State v. Mercer

Full title: STATE OF NEW JERSEY, Plaintiff-Respondent, v. RICHARD MERCER…

Court: SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Date published: Jul 22, 2014

DOCKET NO. A-4798-12T4 (App. Div. Jul. 22, 2014)

Opinion

DOCKET NO. A-4798-12T4

07-22-2014

STATE OF NEW JERSEY, Plaintiff-Respondent, v. RICHARD MERCER, Defendant-Appellant.

Miller, Meyerson, & Corbo, attorneys for appellant (Gerald D. Miller, of counsel and on the brief). Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Sara B. Liebman, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

Before Judges Harris and Fasciale.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 12-11-0821.

Miller, Meyerson, & Corbo, attorneys for appellant (Gerald D. Miller, of counsel and on the brief).

Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Sara B. Liebman, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM

Defendant Richard Mercer appeals from a June 3, 2013 order denying his motion to modify his judgment of conviction (JOC). Defendant contends primarily that the JOC does not accurately reflect the terms of his plea agreement. We agree and reverse and remand.

In November 2012, a grand jury indicted and charged defendant with second-degree sexual assault, N.J.S.A. 2C:14-2b (Count One); and second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a (Count Two). Defendant and the assistant prosecutor entered into a plea agreement under which defendant would plead guilty to an amended Count Two of fourth-degree "child neglect," N.J.S.A. 9:6-1, in exchange for the dismissal of the remaining charge and a recommended noncustodial sentence. The judge accepted the plea, prepared a JOC reflecting a conviction for "Abuse of Child - Cruelty -Neglect," and imposed a two-year probationary term.

Defendant filed a motion to amend his JOC to remove the words "cruelty" and "abuse," claiming they did not reflect the terms of his plea agreement, which he argued was only for an act of "neglect." The judge denied the motion, stating at the hearing:

[D]efense counsel's request to strike the words, abuse and cruelty, from the title of the statute to which he pled guilty is unavailable as a form of relief. Upon inquiring with the Criminal Case Management, the [c]ourt has been advised that the statute listed on the JOC cannot be tailored. Rather, for purposes of consistency, the title of the statute listed on each JOC must remain unaltered. As the
title of the statute as listed [is] abuse of a child, -cruelty, -neglect, defense counsel seeks to change this, saying that the plea was of another nature. Given the fact that defense and the State continue to disagree as to the matter of semantics that we're talking about here and I know defense's position is that, well, it should only be neglect, the State's is that it should be abuse. And this Court believes that there's no other relief available given the polar positions of the parties. I'm denying the motion but I will state the following. If defendant wishes to withdraw his plea of guilt, based on his understanding, then he should file the appropriate motion.

On appeal, defendant raises the following arguments:

POINT I
RICHARD MERCER WAS ENTITLED TO SPECIFIC PERFORMANCE OF THE PLEA AGREEMENT ENTERED WITH THE PROSECUTOR AND WHAT THE COURT ADVISED HIM PRIOR TO THE ENTRY OF THE PLEA.
A. THE ASSISTANT PROSECUTOR REPUDIATED THE AGREEMENT ENTERED WITH THE DEFENDANT.
B. THE ACTIONS OF THE COURT DEPRIVED THE DEFENDANT OF DUE PROCESS OF LAW.

We agree with defendant that the JOC does not adequately reflect the terms of his plea. Defendant pled guilty to an act of child neglect, not cruelty or abuse. This was evidenced by the colloquy at defendant's plea allocution:

[COURT:] Okay. Now, you understand that the State is amending the count to a child neglect count under [N.J.S.A.] 9:6-1, it's a fourth-degree, up to [eighteen] months in prison, $7,500 in fines and $50 in assessments. However, in exchange for your
guilty plea the State is agreeing to dismiss the sexual assault count and recommend noncustodial probation, comply with the [Division of Child Protection and Permanency] requirements, submit to a psychosexual evaluation, and follow any recommendations. Do you understand that?
[DEFENDANT:] Yes.
. . . .
[COURT:] Counsel, factual basis please.
[DEFENSE COUNSEL:] Mr. Mercer, on July 17th, 2010 were you in [the municipality where the incident in question occurred]?
[DEFENDANT:] Yes.
[DEFENSE COUNSEL:] And at that time were you with a person [whose] initials are K.M.?
[DEFENDANT:] Yes.
[DEFENSE COUNSEL:] And was she under the age of [thirteen]?
[DEFENDANT:] Yes.
[DEFENSE COUNSEL:] - - at the time?
[DEFENDANT:] Yes.
[DEFENSE COUNSEL:] And on - - on that date and in that place, did you touch her inner thigh?
[DEFENDANT:] Yes.
[DEFENSE COUNSEL:] Did you do so knowingly? [DEFENDANT:] Yes.
[DEFENSE COUNSEL:] And did you - - you now realize that this might have had an impact on her moral well-being?
[DEFENDANT:] Yes, sir.

The judge indicated that defendant was pleading guilty to child neglect. Similarly, the plea form clearly provided that defendant pled guilty to an act of neglect, not cruelty, abandonment, or abuse.

We therefore reverse, remand, and direct the court to modify the JOC accordingly. 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