Opinion
DOCKET NO. A-4480-11T2
06-11-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. J.Z., Defendant-Appellant.
Alan Dexter Bowman argued the cause for appellant. Joie Piderit, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Andrew C. Carey, Acting Middlesex County Prosecutor, attorney; Ms. Piderit, of counsel and on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Yannotti, St. John and Manahan.
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 11-06-0891.
Alan Dexter Bowman argued the cause for appellant.
Joie Piderit, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Andrew C. Carey, Acting Middlesex County Prosecutor, attorney; Ms. Piderit, of counsel and on the brief). PER CURIAM
After defendant pled guilty to one count of possessing an electronic communication device while confined in a correctional facility, contrary to N.J.S.A. 2C:29-10(b), the trial court sentenced him to four years of incarceration, with a two-year period of parole ineligibility. Defendant appeals from the judgment of conviction dated March 23, 2012. For the reasons that follow, we reverse.
The relevant facts are undisputed. In October 2003, defendant was civilly committed to the Special Treatment Unit (STU) pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. He appealed from a June 2005 order continuing his commitment, and we affirmed the order in an unpublished opinion. In re Civil Commitment of J.Z., SVP 342-03, No. A-6029-04 (App. Div. Apr. 18, 2007).
In December 2010, the court continued defendant's civil commitment. The court's order of December 15, 2010, states that defendant stipulated that the State had established, by clear and convincing evidence, that he remained a sexually violent predator in need of involuntary commitment under the SVPA.
On January 23, 2012, defendant pled guilty to one count of possession of an electronic communication device while confined in a correctional facility, contrary to N.J.S.A. 2C:29-10(b), as charged in Middlesex County Indictment No. 11-06-00891. The State agreed to recommend a four-year custodial sentence, with two years of parole ineligibility for the possession of the electronic device, and to dismissal of a second count of the indictment, also charging a violation of N.J.S.A. 2C:29-10(b). The State further agreed to recommend that defendant be sentenced to "time served" for a bribery charge, which was apparently addressed in a separate indictment or accusation.
Defendant was sworn and he provided a factual basis for the pleas. He stated that he was in the STU in October 2010, and he was allowed to have a word processor in that facility. Defendant admitted that he shipped the word processor out of state, so that a motherboard and other computer components could be installed on the device, thereby allowing defendant to have Internet access. Defendant explained that the word processor had been shipped back to him in the STU. Defendant acknowledged that he was not permitted to have a computer or Internet access in the STU. Defendant also provided a factual basis for his plea to the bribery charge.
Defendant was sentenced on March 23, 2012. The court imposed the sentence recommended by the State for the N.J.S.A. 2C:29-10(b) offense, specifically four years of incarceration, with a two-year period of parole ineligibility. The court entered a judgment of conviction dated March 23, 2012. We note that, although the State indicated at the time defendant entered his plea on the bribery charge that it agreed to a sentence of "time served," at sentencing, the court granted the State's motion to dismiss the charge. This appeal followed.
Defendant argues that N.J.S.A. 2C:29-10(b) does not apply to the possession of an electronic device by a person who is committed in the STU pursuant to the SVPA. He therefore argues that his guilty plea to the N.J.S.A. 2C:29-10(b) charge, and the resulting judgment of conviction, should be set aside.
Defendant did not raise this issue when he pled guilty or when he was sentenced. In addition, defendant never moved in the trial court to set aside the plea or conviction. Accordingly, we must determine whether the trial court's acceptance of the plea and entry of the judgment of conviction constitutes plain error, that is, an error clearly capable of producing an unjust result. R. 2:10-2.
"When interpreting statutory language, the goal is to divine and effectuate the Legislature's intent." State v. Shelley, 205 N.J. 320, 323 (2011) (citing DiProspero v. Penn, 183 N.J. 477, 492 (2005)). Thus, we begin our analysis with the language of the statute, and give the words used therein their ordinary and accepted meanings. Ibid. (citing DiProspero, supra 183 N.J. at 492). When the statutory language is clear and unambiguous, we do not need to go beyond the statute's literal terms in determining the Legislature's intent. State v. Gandhi, 201 N.J. 161, 180 (2010).
N.J.S.A. 2C:29-10(b) provides that
A person who possesses or uses an electronic communication device or a battery or device to recharge an electronic communication device while confined to a State correctional facility, secure juvenile facility, county correctional facility, or county juvenile detention facility is guilty of a crime of the third degree.
The State argues that the STU qualifies as either a State or county correctional facility as those terms are defined in N.J.S.A. 2C:29-10(a). There, "State correctional facility" is defined as "a State prison or other penal institution" and "county correctional facility" is defined as "any prison or other secure facility managed and operated by any county of this State in which adult offenders are incarcerated." Ibid.
The STU is not a "State prison or penal institution." The State Department of Corrections (DOC) is responsible for the operation of the STU. N.J.S.A. 30:4-27.34(a). However, the STU is not a prison or penal institution. The STU is a facility for the "custody, care and treatment of sexually violent predators." Ibid. Moreover, persons committed to the STU must be "housed and managed separately from offenders in the custody of the [DOC] and, except for occasional instances of supervised incidental contact, shall be segregated from such offenders." Ibid.
Furthermore, the STU is not a "county correctional facility." The STU may be "a secure facility," but it is not managed or operated by a county. The facility is managed and operated by the DOC. N.J.S.A. 30:4-27.24(a). In addition, persons civilly committed pursuant to the SVPA are not "incarcerated" in the STU. The ordinary and accepted meaning of the word "incarcerate" is to "to imprison" or "jail." Webster's New World College Dictionary 681, (3d. ed. 1997). The STU is neither a prison nor jail.
Thus, based on the plain language of the statutes, we are convinced that the STU is not a State or county correctional facility for purposes of N.J.S.A. 2C:29-10(b). Because the statutes can be interpreted based on their plain language, we need not consider extrinsic evidence, such as legislative history. Shelley, supra, 205 N.J. at 323 (citing State v. D.A., 191 N.J. 158, 164 (2007)).
However, the legislative history of the statute supports our interpretation. N.J.S.A. 2C:29-10 was enacted in 2007. See L. 2007, c. 127, § 1. Sponsors of the proposed measure indicated that it was
in response to situations where inmates have used cellular telephones to organize criminal activity outside of the prison. Under current law, administrative regulations prohibit inmates from possessing cellular phones, but the administrativeThe sponsors' use of the terms "inmates" and "prison" in their statement makes clear that the legislation was intended to apply to prisons or other penal facilities where persons are incarcerated, not facilities where persons are civilly committed.
remedies imposed for violations of these regulations are not severe enough to deter the activity sufficiently. Making the offense a second degree crime will create an additional deterrent because an inmate found guilty of possessing or using a cellular phone would receive a significant, additional prison sentence.
[Sens. Ronald L. Rice and Nia H. Gill, Sponsors' Statement to S. 448 (later amended and enacted as L. 2007, c. 127, § 1).]
The bill originally addressed cellular telephones and only applied to "State correctional facilities." The bill was amended to include all electronic communications devices. S. Law and Pub. Safety and Veterans' Affairs Comm., Statement to S. 448 (Feb. 26, 2007). The bill was further amended in order to expand the facilities to which it applied. Assemb. Law and Pub. Safety Comm., Statement to S. 448 (May 17, 2007).
Moreover, the sponsors' references to the "additional deterrent" effect of an "additional prison sentence" indicate that the facilities to which the statute was intended to apply were facilities where persons are serving prison sentences. The sponsors' statement therefore indicates that the proposed legislation was not intended to apply to a facility like the STU, where individuals are civilly committed for custody, care and treatment.
Indeed, considering the STU a "correctional facility" or a "penal institution" for purposes of N.J.S.A. 2C:29-10(b) would be inconsistent with the Legislature's intent in enacting the SVPA, which was "to create a civil, rather than a penal, statute." In re Civil Commitment of W.X.C., 204 N.J. 179, 188 (2010), cert. denied, U.S. ___, 131 S. Ct. 1702, 179 L. Ed. 2d 635 (2011). The SVPA is remedial and regulatory in nature, and its incidental effects, "including the use of confinement as part of the treatment methodology, do not alter the essential character of the statute." Id. at 195.
Even if we considered the relevant provisions of the statute to be ambiguous, and the extrinsic aids did not provide sufficient guidance for determining whether N.J.S.A. 2C:29-10(b) applied to the possession of electronic communication devices in the STU, we would be required to apply the doctrines of strict construction and lenity. Thus, we would interpret the statute strictly and in favor of defendant. Shelley, supra, 205 N.J. at 324 (citing State v. Gelman, 195 N.J. 475, 482 (2008)).
We therefore conclude that N.J.S.A. 2C:29-10(b) does not apply to the possession of an electronic communication device in the STU, and the trial court's determination that defendant provided an adequate factual basis for his plea constitutes plain error. Accordingly, defendant's plea to the N.J.S.A. 2C:29-10(b) charge is set aside and the judgment of conviction entered based on that plea is vacated.
We add the following. As we noted previously, when defendant entered his plea to the N.J.S.A. 2C:29-10(b) charge, he also entered a plea to a bribery charge, and the State agreed to a sentence of "time served." Defendant acknowledged on the record that he had offered to give a corrections officer $50 0 to allow the introduction of a cellular telephone into a facility, presumably the STU.
The record does not include the plea agreement form. However, the transcript of the plea hearing suggests that defendant's plea on the bribery charge was part of an overall agreement to resolve that charge as well as the charges under N.J.S.A. 2C:29-10(b).
Generally, when a plea agreement is vacated, "the parties must be restored to their respective positions prior to the guilty plea, and all counts dismissed by the trial court in accordance with the plea agreement must be reinstated." State v. Campfield, 213 N.J. 218, 237 (2013) (citing State v. Barboza, 115 N.J. 415, 420, 427 (1989)).
Accordingly, we remand the matter to the trial court to determine whether the aforementioned disposition of the bribery charge was part of the agreement under which defendant pled guilty to the charges in Indictment No. 11-06-00891, and whether vacation of the plea to the charge under N.J.S.A. 2C:29-10(b) requires reinstatement of the bribery charge.
On remand, the trial court should enter an order vacating the judgment of conviction on the N.J.S.A. 2C:29-10(b) charge. We note that in the SVPA civil commitment proceeding the court entered an order providing that, upon the completion of his sentence, defendant must return to the STU. Thus, defendant must return to the STU, unless his continued incarceration is otherwise required.
Reversed and the matter is remanded to the trial court for further proceedings in accordance with this opinion. We do not retain jurisdiction.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION