STATE OF NEW JERSEY v. ULISES CRUZ

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1048-07T41048-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ULISES CRUZ,

Defendant-Appellant.

_________________________________________________________

 

Submitted February 9, 2009 - Decided

Before Judges R. B. Coleman and Simonelli.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 94-12-3000.

Yvonne Smith Segars, Public Defender, attorney for appellant (Mark Tabakman, Designated Counsel, on the brief).

Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Teresa M. Garvey, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant, Ulises Cruz, appeals from a final order, dated April 5, 2007, denying his petition for post-conviction relief (PCR). For the reasons that follow, we affirm.

The relevant facts, derived from defendant's admissions at the plea hearing, can be briefly stated. On August 6, 1993, defendant went with Leonardo Perez and Luis Reyes to a residence in Camden. They went there to confront Yvette Ways and Dwayne Jackson regarding an item defendant believed they took from him. Over approximately ten to fifteen minutes, defendant, Perez, and Reyes severely beat Ways and Jackson with various weapons including handguns, a two-by-four, and broom handles. They also threw paint, bleach and ammonia on the victims and prevented them from leaving the house.

Perez left the house and returned with a can of gasoline, which he dumped on the beaten victims. He then set them on fire. Defendant watched Perez take these actions, and did nothing to stop him. Both victims were severely burned, and Yvette Ways later died as a result of her injuries.

In an indictment filed in November 1994, a Camden County grand jury charged defendant with: conspiracy to commit murder or first-degree kidnapping in violation of N.J.S.A. 2C:11-2 or N.J.S.A. 2C:13-1 and N.J.S.A. 2C:5-2 (count one); first-degree murder in violation of 2C:11-3(a)(1) and (2) (count two); first-degree felony murder in violation of N.J.S.A. 2C:11-3(a)(3) (count four); first-degree kidnapping in violation of N.J.S.A. 2C:13-1(b)(1) and (2) (counts five and six); first-degree attempted murder in violation of N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3 (count seven); second-degree aggravated assault in violation of N.J.S.A. 2C:12-1(b)(1) (count eight); third-degree aggravated assault in violation of N.J.S.A. 2C:12-1(b)(2) (count nine); second-degree aggravated arson in violation of N.J.S.A. 2C:17-1(a) (count ten); second-degree possession of a weapon for unlawful purpose in violation of N.J.S.A. 2C:29-4(a) (count eleven); and, third-degree unlawful possession of a weapon (handgun) in violation of N.J.S.A. 2C:39-5(b) (count twelve).

On February 7, 1997, defendant entered a plea agreement pursuant to which all but four counts would be dismissed. Defendant agreed to plead guilty to those remaining four counts: count two, as amended from first-degree murder to first-degree aggravated manslaughter; counts five and six, first-degree kidnapping; and, count eight, second-degree aggravated assault. The State agreed to recommend a sentence of thirty years imprisonment, twelve and a half years without parole, on count two. That sentence was to run consecutively to a recommended sentence of fifteen years imprisonment, five years without parole, on count six. The State further agreed to recommend that both the above sentences run concurrently with a term of fifteen years on count five and a term of seven years on count eight. Hence, the aggregate sentence under the plea agreement was to be forty-five years imprisonment, with seventeen and a half years of parole ineligibility. Defendant stated before the judge who accepted his plea of guilty that he was aware of the charges and the recommended sentence, and that he was guilty of those charges.

On March 21, 1997, the judge sentenced defendant, in accordance with the plea agreement, to forty-five years imprisonment, seventeen and a half years without parole. Defendant filed a direct appeal challenging the consecutive aspect of the sentence, and on January 12, 2000, his appeal was heard before an Excessive Sentencing Oral Arguments (ESOA) panel of this court. The panel affirmed the sentence, concluding that "the sentence is not manifestly excessive or unduly punitive and does not constitute an abuse of discretion."

On January 11, 2006, almost nine years after the judgment of conviction was entered and six years after the sentence was affirmed, defendant filed a pro se petition for PCR. Appointed counsel filed a brief in support of the petition, and on March 23, 2007, the PCR judge heard oral arguments to determine whether a prima facie case had been presented to warrant an evidentiary hearing. At the conclusion of the oral arguments, the judge denied the petition, finding not only that the motion was procedurally time-barred, but also, that, contrary to defendant's assertion, there was a factual basis to support the plea agreement. The judge also ruled that 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) do not apply to this case. Defendant filed his notice of appeal on July 18, 2007.

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

POINT I: DEFENDANT WAS DEPRIVED OF HIS CONSTITUTIONAL RIGHTS TO THE EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL, DUE PROCESS OF THE LAW AND OF HIS RIGHT TO A FAIR TRIAL SINCE AN INADEQUATE FACTUAL BASIS EXISTED TO SUPPORT DEFENDANT'S PLEA OF GUILTY TO AGGRAVATED MANSLAUGHTER AND APPELLATE COUNSEL FAILED TO CHALLENGE SUCH AGREEMENT.

POINT II: THE DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHTS TO A FAIR TRIAL AND DUE PROCESS OF THE LAW AND RECEIVED AN ILLEGAL SENTENCE SINCE THE COURT FOUND THE PRESENCE OF AGGRAVATING FACTORS IN DETERMINING TO ENHANCE THE DEFENDANT'S SENTENCE.

POINT III: DEFENDANT SHOULD NOT BE PROCEDURALLY BARRED FROM RAISING THESE CLAIMS AS A MANIFEST INJUSTICE HAS BEEN COMMITTED AGAINST HIM AND HE CAN ONLY VINDICATE THESE CLAIMS THROUGH A POST CONVICTION RELIEF PROCEEDING.

We find defendant's arguments unpersuasive, and we affirm the denial of his petition.

I.

At the outset, we express our agreement with the PCR judge's determination that defendant's petition is procedurally barred. Defendant contends that his PCR petition should not be procedurally time-barred because his plea of guilty to aggravated manslaughter lacked an adequate factual basis and, the argument continues, such an "'injustice' [is] sufficient to relax the time limits." We disagree.

Rule 3:22-12(a) provides in pertinent part as follows:

A petition to correct an illegal sentence may be filed at any time. No other petition shall be filed pursuant to this rule more than 5 years after rendition of the judgment or sentence sought to be attacked unless it alleges facts showing that the delay beyond said time was due to defendant's excusable neglect.

Notably, the five-year limitation in Rule 3:22-12 commences upon the actual entry of the judgment of conviction and is not stayed nor tolled by other review proceedings. The entry date of the initial judgment of conviction controls even where subsequent sentencing proceedings occur. State v. Dugan, 289 N.J. Super. 15, 19 (App. Div.), certif. denied, 145 N.J. 373 (1996).

The Supreme Court has instructed that in the context of post-conviction relief, a court should only relax the time-bar embodied in Rule 3:22-12 under exceptional circumstances. State v. Afanador, 151 N.J. 41, 52 (1997). "The court should consider the extent and cause of the delay, the prejudice to the State, and the importance of the petitioner's claim in determining whether there has been an 'injustice' sufficient to relax the time limits." Ibid. (citing State v. Mitchell, 126 N.J. 565, 580 (1992)). "Absent compelling, extenuating circumstances, the burden to justify filing a petition after the five-year period will increase with the extent of the delay." Ibid.

The Supreme Court has also cautioned that "[a]chieving 'justice' years after the fact may be more an illusory temptation than a plausibly attainable goal when memories have dimmed, witnesses have died or disappeared, and evidence is lost or unattainable." Mitchell, supra, 126 N.J. at 575. Thus, as more time passes it becomes increasingly necessary for a reviewing panel to adhere to the limitations of the rule to "allay the uncertainty associated with an unlimited possibility of relitigation." Id. at 576.

Here, defendant's judgment of conviction was entered on March 21, 1997. His PCR petition was not filed until nearly nine years later, on January 11, 2006. Defendant has offered no explanation as to why he delayed nearly nine years to file for PCR. Defendant does not claim that he was misinformed either as to the elements or as to the penal consequences of conviction. Compare State v. Nunez-Valdez, 200 N.J. 129 (2009) (where the defendant was misinformed that his plea would have no immigration consequences); State v. Bellamy, 178 N.J. 127 (2003) (holding that fundamental fairness requires that the court accepting a plea to a predicate offense under the Sexually Violent Predator Act, N.J.S.A. 30:4-27.24 to 27.38, must inform the defendant of the possible consequences of civil commitment under the Act). Defendant merely asserts that an "exceptional circumstance" is presented because his plea of guilty to aggravated manslaughter lacked an adequate factual basis under Rule 3:9-2 and N.J.S.A. 2C:11-4(a). For that reason, defendant contends he was deprived of effective assistance by trial counsel and by appellate counsel. Defendant emphasizes that he only admitted his participation in beating the victims with weapons, dumping chemicals upon them, detaining them, and failing to act when Perez poured gasoline on and ignited the victims. He argues he never formed an intent to take part in or to promote the homicide and that he had no duty to prevent Perez's act which caused the death. To the extent these were deficiencies in the plea hearing, they could have and should have been recognized forthwith and brought to the attention of the court prior to sentencing. See R. 3:21-1 (stating, "[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"). "Following sentencing, if a defendant seeks to withdraw a guilty plea, the court weighs more heavily the State's interest in finality and applies a more stringent standard." State v. McQuaid, 147 N.J. 464, 487 (1997). "What is crucial is that the plea bargain has been fairly reached and that defendant's reasonable expectations drawn from the terms of the bargain have been fulfilled." State v. Taylor, 80 N.J. 353, 364 (1979).

Significantly, defendant offers no explanation of why he delayed nine years to raise this argument. We note that defendant's lack of sophistication in the law will not satisfy the exceptional circumstances standard under Mitchell. State v. Murray, 162 N.J. 240, 246 (2000). Although the judge at the plea hearing did not detail clearly the basis for his conclusion that the elements of aggravated manslaughter had been established, we note that defendant acknowledged he understood the recommended sentence, and he admitted his guilt. "A guilty plea is not to be set aside whenever the trial court procedures are less than perfect." Taylor, supra, 80 N.J. at 363. Moreover, defendant's detention of the victims and his assaults upon them may be seen as having promoted Perez's conduct which more directly caused Ways' death.

A person is legally accountable for the conduct of another person when he is an accomplice of such person in the commission of an offense. N.J.S.A. 2C:2-6(b)(3). A person is an accomplice where "[w]ith the purpose of promoting or facilitating the commission of the offense" he (a) "solicits such other person to commit it" or (b) "[a]ids or agrees or attempts to aid" another person in the planning or committing the offense. N.J.S.A. 2C:2-6(c)(1)(a) and (b). "Under N.J.S.A. 2C:2-6, accomplice liability attaches when a defendant shares the purpose of the principal who commits the offense charged[.]" State v. Rumblin, 166 N.J. 550, 555 (2001). Further, an accomplice may be vicariously liable for a "reckless" crime where he "purposely promoted or facilitated the actor's conduct; [and] was aware when he did so, considering the circumstances then known to him, that the criminal result was a substantial and justifiable risk of that conduct; and who nevertheless promoted that conduct in conscious disregard of that risk." State v. Bridges, 254 N.J. Super. 541, 566 (App. Div. 1992), aff'd in part, rev'd in part, 133 N.J. 447 (1993). See also State v. Bielkiewicz, 267 N.J. Super. 520, 528 (App. Div. 1993).

Although defendant claims that he "made no admission that he acted with the purpose of promoting or facilitating the conduct of Mr. Perez," that argument is unpersuasive. Based on defendant's own admissions, he was not merely present at the scene of the crime. He and the other assailants confronted Ways and Jackson in an effort to retrieve something the assailants believed the victims had taken from defendant. Defendant was not only a purposeful participant in violently beating and detaining the victims up to the moment that Perez set them on fire, compare State v. Sims, 75 N.J. 337, 350-51 (1978); State v. Dale, 271 N.J. Super. 334, 338 (App. Div. 1994), but also his actions in beating the victims and detaining them, arguably facilitated and promoted Perez's action in pouring gasoline on and igniting the victims. The trial court was justified in accepting the plea where the attack was undertaken by and for the benefit of defendant. See State v. Mancine, 124 N.J. 232, 257-59 (1991) (finding that a rational basis existed for a charge to the jury on aggravated manslaughter where the defendant hired a ruffian to hurt the victim and that person killed the victim instead).

II.

Even if defendant's guilty plea lacked an adequate factual basis, we are satisfied, nevertheless, that his PCR petition was appropriately denied. In Mitchell, supra, 126 N.J. 565, the defendant filed a pro se petition for post-conviction relief six and a half years after he had been sentenced. Id. at 574. The principal contention in Mitchell was that his role as a lookout was insufficient to establish a factual basis for his guilt for felony murder. The Court's response to that contention is instructive:

Our procedural Rules do require a judge to elicit a factual basis for a guilty plea. R. 3:9-2. As long as a guilty plea is knowing and voluntary, however, a court's failure to elicit a factual basis for the plea is not necessarily of constitutional dimension and thus does not render illegal a sentence imposed without such a basis. A factual basis is constitutionally required only when there are indicia, such as a contemporaneous claim of innocence, that the defendant does not understand enough about the nature of the law as it applies to the facts of the case to make a truly "voluntary" decision on his own.

[Mitchell, supra, 126 N.J. at 577.]

Further, defendant failed to satisfy the two prongs of the standard formulated for assessing ineffective-assistance-of-counsel claims. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 58 (1987). Under the Strickland/Fritz test,

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense.

[Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693).]

Even if counsel was deficient in failing to ensure that an adequate factual basis for the plea was given, defendant does not and cannot show that he was prejudiced by the plea agreement or that he failed to understand its import and consequences. His plea was the result of negotiations that led also to the dismissal of a felony murder count against defendant. Moreover, the State agreed to recommend that the sentences for two of the counts as to which defendant agreed to plead guilty were to be served concurrently with two others. Plainly, the plea agreement was beneficial to defendant and he does not contend otherwise. What defendant now seeks through his petition is to withdraw his plea of guilty to the charge of first-degree aggravated manslaughter, amended from first-degree murder.

A defendant's application to retract a plea must be considered in light of the competing interests of the State and the defendant. State v. Slater, 198 N.J. 145, 155 (2009). "To address those concerns, the court rules set forth two standards that are dependent on the time a plea withdrawal motion is made. Motions filed at or before the time of sentencing will be granted in the 'interests of justice,' R. 3:9-3(e); post-sentencing motions must meet a higher standard of 'manifest injustice' to succeed, R. 3:21-1." Id. at 156. Under either standard, a plea may only be set aside in the exercise of the court's discretion. Ibid. "In all cases, . . . '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.'" Ibid. (quoting State v. Smullen, 118 N.J. 408, 416 (1990) (additional citations omitted)).

Ultimately, in its determination whether to permit the withdrawal of a plea, a trial court must consider and balance four 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; (4) whether withdrawal would result in unfair prejudice to the State and unfair advantage to the accused.

[Slater, supra, 198 N.J. at 157-58.]

The Court has made it clear that "a bare assertion of innocence is insufficient to justify withdrawal of a plea. Defendants must present specific, credible facts and, where possible, point to facts in the record buttress their claim." Id. at 158. Defendant does not claim innocence, nor even that his reasonable expectations were disappointed, rather, he claims an insufficiency in his recitation of the factual basis for his guilty plea. As noted above, even if the record established by the plea allocution was deficient, such deficiency does not suggest unfairness or prejudice to the defendant. By contrast, the prejudice to the State if it were required to reconstruct and try the case nearly a decade after the entry of defendant's plea is obvious. See Mitchell, supra, 126 N.J. at 575-76 (recognizing that memories dim, witnesses die or disappear and evidence is lost or becomes unattainable).

III.

Finally, we find that defendant's argument that his sentence was illegal under the holdings in Blakely and Natale is without merit. We recognize that the imposition of an illegal sentence is a proper ground for post-conviction relief under Rule 3:22-2(c) and 3:22-4 and that there is no time limit to the correction of an illegal sentence. State v. Paladino, 203 N.J. Super. 537, 549 (App. Div. 1985). However, defendant's reasoning that his sentence is illegal under Blakely and Natale is fatally flawed. Both cases were afforded only "pipeline retroactivity," dating back to August 2, 2005, the date of the Natale decision, and applying to those defendants who raised Blakely claims at trial or on direct appeal. Natale, supra, 184 N.J. at 494. The direct appeal of defendant's case ended on January 12, 2000. As defendant raises no other argument that his sentence was illegal, and his sentence did not exceed the maximum for the range of a first-degree crime, we find that defendant's sentence does not warrant post-conviction relief.

Affirmed.

 

Blakely, supra, held that a defendant's Sixth Amendment rights are violated whenever the sentence that is imposed exceeds the maximum sentence authorized by virtue of the jury verdict or the defendant's admissions at a plea hearing, unless the sentence enhancement is either the result of the fact of a prior criminal conviction or the defendant had consented to judicial fact-finding for sentencing purposes. 542 U.S. at 301, 303, 124 S. Ct. at 2536, 2537, 159 L. Ed. 2d at 412, 413.

In Natale, the New Jersey Supreme Court held that, "a sentence above the presumptive statutory term based solely upon a judicial finding of aggravating factors, other than a prior criminal conviction, violates a defendant's Sixth Amendment jury trial guarantee." Id. at 466. Thus, the Court determined that "[t]o bring [New Jersey's Code of Criminal Justice (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." Ibid. The Court rejected a remedial proposal that would have required all aggravating sentencing factors to be submitted to a jury, noting instead that "[t]he Code provides for a 'strong judicial role in sentencing.'" Id. at 486 (quoting State v. Roth, 95 N.J. 334, 352 (1984)).

Paragraph (a) was amended effective September 1, 2009, to permit a later filing date where a petition is dismissed without prejudice, pursuant to Rule 3:22-6A (also effective September 1, 2009), due to the pendency of a direct appeal. In such circumstances, "if the defendant refiles the petition within 90 days of the date of the judgment on direct appeal, . . . or within five years after rendition of the judgment or sentence sought to be attacked, whichever is later, it shall be considered a first petition for post-conviction relief." R. 3:22-6A(2). Newly-adopted Rule 3:22-12(c) provides that "[t]hese time limitations shall not be relaxed, except as provided herein." These amendments and additions to Rule 3:22-12 do not control the disposition of this case.

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A-1048-07T4

November 18, 2009