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NOT FOR PUBLICATION WITHOUT THE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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