STATE OF NEW JERSEY v. EDWIN LORENZO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4298-08T44298-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

EDWIN LORENZO,

Defendant-Appellant.

__________________________________

Submitted June 15, 2010 - Decided July 21, 2010

Before Judges Carchman and Parrillo.

On appeal from the Superior Court of New Jersey,

Law Division, Monmouth County, Municipal Appeal

No. 08-046.

Edwin Lorenzo, appellant pro se.

Luis A. Valentin, Monmouth County Prosecutor,

attorney for respondent (Mary R. Juliano, Assistant

Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Edwin Lorenzo appeals from an order of the Law Division upholding the municipal court's denial of his petition for post-conviction relief (PCR) from his guilty plea conviction and sentence thereon. We affirm.

Defendant was originally charged with third-degree terroristic threats, N.J.S.A. 2C:12-3a, and fourth-degree aggravated assault, N.J.S.A. 2C:12-1b. Those charges were eventually downgraded to the petty disorderly person offenses of harassment, N.J.S.A. 2C:33-4, and simple assault, N.J.S.A. 2C:12-1a, and the matter was remanded to the municipal court, where defendant pled guilty to simple assault. The remaining count was dismissed and defendant was sentenced to 179-days incarceration at the county jail, $676 in restitution, costs, penalties and fines.

At the plea hearing, on November 30, 2000, defendant admitted that on June 28, 2000, he assaulted Tara Cosentino by striking her with a cell phone. Defendant also acknowledged that he understood his sentence exposure: specifically, defendant noted that he understood that by pleading guilty, he "may be facing a jail sentence, up to six months" and a $1,000 fine. Defendant also confirmed that he understood that although he was pleading guilty to simple assault, there were "no promises being made to [him] . . . as to whether or not [he's] going to prison." The court ordered a pre-sentence report and noted that defense counsel represented that defendant understood "that he could go to jail as a result of this," and that "[t]here is no plea offer, nothing on the table right now that guarantees that [defendant] is not going to jail." The court further stated that if defendant pleaded guilty, his sentence would be based upon a review of his pre-sentence report. Following the plea, the court reiterated that there are "no representations" as to whether defendant would be sentenced to a custodial sentence. At sentencing on February 15, 2001, after the court advised defendant of his rights, defendant chose not to speak. His attorney represented that defendant "came prepared today to pay fines to this Court, to pay restitution, if ordered, of $603. We were aware of restitution from the police reports."

Seven years after his judgment of conviction, defendant filed a petition for PCR in the municipal court, seeking to withdraw his guilty plea as not freely and knowingly entered. On March 20, 2008, the municipal court, after reviewing the record of defendant's guilty plea hearing, found that defendant's plea was entered "freely and voluntarily, knowingly," and therefore, denied defendant's petition.

On May 8, 2008, defendant appealed to the Law Division, where he argued that his guilty plea was invalid because he did not provide an adequate factual basis, was not advised of the penal consequences of his guilty plea and was not informed of the constitutional rights he was waiving. After hearing argument, on April 9, 2009, the Law Division judge denied defendant's PCR application on both procedural grounds and the substantive merits.

As to the former, the judge found that defendant's PCR petition was barred as well beyond the five-year time limitation of Rule 7:10-2(b)(2). Although defendant had couched his PCR claim as one of an illegal sentence and therefore not subject to the procedural requirement, Rule 7:10-2(b)(1), the court found defendant's sentence was not illegal since it was authorized by statute and in accordance with law. Rule 7:10-2(c)(3). Rather, defendant's actual PCR claim was that of an invalid guilty plea, which is clearly subject to the time-limitation set forth in Rule 7:10-2(b)(2) and, lacking any demonstration of excusable neglect, is therefore precluded as untimely.

The court also found defendant's petition was procedurally barred under Rule 7:10-2(d)(1) because the grounds for relief could have, but were not, raised in a prior proceeding or on direct appeal. This bar may only be lifted where defendant satisfies one of three exceptions: (1) where the grounds for relief not asserted could not have reasonably been raised in any prior proceedings; (2) where enforcing the bar would result in fundamental injustice; or (3) where there has been an infringement on defendant's constitutional rights. R. 7:10-2(d)(1)(A)-(C); State v. Mitchell, 126 N.J. 565, 584, 587 (1992). Here, as the court found, the claims made by defendant turn exclusively on the record established by and for the plea and sentencing hearings and, therefore, all the information necessary to raise these claims was available to defendant for purposes of a post-sentencing motion to vacate his guilty plea or a direct appeal. Furthermore, as the Law Division judge found when rejecting defendant's claims on the merits, defendant's claims are not of constitutional dimension, because defendant's guilty plea was knowingly and voluntarily entered and was supported by an adequate factual basis.

As to the latter, the Law Division judge found no substantive merit to defendant's PCR claims, much less that they establish the necessary "manifest injustice" required for a guilty plea to be withdrawn at this late stage:

Here the defendant does not contest his guilt nor does he allege ineffective assistance of counsel. Instead, his claims are that he failed to provide an adequate factual basis to support a finding of simple assault. . . . Specifically, defendant claims he did not set forth the appropriate mens rea to support his guilty plea and, therefore, his guilty plea is invalid.

. . . .

Admitting that he assaulted and also that he struck the victim inherently invokes the intent to do so. The defendant has not asserted that he did not strike the victim or that he did so unintentionally. His admission of guilt without an accompanying claim of innocence is sufficient to constitute a factual basis for the crime. State v. [Sainz, 107 N.J. 283, 292-93 (1987)]. If a defendant does not accompany the plea with a claim of innocence, the guilty plea is more than sufficient it a defendant merely admits his guilt for the crime. State v. [Pineiro, 385 N.J. Super. 129, 141 (App. Div. 2006)]. Defendant's short answers to leading questions may also provide a sufficient factual basis for the guilty plea. State v. Smullen, [ 118 N.J. 408, 415 (1990)].

In this case, defendant's admission coupled with the totality of the circumstances in the record was more than sufficient to establish a factual basis for the guilty plea. This omission that he claims is []sufficient to establish a manifest injustice and overcome the State's considerable interest in finality as the assault occurred over eight years ago.

Moreover, defendant's claim that he was not apprised of the direct penal consequences of his plea lacks merit[.]

. . . .

Here the defendant was advised of the direct and penal consequences of a guilty plea. Prior to the plea, the Court specifically advised [defendant] of the maximum sentence, exposure. . . . The Court advised [defendant] that by pleading guilty he may "be facing a jail sentence up to six months" and a $1,000 fine[.] . . . And in fact the Court repeatedly stated this to [defendant] to ensure he understood such consequences. . . .

Additionally, the defendant claims that he was not advised that he would have to pay restitution as part of his sentence and that he would have never pled guilty knowing this fact, but paying restitution is merely a collateral matter and not a direct penal consequence so the Court is not required to advise the defendant of such a fact. . . .

Additionally, it is evident that the defendant was put on notice that he could have to pay restitution because at sentencing his attorney said the defendant "came prepared today to pay fines to this court, to pay restitution, if ordered, of $603." . . .

Lastly, defendant maintains he was not advised of the constitutional rights he waived upon pleading guilty. According to the [March 20, 2008] transcript, this is the colloquy and it's from pages three and four and then page 17.

"[DEFENDANT]: My allegation

is that at [t]he time of the plea bargain, nor did it by counsel or

the Court apprise me of any

constitutional rights that I was

waiving?

THE COURT: That is not true,

sir. I had gone over that with you

many times before that date. You

and I spoke several times before that

date. You and I spoke several times

with regard to the potential

consequences that would flow with

regard to this particular matter.

In fact, this was a plea bargain

that was struck to cap it with regard

to this particular situation.

THE COURT: And this is on page

4, but You had been arraigned earlier

with regard to this particular situation by the Court and made aware

of what all those penalties could have

been with regard to this situation, sir."

And then on page 17:

"[DEFENDANT]: There was something

that the Court's advised me of, but not the essential rights I was.

THE COURT: That's not true, sir. I explained all that to you before November 30th of the year '08 with regard to this."

I find the defendant has failed to provide any evidence or transcripts to the contrary on this point. In addition, prior to the plea, I note that the defendant had been involved with the legal system since the 1980s. There are several indictable offenses, I believe seven indictable offenses. In fact, the defendant had pled guilty to four of those seven offenses. Thus, I find he was aware of his constitutional rights. He was waiving by pleading guilty in the municipal court and I find defendant has failed to set forth any prejudice.

Consequently, because defendant failed to show a manifest injustice and because the State has a considerable interest in the finality of this judicial proceeding defendant failed to meet his burden to permit withdrawal of his guilty plea and because he has failed to establish a substantial denial of his rights and these in the conviction proceedings this petition is denied.

On appeal, defendant raises the following issues:

I. THE LOWER COURT ABUSED ITS DISCRETION BY RULING WITHOUT THE MAY 1, 2008, PCR DECISION TRANSCRIPTS, AND FOR BARRING PETITIONER UNDER R. 7:10-2 (d), AND (b), WHEN THE MUNICIPAL COURT RULE[D] ON THE MERITS OF THE CLAIM'S WITHOUT CONTENTION FROM THE STATE, PETITIONER WAS ENTITLED TO RELIEF BECAUSE HE CHALLEN[G]ES [THE] LEGALITY OF [THE] SENTENCE AND BECAUSE FUNDAMENTAL FAIRNESS AND JUSTICE REQUIRE CONSIDERATION.

II. PETITIONER IS ENTITLED TO RELIEF, BECAUSE HIS GUILTY PLEA IS INVALID, THUS RENDERING [THE] SENTENCE ITSELF ILLEGAL, BECAUSE HE WAS NOT APPRISED OF THE CONSTITUTIONAL RIGHTS HE WAIVED UPON PLEADING GUILTY, AND COURT NEITHER ELICITED A PROPER FACTUAL BASIS FOR THE PLEA, NOR DID IT INFORM PETITIONER OF THE DIRECT/PENAL CONSEQUENCE OF [A] GUILTY PLEA.

A. THE MUNICIPAL COURT DID NOT APPRISE PETITIONER OF THE CONSTITUTIONAL RIGHTS HE WAIVED UPON PLEADING GUILTY.

B. THE MUNICIPAL COURT FAILED TO ELICIT AN ADEQUATE FACTUAL BASIS FOR PETITIONER'S GUILTY PLEA.

C. THE MUNICIPAL COURT FAILED TO INFORM PETITIONER OF THE DIRECT/PENAL CONSEQUENCE OF THE PLEA.

We have considered each of these issues in light of the record, the applicable law, and the arguments of counsel and defendant, pro se, and we are satisfied that none of them is of sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Accordingly, we affirm substantially for the reasons stated by Judge Neafsey in his oral opinion of April 9, 2009. As for defendant's claim that the Law Division erred by rendering its decision without a transcript of the May 1, 2008 municipal court proceeding, suffice it to say, defendant never objected to the adjudication of his municipal appeal without the May 1, 2008 transcript, and there has been no showing that its omission on the de novo municipal appeal was prejudicial to defendant. In other words, defendant has not demonstrated that the missing transcript contained facts relevant or material to the adjudication of his municipal appeal.

 
Affirmed.

The record does not indicate when exactly defendant filed this application in municipal court. As the municipal court denied the petition in March 2008, it is assumed that the motion was filed in early 2008.

The judge did indicate that he would continue the hearing to May 1, 2008, so that he could review defendant's sentencing transcript. According to the State, however, a transcript of the May 1, 2008 proceeding has never been ordered by the defendant for his appeals to the Law Division and this court, nor has a transcript been provided to the State.

(continued)

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