STATE OF NEW JERSEY VS. DERRICK LAWRENCE (17-07-0930 AND 17-07-0931, BERGEN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2919-18T2
STATE OF NEW JERSEY,
APPROVED FOR PUBLICATION
Plaintiff-Respondent,
May 14, 2020
v. APPELLATE DIVISION
DERRICK LAWRENCE,
a/k/a DERRICK DOUGLAS,
DEREK D. LAWRENCE,
DERICK LAWRENCE, and
RAJAN LAWRENCE,
Defendant-Appellant.
_________________________
Submitted April 22, 2020 – Decided May 14, 2020
Before Judges Koblitz, Gooden Brown and Mawla.
On appeal from the Superior Court of New Jersey,
Law Division, Bergen County, Indictment Nos. 17-07-
0930 and 17-07-0931.
Joseph E. Krakora, Public Defender, attorney for
appellant (Mark Zavotsky, Designated Counsel, on the
brief).
Mark Musella, Bergen County Prosecutor, attorney for
respondent (William P. Miller, Assistant Prosecutor,
of counsel and on the brief; Catherine A. Foddai,
Legal Assistant, on the brief).
The opinion of the court was delivered by
MAWLA, J.A.D.
Defendant Derrick Lawrence appeals from a January 18, 2019 order
denying his petition for post-conviction relief (PCR). Defendant was confined
to the Bergen County Jail work release program for failure to pay child
support. When he failed to return by curfew on two occasions, he was indicted
on two counts of third-degree escape, N.J.S.A. 2C:29-5(a). Defendant pled
guilty to the charges and was subsequently sentenced. We reverse and hold
that an individual on work release for contempt of a civil order cannot be
charged with the criminal offense of escape.
Defendant entered the work release program in 2014 for failing to pay
his child support and arrears obligations. On April 4, 2014, he was released to
find work but failed to return by the curfew time and within the allotted two-
hour grace period following curfew. This resulted in the first indictment. A
week later, defendant was again released to find work, failed to return for a
week, and then turned himself in, resulting in the second indictment.
Defendant pled guilty to both charges before the judge who would later
hear his PCR petition. The judge accepted the plea and found defendant
voluntarily entered into it with the advice of counsel. Defendant was then
sentenced to five years of probation, conditioned upon serving 120 days in jail,
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in addition to various fines and fees, which the judge required defendant to pay
at a rate of ten dollars per month.
In October 2017, defendant was charged with violation of probation
because his probation officer was unable to reach him. The violation charge
was amended to include a shoplifting charge incurred the same month and
defendant's continued failure to pay child support. During this time, probation
also learned defendant left for California to attend his father's funeral without
permission and failed to make any of the monthly payments for the fines and
fees owed. Defendant pled guilty, was sentenced to three years of
incarceration to run concurrent with his prior sentences and terminated from
probation.
In January 2019, defendant filed the PCR petition, arguing his plea
counsel was ineffective because he failed to argue N.J.S.A. 2C:29-5(a) did not
apply to defendant. As a result, he asserted his plea was neither voluntary, nor
knowing, and his sentence was illegal. The judge denied the petition without
an evidentiary hearing, reaffirming his finding that the plea was voluntary and
knowing. The judge also concluded defendant's failure to return to the Bergen
County Jail met the statutory elements for escape, because his confinement on
work release constituted "official detention" pursuant to N.J.S.A. 2C:29-5(a).
Therefore, the judge concluded defendant was sentenced in accordance with
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the law and his plea counsel was not ineffective for failing to assert the novel
argument that a person on work release for non-payment of child support could
not be charged with escape. The judge also noted defendant failed to raise this
argument on appeal in which he only challenged his sentence as excessive.
On this appeal, defendant raises the following points:
POINT I – DEFENDANT'S PETITION FOR POST
CONVICTION RELIEF SHOULD NOT BE BARRED
BECAUSE THE CLAIM THAT THE JUDGE
MISAPPLIED THE LAW IN ACCEPTING HIS
PLEA AMOUNTED TO AN ILLEGAL SENTENCE,
OR IN THE ALTERNATIVE, INVOLVED
INACTION WHICH WAS NOT PART OF THE
RECORD FOR THE APPELLATE REVIEW.
POINT II – THE SENTENCE IMPOSED ON
DEFENDANT WAS ILLEGAL AND THEREFORE
VOID.
POINT III – DEFENDANT WAS DENIED
EFFECTIVE ASSISTANCE OF TRIAL COUNSEL
AT THE PLEA STAGE OF THE PROCEEDINGS
FOR AFFIRMATIVELY MISADVISING HIM THAT
HE WAS SUBJECT TO THE ELEMENTS OF
ESCAPE, AND BY FAILING TO MOVE TO
DISMISS THE INDICTMENT LEAVING HIM NO
VIABLE ALTERNATIVE BUT TO ENTER A
GUILTY PLEA.
A. APPLICABLE LAW
B. COUNSEL WAS INEFFECTIVE FOR
MISADVISING THE DEFENDANT THAT HE
WAS SUBJECT TO N.J.S.A. 2C:29-5A, AND
FOR NOT MOVING TO DISMISS THE
INDICTMENT, THEREFORE DEFENDANT
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WAS PREVENTED FROM HAVING
ENTERED A KNOWING AND INTELLIGENT
PLEA.
"Post-conviction relief is New Jersey's analogue to the federal writ of
habeas corpus." State v. Goodwin, 173 N.J. 583, 593 (2002) (quoting State v.
Preciose, 129 N.J. 451, 459 (1992)). The process affords an adjudged criminal
defendant a "last chance to challenge the fairness and reliability of a criminal
verdict." State v. Nash, 212 N.J. 518, 540 (2013).
"[W]here the [PCR] court does not hold an evidentiary hearing, we may
exercise de novo review over the factual inferences the trial court has drawn
from the documentary record." State v. O'Donnell, 435 N.J. Super. 351, 373
(App. Div. 2014). We review a PCR court's legal conclusions de novo. State
v. Harris, 181 N.J. 391, 415-16 (2004) (citing Toll Bros., Inc. v. Twp. of W.
Windsor, 173 N.J. 502, 549 (2002)).
Rule 5:7-5(a) addresses enforcement of child support judgments and
provides as follows:
If a person fails to make payments . . . as directed by
an order or judgment, the Probation Division
responsible for monitoring and enforcing compliance
shall notify such person by mail that such failure may
result in the institution of Relief to Litigant
proceedings in accordance with [Rule] 1:10-3 and
[Rule] 5:3-7(b). Upon the accumulation of a support
arrearage equal to or in excess of the amount of
support payable for [fourteen] days . . . as ordered, the
Probation Division shall file a verified statement
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setting forth the facts establishing disobedience of the
order or judgment. The Probation Division may then,
on the litigant's behalf, apply to the court for relief in
accordance with [Rule] 1:10-3 and [Rule] 5:3-7(b).
Rule 5:3-7(b) states: "On finding that a party has violated . . . [a] child support
order the court may, in addition to the remedies provided by [Rule] 1:10-3,
grant any of the following remedies, either singly or in combination: . . . (6)
incarceration, with or without work release."
Based on our research, Bergen County stands alone in affording a work
release option in cases involving child support contemnors. 1 Work release is
authorized pursuant to N.J.S.A. 30:8-44, which states:
In any county in which the governing body, by
ordinance or resolution, as appropriate, approves the
application of this act and designates a county work
release administrator who may be the sheriff, warden
or other person, a person convicted of any offense,
except as otherwise provided in section 2 of P.L.1994,
c.153 (C.30:8-44.1) and sentenced to the county jail,
workhouse or penitentiary of the county or a person
incarcerated in the county jail, workhouse or
penitentiary pursuant to the Rules of Court for
contempt of an order or judgment issued by the
Superior Court, Chancery Division, Family Part may
be placed at outside labor or permitted to attend a
vocational training course operated or sponsored by a
public or private agency in the county by order of the
1
Adhering to the Supreme Court's ruling in Pasqua v. Council, 186 N.J. 127,
153 (2006), the Bergen County Family Division also appoints counsel, retained
by the County, for indigent litigants facing coercive incarceration in contested
child support enforcement hearings.
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court by which the sentence or order of incarceration
was imposed, or by the assignment judge of the county
in which the sentence or order of incarceration was
imposed, at the time such person is sentenced or
incarcerated or at any time thereafter during the term
of the sentence or term of incarceration. A work
release order may include permission for release from
confinement during specified hours to care for the
offender’s family. Such order may be revoked by the
court which granted it at any time.
[(Emphasis added).]
N.J.S.A. 2C:29-5(a) defines escape as follows:
A person who commits an offense if he without lawful
authority removes himself from official detention or
fails to return to official detention following
temporary leave granted for a specific purpose or
limited period. "Official detention" means arrest,
detention in any facility for custody of persons under
charge or conviction of a crime or offense . . . or any
other detention for law enforcement purposes; but
"official detention" does not include supervision of
probation or parole, or constraint incidental to release
on bail.
Pursuant to the Model Penal Code,
. . . "official detention" from which escape will be
punished . . . includes "arrest, detention in any facility
for custody of persons under charge or conviction of
crime or alleged or found to be delinquent, detention
for extradition or deportation, or any other detention
for law enforcement purposes." It seems plain that the
offense of escape should be extended to delinquency,
extradition, and deportation proceedings and that the
process from arrest through conviction and service of
an institutional sentence should be included. The
phrase "any other detention for law enforcement
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purposes" is meant to take account of the diversity of
institutional facilities employed in modern penology.
The definition specifically excludes, however,
"supervision of probation or parole, or constraint
incidental to release on bail." Bail jumping is
separately treated in Section 242.8, while conditional
release on probation or parole carries its own
sanctions.
[Model Penal Code § 242.6 cmt 3 at 264 (Official
Draft and Revised Comments 1962) (1980 ed.)
(emphasis added).]
Our Supreme Court stated:
. . . The primary goal in construing any statute is to
divine the Legislature's intent. DiProspero v. Penn,
183 N.J. 477, 492 (2005). As always, we begin by
examining the actual words of the statute, giving them
their ordinary and commonsense meaning. Ibid. If
the meaning of those words on their face is clear
enough to yield the answer, we look no further. Ibid.
Only if the statutory language is susceptible to "more
than one plausible interpretation" do we turn to such
extrinsic aids as legislative history for help in
deciphering what the Legislature intended. Id. at 492-
93.
Moreover, . . . when interpreting a criminal
statute, ambiguities that cannot be resolved by either
the statute's text or extrinsic aids must be resolved in
favor of the defendant. United States v. Bass, 404
U.S. 336, 348 (1971) ("[W]here there is ambiguity in a
criminal statute, doubts are resolved in favor of the
defendant."); State v. Reiner, 180 N.J. 307, 318 (2004)
("When the text of a statute and extrinsic aids do not
enlighten us satisfactorily concerning the Legislature's
intent, our obligation is to construe the statute strictly,
against the State and in favor of the defendant."); see
also State v. Froland, 193 N.J. 186, 194 (2007).
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[State v. Gelman, 195 N.J. 475, 482 (2008).]
As the Court noted in Pasqua, enforcement proceedings for the
collection of child support are brought under Rule 1:10-3. 186 N.J. 140-41.
"[A] proceeding to enforce litigants' rights under Rule 1:10-3 'is essentially a
civil proceeding to coerce the defendant into compliance with the court's order
for the benefit of the private litigant' and 'incarceration may be ordered only if
made contingent upon defendant's continuing failure to comply with the
order.'" Id. at 140 (quoting Essex County Welfare Bd. v. Perkins, 133 N.J.
Super. 189, 195 (App. Div. 1975)).
There is no evidence the Legislature intended to apply N.J.S.A. 2C:29-
5(a) to a defendant on work release for contempt in a civil proceeding. The
statute has only been applied to a defendant who left work release without
authorization where the defendant was serving a criminal sentence. See State
v. Walker, 131 N.J. Super. 547, 548 (App. Div. 1974). Moreover, resort to
extrinsic sources such as the Model Penal Code, does not support the
conclusion that confinement subject to work release for the failure to pay child
support is "for law enforcement purposes." Indeed, coercive confinement for
child support purposes is for the benefit of the payee on behalf of the
child(ren), and subjecting a delinquent obligor to criminal punishment only
impedes the receipt of support.
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Therefore, defendant could not be charged with escape pursuant to
N.J.S.A. 2C:29-5(a), and his plea to the offense was void as a matter of law.
For these reasons, we vacate defendant's convictions for escape and remand for
re-sentencing on the non-escape related offenses.
Reversed and remanded. We do not retain jurisdiction.
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