STATE OF NEW JERSEY v. JORGE L. GALLINAT

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4673-06T34673-06T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

vs.

JORGE L. GALLINAT,

Defendant-Appellant.

_________________________________

 

Submitted May 14, 2008 - Decided

Before Judges Lisa and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 06-06-0763.

Afonso and Baker, attorneys for appellant (Albert M. Afonso, of counsel and on the brief).

Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Rebecca Berger, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant was arrested on April 12, 2005, by members of the New Jersey State Police Narcotics Unit, who conducted a motor vehicle stop of his vehicle after receiving information from a confidential informant that defendant would be returning to New Jersey from Miami, Florida "transporting a significant quantity of cocaine." A drug-sniffing dog brought to the scene alerted to the presence of narcotics in the vehicle. The officers obtained a search warrant and seized over five ounces of cocaine from the vehicle. On June 13, 2006, a Burlington County Grand Jury handed down Indictment No. 06-06-00763-I, charging defendant with first-degree possession of a controlled dangerous substance with intent to distribute (cocaine more than five ounces), N.J.S.A. 2C:35-5(a)(1) and (b)(1) (Count One), and third-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10(a)(1) (Count Two).

Defendant retained counsel to represent him shortly after his arrest. Nearly one year later, on February 13, 2007, defendant and his attorney appeared before the trial court and, as part of a negotiated plea agreement, pled guilty to first-degree possession of a controlled dangerous substance with intent to distribute. In exchange for the guilty plea, the State agreed to dismiss the remaining count and to recommend that defendant be sentenced one degree lower to an eight-year custodial term with a thirty-three-month period of parole ineligibility, along with appropriate fines and penalties.

The plea agreement was placed on the record and the court addressed defendant personally to ascertain his understanding of its terms, the voluntariness of the plea and defendant's understanding that by pleading guilty he was waiving his right to a trial by jury. Thereafter, through questioning from defense counsel, defendant placed a factual basis for the plea on the record. The court scheduled sentencing for March 30, 2007.

On February 28, 2007, defendant retained new counsel, who filed a motion to withdraw the guilty plea and to proceed to trial, which the court denied. The court also denied defendant's motion to stay the court's order. The present appeal followed.

On appeal, defendant raises the following points for our consideration:

POINT I

THE DENIAL OF DEFENDANT'S MOTION TO WITHDRAW HIS GUILTY PLEA WAS AN ABUSE OF THE TRIAL COURT'S DISCRETION.

A. DEFENDANT'S PLEA WAS NEITHER KNOWING NOR VOLUNTARY.

B. DEFENDANT'S ATTORNEY SHOULD HAVE FILED VARIOUS PRE-TRIAL MOTIONS.

C. NO FACTUAL BASIS WAS ESTABLISHED FOR THE PLEA.

D. THE DEFENDANT SHOULD HAVE BEEN ALLOWED TO WITHDRAW FROM HIS PLEA.

POINT II

THE SENTENCE IMPOSED UPON MR. GALLINAT IS MANIFESTLY EXCESSIVE.

We have considered each of these arguments in light of the record, the briefs filed, and the applicable law. We conclude that defendant's contentions lack sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). We add only the following.

Defendant urges that under State v. Kelly, 266 N.J. Super. 392 (App. Div. 1993), a judge cannot conclude that "mitigating factors substantially outweigh the aggravating factors to justify imposing a prison term in the lower range and simultaneously conclude that the aggravating factors outweigh the mitigating factors to justify imposing a prison term at the top of that range[.]" We do not find the judge's decision to sentence defendant to an eight-year custodial term and to impose a thirty-three-month period of parole ineligibility inconsistent with our decision in Kelly, albeit for slightly different reasons than those articulated by the trial judge.

A sentence in accordance with a plea agreement is presumed to be reasonable. State v. Pillot, 115 N.J. 558, 566 (1989). Thus, where a defendant receives the exact sentence he bargained for, a presumption of reasonableness attaches to the sentence, and we will not disturb it absent a clear abuse of discretion. State v. S.C., 289 N.J. Super. 61, 71 (App. Div.), certif. denied, 145 N.J. 373 (1996). In Kelly, supra, we noted that a negotiated plea agreement "expressly permitted imposition of a . . . prison term [at] the top of the second-degree range." 266 N.J. Super. at 398. The defendant pled guilty pursuant to a negotiated plea agreement that required the court to sentence him "'to a term appropriate to a crime of one degree lower than that of the crime for which he was convicted.'" Id. at 395-96 (quoting N.J.S.A. 2C:44-1(f)(2)). The court found, however, that the degree of terror associated with the defendant's robbery justified imposition of a sentence greater than the seven-year presumptive term for a second-degree crime. Id. at 395. On appeal, we affirmed, finding:

[D]espite having necessarily reached inconsistent predicate results when weighing aggravating and mitigating factors, a judge may impose a maximum base sentence when imposing a sentence appropriate to a crime one degree lower than the crime of which a defendant is convicted. Such a sentence will be sustained on appeal if it is part of a plea agreement and, as here, the judge has articulated sound reasons for imposing a higher sentence as the presumptive prison term.

[Id. at 398.]

Here, the State recommended an eight-year New Jersey State Prison term with a thirty-three month period of parole ineligibility, in accordance with the negotiated plea agreement. In the absence of a plea agreement, defendant, if convicted, would have been exposed to a ten to twenty-year prison term and a mandatory period of parole ineligibility of one-third to one-half of the base term. The judge concluded the fact that defendant had led a substantially law abiding life for most of his life warranted imposition of a sentence to one degree lower but, in turn, found that his prior North Carolina offense and the need to deter him from engaging in further criminal activity "warrant[ed] a parole stipulation."

As the Court stated in State v. Balfour, the decision to sentence a defendant as a second-degree offender and to then impose the maximum sentence within the second-degree range "are distinct decisions, each of which 'independently reflects the exercise of judicial discretion.'" 135 N.J. 30, 38 (1994)(citing State v. Kruse, 105 N.J. 354, 362 (1993). It was not necessary for the court to weigh aggravating and mitigating factors in order to determine whether to impose a period of parole ineligibility. Defendant's plea to possession of over five ounces of cocaine with the intent to distribute exposed him to a mandatory period of parole ineligibility of one-third to one-half of the sentence imposed. N.J.S.A. 2C:35-5(b)(1). However, by engaging in that process and concluding that the aggravating factors justified imposition of a period of parole ineligibility, the judge implicitly found the aggravating factors justified a sentence greater than the mid-range level for a second-degree crime.

The record demonstrates defendant fully understood that by pleading guilty to a first-degree crime, his maximum exposure was a twenty-year custodial term. The eight-year sentence imposed was slightly above the seven and one-half mid-range sentence for a second-degree crime but not at the maximum ten-year level. Because the sentence was part of a negotiated plea agreement, implicit in that fact was defendant's acknowledgement that he was exposed to an eight-year custodial sentence in exchange for his waiver of trial by jury. See State v. Anderson, 374 N.J. Super. 419 (App. Div.), certif. denied, 185 N.J. 266 (2005). The aggravating factors referenced by the court support the custodial sentence imposed, and the thirty-three-month period of parole ineligibility was statutorily mandated. N.J.S.A. 2C:35-5(b)(1). We therefore find no basis to disturb the sentence imposed.

Affirmed.

In State v. Natale, 184 N.J. 458 (2005), the Court held that the New Jersey Code of Criminal Justice's (Code) system of presumptive term sentencing violated the Sixth Amendment right to a trial by jury. The Court found that because the presumptive term under the sentencing code is the maximum sentence that a defendant can receive without judicial fact-finding of aggravating factors, any sentence above the presumptive term that was based on judicial fact-finding is unconstitutional pursuant to Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). 184 N.J. at 484. To remedy the constitutional infirmity, the Court eliminated presumptive terms, but left the rest of the Code intact. Id. at 487. The holding in Natale applies to jury verdicts and guilty pleas. Natale, supra, 184 N.J. at 495, but defendant has not raised a Natale challenge as a basis for relief in this appeal, which involves a post-Natale sentence imposed without reference to a presumptive term.

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A-4673-06T3

August 7, 2008