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The New Jersey Appellate Division has reopened a sex offense conviction because the trial judge failed to tell the defendant when he pleaded guilty that he faced lifetime supervision under Megan’s Law. The appeals panel on May 19 ordered the case, State v. Horton, A-4132-98T3, remanded for an evidentiary hearing to determine the validity of the defendant’s claim that he was misinformed and whether the conviction should be vacated or other relief should be granted. At the plea and sentence allocution, Burlington County, N.J., Superior Court Judge Patricia LeBon asked Paul Raymond Horton, a retired factory worker living with his wife in a trailer in Cape May County, N.J., whether he was aware that he might be subject to community supervision. He answered yes. However, LeBon did not use the term “lifetime,” which Megan’s Law requires at N.J.S.A. 2C:43-6.4. Horton pleaded guilty to a one-count accusation charging him with third-degree endangerment of the welfare of a child; specifically, he admitted touching the breasts of an 11-year-old girl. He was sentenced to 180 days in jail on weekends, two years of probation and mandatory counseling sessions. He is to have no unsupervised contact with children under the age of 16. He completed his jail term on Sept. 30, 1995, and his probation on Jan. 12, 1998. The state Parole Board wrote to the judge on April 15, 1997 — and again on July 17, 1997, Oct. 30, 1997, Jan. 22, 1998, and July 21, 1998 — to ask whether the sentence included lifetime community supervision. On July 24, 1997, the prosecutor moved to amend the judgment of conviction to reflect the imposition of lifetime supervision. Horton cross-moved to set aside his plea agreement if the state’s motion were granted. The motions were argued on July 29, 1997. LeBon did not announce her decision until Jan. 25, 1999, when she directed that the lifetime provision be included. She did not mention Horton’s cross-motion to withdraw his plea, though the appeals court said LeBon implied that it was denied. Horton’s attorney, Edward Crisonino, says he did not know of the lifetime supervision requirement when Horton pleaded guilty because the supervision part is listed separately from the community notification part of the law. “I wasn’t aware of it,” the Westmont, N.J., solo practitioner says. Most of Megan’s Law is at N.J.S.A. 2C:7-1 through 2C:7-11, while the community notification part is at N.J.S.A. 2C:43-6.4. “I can understand why the defense attorney was led astray. It is two separate portions of the law,” says Ronald Chen, associate dean for academic affairs at Rutgers Law School-Newark who has been involved in the defense side of Megan Law cases. Crisonino appealed LeBon’s decision on including the lifetime supervision. He argued that “no court rule allows for amending a sentence eighteen months after it is entered to impose a term of lifetime parole.” However, the appeals court disagreed, saying that under the circumstances, the amended sentence does not constitute double jeopardy. Judge Murry Brochin, joined by Judge Naomi Eichen, wrote that “a court has the inherent power to correct an illegal sentence even though there is no rule expressly authorizing it.” Crisonino says he plans to file an appeal for another client sentenced under similar circumstances in Camden County, N.J. Gladys Rodriguez, head of the Megan’s Law unit for the Camden County Prosecutor’s Office, says one appeal already has been filed in her county under the Horton precedent, and she is expecting others. “If that’s a large class of cases, which it very well could be, that could well unsettle a lot of convictions,” says Chen. Burlington County Prosecutor Robert Bernardi says his office will fight Horton’s claims in the evidentiary hearing. “The only word she doesn’t utter is for life,” Bernardi says of LeBon’s discussion with Horton. “I’m not sure that’s critical. Our position would say that it’s not.” Bernardi also notes that Rule 3:9-2[1] holds that a guilty plea need not be vacated because the court did not notify a defendant of collateral consequences of the plea. Rodriguez, the Camden County assistant prosecutor, says the first Megan’s Law plea forms distributed by the Administrative Office of the Courts did not require judges to advise defendants about lifetime supervision. The forms were changed later, but she cannot pinpoint the date. The AOC press office did not return reporters’ calls requesting information. Chen says that when Megan’s Law was adopted in 1994, “no one was sure what would happen so they didn’t adopt standard plea colloquies. I think the key thing is, what was the practice?”

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