STATE OF NEW JERSEY v. JESSE CASTILLO

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1328-04T51328-04T5

A-4297-04T5

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JESSE CASTILLO,

Defendant-Appellant.

 

Submitted October 18, 2006 - Decided November 17, 2006

 
Before Judges Winkelstein and Fuentes.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, 04-02-0282-I.

Jesse Castillo, appellant pro se.

Edward J. DeFazio, Hudson County Prosecutor, attorney for respondent (Leo Hernandez, Assistant Prosecutor, on the brief).

PER CURIAM

A Hudson County Grand Jury indicted defendant Jesse Castillo on one count of second-degree robbery, N.J.S.A. 2C:15-1. He pleaded guilty to that offense on June 9, 2004. On August 26, 2004, the court imposed a ten-year prison term with an eighty-five percent period of parole ineligibility and a three-year period of parole supervision pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant has filed two appeals from his conviction. Under Docket No. A-1328-04T5, defendant, who is representing himself, raises the following points:

POINT ONE:

THE HUDSON CASE MUST BE CONSIDERED UNDER THE FRUITS OF THE POISONOUS TREE DOCTRINE AS IT RELATES TO THE ACTIONS OF THE WAYNE POLICE DEPARTMENT THOSE ACTIONS OR LACK THEREOF IN ITS RESPONSIBILITY TO SECURE A KNOWN CRIME SCENE WHERE IT IS ALLEGED THAT EXCULPATORY EVIDENCE WAS PROCURED BY WAYNE POLICE IN THE DEFENDANTS HOTEL ROOM AND USED AS EVIDENCE IN THE HUDSON COUNTY CASE TO SEEK INDICTMENT AND WHICH ENTERED JUDGMENT AND NOT SUPPRESSED BY COUNSEL IN EITHER COUNTY FOR DEFENDANT.

POINT TWO:

THE ACTIONS BY KEARNY POLICE ILLUSTRATED THE NEED OF COUNSEL TO LITIGATE AND INVESTIGATE THE RECTITUDE OF ALLEGATIONS AGAINST DEFENDANT AND FAILED TO DO SO AS EVIDENCE WAS COMPROMISED IN ALL RESPECTS.

POINT THREE:

THE STATE WITNESSES REPORTED INCONSISTENT ACCOUNTS OF THE ALLEGED ROBBERY PROCEEDS WHICH COULD HAVE WEIGHED SIGNIFICANT QUESTION TO A JURY SHOULD HAVE THE DEFENDANT BEEN PROVIDED HIS COMPLETE DISCOVERY AND GIVEN RELIABLE/KNOWING INFORMATION FROM HIS COUNSEL.

POINT FOUR:

THE STATE WITNESSES REGARDING PHOTO IDENTIFICATION WAS INAPPROPRIATE UNDER WADE.

POINT FIVE:

BOTH HUDSON AND PASSAIC COUNTY CRIMINAL MATTERS SHOULD HAVE BEEN CONSOLIDATED FOR PURPOSES OF PLEA BARGAINING OR CONSOLIDATED/

DISPOSITION DESPITE THE REQUEST OF DEFENDANT TO HIS COUNSEL R. 3:25A-1.

POINT SIX:

DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHTS TO THE EFFECTIVE ASSISTANCE OF COUNSEL DURING THE PENDING PROCEEDINGS.

POINT SEVEN:

THE COUNTY PROSECUTOR CONDUCTING THE GRAND JURY PROCEEDINGS AND OVERSTEPPED ITS AUTHORITY IN LEADING AND GUIDING WITNESSES THROUGHOUT SAID PROCEEDINGS AND PREVENTED SAID PERSONS TO TESTIFY FROM DIRECT KNOWLEDGE AS REQUIRED UNDER N.J.S.A. 34:4-16.

POINT EIGHT:

DEFENDANT DID NOT ENTER A VOLUNTARY PLEA.

POINT NINE:

MR. CASTILLOS' SENTENCE WAS MANIFESTLY EXCESSIVE.

POINT TEN:

THE PETITIONERS SENTENCE IS UNCONSTITUTIONAL AND VIOLATES THE PRESUMPTIVE GUIDELINES AS PROVIDE IN BLAKELY V. WASHINGTON AND IN STATE V. NATALE.

Under Docket No. A-4297-04T5, defendant raises no point headings in his brief, but according to his notice of appeal, he claims he is entitled to additional jail credits. The decision to reduce defendant's jail credits was made by the Law Division judge in Hudson County in a letter dated March 21, 2005. No order memorializing that decision, if in fact one exists, has been provided in the appendix on appeal.

We have reviewed the record in light of defendant's contentions and the applicable law. With the exception of the points raised concerning his sentence, which must be vacated under State v. Natale, 184 N.J. 458 (2005), we find defendant's arguments to be without merit and affirm.

We begin with the facts that lead to the indictment. On September 4, 2003, defendant entered the Schuyler Savings Bank in Kearny. He approached the teller window and placed a note and a bag on the counter. He instructed the teller to read the note and follow its instructions. The note said defendant had a gun; the teller was not to press any buttons, and no one would get hurt if she gave him the money quickly. The teller took money out of the drawer and put it in the bag; defendant picked up the bag and walked out of the bank through the back door. The amount taken from the bank totaled $4840.00.

The police retrieved the note and the video from the bank's surveillance camera was processed as evidence. Based on a photo from the security video, police obtained a positive identification of defendant from an informant. Two bank employees positively identified defendant based on photo line-ups.

After learning the identity of the suspect, the investigation led to the King's Inn in Wayne, where the police located and arrested defendant. When arrested, defendant was carrying $1,513 in cash in his wallet. Evidence taken from his hotel room included items of clothing matching the description of those worn by the bank robber, drugs, and drug paraphernalia.

Because many of defendant's points on appeal hinge upon whether he voluntarily entered his guilty plea, we begin with his point eight, in which he contends the plea was not voluntary. Defendant pleaded guilty to second-degree robbery, which is subject to NERA. Initially, at the plea hearing proceedings, defendant was reluctant to enter a plea without first hearing the State's evidence against him. As a result, the prosecutor began to explain what evidence he anticipated the State would introduce during the trial. As that was taking place, defense counsel advised the court that defendant wanted to accept the State's plea offer; the State would agree to a plea to second-degree robbery and would be free to ask for any sentence within the second-degree range. It was explained to defendant at that time that the then presumptive term was seven years, with a potential maximum sentence of ten years with an eighty-five percent period of parole ineligibility.

After defense counsel advised the court that defendant wanted to accept the plea offer, the court and defense counsel engaged in a substantial colloquy with defendant to assess the voluntariness of his plea. During that colloquy, defendant testified that he was neither forced nor threatened to plead guilty, no promises were made to him other than the representations made by the prosecutor on the record, and he was entering his guilty plea voluntarily and of his own free will. The judge reviewed in detail the plea form that defendant signed, discussing each page with him, where defendant had either initialed or written his name. Defendant further acknowledged he was satisfied with representation by counsel. Following the colloquy, the court accepted defendant's guilty plea.

We conclude that the guilty plea was entered knowingly and voluntarily, and without force or coercion. See R. 3:9-2; R. 3:9-3(e). A strong public policy interest exists in the finality of guilty pleas. State v. McQuaid, 147 N.J. 464, 487 (1997). "For a plea to be knowing, intelligent and voluntary, the defendant must understand the nature of the charge and the consequences of the plea." State v. Johnson, 182 N.J. 232, 236 (2005). A court is permitted to vacate a guilty plea after sentencing "only if withdrawal of the plea is necessary to correct a 'manifest injustice.'" Id. at 237 (quoting R. 3:21-1).

Here, we find no manifest injustice. A review of the record clearly indicates that defendant committed the offense to which he pleaded guilty, he was aware of the potential consequences of pleading guilty, and he entered his plea voluntarily and without force or coercion. His arguments on appeal to the contrary lack any factual support.

Defendant was sentenced pursuant to NERA. As such, he was entitled to be informed of the mandatory eight-five percent period of parole ineligibility and the mandatory three years of parole supervision following his release from prison. Johnson, supra, 182 N.J. at 238-40. He was advised on the record of the period of parole ineligibility. While the three-year period of parole supervision was not directly mentioned on the record, on the plea form defendant executed, he circled "yes" to the question asking if he was aware that the court was required to impose a three-year period of parole supervision to begin as soon as he completed his sentence. While viewing the plea form during his colloquy with the court, defendant acknowledged that he had reviewed it carefully with his attorney prior to signing it, and it was in fact his signature and his initials on each page. Under these circumstances, we do not find that the three-year period of parole supervision "was manifestly beyond defendant's contemplation." State v. Kovack, 91 N.J. 476, 483 (1982).

Having determined that defendant's plea was entered knowingly and voluntarily, we next turn to his arguments contained in points one through four and point seven of his brief. In those points, he claims he is entitled to a new trial based upon improper police actions in gathering evidence and investigating the offenses; he was not provided complete discovery prior to trial; the State's photo identification procedures were illegal; and the conduct of the Grand Jury proceedings was improper. Defendant waived these arguments by entering his guilty plea.

"'Generally, a defendant who pleads guilty is prohibited from raising, on appeal, the contention that the State violated his constitutional rights prior to the plea.'" State v. Knight, 183 N.J. 449, 470 (2005) (quoting State v. Crawley, 149 N.J. 310, 316 (1997)); State v. Owens, 381 N.J. Super. 503, 508 (App. Div. 2005). A guilty plea constitutes a waiver of alleged constitutional defects either in the investigation leading to the charges or in the proceedings themselves. Pressler, Current N.J. Court Rules, comment 2 on R. 3:9-2 (2007). A knowing and voluntary guilty plea precludes a defendant from raising unpreserved non-jurisdictional claims of deprivation of constitutional rights in the proceedings resulting in the conviction. Ibid.

Defendant did not enter a conditional plea. See R. 3:9-3(f). While he initially expressed his displeasure at the plea agreement at the beginning of the plea hearing, he subsequently accepted the State's plea offer and knowingly and voluntarily entered his plea. Consequently, defendant's constitutional claims regarding the investigation and the Grand Jury proceedings have been waived, as have all other issues relating to actions taken prior to the entry of his plea.

That takes us to point six of defendant's brief, where he claims he was denied effective assistance of counsel. Defendant claims, among other things, that counsel was ineffective by not challenging various actions taken by the police prior to the time he entered his guilty plea, and by failing to raise alleged improper procedures taken by the State at the Grand Jury proceedings. Because these claims go beyond the record, we decline to entertain them on direct appeal. See State v. Preciose, 129 N.J. 451, 460 (1992). We do so, however, without prejudice to defendant raising them in a post-conviction relief application.

In point five of his brief, defendant claims both the Hudson and Passaic County criminal matters should have been consolidated for purposes of plea bargaining. This argument is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add only that while the cases were not formally consolidated, at both the Hudson County plea hearing and the Passaic County plea hearing, reference was made to the other case. It was agreed that the sentence for eluding in Passaic County would run concurrent with the robbery sentence imposed in Hudson County. To accomplish that, the Passaic County sentencing date was adjourned to allow the Hudson County sentence to take place first so the Passaic County sentence could properly be imposed concurrent to the Hudson County sentence. While under some circumstances defense counsel is required to move for consolidation when a defendant has indictments pending in more than one county, the factors expressed in R. 3:25A-1 did not require consolidation under the circumstances of this case. Cf. State v. Rountree, 388 N.J. Super. 190, 212-15 (App. Div. 2006) (failure to file motion for consolidation not ineffective assistance of counsel).

Next, we address defendant's sentence. The court imposed a ten-year sentence, which was in excess of the then seven-year presumptive term. Accordingly, we vacate that sentence pursuant to Natale, supra, 184 N.J. at 487, and remand for resentencing.

Finally, under Docket No. A-4297-04T5, defendant challenges the allocation of his jail credits. As we noted earlier in this opinion at footnote 1, defendant's jail credits were addressed by the sentencing judge in the Passaic County proceeding. Defendant did not challenge his jail credits in that appeal, and, though he raises it in his notice of appeal here, he does not address it in his brief. An issue not briefed is deemed waived. See Pressler, Current N.J. Court Rules, comment 4 on R. 2:6-2 (2007); Liebling v. Garden State Indem., 337 N.J. Super. 447, 465-66 (App. Div.), certif. denied, 169 N.J. 606 (2001). We will, nevertheless, permit defendant to raise his jail credit arguments in a post-conviction relief application.

We affirm defendant's judgment of conviction, vacate his sentence, and remand for resentencing. We do not retain jurisdiction.

Affirmed in part, reversed in part, and remanded.

 

On June 4, 2004, defendant pleaded guilty to second-degree eluding in Passaic County; on September 1, 2004, the court imposed a seven-year prison term, concurrent with the Hudson County sentence. See State v. Castillo, No. A-2556-04 (App. Div. Nov. 17, 2006). At sentencing, the judge increased defendant's jail credits from 301 days to 362 days. Defendant did not raise the issue of jail credits in that appeal.

In our companion opinion, State v. Castillo, No. A-2556-04, we described the events surrounding defendant's arrest, which led to the eluding conviction in Passaic County.

(continued)

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A-1328-04T5

November 17, 2006