified...

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