Opinion
DOCKET NO. A-2848-11T2
05-06-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. RICHARD PEREZ, a/k/a JOSE R. PEREZ, Defendant-Appellant.
James K. Smith, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Smith, of counsel and on the brief). Megan B. Kilzy, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney; Ms. Kilzy, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Ashrafi and Guadagno.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 10-10-1869.
James K. Smith, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Smith, of counsel and on the brief).
Megan B. Kilzy, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney; Ms. Kilzy, on the brief). PER CURIAM
Defendant Richard Perez appeals from his September 23, 2011 judgment of conviction based on his guilty pleas to second- degree child luring and third-degree child endangerment. Defendant argues that his plea to the child-luring charge lacked an adequate factual basis, and that his sentence is unlawful. Specifically, defendant contends that his guilty plea to child luring should not have been accepted because neither the plea allocution nor the evidence establishes that defendant tried to lure the child to an identifiable location. Further, defendant claims that the court erred in imposing an extended-term sentence, as he was not on parole supervision for life at the time of the offense, but rather on community supervision for life. For the reasons that follow, we affirm.
I.
We glean the following facts from the record. On July 9, 2010, defendant sent the following four text messages to a thirteen-year-old boy in the span of thirty-six minutes:
Yo u know y i ask u if u ever did it with a man for money dont say nothing but i would like to suck your dick and i want u to fuck me i ll pay dont say anythingThe boy did not respond to these messages, but instead informed his grandfather, who alerted the police.
Think about i ll look out for u just dont say anything to no body that s between u and me
Talk to me yes or no
Yo i was only playing with u i wanted to know were u were at i m not gay i was only playing with u ok
Defendant was arrested and indicted on one count of second-degree child luring, N.J.S.A. 2C:13-6, and one count of third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a. On April 13, 2011, the day trial was scheduled to begin, defendant entered guilty pleas to both charges pursuant to a plea agreement. At the plea hearing, defendant's counsel presented the court with a copy of the first text message "as a part of the factual basis." Defendant was then questioned as to the text message:
[COURT]: And are you pleading guilty to these charges because you are, in fact, guilty of each offense?
[DEFENDANT]: Yes, sir.
[COURT]: Mr. Broege?
[DEFENDANT'S COUNSEL]: Judge, I'll hand you up as a part of the factual basis, what's been marked J-1, which is a photocopy of one text message and I will now make reference to that in my questioning of Mr. Perez.
Mr. Perez, on the 9th day of July, 2010, or on or about the 9th day of July 2010 in the Town of West New York, did you attempt to lure a child whose initials are N.C. to a place where the two of you might engage in sexual relations?
[DEFENDANT]: Yes.
[COURT]: And as a matter of doing that, I am going to show you a copy of what has been marked J-1 for purposes of this Plea Hearing, is this a copy of one of the text messages that you sent?
[DEFENDANT]: Yes.
As part of the plea agreement, the State agreed to limit its sentencing request to ten years on the child-luring charge and five years on the endangering charge. The sentences would run concurrently and defendant would be ineligible for parole throughout his term of imprisonment. The court accepted defendant's guilty plea.
On September 23, 2011, defendant, represented by a different attorney, moved to withdraw his guilty plea, claiming his former counsel pressured him into pleading guilty. The court denied the motion and proceeded to sentence defendant. The court found aggravating factors three and nine applied:
Defendant does, as Counsel for the State indicated, have three prior indictable convictions, 17 other arrests . . .
Despite the prior aggravated sexual assault on his record, he refused to be interviewed by Avenel prior to his sentence. His record is obviously serious. He's got a prior aggravated sexual assault that he's on Parole Supervision for Life and was so at the time this offense was committed, again, of sexual nature. So his record is serious and extends over a significant period of time and, obviously, prior attempts at deterring this behavior have not been successful. Consequently, deterrence is a
significant factor as well. I can find no statutory mitigating factors that would apply.
The court sentenced defendant to ten years without parole on the child-luring count and a concurrent five-year sentence without parole on the child endangerment count.
On appeal, defendant raises the following points for our consideration:
POINT I
THE TRIAL COURT SHOULD NOT HAVE ACCEPTED DEFENDANT'S PLEA TO LURING BECAUSE THERE WAS NO EVIDENCE THAT THE DEFENDANT HAD ATTEMPTED TO ENTICE THE CHILD TO "MEET" HIM AT A "PLACE." (Not raised below).
POINT II
THE DEFENDANT'S SENTENCES ARE ILLEGAL AND UNCONSTITUTIONAL; BECAUSE HE WAS NOT SERVING A SENTENCE OF PAROLE SUPERVISION FOR LIFE, DEFENDANT WAS NOT ELIGIBLE FOR EXTENDED TERMS PURSUANT TO N.J.S.A. 2C:43-6.4e. (Not raised below).
A. DEFENDANT WAS NOT ON PAROLE SUPERVISION FOR LIFE.
B. DEFENDANT'S SUPERVISION WAS IMPOSED IN VIOLATION OF THE EX POST FACTO CLAUSES OF THE STATE AND FEDERAL CONSTITUTIONS.
II.
Although defendant concedes that his first text message "clearly indicates a desire to have sex with the boy," he claims that his plea lacked a factual basis, as the child-luring statute contains a "geographical component - the defendant must attempt to entice a child to 'meet' him at a 'place.'"
New Jersey's child-luring statute was enacted to "criminalize the early stages of what may develop into kidnapping or a sexual offense." Cannel, The New Jersey Criminal Code Annotated, comment 1 on N.J.S.A. 2C:13-6 (2012). The statute provides, in relevant part:
A person commits a crime of the second degree if he attempts . . . to lure or entice a child or one who he reasonably believes to be a child into a motor vehicle, structure or isolated area, or to meet or appear at any other place, with a purpose to commit a criminal offense with or against the child.
"Child" means a person less than 18 years old.
[N.J.S.A. 2C:13-6.]
Defendant sent his first text message to the boy at 10:50 p.m., after placing three phone calls to the boy's cell phone earlier that evening, which went unanswered. In the text message, defendant proposed that he and the boy have sex. He described with specificity the type of sex he was seeking, cautioned the boy not to say anything, and promised to pay the boy for having sex with him. This electronic solicitation clearly satisfies the portion of the statute requiring proof that defendant's purpose was "to commit a criminal offense with or against the child."
The first text message also appears to satisfy the requirements of N.J.S.A. 2C:34-1(b)(7) ("A person commits an offense if . . . the actor solicits or requests a child under the age of 18 to engage in sexual activity"), which is a third-degree offense, N.J.S.A. 2C:34-1(c)(2).
The statute also requires an attempt "to lure or entice a child . . . into a motor vehicle, structure or isolated area, or to meet or appear at any other place . . . ." Although defendant did not propose a specific location for the sexual encounter, he indicated in the second text message, sent three minutes after the first, that he would "look out" for the boy, presumably at a place where they could avoid detection. Defendant then urged the boy again, "just don't say anything to no body" and to keep the conversation "between u and me." Clearly, defendant sought to keep communications with the boy private with the objective of arranging a rendezvous at a "place" and engaging in sexual conduct.
Six minutes after the second text message, defendant sent the third text message. By this time, defendant had become alarmed that the boy had not responded and pressed him for an answer, stating, "[t]alk to me, yes or no." Twenty-seven minutes later, defendant sent the fourth text message where he abandoned the plan, "I was only playing with U OK."
During the allocution portion of his guilty plea, defendant was shown a print-out of his first text message, and admitted that he attempted "to lure a child . . . to a place where the two of you might engage in sexual relations." Although 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 and thus, was not necessary to establish a factual basis for the plea. It 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." N.J.S.A. 2C:13-6.
The legislative intent in enacting the child luring statute was to "close a gap in the law between the crime of attempted kidnapping and the lesser offense of harassment for those instances in which a person unsuccessfully tries to lure a child into a motor vehicle with a criminal purpose." Sponsor's Statement to Senate Bill No. 1524 (Feb. 1, 1993). When it was first enacted, the child luring statute referred only to motor vehicles. However, the statute was expanded less than a year after its effective date to criminalize the act of attempting to "lure a child into a structure or isolated area with a criminal purpose." Sponsor's Statement to Senate Bill No. 869 (Mar. 21, 1994). In 1999, the statute was again amended in order to include a mandatory minimum term of imprisonment for those found guilty of child luring. L. 1999, c. 277, § 1.
In 2001, the statute was amended yet again in order to further expand its reach and to clarify its language. As explained in the Senate Judiciary Committee Statement, the amendment was enacted to insure that N.J.S.A. 2C:13-6
would apply when a person attempts to lure or entice a child "to meet or appear at any other place." For example, an attempt to lure a child to a busy park would be included under the bill. A busy park would not be encompassed by the current language, which refers to a "motor vehicle, structure or isolated area."The statute was again amended in 2003 in order to "[u]pgrade [] [the] crime of luring or enticing a child into a motor vehicle, structure or isolated area to a crime of the second degree." Synopsis, No. 2679, L. 2003, c. 229 (Sept. 12, 2002).
[Senate Judiciary Committee, Statement to Assembly, No. 2397 (June 11, 2001).]
The 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.
"The harm sought to be proscribed [in this statute] is the act of endeavoring," or trying to lure a child to a place with a purpose to commit a criminal offense, and not the act of successfully getting the child to the place. See State v. Perez, 177 N.J. 540, 550 (2003). "A defendant's simple attempt to lure or entice a child into the prohibited space is the only act required under the statute." Ibid.
The acceptance of a plea is addressed by Rule 3:9-2, which states in relevant part:
The court, in its discretion, may refuse to accept a plea of guilty and shall not accept such plea without first questioning the defendant personally, under oath or by affirmation, and determining by inquiry of the defendant and others, in the court's discretion, that there is a factual basis for the plea and that the plea is made voluntarily, not as a result of any threats or of any promises or inducements not disclosed on the record, and with an understanding of the nature of the charge and the consequences of the plea.
Appellate review is deferential and the trial court's factual findings will not be disturbed if they "could reasonably have been reached on sufficient credible evidence present in the record." State v. Campfield, ___ N.J. ___ (2013) (slip op. at 19-20).
To establish an adequate factual basis for a guilty plea, the trial court must be satisfied "from the lips of the defendant," State v. Smullen, 118 N.J. 408, 415 (1990), that he committed every element of the crime charged. State v. Sainz, 107 N.J. 283, 293 (1987). This requirement is meant to avoid the acceptance of a guilty plea from a defendant who is unaware that his conduct does not actually fit within the definition of the charged offense. State v. Pineiro, 385 N.J. Super. 129, 137 (App. Div. 2006). The factual foundation may take one of two forms: the defendant may either explicitly admit guilt with respect to the elements, or may "acknowledge[ ] . . . facts constituting the essential elements of the crime." Sainz, supra, 107 N.J. at 293. "The essential thing is that the defendant is in fact guilty of the crime charged." Id. at 292.
Defendant's admission that, in sending the text messages to the boy, he attempted "to lure a child . . . to a place where the two of [them] might engage in sexual relations[,]" is sufficient to establish a factual basis for his plea, in particular, because the second text message confirmed his intent to meet with the boy. The plea judge did not abuse his discretion in concluding that defendant's allocution amounted to a sufficient factual basis to conclude that defendant pleaded guilty "with an understanding of the nature of the charge," Rule 3:9-2, and "was in fact guilty of the specific charge," Campfield, supra, slip op. at 21.
III.
Defendant next argues that imposing a sentence of parole supervision for life for the present offense violates the prohibition against ex post facto laws in both the federal and state constitutions.
Both the United States and New Jersey Constitutions forbid the legislative branch from passing ex post facto laws. U.S. Const. art. I, § 10, cl. 1; N.J. Const., art. IV, § 7, ¶ 3. The purpose of the prohibition "is to guarantee that criminal statutes 'give fair warning of their effect and permit individuals to rely on their meaning until explicitly changed.'" State v. Muhammad, 145 N.J. 23, 56 (1996) (quoting Weaver v. Graham, 450 U.S. 24, 28-29, 101 S. Ct. 960, 964, 67 L. Ed. 2d 17, 23 (1981)). For a statute to violate the ex post facto prohibition, it "must either (1) punish as a crime an act previously committed, which was innocent when done; (2) make more burdensome the punishment for a crime, after its commission; or (3) deprive a defendant of any defense available according to the law at the time when the crime was committed." Muhammad, supra, 145 N.J. at 56. "There is 'no ex post facto violation . . . if the change in the law is merely procedural and does not increase the punishment, nor change the ingredients of the offense or the ultimate facts necessary to establish guilt.'" State v. Natale, 184 N.J. 458, 491 (2005) (quoting Miller v. Florida, 482 U.S. 423, 433, 107 S. Ct. 2446, 2452-53, 96 L. Ed. 2d 351, 362 (1987)) (internal citations omitted).
In 1998, defendant was convicted of aggravated sexual assault and sentenced as a Megan's Law offender. As part of his sentence, defendant was placed on community supervision for life. The statute in place at the time provided:
e. (1) A person serving a special sentence of community supervision . . . who commits a violation of [among others, N.J.S.A. 2C:13-6 or 2C:24-4,] shall be sentenced to an extended term of imprisonment.
(2) The court shall not impose a sentence of imprisonment pursuant to this subsection unless the ground therefor has been established at a hearing after the conviction of the defendant and on written notice to the defendant of the ground proposed. The defendant shall have the right to hear and controvert the evidence against him and to offer evidence upon the issue.
[L. 1994, c. 130, § 2.]
In 2003, N.J.S.A. 2C:13-6 was amended, replacing each instance of the word "community" with the word "parole." L. 2003, c. 267, § 2. Defendant's current sentence was imposed pursuant to N.J.S.A. 2C:43-6.4(e), which provides in relevant part:
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 or 2C:24-4, among others,] when the offense is a crime of the second degree, . . . shall be sentenced to an extended term of imprisonment . . . which term shall . . . be served in its entirety prior to the person's resumption of the term of parole supervision for life.
Defendant argues that because he was under community supervision for life at the time of his current offenses, he cannot be sentenced under the current statute which applies only to those on parole supervision for life.
When N.J.S.A. 2C:43-6.4 was amended in 2003, the Senate Sponsor's Statement clarified that community supervision for life was the equivalent of parole supervision for life:
This bill amends section 2 of P.L. 1994, c. 130 (C. 2C:43-6.4) to clarify that the lifetime community supervision required by this section is parole supervision, which commences upon the defendant's actual release from incarceration, and is to be supervised like any other period of parole. A person serving a special sentence of parole supervision for life pursuant to this section would be subject to the standard provisions and conditions of parole, as determined by the State Parole Board.
[Sponsor's Statement to Senate Bill No. 2659, (June 12, 2003).]
The word-for-word substitution of "parole" for "community" suggests, as the sentencing court concluded, that the amendment was a matter of "form and not substance," and all that changed was the phrase used to describe defendant's status. Parallel administrative provisions provide virtually identical terms for "community supervision for life," N.J.A.C. 10A:71-6.11, and "parole supervision for life," N.J.A.C. 10A:71-6.12, the only difference being that supervision for offenses committed prior to January 14, 2004, the effective date of the amendment, receive the "community supervision for life" designation.
Both sections find authorization for the imposition of lifetime supervision in N.J.S.A. 2C:43-6.4. Both sections also provide for supervision by the "Division of Parole." N.J.A.C. 10A:71-6.11(b), -6.12(c). Even at the time defendant was sentenced in 1998, N.J.S.A. 2C:43-6.4(b) provided that those under community supervision "shall be supervised as if on parole and subject to conditions appropriate to protect the public and foster rehabilitation." L. 1994, c. 130, § 2.
Aside from the purely statutory evidence that the change from community supervision to parole supervision was merely a textual formality, we have previously recognized, prior to the amendment, that "community supervision for life [is] the functional equivalent of life-time parole." State v. Jamgochian, 363 N.J. Super. 220, 227 (App. Div. 2003). In State v. Bond, 365 N.J. Super. 430, 436-37 (App. Div. 2003), decided on the eve of the amendment, a defendant under community supervision challenged his sentence for violating the conditions of supervision, on the grounds that N.J.S.A. 2C:43-6.4 was unconstitutionally vague because it did not make clear what conduct it prohibited. We rejected this challenge, concluding that the "statute requires persons subject to [community supervision] be treated in accordance with the laws and regulations pertaining to paroled persons." Id. at 438. The parole regulations constituted a "contextual background" regarding the community supervision for life law that put defendants on notice of what conduct was prohibited. Id. at 438-39. This change was linguistic, not substantive. Defendant has failed to demonstrate that his sentence was illegal or unconstitutional.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION