STATE OF NEW JERSEY v. CECILIO CASABLANCA

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6503-04T16503-04T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CECILIO CASABLANCA,

Defendant-Appellant.

___________________________________________________

 

Argued May 1, 2006 - Decided July 13, 2006

Before Judges Fall and C.S. Fisher.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 04-11-1549-I.

Stephen S. Berowitz argued the cause for appellant (Shaievitz & Berowitz, attorneys; Mr. Berowitz, on the letter brief).

Steven E. Braun, Chief Assistant Prosecutor, argued the cause for respondent (James F. Avigliano, Passaic County Prosecutor, attorney; Mr. Braun, of counsel and on the letter brief).

PER CURIAM

In this appeal, we conclude that the trial judge mistakenly exercised his discretion when, on his own motion, he vacated defendant's guilty plea to a third-degree offense because he concluded that defendant's conduct was more serious than the guilty plea would suggest, despite the fact that the indictment, as amended, charged only a third-degree offense. Accordingly, we reverse and remand for sentencing.

Defendant was charged in an indictment with second-degree eluding or attempting to elude a law enforcement officer in Clifton on April 5, 2004, "thereby creating a risk of death or injury to Sergeant Mark Centurione or other persons," N.J.S.A. 2C:29-2(b). At the arraignment, the State offered a plea agreement which, if accepted, would have subjected defendant to a six-year term of imprisonment. At a later status conference, the State offered a similar plea agreement except that the State agreed to recommend a flat five-year term upon entry of defendant's plea to the second-degree eluding charge.

Another status conference occurred on February 14, 2005. The State advised the trial judge that defendant had been offered a plea agreement which would require defendant to plead guilty to the charge in the indictment in exchange for the State's recommendation of a flat term of five years' imprisonment. The State advised the judge that defendant had rejected the offer and intended to go to trial. With that, the trial judge asked the prosecutor to outline the facts the State expected to prove, in response to which the assistant prosecutor stated:

Your Honor, the State would intend to prove that on April 5th, 2004, two Clifton police officers observed a vehicle . . . later determined to be driven by the defendant driving at a very high rate of speed on [Route] 21 South heading toward Newark. They proceeded to engage in a motor vehicle pursuit with lights and sirens. It was a marked Clifton [police] unit.

[T]he vehicle being driven by the defendant was traveling at such a high rate of speed that [the officers] felt it was inappropriate to continue the high-speed pursuit, so they ended the pursuit but continued on [Route] 21 South. . . . [T]his is about 5:22 in the afternoon . . . on a Monday. So it was the height of the rush hour traffic.

[The officers] observed the vehicle . . . speeding down [Route] 21 South, weaving in and out of traffic. They estimated the speed of the defendant's vehicle to be about 100 miles an hour. And, as they got to the area of the border of Nutley and Bloomfield, they observed that the vehicle driven by the defendant had been involved in a motor vehicle accident. And, according to the driver of the car that the defendant struck, apparently . . . the vehicle being driven by the defendant went out of control, hit the guard rail and careened across the highway and eventually crashed.

The police officers then stopped their vehicle and approached the car [that was] driven by the defendant and removed him from the vehicle and he was arrested. And, again, the defendant was charged with second-degree eluding. . . .

The judge then carefully explained to defendant the maximum sentencing exposure of ten years' imprisonment with a five-year parole disqualifier if defendant was convicted of the second-degree charge. The judge also advised defendant that if he pled guilty to the second-degree offense he would be eligible to apply for entry into the Pretrial Intervention Program (PTI) but, if accepted, would be required to first serve approximately six months of his sentence before his application could be processed, and that if the court imposed a parole disqualifier he would not be eligible for PTI. Defendant indicated his understanding of these consequences, and rejected the plea offer. The judge responded that negotiations had ended, that the case was going "back in the trial bank," and that when reached for trial, and if defendant were to then plead guilty, "he's going to plea[d] to the indictment and face the maximum sentence of a ten with five before parole." The judge then scheduled the trial for March 14, 2005.

The parties appeared for trial on March 28, 2005. A different assistant prosecutor then appeared for the State. The record reflects that the assistant prosecutor applied for an amendment of the indictment during the following proceedings:

THE COURT: You have an application, first of all, to move to amend the indictment; is that correct?

[ASSISTANT PROSECUTOR]: That's correct, your Honor.

THE COURT: You'll be striking the language, "thereby creating a risk of death or injury to Sergeant Mark Centurione or other persons?"

[ASSISTANT PROSECUTOR]: That's correct.

THE COURT: The violation is now going to be [N.J.S.A.] 2C:29-2(a), making it a third degree?

[ASSISTANT PROSECUTOR]: That's correct.

THE COURT: Counsel, you have any objections to that amendment?

[DEFENSE COUNSEL]: None at all, your Honor.

THE COURT: The language will be struck, third line from the bottom, "thereby creating a risk of death or injury to Sergeant Mark Centurione or other persons," contrary to [N.J.S.A.] 2C:29-2(a).

Following that proceeding, the oath was administered to defendant and the trial judge questioned defendant about his understanding of the proceedings. During the course of that examination, the judge explained to defendant what had just occurred:

The case was placed in the trial bank. You were scheduled to start trial this week.

The State after reviewing their files has agreed to amend the charge from a second to third degree which means we'll take it out of the trial bank because of changed circumstances.

It is clear from these statements, and the remainder of the record on appeal, that the amendment of the indictment to charge a third-degree offense was not the product of any misrepresentation by defendant nor does it appear that it was an aspect of the plea agreement. The judge observed that the State's decision to amend the indictment occurred only after the State "reviewed" its file, suggesting that the State had unilaterally determined that it was not prepared to prove defendant's commission of a second-degree offense.

The judge then advised defendant of the potential consequence of this amendment, stating that if defendant went to trial "and a jury finds you guilty, you could be sentenced to up to five years in State Prison with up to two-and-a-half years before parole." The judge also advised defendant of the maximum monetary fines and assessments that could be imposed; the potential loss of driving privileges for up to six months; the possibility that defendant would be ordered to make restitution; the monetary impact of a term of probation; and that defendant would be required to provide a DNA sample at his own cost. The judge also asked defendant if he was born in the United States "[b]ecause if you were not, you could be deported by virtue of this plea." Defendant advised that he was born in the United States.

At the judge's request, the assistant prosecutor then placed the terms of the parties' plea agreement on the record. That agreement was not described as including the State's promise to amend the indictment. As described, the plea agreement provided that, upon entry of a guilty plea to the third-degree offense of eluding, the State would recommend dismissal of two reckless driving summonses, and, assuming defendant had no prior criminal record, the State would seek a term of probation "with up to 364 days in Passaic County Jail, restitution and community services to be set by the [c]ourt," and a six-months' suspension of his driving privileges. The State and defendant acknowledged this understanding of the plea agreement, noting that defendant, who was twenty-one years old, had no prior criminal record. Defendant entered a plea of guilty to the amended charge and the following factual basis was elicited from him during questioning by his attorney:

Q. Mr. Casablanca, on April 5th, 2004, were you operating a motor vehicle on Route 21 South in Clifton, New Jersey?

A. Yes, I was.

Q. That was about 5:30 in the afternoon; is that correct?

A. Yes.

Q. And at some time while you were operating a vehicle, were you ordered by a police officer by sirens and other emergency lights to pull your vehicle over to the right and bring it to a complete stop?

A. Yes.

Q. And did you do so?

A. No.

Q. Did you attempt to flee or elude that police officer?

A. Yes.

Q. And did you understand that that was all done intentionally by you; you knew the officer was there and you attempted to elude him; is that correct?

A. Yes.

The assistant prosecutor acknowledged that the factual basis was accurate and adequate. The judge then stated:

I find the defendant understands the nature of the charge to which he has pled guilty; he has received the advice of competent counsel; he's aware of the maximum penalty he's facing; there is a factual basis for the plea which I will accept subject to the Presentence Report.

The sentence will be Friday, June 10th. I'm also ordering a driving abstract, his driving record.

The defendant also agreed to withdraw his suppression motion.

A few weeks after the entry of the guilty plea, the State moved for an order vacating the plea and restoring the matter to the trial calendar. The certification submitted by the assistant prosecutor, who had handled the matter prior to the March 28 hearing, outlined the factual occurrence that led to defendant's indictment in much the same terms as was stated at the February 14 status conference, asserting that the vehicle had been driven at approximately 110 miles per hour during the eluding, and that Jason Bonilla, the driver of the vehicle which was struck by defendant's vehicle, had suffered bodily injury to his left shoulder and leg. The assistant prosecutor alleged that "this case represented a very serious and potentially deadly motor vehicle pursuit" and that defendant's alleged actions "warranted a state prison term." The assistant prosecutor explained that he was on vacation on March 28 and that the plea agreement was based upon a mistake and "was improvidently negotiated by an assistant prosecutor who was not the attorney of record." He claimed that the negotiated plea agreement "does not even begin to address the absolute seriousness of the crime," that "defendant's actions on the date in question endangered many lives and in fact caused injury to Jason Bonilla," and that a plea agreement that "permits an amendment of the indictment to allege facts that are so contrary to the credible evidence clearly is not in the interests of justice."

A presentence report dated April 18, 2005, prepared in anticipation of defendant's sentencing, reflected the following version of the incident:

According to the Clifton Police Department's report[,] . . . on April 5, 2004, Officers on patrol on Route 21 Southbound observed two vehicles beginning to race each other. The vehicles were traveling about 80 m.p.h. and weaving in traffic, an imminent threat to the safety of the public. The Officers tried to close the distance between their vehicle and the racing vehicles but due to traffic conditions, they were unable to close the distance quickly. The Officers then used their lights and siren to stop said vehicles. The rear vehicle[,] a [Nissan] 240SX pulled over immediately. The front vehicle, a Toyota Supra, accelerated. The Toyota continued to accelerate, far in excess of the Police vehicle['s] speed, weaving in and out of traffic. The Toyota which was now out of the Officer's [sight], lost control, and hit the center median and another vehicle. The vehicle then continued back across all three lanes into the guardrail, and both vehicle[s] were disabled. The driver of the suspect vehicle feigned unconsciousness as he sat in the driver seat of his demolished vehicle. The other driver[,] Mr. Bonilla, exited his vehicle. The Officer was then able to talk to the driver of the suspect vehicle Cecilio Casablanca and he stated that he was ok. The Officer asked him why he ran from him and Casablanca stated "stupidity." He then stated that he was scared and hit the wrong pedal. He was then placed under arrest.

The State also submitted a letter from Jason Bonilla expressing his dissatisfaction with the plea accepted by the court.

After hearing argument on the State's motion on June 17, 2005, the trial judge noted that he had "accepted the plea subject to" what the presentence report might reveal, and stated also, in pertinent part:

The issue before this court now is whether the State may motion to vacate the guilty plea or whether the court has the sound discretion to reject the plea bargain where the State and the victim object to the terms of the plea bargain and where the plea bargain was achieved during negotiations with an assistant prosecutor allegedly unfamiliar with the defendant's plea history on the case and apparently without full authority to agree to that plea bargain.

The judge found that no statute or rule permitted the State to seek the vacation of a guilty plea. We agree. See State v. Warren, 115 N.J. 433, 444 (1989); State v. Salentre, 242 N.J. Super. 108, 112 (App. Div. 1990). This is because of the impact on a defendant's due process rights that such motions, if entertained, could cause, and, also, because the prosecutor's representations in open court "amount[] to a pledge of the public faith." State v. Lord, 109 N.J. Super. 80, 82 (Law Div. 1970) (citing State v. Ashby, 43 N.J. 273, 278 (1964)).

Although the State had no right to seek such relief, the trial judge concluded that he had "the authority to sua sponte reject the plea agreement at sentencing" in the exercise of sound discretion and in the interests of justice, relying upon R. 3:9-3(e), which states that "[i]f at the time of sentencing the court determines that the interests of justice would not be served by effectuating the agreement reached by the prosecutor and defense counsel or by imposing sentence in accordance with the court's previous indications of sentence, the court may vacate the plea or the defendant shall be permitted to withdraw the plea."

After reviewing the State's factual contentions, and in determining whether he was authorized to exercise the discretion to vacate the plea, the judge stated:

Now, those are the facts that were placed on the record to support a plea.

Based on those facts alone, the court accepted the plea to a third-degree offense. I said, and I read it, it was read into the record, that I will accept the plea subject to the plea agreement or to the Presentence Report.

I then received the Presentence Report. And, as is customary, and the attorneys who appear before me know that, I read every single page of every document. The Presentence Report has attached to it a police report. I read that report for the first time because despite what was said, discovery is not given to the court, it's given to the defense counsel.

. . . .

Those are the facts [in the police report] that were not placed on the record when the plea was taken. As I said, I have read into the record the factual basis given by this defendant.

Coupled with that, I have received a letter from the victim, Mr. Bonilla. The victim was injured. He has written to the court and he has expressed his dissatis-faction, stating that this defendant should do some jail time because he could have been killed on that date.

Admittedly, the defendant had no criminal record. But this court has to dispense justice equally. I accepted the plea agreement. And, under Rule 3:9-3(e), this court has the authority to vacate a plea at the time of sentencing if this court finds that the plea is not in the best interests of justice.

Someone who allegedly weaves in and out of traffic at a hundred and ten miles per hours on Route 21 and Route 3 at the height of rush hour, who evades the police, in this court's opinion should not be given a non-custodial probation for that offense.

The defendant has the right to put the State to its proof. The defendant has the right to elect to go to trial. And accordingly, I find that in the best interests of justice, that this is a plea that should not be accepted by the court.

As a result, on June 28, 2005, the trial judge entered an order vacating the guilty plea to the State's amended charge of third-degree eluding a law enforcement officer. We granted defendant's motion for leave to appeal and now conclude that the trial judge erroneously exercised his discretion and, therefore, reverse and remand for sentencing based upon the guilty plea and the plea agreement set forth on the record on March 28, 2005.

In considering the rights of the parties in these circumstances, it should initially be observed, as we held in State v. Madan, 366 N.J. Super. 98, 115 (App. Div. 2004), that although a defendant is not entitled to an offer of a plea bargain from the prosecutor, once such an offer has been "made, accepted and entered on the record, a defendant is entitled to a judicial assessment of that agreement grounded in a correct understanding of the law and the proper exercise of discretion." In considering the trial judge's rejection of a guilty plea in Madan, we held that this discretion is not soundly exercised because of the "possibility of a defendant being found guilty of a greater offense," id. at 110, or because the trial judge "believed the recommended sentence was too lenient for the crime committed," id. at 114. Instead, although "a court is certainly at liberty to reject a [plea agreement] it considers inappropriate," the judge's discretion is exceeded when his or her "decision is based on one version of the facts when several versions are likely to be presented to the jury and if that decision is influenced by confusion over the applicable law." Id. at 114. See also State v. Daniels, 276 N.J. Super. 483, 487-88 (App. Div. 1994).

Here, we discern from the trial judge's decision that he felt the plea agreement would produce an unjust result because the State could produce facts at trial that would support a conviction of a second-degree offense and, thus, it would be inappropriate to allow defendant to be sentenced as a third-degree offender. That may constitute a reasonable interpretation of the factual version that the State might have been able to prove, but it presupposes that the indictment still charges a second-degree offense. Because, prior to the entry of the guilty plea, the State voluntarily amended the indictment to charge only a third-degree offense, the fact that the judge believed that the State's factual allegations would support defendant's conviction of a second-degree offense is irrelevant to the propriety of the plea to an indictment that charged only a third-degree offense. Therein lies the essential basis for our conclusion that the trial judge's exercise of discretion in this matter was unsound.

As we have noted, there is nothing in the record to suggest that the amendment of the indictment was part of the plea agreement. The proceedings of March 28, 2005 indicate that the State first moved for an amendment in order to delete the factual assertion upon which the charge of a second-degree offense was based: i.e., the allegation that defendant's conduct "creat[ed] a risk of death or injury to Sergeant Mark Centurione or other persons." In this same vein, the State also sought an amendment of the indictment to charge a violation of a third-degree offense instead of a second-degree offense. The State then asserted, as the trial judge observed, that the amendment resulted from what was learned after a review of the State's file and not as the result of an agreement. The vacating of the guilty plea and the plea agreement does not have the effect of reinstating the original charges in the indictment. Morever, there is now no legal basis for permitting another amendment because R. 3:7-4 does not allow an amendment of an indictment to include a more serious offense than that originally charged. That rule only permits amendments to correct "error[s] in form or the description of the crime intended to be charged or to charge a lesser included offense provided that the amendment does not charge another or different offense from that alleged and the defendant will not be prejudiced thereby in his or her defense on the merits." R. 3:7-4. This rule does not permit an amendment in order to charge a more serious offense. State v. Koch, 161 N.J. Super. 63, 66 (App. Div. 1978).

We understand the judge's ruling as consisting of his claimed authority to vacate the guilty plea to the third-degree offense because he believed the State could prove that defendant's actions constituted a second-degree offense. So viewed, we conclude that the judge's holding represented a mistaken exercise of his discretion because the indictment, as amended, does not charge a second-degree offense. Accordingly, we reverse the order that vacated the guilty plea and we remand for sentencing on the third-degree offense.

 
Reversed and remanded.

Even if this were not so, we reject the sufficiency in this context of the argument by one assistant prosecutor disavowing the statement of another assistant prosecutor.

We also observe that the facts revealed in the presentence report, which we quoted at length earlier, do not materially differ from the recitation of the State's factual assertions that had previously been conveyed to the judge, which we also quoted at length. Thus, there is no factual framework for concluding that the judge did not fully understand the circumstances when he originally accepted defendant's guilty plea. See State v. Salentre, supra, 242 N.J. Super. at 112-13.

(continued)

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A-6503-04T1

July 13, 2006