STATE OF NEW JERSEY v. MICHAEL IBRAHIM

Annotate this Case

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4372-04T34372-04T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MICHAEL IBRAHIM,

Defendant-Appellant.

_______________________________

 

Submitted November 28, 2005 - Decided April 28, 2006

Before Judges Alley and C.S. Fisher.

On appeal from the Superior Court of New Jersey - Law Division, Monmouth County, 04-05-1176-I.

Hobbie, Corrigan, Bertucio & Tashjy, attorneys for appellant (Norman M. Hobbie and Edward C. Bertucio, Jr., of counsel; Mr. Bertucio, on the brief).

Luis A. Valentin, Monmouth County Prosecutor, attorney for respondent (Mark P. Stalford, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant pled guilty to distribution of a controlled dangerous substance, N.J.S.A. 2C:35-5b(3). In return, the prosecutor recommended a five year term with a thirty month period of parole ineligibility. He then retained new counsel and moved to withdraw his guilty plea, which the court denied. Defendant was sentenced to a flat five year term with no period of parole ineligibility. The Judge found the existence of two aggravating factors: the risk defendant will commit another offense and the need to deter.

Defendant retained new counsel and on appeal he claims that his previous three attorneys were ineffective, and that he should have been permitted to withdraw his plea. Also, he submits that at the time of his appeal, emerging case law determined the guidelines used in his sentencing proceeding were unconstitutional. We affirm.

Monmouth County Indictment No. 04-05-1176 charged defendant with the following: Count One, possession of a controlled dangerous substance, N.J.S.A. 2C:35-10a(1); Count Two, possession of a controlled dangerous substance with intent to distribute, N.J.S.A. 2C:35-5b(3); and, Count Three, distribution of a controlled dangerous substance, N.J.S.A. 2C:35-5b(3). The facts underlying the indictment involve a confidential informant and the sale of some pills to an undercover officer.

Originally, defendant was represented by Jeffrey Lichtenstein, who was later disbarred. On June 8, 2004, a pre-arraignment conference was completed before Judge Farren, who has since retired. The arraignment was postponed from July 6, 2004 to July 12, 2004, before Judge Neafsey, at which time Troy Smith, Esq., represented defendant. Defendant contends Lichtenstein referred the matter to Smith without consulting him or his family. On July 13, 2004, defendant made an application to Drug Court, which was denied.

The case was transferred to Judge DeStefano. A status conference was held on September 15, 2004, and adjourned for further plea negotiations. On October 12, 2004, another status conference was held and then adjourned because defendant filed another motion in Drug Court, which was also denied.

Next, on December 6, 2004, the case was before Judge DeStefano again and defendant was represented by counsel from Thomas Mallon, Esq.'s office. The case was adjourned for further plea negotiations.

On December 22, 2004, defendant, represented by Mallon, entered a guilty plea that Judge DeStefano accepted. Specifically, defendant pled guilty to Count Three, distribution of a controlled dangerous substance, N.J.S.A. 2C:35-5b(3), and the other two counts were dismissed. In return, the State recommended a five-year sentence with thirty months of parole ineligibility, and a $50 fine payable to the Victims of Crime Compensation Board.

Defendant retained present counsel, Norman M. Hobbie, Esq., and Edward C. Bertucio, Jr., Esq., after pleading guilty but before sentencing. Counsel filed a motion to withdraw defendant's guilty plea to allow other pretrial defense motions to be filed. This motion was denied on March 4, 2005.

In particular, Judge DeStefano noted that defendant raised the following four issues on the motion to withdraw his plea: (1) his three prior attorneys did not effectively litigate his case; (2) he entered the plea without appropriate time for consideration; (3) the sentencing guidelines set forth in State v. Brimage, 150 N.J. 1 (1998) are unconstitutional; and (4) he should be able to pursue entry into Drug Court prior to entering a plea.

First, Judge DeStefano concluded that "the assistance of counsel received by the defendant is not sufficiently deficient to permit him to withdraw his validly entered plea . . . ." In State v. Fritz, 105 N.J. 42, 58 (1987), our Supreme Court adopted the federal two-prong test for ineffective assistance of counsel set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). As the Judge correctly stated, the Strickland test requires that: "(1) the conduct fall below an objective standard of reasonableness, and (2) but for the defense counsel's unprofessional errors, the outcome would have been different." See Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.

The trial court considered "not filing motions to be a valid strategy." Then, the court noted that defendant made no showing that his previous counsel's failure to file motions actually prejudiced the case. Thus, defendant's ineffective assistance of counsel claim was found to be without merit.

Next, Judge DeStefano deemed meritless defendant's contention that he had insufficient time to consider the consequences of a plea agreement. The Judge noted that the case was adjourned three times for plea negotiations before defendant entered his plea. Furthermore, Judge DeStefano explained that as a matter of course he reviewed the nature of the plea, its penal consequences, and defense counsel's performance with defendant during the plea hearing. He noted defendant understood everything and had no questions for his attorneys. "Had the defendant harbored any dissatisfactions or doubts about the plea, the plea allocution would have been the time to express them. Not now. As such, the Court is convinced that the defendant's second contention is without merit."

Judge DeStefano found defendant's argument about the Brimage guidelines to be "unpersuasive for a number of reasons." See Brimage, supra, 153 N.J. at 1. He stated that defendant had opportunities to decline the plea offer. Further, Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004) and State v. Natale, 184 N.J. 458 (2005), are limited to judges departing upward from a presumptive sentence based on fact finding. Moreover, the guidelines were applicable due to defendant's prior conviction for distribution within 1,000 feet of a school.

Lastly, the judge deemed defendant's contention that he should be permitted to pursue a Drug Court application to be moot because Judge Paul F. Chaiet in that court denied defendant's motion for admission nunc pro tunc.

Defendant was sentenced on April 15, 2005. At the hearing, defense counsel argued that the plea was too harsh and defendant should receive a flat four year term. The State contended that defendant had a prior record as a juvenile for distribution of a controlled dangerous substance (CDS) on school property, and as an adult for possession of CDS with intent to distribute. Ultimately, Judge DeStefano sentenced defendant to a flat five-year sentence in prison.

This defendant is 23 years old. He's got one juvenile involvement for narcotics distribution. He has no other juvenile involvements. He's got one prior adult involvement for possession of CDS with intent to distribute. He got probation on that. And now he's here for distribution of CDS.

No presumption either for or against imprisonment applies to this third degree offense. However, as I've noted, there was a possibility under [N.J.S.A. 2C:]43-6f that if the State had convicted him or had ruled for it, he could have received up to ten with five years of parole ineligibility under the law. That was waived by the State in the plea.

But remember the guidelines are not mandatory or binding on me and I'm not going to sentence as per those. But I'm taking into account the plea that's been entered into. I'm going to do what I think is right.

Making the basic in out determination, the Court determines a custodial sentence is warranted. I find as aggravating factor three is a risk he'll commit another offense and nine, there's a need to deter. There are no mitigating factors. The aggravating factors preponderate. The presumptive term is four years.

Therefore under indictment 04-05-1176, count three, distribution of CDS in the third degree, five years in State prison. I'm going to give him a flat sentence. There are fines and penalties that must be imposed. A $50 VCCB, $1,000 DEDR, $50 lab fees, $75 Safe and Secure Community penalty, $30 LEO penalty, a six month loss of driving privileges and a DNA test. In imposing this sentence the Court has considered the terms of a plea agreement between the State and the defense. This sentence is consistent although below what the plea calls for.

You have 45 days from today to appeal this sentence. If you cannot afford counsel, one will be provided for you.

Mr. Ibrahim, the defendant, is remanded. You're going into custody. You're not getting as much as you could have gotten, but you've been working your way up to this and the prosecutor is right and now you're going to jail. If you get in any more trouble, the next time out you're going to be going to jail for a lot longer and with stipulated time.

Defense counsel immediately moved for the Judge to stay the imposition of the sentence while an appeal was taken to this court. Judge DeStefano denied the application because there was no legal issue or irreparable harm.

Defendant was therefore remanded on the date of sentencing, April 15, 2005. This appeal followed. On appeal, defendant contends:

POINT I: THE TRIAL COURT ERRED IN REFUSING TO GRANT APPELLANT'S MOTION TO WITHDRAW HIS GUILTY PLEA BEFORE SENTENCING.

Defendant essentially claims that the trial court erred in failing to grant his motion to withdraw his guilty plea. He asks us to reverse the trial court so he may withdraw his guilty plea and proceed to trial before a jury. We disagree and affirm. Defendant also contends that in light of emerging case law at the time of his plea, the presumptive guidelines, Brimage, 153 N.J. at 1, are unconstitutional.

According to R. 3:9-2, when a defendant offers to plead guilty a trial court cannot accept the plea unless it: (1) addresses defendant personally, and (2) determines by inquiry of defendant and others, in the court's discretion, that the plea is made (i) voluntarily and without any threats, inducements, or promises not on the record, and (ii) with understanding of the charge and the consequences of the plea. Among other things, this means that the judge must ascertain that the defendant understands the possibility that a stated period of parole ineligibility may be part of the sentence. State v. Kovack, 91 N.J. 476, 484 (1982). The judge must also determine that there is a factual basis for the plea. R. 3:9-2.

If the record shows that the judge either failed altogether to ask the required questions, or that the answers elicited failed to show voluntariness, understanding of the charge and its consequences, and a factual basis, the appellate court can remand for trial or new plea. See State v. Rhein, 117 N.J. Super. 112, 121 (App. Div. 1971). As in any case, however, the court could refuse to remand if it finds that the failure to comply with any of the requirements of R. 3:9-2 is harmless.

A motion to withdraw a plea before sentencing should be liberally granted. State v. Deutsch, 34 N.J. 190, 198 (1961). The burden is on the defendant to show why the plea should be withdrawn. State v. Huntley, 129 N.J. Super. 13, 17 (1974), certif. denied, 66 N.J. 312 (1974). The trial court has considerable discretion in deciding such a motion, although the judge should take into account the State's interests. State v. Luckey, 366 N.J. Super. 79, 87 (2004).

But where the plea is part of a knowing and voluntary plea bargain, defendant's "burden of presenting a plausible basis for his request to withdraw his guilty plea is heavier." Huntley, supra, 129 N.J. Super. at 18. A voluntary plea should not generally be vacated absent "some plausible showing of a valid defense against the charges." State v. Gonzalez, 254 N.J. Super. 300, 303 (App. Div. 1992). Of course, a motion to withdraw a plea after sentencing should be granted only to correct a manifest injustice. R. 3:21-1; State v. Fischer, 38 N.J. 40, 48 (1962); Deutsch, supra, 34 N.J. at 198.

Defendant argues that since his motion to withdraw the guilty plea was made prior to sentencing, the court should have exercised its discretion liberally to grant the motion. See Deutsch, 34 N.J. at 198. We disagree. Defendant cites State v. Smullen, 118 N.J. 408, 417 (1990), for the proposition that, "absent unfair prejudice to the State or unfair advantage to the accused, the arguments against permitting withdrawal of a plea prior to sentence weaken considerably and the test of what constitutes a fair and just reason should be commensurably less demanding." But that case, however, states immediately thereafter that, "[n]onetheless, the measure of what constitutes fair and just reason for withdrawal must be reposed in the sound confidence of the court." Ibid.

Moreover, although in State v. Taylor, 80 N.J. 353, 359 (1979), the Court stated that the scales generally tip in favor of allowing the withdrawal of a plea in close cases, it explained immediately thereafter:

Often a defendant seeking to vacate his plea will find it difficult to prove affirmatively that he was misled; he may be able to do little more than assert that he was deceived. Thus where, from an objective standpoint, it appears there is a significant possibility that the misinformation imparted to the defendant could have directly induced him to enter the plea, he should be allowed to withdraw from the bargain.

[Taylor, supra, 80 N.J. at 365 (citations omitted).]

We agree with the trial court. "[D]efendant has no plausible basis for withdrawing his guilty plea, and the motion to withdraw the plea accordingly is denied." This decision rested in Judge DeStefano's sound discretion. Smullen, supra, 118 N.J. at 417. Judge DeStefano reviewed all material terms and the penal consequences of the plea with defendant. Defendant repeatedly indicated that he understood the nature of the plea and its consequences, such as the waiver of a trial by jury. He indicated he understood the plea and was entering into it knowingly and signed it voluntarily. In particular, defendant understood that his plea subjected him to five years in prison with a thirty-month period of parole ineligibility. There is no indication that he was misled or misinformed. Taylor, supra, 80 N.J. at 365.

Accordingly, the entry of the plea was in accordance with R. 3:9-2 because it was entered knowingly and voluntarily and with an understanding of the charge and penal consequences. There is no indication that the entry of defendant's plea constituted a miscarriage of justice to warrant reversal.

Furthermore, defendant has the burden to show a plausible basis for his request to withdraw the plea. Huntley, supra, 129 N.J. Super. at 18. Specifically, he must make a plausible showing of a valid defense. Gonzalez, 254 N.J. Super. at 303. Then, if fundamental fairness so dictates, the plea should be vacated. Huntley, supra, 129 N.J. Super. at 17. On appeal, defendant contends that his prior three counsel were ineffective and that recent case law suggests the sentencing guidelines are unconstitutional. We affirm because defendant has not set forth a plausible defense on the merits.

We have carefully considered, in light of the record and the applicable law, each of defendant's remaining contentions on appeal. Because we are satisfied that none of those contentions is of sufficient merit to warrant extensive discussion in a written opinion, including the argument that defendant's counsel was ineffective due to an alleged failure to move for the disclosure of a confidential informant's identity, we affirm in all respects, except as to sentencing. R. 2:11-3(e)(2).

We add the following, however. At the time of defendant's appeal, this court had stayed its decision in State v. Natale, 373 N.J. Super. 226, 238-39 (App. Div. 2004), pending consideration of the case by the Court. Our Supreme Court then declared, in light of Blakely:

Under New Jersey's Code of Criminal Justice, a defendant cannot be sentenced to a period of imprisonment greater than the presumptive term for the crime he committed, unless the judge finds one or more statutory aggravating factors. See N.J.S.A. 2C:44-1(f)(1). The Code does not require that a judicial finding of an aggravating factor be encompassed by the jury verdict or that it be based on an admission by the defendant at a plea hearing. We now hold that a sentence above the presumptive statutory term based solely on a judicial finding of aggravating factors, other than a prior criminal conviction, violates a defendant's Sixth Amendment jury trial guarantee. To bring the Code into compliance with the Sixth Amendment in a way that the Legislature would have intended, we are compelled to eliminate presumptive terms from the sentencing process. Hereafter, without reference to presumptive terms, judges will sentence defendants within the statutory range after identifying and weighing the applicable mitigating and aggravating factors.

[Natale, 184 N.J. at 465 (emphasis added).]

Thus, the Code of Criminal Justice's presumptive terms violate the Sixth Amendment right to a trial by jury. Ibid. The maximum sentence that can be imposed based on a guilty plea or a jury verdict is the presumptive term only, so the "statutory maximum" is the presumptive sentence. Id. at 487. See State v. Young, 379 N.J. Super. 498, 514-515 (App. Div. 2005) (summarizing the effect of Natale on the presumptive term and the statutory maximum).

Natale applies here because this appeal was "in the pipeline" when that case was handed down and defendant raised Blakely claims on appeal. Natale, 184 N.J. at 494. Notably, in Natale the Court concluded:

As a result of today's decision, we will order a new sentencing hearing in each affected case based on the record at the prior sentencing. At the new hearing, the trial court must determine whether the absence of the presumptive term in the weighing process requires the imposition of a different sentence. The court should not make new findings concerning the quantity or quality of aggravating and mitigating factors previously found. Those determinations remain untouched by this decision. Because the new hearing will be based on the original sentencing record, any defendant challenging his sentence on Blakely grounds will not be subject to a sentence greater than the one already imposed.

[Natale, supra, 184 N.J. at 495-96.]

In this case, defendant pled guilty to distribution of a controlled dangerous substance, N.J.S.A. 2C:35-5b(3). The State recommended a five-year sentence with a thirty month period of parole ineligibility. At the sentencing hearing, Judge DeStefano explained that the presumptive guidelines were not binding upon him, but he would take the plea into account. The Judge found two aggravating factors in sentencing defendant; namely, N.J.S.A. 2C:44-1a(3), the risk defendant will commit another crime, and N.J.S.A. 2C:44-1a(9), the need for deterrence. He found there were no mitigating factors, and sentenced defendant to a flat five year term with no period of parole ineligibility.

The presumptive term for defendant's third-degree crime was four years, N.J.S.A. 2C:44-1(f)(1)(d). Defendant was subject to a three to five year term, N.J.S.A. 2C:43-6a(3). Because Judge DeStefano found two aggravating factors based on defendant's guilty plea, we vacate the sentence and remand to the trial court for a new sentencing hearing, pursuant to Natale, supra, 379 N.J. Super. at 496-97. The proper remedy is to re-sentence defendant, not a withdrawal of his guilty plea.

We affirm in part, vacate the sentence, and remand for re-sentencing in light of Natale.

 

Defendant filed an appeal on April 28, 2005, and he referenced Blakely and Natale in his brief at pages 11-12.

(continued)

(continued)

16

A-4372-04T3

April 28, 2006

 


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