Full Opinion

RECORD IMPOUNDED NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3. SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2721-24 STATE OF NEW JERSEY, Plaintiff-Respondent, v. JOEL T. TOMPKINS, Defendant-Appellant. ______________________ Argued October 21, 2026 – Decided November 4, 2026 Before Judges Puglisi and Jacobs. On appeal from the Superior Court of New Jersey, Law Division, Morris County, Accusation No. 99-01-0078. James H. Maynard argued the cause for appellant (Maynard Law Office, LLC, attorneys; James H. Maynard, Designated Trial Counsel, on the briefs). Michelle Ghali, Assistant Prosecutor, argued the cause for respondent (Robert J. Carroll, Morris County Prosecutor, attorney; Michelle Ghali, of counsel and on the brief). PER CURIAM Defendant Joel Tompkins appeals from the denial of a motion to withdraw his 1999 guilty plea to second-degree endangering the welfare of a child by reproducing child sexual exploitation material (CSEM). 1 We affirm. I. In January 1999, defendant agreed to plead guilty to four counts of an Accusation charging: third-degree burglary, N.J.S.A. 2C:18-2(a)(1); fourth- degree possession of a prohibited weapon (hollow-tip bullets), N.J.S.A. 2C:39- 3(f); third-degree illegal sale of a firearm, N.J.S.A. 2C:39-9; and second-degree endangering the welfare of a child (reproducing CSEM for the purpose of distributing), N.J.S.A. 2C:24-4(b)(4). The charges arose from defendant's theft and sale of firearms from his former employer and the later discovery of CSEM on his computer during a warranted search of his bedroom. Terms of the plea agreement contemplated the possibility of a probationary sentence dependent on defendant's cooperation with federal authorities in a pending illegal firearms sales investigation. In August 1999, 1 The motion court referred to the subject material as CSAM (Child Sexual Abuse Material). Counsel for the State and defendant uniformly referred to the subject images as CSEM (Child Sexual Exploitation Material). Case law uses both acronyms, and we perceive them as equivalent. Thus, for ease of understanding and consistency, we refer to the subject material as CSEM. A-2721-24 2 defendant was sentenced to five years' probation, Community Supervision for Life (CSL), and Megan's Law. N.J.S.A. 2C:43-6.4; N.J.S.A. 2C:7-1 to -23. In March 2010, on motion of defendant, the judgment of conviction was amended to correct a scrivener's error, with consent of the State, from N.J.S.A. 2C:24-4(b)(5) (distribution of CSEM) to 2C:24-4(b)(4) (reproduction of CSEM for the purpose of distributing). In addition, the State agreed, and the court approved, defendant's request to remove the special sentence of CSL. In October 2024, defendant moved to withdraw his 1999 guilty plea to the child endangerment count. At the time of defendant's guilty plea, N.J.S.A. 2C:24-4(b)(4), later amended in 2017, criminalized the reproduction of "item[s] depicting the sexual exploitation or abuse of a child," or CSEM. In a supporting certification, defendant argued his actions—purportedly making backup copies of CSEM solely for personal use—did not constitute "reproduction" under N.J.S.A. 2C:24-4(b)(4). See State v. Sisler, 177 N.J. 199, 207 (2003) (holding photocopying or reproduction of CSEM for personal use does not constitute reproduction under N.J.S.A. 2C:24-4(b)(4)). Defendant further observed the Slater factors, typically considered in a motion to vacate a guilty plea, do not apply when asserting innocence based on the alleged insufficiency of the factual basis for a plea. State v. Slater, 198 N.J. 145, 157-58 (2009); State v. Tate, 220 A-2721-24 3 N.J. 393, 404-05 (2015). Due to the significant passage of time, a transcript of the plea proceeding was unavailable. Following oral argument, Judge Ralph E. Amirata denied the motion in an oral decision, entering a March 27, 2025 order the same day. The judge rejected defendant's claim he made backup copies of CSEM for personal use without intent to distribute them. In making this finding, the judge relied on the "Offense Information" section of the presentence report, the affidavit submitted in support of the search warrant, and law enforcement's summary of defendant's statements during interrogation. This evidence persuaded the judge it was defendant's intent to "trade" CSEM over the internet to "get better stuff," as defendant described his actions in a Mirandized 2 statement to investigators. Acknowledging the applicability of Tate where a defendant's claim is limited to innocence based on a plainly insufficient factual basis, the judge concluded Tate was inapposite, because defendant's motion was more accurately described as an analysis of the plea in relation to a later court ruling on the applicable statute based on defendant's current recollection of his statements under oath in 1999, and not a question of the adequacy of the factual basis offered and accepted by the [c]ourt in 1999. 2 Miranda v. Arizona, 384 U.S. 486 (1966). A-2721-24 4 Based on this conclusion, the judge assessed the Slater factors: "(1) whether the defendant has asserted a colorable claim of innocence; (2) the nature and strength of defendant's reasons for withdrawal; (3) the existence of a plea bargain; and (4) whether withdrawal would result in unfair prejudice to the State or unfair advantage to the accused." 198 N.J. at 157-58. The judge's comments about Tate formed the basis for his determination on the first Slater factor, concluding defendant was not genuinely asserting a claim of innocence, but rather reframing his conduct to align with the reasoning in Sisler. Accordingly, the judge weighed the first factor against defendant. In evaluating the second and third Slater factors, the judge questioned whether defendant's reasons for withdrawal carried "any force" given the significant passage of time. He observed defendant had not sought to withdraw his guilty plea in 2010, when he moved to amend the judgment of conviction, thereby undermining the force of this belated application. Moreover, the judge recognized defendant had received substantial benefits from the plea bargain; namely, a favorable probationary sentence and immunity from further prosecution. Fourth, the judge determined that allowing withdrawal of the plea would unfairly prejudice the State, considering the loss of records, diminished memories, and the challenges of prosecuting a case more than twenty-five years A-2721-24 5 after the events. Accordingly, the judge found all four factors weighed against withdrawal. In addition, the judge found "defendant's motion to withdraw his plea [was not] to correct . . . [a] manifest injustice. This [c]ourt finds no evidence of a manifest injustice." On appeal, defendant raises the following arguments. POINT I DEFENDANT IS ENTITLED TO WITHDRAW HIS GUILTY PLEA . . . BECAUSE DEFENDANT'S PLEA ALLOCUTION FAILED TO INCLUDE AN ADMISSION TO FACTS SUFFICIENT TO SATISFY ALL THE ELEMENTS OF THE CHARGED OFFENSE. A. When an Adequate Factual Basis Does Not Support a Guilty Plea, the Plea May Be Withdrawn without an Analysis of the Slater Factors. B. N.J.S.A. 2C:24-4(b)(4) Establishes Three Distinct Classes of Criminal Conduct, Each with Their Own Elements. C. The Only Provision of N.J.S.A. 2C:24- 4(b)(4) Under Which the State Sought to Prosecute [Defendant], and the Only Provision to Which His Counsel Sought to Plead [Defendant] Guilty, Was the Reproduction Provision. A-2721-24 6 D. Case Law Precedent Has Established that N.J.S.A. 2C:24-4(b)(4) Does Not Prohibit the Backing Up of CSEM Images to Compact Discs. POINT II ALTERNATIVELY, DEFENDANT HAS SATISFIED THE FOUR FACTOR BALANCING TEST OF SLATER, WARRANTING WITHDRAWAL OF HIS PLEA TO [THE SUBJECT] COUNT . . . OF THE ACCUSATION TO PREVENT A MANIFEST INJUSTICE. POINT III THE TRIAL COURT ERRORS OF LAW REQUIRE DE NOVO REVIEW OF THE COURT'S DECISION. A. The Trial Court Erroneously Concluded that N.J.S.A. 2C:24-4(b)(4) Criminalized Distribution of CSEM. B. The Court Erred In Determining that State v. Tate, 220 N.J. 393 (2015) Was Inapplicable to [Defendant]'s Motion to Vacate His Plea. POINT IV THE TRIAL COURT ABUSED ITS DISCRETION BY RELYING ON THE HEARSAY SUMMARY OF DETECTIVE MARK SMITH TO DETERMINE [DEFENDANT] "TRADED" CSEM, CONTRARY TO THE STATE'S REPRESENTATION THAT HE DID NOT TRADE. A-2721-24 7 A. The State Repeatedly Asserted that the State Was Not Alleging that [Defendant] Trade[d] CSEM. B. Contrary to Representations Made By the State, the Court Found that [Defendant] Had Traded CSEM Based on the Hearsay Report of Detective Mark Smith II. Where a trial court denies a defendant's motion to withdraw a plea supported by a factual basis, we review for an abuse of discretion. State v. Lipa, 219 N.J. 323, 332 (2014). That standard of review is appropriate because the trial court has made "qualitative assessments about the nature of a defendant's reasons for moving to withdraw his plea and the strength of his case and because the court is sometimes making credibility determinations about witness testimony." Tate, 220 N.J. at 404. When reviewing the adequacy of a guilty plea's factual basis, our review is de novo because "the trial court is not making a determination based on witness credibility or the feel of the case, circumstances that typically call for deference to the trial court." Ibid.; see also State v. Barboza, 115 N.J. 415, 422 (1989) ("The discretion of the trial court in assessing a plea is limited to assuring that the criteria for a valid plea of guilty have been met.") ; State v. Campfield, A-2721-24 8 213 N.J. 218, 230-32 (2013) (analyzing whether factual basis existed without need to discuss Slater factors). Should we determine "a factual basis has not been given to support a guilty plea, the analysis ends and the plea must be vacated." Tate, 220 N.J. at 404. Motions filed at or before sentencing should be granted in the "interests of justice." R. 3:9-3(e). In such circumstances, trial courts should exercise their discretion liberally to allow plea withdrawals. State v. Smullen, 118 N.J. 408, 416 (1990). "In contrast, after sentencing defendants must show their conviction was manifestly unjust in appealing to the court's broad discretion. " Slater, 198 N.J. at 156. Rule 3:21-1 provides: "[a] motion to withdraw a plea of guilty or non vult shall be made before sentencing, but the court may permit it to be made thereafter to correct a manifest injustice." In both scenarios, "the burden rests on the defendant, in the first instance, to present some plausible basis for his request, and his good faith in asserting a defense on the merits." Smullen, 118 N.J. at 416 (quoting State v. Huntley, 129 N.J. Super. 13, 17 (App. Div. 1974)). With these well-established principles in mind and after reviewing the record, we are satisfied Judge Amirata correctly determined defendant's reliance on Tate was misplaced. In Tate, the defendant moved to withdraw his guilty plea before imposition of sentence. 220 N.J. at 404. The Court had the benefit A-2721-24 9 of a plea transcript in which defense counsel and the prosecutor articulated a factual basis, to which defendant assented by stating "[y]es." Id. at 399. The Court disapproved eliciting a factual basis in this way, reaffirming the principle that "before accepting a guilty plea, 'the trial court must be satisfied from the lips of the defendant that he committed the acts which constitute the crime. '" Id. at 406 (quoting Smullen, 118 N.J. at 415) (internal quotation marks omitted). By contrast, the record here contains no transcript. Thus, there is no way to readily determine how the factual basis was elicited, what was said, or by whom. In this context, the judge did not abuse his discretion in finding defendant's certification to be self-serving and turning to surrounding circumstances to ascertain the salient facts. 3 Our Supreme Court has held "[a] defendant's admission or acknowledgment may be completely understood . . . in light of all surrounding circumstances." Barboza, 115 N.J. at 422 (citing State v. Sainz, 107 N.J. 283, 293 (1987)). See Sainz, 107 N.J. at 293 ("A defendant's admissions or factual version need not be the sole source of information for the 3 We note, however, defendant's certification is not entirely self -serving in that he states, "At my plea hearing, I do not recall being asked whether I traded child pornography, but do recall that when asked about the endangering the welfare of a child charge, I admitted to downloading child pornography and making backup copies" (emphasis added). Defendant's lack of recollection to this critical aspect of his allocution lends further support to Judge Amirata's finding of distributive intent based on surrounding circumstances. A-2721-24 10 court's sentencing decision. . . . [A] court may look to other evidence in the record when making such determinations [and] should consider 'the whole person,' and all the circumstances surrounding the commission of the crime. "). Those surrounding circumstances, as found by Judge Amirata, consisted of a case detective's summary of defendant's statement that defendant had traded his CSEM for "better stuff." Summarizing defendant's admission, the detective wrote: I asked [defendant] how he started his child pornography collection. He said he first made contact with individuals on the [i]nternet who were willing to trade pictures (of child pornography) they had. At that time he had no pictures of children to trade. He traded nude pictures of adults for child pornography, in effect cheating the other person in the trade who was expecting to get child pornography in return for child pornography. [Defendant] said he eventually built up a collection of his own child pornography and was able to make trades for "better stuff," referring to other types of child pornography. Based, in part, on this statement, the judge found defendant had traded or distributed CSEM, supporting the conclusion he reproduced CSEM for the purpose of distributing it, consistent with his guilty plea to that count under N.J.S.A. 2C:24-4(b)(4). Judge Amirata also referenced the "offense circumstances" portion of defendant's presentence report, "deemed accurate at the time [of sentence]," in A-2721-24 11 which the probation department described items recovered during the search of defendant's bedroom: "[police] also found numerous images depicting child pornography which he downloaded from the internet onto his computer. The pictures were traded with various people via the internet." Once more, this memorialization of defendant's conduct by his own words reflects an intent to distribute CSEM. Although hearsay, these portions of the presentence report are admissible at sentencing and, by extension, may be considered by the motion court if found reliable. A sentencing judge may exercise a far-ranging discretion as to the sources and types of evidence used to assist him or her in determining the kind and extent of punishment to be imposed. Williams v. New York, 337 U.S. 241 (1949). This universal understanding of sentencing discretion is consistent with our traditional approach to the information that can and should be available generally in sentencing. Presentence materials can be placed before the sentencing tribunal without surmounting regular hurdles of evidential admissibility. Sentencing deliberations may appropriately take into account matters that would not satisfy conventional evidential standards. N.J.S.A. 2C:44-6; R. 3:21-2; State v. Marzolf, 79 N.J. 167 (1979); State v. Green, 62 N.J. 547 (1973). In short, the sentencing process should embrace an evidential inquiry "broad in scope, largely unlimited either as to the kind of information that may be considered, or the source from which it may come." United States v. Tucker, 404 U.S. 443, 446 (1972). A-2721-24 12 [State v. Davis, 96 N.J. 611, 619-20 (1984).] See also N.J.R.E. 101(a)(3)(C) (providing "proceedings in a criminal . . . action in which information is presented for the court's use in exercising a sentencing or other dispositional discretion" are a recognized relaxation of our rules against hearsay"). Further, as recognized in Tate, our jurisprudence allows for reliance on "surrounding circumstances" in cases where a challenge to the sufficiency of a factual basis is brought long after imposition of sentence, as in State v. Mitchell, 126 N.J. 565, 581-81 (1992). Tate, 220 N.J. at 407-08. The Court cautioned, "however, surrounding circumstances cannot substitute for the failure to elicit an adequate factual basis from a defendant, where a timely motion or appeal is made to vacate a plea." Id. at 408. "Rule 3:22-12 allows a court to review a petition filed more than five years from the date of the judgment of conviction if the petition alleges facts demonstrating . . . the delay was due to . . . defendant's excusable neglect. . . . If the petitioner does not allege sufficient facts, the Rule bars the claim." Mitchell, 126 N.J. at 577. It is beyond dispute the motion in question was not timely, as it was equally ripe in 2010, when defendant moved to amend the judgment of conviction. Defendant did not A-2721-24 13 provide any satisfactory explanation for why this application was not made at that time. Thus, on de novo review, we discern no error in the judge's factual findings concluding defendant's conduct fell within N.J.S.A. 2C:24-4(b)(4), given the surrounding circumstances reflected in the presentence report and defendant's statement to the case detective, the untimely nature of defendant's motion, and the absence of manifest injustice. We therefore affirm the denial of defendant's motion to withdraw his 1999 guilty plea. To the extent we have not specifically addressed any remaining arguments, they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Affirmed. A-2721-24 14