STATE OF NEW JERSEY v. NARCISCO RAMIREZ

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2583-09T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

NARCISCO RAMIREZ a/k/a NACHO,

Defendant-Appellant.

________________________________________________________________

June 6, 2011

Submitted May 31, 2011 - Decided

Before Judges Lisa and Sabatino.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 05-09-1261.

Yvonne Smith Segars, Public Defender, attorney for appellant (Frank M. Gennaro, Designated Counsel, on the brief).

CameliaM. Valdes, Passaic County Prosecutor, attorney for respondent (Marc A. Festa, Senior Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant, Narcisco Ramirez, pled guilty to the enhanced first-degree crime of being a leader of a narcotics trafficking network, N.J.S.A. 2C:35-3, which, except as provided by N.J.S.A. 2C:35-12, is mandatorily punishable by an ordinary term sentence of life imprisonment with a twenty-five-year parole disqualifier. Pursuant to a plea agreement, invoking the authority of N.J.S.A. 2C:35-12, the prosecutor waived those mandatory sentencing provisions, and recommended a sentence of ten years imprisonment with a five-year parole disqualifier.

Judge Randolph M. Subryan, who had also taken defendant's plea, imposed the recommended sentence. He awarded four days credit for time served pursuant to Rule 3:21-8. Defendant did not appeal his conviction or sentence. However, on June 30, 2006, he filed a motion for reconsideration regarding the issue of jail credits. He withdrew that motion on December 8, 2006. Then, on January 22, 2007, defendant filed another motion for the same purpose. On April 29, 2008, Judge Subryan denied the motion.1 Defendant did not appeal the denial of this motion.

On January 8, 2009, defendant filed a petition for post-conviction relief (PCR). He alleged that the factual basis he provided was insufficient to satisfy the elements of the crime to which he pled guilty, and that his plea was not knowing and voluntary because he was misinformed regarding the amount of jail credit he would receive.

The PCR petition came before Judge Nestor F. Guzman,2 who heard oral argument on July 23, 2009. Judge Guzman issued a comprehensive written opinion on August 28, 2009, in which he explained in detail why he rejected defendant's arguments. He therefore entered an accompanying order on that date denying defendant's PCR petition. This appeal followed.

Defendant argues:

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF.

A. INEFFECTIVE ASSISTANCE OF COUNSEL.

B. DEFENDANT DID NOT UNDERSTAND THE CONSEQUENCES OF HIS PLEA.

C. TRIAL COUNSEL PERMITTED DEFENDANT TO PLEAD GUILTY TO A CRIME WITHOUT HAVING ELICITED A PROPER FACTUAL BASIS FOR THAT CRIME.

Defendant's arguments are patently lacking in merit and do not warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons set forth in Judge Guzman's well-reasoned opinion.3 We add the following brief comments.

Defendant was on parole for an unrelated offense when he was arrested on November 12, 2004 for this offense. The Department of Corrections issued a parole violation on November 16, 2004. By the time of defendant's sentence on March 31, 2006, he had been in custody for 486 days.4 However, Judge Subryan awarded only four days of jail credits, from November 12 to 15, 2004, because the parole violation warrant had been issued.

The issue of jail credits was discussed on the record at the plea hearing. When defendant inquired whether he would get full credit for all of his time in custody since his arrest, Judge Subryan correctly told defendant, "I can't give you jail-time credit if you are already serving a parole violation; do you understand that?" Defendant responded affirmatively.

The issue again came up at the sentencing hearing. Judge Subryan reiterated that because the parole violation was still pending, he was not authorized to give credit from the day it was filed. The judge was aware that defendant was contesting the parole violation, and he explained to defendant that if he was successful, he could later come back to the court and request additional jail credits, to which he would then be entitled. Defendant acknowledged that he understood the concept, but requested that the procedure be done in reverse, namely that he receive the full 486 days of credits at the time of sentencing, and then if he was unsuccessful in contesting the parole violation, the credits could be taken away from him. Judge Subryan informed defendant that he could not follow such a procedure. Both defense and the prosecutor acknowledged their agreement with the judge's analysis, and they both agreed that if defendant was not ultimately adjudicated to be in violation of parole, he would receive the additional credits.

In his written opinion, Judge Guzman, after setting forth extensive passages from the transcripts of the plea and sentencing hearings, concluded as follows:

It is clear from the record that the [j]udge, [p]rosecutor, and [d]efense counsel all offered lengthy explanations to the defendant which made it clear to the defendant that the court would apply the credit later if the defendant's appeal of the parole violation was successful and while some of the defendant's statements may appear to indicate he lacked understanding, the questions he posed to the court make it clear he did.

. . . . [Defendant's] statements did not indicate a lack of comprehension, he knew the credits were not being applied that day and would not ever be unless he won the appeal; he was, however, questioning why they could not be applied immediately and then take away later. The defendant's questions and statements make it clear that he knew the jail credits would only be applied if the parole violation was set aside, albeit unhappy with the timing and process required.

The law is well settled. Although a defendant is entitled to credit for time served in custody from the time of his arrest to the time of sentence, see R. 3:21-8, time served after being charged with a parole violation "is attributable to the original offense on which the parole was granted and not to any offense or offenses committed during the parolee's release." State v. Black, 153 N.J. 438, 461 (1998); State v. Harvey, 273 N.J. Super. 572, 574-75 (App. Div. 1994). The time that is attributable to the prior conviction and sentence cannot be used as a credit against any other contemporary proceeding. There are two possible results when a parole warrant is lodged against a defendant who is awaiting trial or sentencing for a separate crime:

If the parole warrant is thereafter withdrawn or parole is not revoked, and the defendant is convicted and sentenced on new charges based on the same conduct that led to the initial parole warrant, then jail time should be credited against the new sentence. If parole is revoked, then the period of incarceration between the parolee's confinement pursuant to the parole warrant and the revocation of parole should be credited against any period of reimprisonment ordered by the parole board.

[Black, supra, 153 N.J. at 462; see also Harvey, supra, 273 N.J. Super. At 576.]

Judge Guzman's finding that defendant understood all of this is well supported by the record. It is plain that the law was correctly explained to defendant in open court, and defendant was not misled by his counsel, nor by the judge or the prosecutor in this regard.

Defendant's argument regarding his factual basis is also lacking in merit. After reviewing the elements of the leader of a narcotics trafficking network offense and the particulars of defendant's allocution, Judge Guzman concluded:

Here the defendant controlled at least two and financed at least three others. Therefore the record clearly indicates the defendant acted as a leader of at least five persons in a drug trafficking network. As a result, the defendant's argument is without merit as any such advice from his attorney regarding the number of persons would not have resulted in a material alteration of the outcome of the case because it would not have given the defendant any reasons to insist on going to trial.

The judge's finding is amply supported by the record of the plea proceeding, and we agree with the judge's legal analysis.

1 The record presently before us does not contain copies of these motions or orders. However, there are references to them in the record, and the parties do not dispute the accuracy of those references. Because we sustain the trial court's rejection of defendant's claim for additional jail credits, the computation difference is inconsequential.

2 By this time, Judge Subryan had retired.

3 Although it appears that defendant's PCR petition is procedurally barred, see R. 3:22-4, Judge Guzman decided it on the merits, and so do we.

4 By our calculations, the time period from November 12, 2004 to March 31, 2006 equals 505 days. The parties and the trial court have consistently expressed the time interval as 486 days. We will therefore do the same in this opinion.