STATE OF NEW JERSEY v. J.P.

RECORD IMPOUNDED


NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION


SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0327-10T3


STATE OF NEW JERSEY,


Plaintiff-Respondent,


v.


J.P.,


Defendant-Appellant.

_______________________________

February 3, 2012


Argued October 19, 2011 - Decided


Before Judges Lihotz and Waugh.


On appeal from the Superior Court of New Jersey, Law Division, Morris County, Indictment No. 09-06-00601.


Alan L. Zegas argued the cause for appellant (Law Offices of Alan L. Zegas, attorneys; Mr. Zegas, Mary Frances Palisano, Terel L. Klein and Judson L. Hand, on the briefs).


Paula Jordao, Assistant Prosecutor, argued the cause for respondent (Robert A. Bianchi, Morris County Prosecutor, attorney; John McNamara, Jr., Assistant Prosecutor, on the brief).


PER CURIAM

Defendant J.P. appeals his conviction for third-degree endangering the welfare of a child, entered following his guilty plea, and the imposed custodial sentence. On appeal, he asserts:

POINT ONE


DEFENDANT'S FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO DUE PROCESS AND THE EFFECTIVE ASSISTANCE OF COUNSEL WERE VIOLATED BECAUSE DEFENDANT'S PLEA AGREEMENT WAS NOT ENTERED INTO WITH FULL KNOWLEDGE OF THE CONSEQUENCES OF THE PLEA.


A. THE COURT'S COLLOQUY AT THE TIME OF THE PLEA MAKES CLEAR THAT THE TRIAL JUDGE FAILED TO ENSURE THAT DEFENDANT PLED GUILTY WITH AN UNDERSTANDING OF THE CONSEQUENCES OF HIS PLEA.


B. THE RECORD INDISPUTABLY REFLECTS THAT TRIAL COUNSEL FAILED TO RENDER EFFECTIVE ASSISTANCE OF COUNSEL TO DEFENDANT BY MATERIALLY MISINFORMING DEFENDANT OF THE CONSEQUENCES OF HIS PLEA.


POINT TWO


THE TRIAL COURT ERRED IN FAILING TO PROPERLY APPLY THE AGGRAVATING AND MITIGATING FACTORS DURING SENTENCING, IN VIOLATION OF DEFENDANT'S FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO DUE PROCESS, AND THE SENTENCE MUST BE VACATED.


Following our review of the arguments presented in light of the record and applicable law, we affirm.

Defendant, age forty-four, was charged with three second-degree offenses related to the sexual touching of his ten-year old stepdaughter. Pursuant to a plea agreement, he plead guilty to an amended charge of third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a, and the State agreed to dismiss the sexual assault charges.

A disagreement arose between the State and defendant precluding a recommended sentence. The court permitted legal memoranda to be filed, advocating the applicable law and sentencing consequences of defendant's guilty plea. Because defendant had "no prior criminal record," counsel advanced the position defendant was "entitled to the presumption against incarceration should he plead guilty to the third count of the indictment alleging third degree endangering the welfare of a child." The State did not file a memorandum to the court.

The plea agreement correctly set forth the maximum prison term for the charged third-degree offense as five years. Section thirteen of the standard plea form did not include a recommended sentence, rather it stated "Both sides free to speak[;] State to argue for a state prison term." Section thirteen also referred to section twenty-one of the plea form, which included:

The defense has submitted a [s]entencing [a]dvisement to the trial court setting forth . . . the applicable law and statutory authority concerning [d]efendant's sentence. The defense will request no state prison or county jail time consistent with same.


In this submission, defendant asserted he had no prior criminal record and was entitled to the presumption against incarceration.

During the plea hearing, the State agreed not to seek an extended term or a stipulation of parole ineligibility. Further, it was agreed defendant would be required to register as a sex offender, N.J.S.A. 2C:7-2, and be sentenced to parole supervision for life, N.J.S.A. 2C:43-6.4. However, the disagreement continued regarding whether defendant was entitled to the presumption of non-incarceration, N.J.S.A. 2C:44-1e,1 were the court to accept his guilty plea.

We set forth portions of the plea colloquy relevant to the issues raised on appeal:

[DEFENSE COUNSEL]: [T]he [c]ourt allowed me . . . to submit a legal brief, which was a sentencing advisement concerning the applicable law that the [c]ourt would be governed under in sentencing you if you were to enter a guilty plea in this case, is that right?


[DEFENDANT]: Yes, it is.


[DEFENSE COUNSEL]: Okay. And do you understand the [S]tate has not filed a brief in opposition to my legal argument to the [c]ourt?


[PROSECUTOR]: But I am going to file a sentencing memorandum after the plea today. Before sentence[ing] I'm going to file . . . a letter to the [c]ourt, stating our position. You understand that, right?


[DEFENDANT]: Yes.


[DEFENSE COUNSEL]: Notwithstanding what the prosecutor just stated, I do not believe that it is the position of the Morris County Prosecutor's Office . . . that anything that I stated in my sentencing advisement was legally incorrect, do you understand that?


[DEFENDANT]: Yes.


[DEFENSE COUNSEL]: In other words, I'm saying that unless somebody tells me otherwise, that the Morris County Prosecutor's Office agrees with the legal argument that I set forth in that sentencing advisement, do you understand that?


[DEFENDANT]: Yes.


THE COURT: Make no mistake I am going to make all the legal rulings in the case. So, I'll review both submissions . . . and give you a fair, and just . . . resolution , sir. Not to worry.


. . . .

Counsel continued to examine defendant, reviewing each item of the standardized plea form. Relevant to this appeal is the following:

[DEFENSE COUNSEL]: And, Number 8, "Are you pleading guilty to a crime that contains a presumptive imprisonment?" You do understand that the answer is --


[DEFENDANT]: It should be circled no.


[DEFENSE COUNSEL]: Is no?


THE COURT: I'll circle my form.


[DEFENSE COUNSEL]: And just [for] edification that that was one of the issues between the [S]tate, and the defense.


When defense counsel reached item thirteen, the prosecutor interjected:

[PROSECUTOR]: You understand that at sentencing [defense counsel] is going to ask that the [c]ourt not impose any . . . prison time[.] You understand that, correct?


[DEFENDANT]: Correct.


[PROSECUTOR]: But I, on the other hand, as long as you understand, before you enter this plea, that I'm going to ask the [j]udge, during sentencing, to impose a prison sentence, and obviously it will be up to the [c]ourt to decide. But you are aware of that, correct?


[DEFENDANT]: Yes.


Counsel also read item twenty-two, as set forth above, which defendant acknowledged he understood. Defendant also acknowledged the court was not bound by the sentencing terms in the plea agreement and could impose a more severe sentence, in which case he could withdraw his plea.

The pre-sentence report disclosed defendant had been convicted in 1981 of two counts of larceny, a disorderly persons offense, in Fairfield Township Municipal Court. He was sentenced to thirty days in county jail, which was suspended, and placed on one-year probation. In 1982, defendant received a conditional discharge following a charge for possession of marijuana.

Prior to sentencing, the State submitted a memorandum which argued the presumption of non-incarceration applies only to first-time offenders. Therefore, defendant's prior convictions would make him ineligible. Consequently, the State sought a custodial term. In response, defense counsel submitted another sentencing memorandum arguing the court could impose one of these four possible sentences:

1. Your Honor could refrain from imposing any term of incarceration whatsoever and the Defendant would immediately be placed on to Parole Supervision for Life;


2. Your Honor Could impose a state prison term;


3. Your Honor could impose a state prison term and suspend the sentence; or


4. Your Honor could impose a county jail term (a county jail term is not supervised by the probation department, hence such a sentence would not conflict with the statutory language prohibiting concurrent or dual forms of supervisions, i.e.[,] probation and Parole Supervision).

Defense counsel continued to advocate that defendant was entitled to the presumption of non-incarceration because "there [wa]s simply not enough information before Your Honor to demonstrate that the Defendant was indeed convicted of a disqualifying offense in Fairfield Township in 1981."

At sentencing, the issue was again revisited. The court concluded that "by law, the prior Fairfield [Township] offenses, . . . remove the presumption against incarceration." The court applied aggravating factors three, the risk of re-offense; four, a lesser sentence will depreciate the seriousness of the offense as defendant took advantage of a position of trust or confidence to commit the offense; and nine, the need for deterrence. N.J.S.A. 2C:44-1a(3), (4) and (9). In addition, the court applied mitigating factor seven, defendant's lack of criminal history. N.J.S.A. 2C:44-1b(7). The court sentenced defendant to a four-year term of imprisonment and parole supervision for life. This appeal ensued.

Defendant seeks reversal of his conviction, challenging the voluntariness of his guilty plea. He argues the trial court's failure to determine the applicability of the presumption of non-incarceration prior to his entry of the plea erroneously resulted in a failure to fully inform him of the direct and penal consequences of his plea. Defendant maintains the trial court was aware defense counsel had misinformed him a custodial sentence was inapplicable, yet the judge neglected to rectify that misinformation. We are not persuaded by these arguments.

"For a plea to be knowing, intelligent and voluntary, the defendant must understand the nature of the charge and the consequences of the plea." State v. Johnson, 182 N.J. 232, 236 (2005). The trial court has a duty "to ensure that a defendant understands the consequences of a plea" which generally extends "to those 'consequences that are direct, or penal, and not to those that are collateral.'" State v. Bellamy, 178 N.J. 127, 134 (2003) (quoting State v. Howard, 110 N.J. 113, 122 (1988)). Fulfilling its obligation to properly inform a defendant of the penal consequences of a plea, does not require the court to reveal the precise sentence it intends to impose prior to entry of the plea. "[N]either the State nor defendant can insist that a particular sentence be imposed even though it may have been negotiated. The final sentence is always a matter for the discretion of the trial judge." State v. Davis, 175 N.J. Super. 130, 140 (App. Div), certif. denied, 85 N.J. 136 (1980). See also State v. Spinks, 66 N.J. 568, 573 (1975) (holding sentencing is always a matter of the trial court's discretion).

Conviction of a third-degree crime does not carry a presumption in favor of incarceration. The presumption found in N.J.S.A. 2C:44-1e allows a sentencing judge to impose a lesser punishment than the offender would otherwise receive. The statutory presumption that a non-custodial sentence would be imposed applies only when a defendant has no prior convictions. N.J.S.A. 2C:44-1e. Application of this presumption is defeated when a defendant has been convicted of a prior offense, including a disorderly persons offense, State v. Battle, 256 N.J. Super. 268, 285 (App. Div.), certif. denied, 130 N.J. 393 (1992), or when the State overcomes the presumption by additional circumstances such as aggravating factors. State v. Gardner, 113 N.J. 510, 517 (1989) (holding the presumption of non-incarceration can be overcome by the nature and circumstances of the offense).

If N.J.S.A. 2C:44-1e is found inapplicable because of a defendant's prior conviction, the court is free to sentence defendant after weighing the applicable aggravating and mitigating factors, N.J.S.A. 2C:44-1a and b, and to fix the type and length of sentence. State v. Pineda, 227 N.J. Super. 245, 250-51 (App. Div. 1988), aff'd, 119 N.J. 621 (1990).

Here, defendant was informed there was no presumption of imprisonment. N.J.S.A. 2C:44-1d.2 He also was fully informed by the plea agreement the maximum sentence applicable to a third-degree conviction of endangering the welfare of a child was five years. N.J.S.A. 2C:43-6a(3). Further, the State repeatedly articulated its position that a custodial sentence should be imposed. Finally, when reviewing the plea agreement, defense counsel's questioning, along with the prosecutor's interjections, made clear the issue of whether defendant was entitled to a presumption of non-incarceration was unresolved.

We reject the notion that defendant's reasonable expectations when accepting the terms of the bargain were violated. Defense counsel's passionate and thorough representation seeking a more favorable sentencing could not be confused with an assertion that the court had no alternative but to order probation. If defendant were mistaken on this issue, counsel's pre-sentencing submission clarifies what the defense believed were four possible sentencing alternatives available to the court, one of which was imprisonment. Despite this issue being clearly presented, defendant did not move to withdraw his plea prior to sentencing.

Following our review, we conclude defendant's guilty plea was knowingly made based on the information, provided by defense counsel, regarding the scope of applicable sentencing consequences. Further, nothing suggests the plea was involuntary. Accordingly, we will not disturb defendant's conviction.

In a related argument, defendant argues counsel's conduct was deficient, maintaining counsel misinformed him of the sentencing consequences of his plea and this misinformation directly induced him to enter the guilty plea. Furthermore, defendant contends counsel inaccurately advised him on the presumption against imprisonment, the consequences of his plea, the sentencing options available to the judge, and the sentence the State would be seeking. Defendant suggests "[h]ad these unprofessional errors not occurred, the result would have been different."

"To vacate the plea, defendant must show not only that he was misinformed of the terms of the agreement or that the sentence violated his reasonable expectations, but also that he is prejudiced by enforcement of the agreement." Howard, supra, 110 N.J. at 123. While a defendant has the right not to be misinformed "as to a material element of a plea negotiation," State v. Nichols, 71 N.J. 358, 361 (1976), a defendant must demonstrate knowledge of the potential consequences would have impacted his decision to plead guilty. Johnson, supra, 182 N.J. at 236-37. "[I]f a defendant wishes to withdraw a guilty plea after sentencing has occurred, 'the court weighs more heavily the State's interest in finality and applies a more stringent standard' than that which is applied to a withdrawal application made before sentencing has occurred." Id. at 237 (quoting State v. McQuaid, 147 N.J. 464, 487 (1997)). "At sentencing, the plea may be withdrawn in the interests of justice, but after sentencing, only to correct a manifest injustice." Howard, supra, 110 N.J. at 123-24 (internal quotation marks and citations omitted).

To set aside a guilty plea based on ineffective assistance of counsel, a defendant must show that (i) counsel's assistance was not "within the range of competence demanded of attorneys in criminal cases," Tollett v. Henderson, 411 U.S. 258, 266, 93 S. Ct. 1602, 1608, L. Ed.2d 235, 243 (1973); and (ii) "that there is a reasonable probability that, but for counsel's errors, [the defendant] would not have pled guilty and would have insisted on going to trial."


[State v. DiFrisco, 137 N.J. 434, 457 (1993) (quoting Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370, 88 L. Ed.2d 203, 210 (1985)).]


"[T]he erroneous sentencing prediction of a defense counsel does not warrant vacating a guilty plea rendered because of it." Id. at 455.

Defendant's arguments attacking counsel's advice and possible certain strategic decisions involve further fact-finding outside the record, which are ill-suited for plenary review on direct appeal, and better addressed in a petition for post-conviction relief. State v. Preciose, 129 N.J. 451, 460 (1992); see also State v. Dixon, 125 N.J. 223, 262 (1991). We, therefore, decline the invitation to resolve them here.

Defendant also seeks to set aside his sentence asserting the trial court failed to properly apply applicable aggravating and mitigating factors. Defendant asserts the trial judge provided "absolutely no factual basis for two of the three aggravating factors he found [to apply]. Nor did he, either orally or in the judgment of conviction provide any hint of his reasoning in weighing and balancing the aggravating and mitigating factors." We disagree.

The sentence imposed by a trial court "is presumed to be reasonable[.]" Davis, supra, 175 N.J. Super. at 140. Our review is limited so that we reverse only where a sentence "is unduly punitive or there is a clear showing of an abuse of discretion." Ibid. "The same presumption of reasonableness adheres to a sentence imposed under a plea arrangement." Ibid.

The record reflects the trial judge well-supported the application of aggravating factor four, and the articulation for applying factor nine -- that is, "[t]here's always a need to deter, not only you, but others from committing this type of offense" -- is sufficient in the context of the court's other comments. While no specific facts were stated to support application of factor three, the risk of re-offense, the court did not appear to heavily weigh this factor, instead emphasizing the weight of factor four.3 The judge also articulated a basis for rejecting other aggravating factors sought to be applied by the State, as well as mitigating factors requested by defendant.

In light of the facts surrounding the offense, our review of this record determines the court's findings are sufficient to support the application of the aggravating factors applied and the rejection of defendant's request for the use of additional mitigating factors. State v. Dalziel, 182 N.J. 494, 504-05 (2005)(holding a trial judge is required to consider aggravating and mitigating factors supported by the evidence). We find no abuse of discretion as the sentence imposed is within the range for the offense and does not shock our judicial conscience. State v. Roth, 95 N.J. 334, 363-64 (1984).

A

ffirmed.

1 N.J.S.A. 2C:44-1e provides in applicable part:


The court shall deal with a person convicted of an offense other than a crime of the first or second degree, who has not previously been convicted of an offense, without imposing a sentence of imprisonment unless, having regard to the nature and circumstances of the offense and the history, character and condition of the defendant, it is of the opinion that his imprisonment is necessary for the protection of the public[.]

2 N.J.S.A. 2C:44-1d, which imposes a presumption of imprisonment for a third-degree offense where "[t]here is a substantial likelihood that the defendant is involved in organized criminal activity" unless "having regard to the character and condition of the defendant, [the court] is of the opinion that his imprisonment would be a serious injustice which overrides the need to deter such conduct by others."

3 In applying factor four the trial judge highlighted that defendant stood in loco parentis to the victim, who identified him as her "step-dad." The court commented that defendant abused this trust relationship and his actions will forever "stigmatize" the victim because he "took away a child's sense of a secure home, something that every child deserves."