STATE OF NEW JERSEY v. EDWARD T. BRAZILIAN a/k/a EDWARD T. BRAZILIAN, JR.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0469-06T40469-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

EDWARD T. BRAZILIAN a/k/a

EDWARD T. BRAZILIAN, JR.,

Defendant-Appellant.

 

Submitted October 23, 2007 - Decided

Before Judges Skillman and Winkelstein.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, 04-10-2476-I, 04-10-2475-I, 04-10-2474-I.

Yvonne Smith Segars, Public Defender, attorney for appellant (Frank J. Pugliese, Assistant Deputy Public Defender, of counsel and on the brief).

Anne Milgram, Attorney General, attorney for respondent (Johanna Barba Jones, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

On October 19, 2004, a Monmouth County Grand Jury returned three separate indictments against defendant Edward Brazilian. Under Indictment No. 04-10-2474, the grand jury charged him and his co-defendants, Matthew Lapadula and James Ritter, with second-degree conspiracy to commit an armed robbery on June 8, 2004, N.J.S.A. 2C:5-2; N.J.S.A. 2C:15-1 (count one); and first-degree armed robbery of Brian Wolf on June 8, 2004, N.J.S.A. 2C:15-1 (count two). Under Indictment No. 04-10-2475, the grand jury charged defendant and co-defendant Lapadula with second-degree conspiracy to commit an armed robbery on June 6, 2004, N.J.S.A. 2C:5-2; N.J.S.A. 2C:15-1 (count one); and first-degree armed robbery of Paul Sacaloff on June 6, 2004, N.J.S.A. 2C:15-1 (count two). Finally, under Indictment No. 04-10-2476, the grand jury charged defendant and co-defendant Lapadula with third-degree conspiracy to commit burglary on June 3, 2004, N.J.S.A. 2C:5-2; N.J.S.A. 2C:18-2 (count one); third-degree burglary on June 3, 2004, N.J.S.A. 2C:18-2 (count two); and fourth-degree theft of movable property on June 3, 2004, N.J.S.A. 2C:20-3a (count three).

On April 25, 2005, as part of a plea agreement, defendant entered guilty pleas to the following offenses: under Indictment No. 04-10-2474, defendant pleaded guilty to count two, first-degree armed robbery; under Indictment No. 04-10-2475, defendant pleaded guilty to count two, amended to second-degree robbery; and under Indictment No. 04-10-2476, defendant pleaded guilty to count two, third-degree burglary. The plea agreement called for the court to dismiss all remaining charges and impose two concurrent eleven-year prison sentences on the robbery counts, and a concurrent four-year flat term on the burglary count.

At sentencing on January 20, 2006, the court heard and denied defendant's motion to withdraw his guilty plea. The judge then imposed a six-year prison term, subject to an eighty-five percent period of parole ineligibility, for the second-degree robbery conviction, under Indictment No. 04-10-2475; a five-year term, with an eighty-five percent period of parole ineligibility, for the first-degree armed robbery conviction, under Indictment No. 04-10-2474, consecutive to the six-year term under Indictment No. 04-10-2475; and a concurrent four-year term for the third-degree burglary conviction, under Indictment No. 04-10-2476.

On appeal, defendant raises the following two legal arguments:

POINT I

THE COURT ERRED IN DENYING DEFENDANT'S REQUEST TO WITHDRAW HIS GUILTY PLEA.

POINT II

INSUFFICIENT REASONS WERE GIVEN FOR IMPOSING CONSECUTIVE SENTENCES.

Defendant's arguments in point one are without merit. Consequently, we affirm his conviction. We vacate defendant's sentence, however, in that it did not accurately reflect the plea agreement.

We take the facts underlying the charges from the transcript of defendant's guilty plea on April 25, 2005 and the presentence report. As to Indictment No. 04-10-2474, on June 8, 2004, defendant and his co-defendants robbed Brian Wolf. Defendant pulled a knife on Wolf and took approximately $200 from him. Under Indictment No. 04-10-2475, on June 6, 2004, defendant and Lapadula approached Paul Sacaloff and demanded money from him. Defendant punched Sacaloff in the face and pressed a hard object against his body, telling him that it was a knife. Finally, under Indictment No. 04-10-2476, on June 3, 2004, defendant broke a car window and stole a backpack that contained items of personal property.

On the sentencing date, the court entertained defendant's motion to withdraw his guilty plea. In support of the motion, defense counsel submitted his own certification to the court. According to counsel, defendant had advised him that he did not have enough time to make a decision before entering his guilty plea; defendant needed to view the videotapes of his co-defendants' statements; defendant wanted to review a copy of the grand jury transcript; and defendant believed his prior attorney had pressured him to plead guilty. In court, defense counsel represented to the judge that his client was "most concerned about the fact that he was on medication for a condition and that at the point he entered the plea, due to him not receiving medication, it resulted in a failure to render a knowing and voluntary plea." The court rejected defendant's arguments and denied the motion.

The burden is on a defendant to show why a guilty plea should be withdrawn. State v. Huntley, 129 N.J. Super. 13, 17 (App. Div.), certif. denied, 66 N.J. 312 (1974). Where a plea is part of a knowing and voluntary plea bargain, a defendant's "burden of presenting a plausible basis for his request to withdraw . . . is heavier." Id. at 18. Although motions to withdraw guilty pleas made prior to sentencing may be granted more liberally, negotiated plea agreements are generally entitled to a high degree of finality. State v. Smullen, 118 N.J. 408, 416 (1990); State v. Deutsch, 34 N.J. 190, 198 (1961). A trial judge has considerable discretion in determining whether to grant a motion to withdraw a guilty plea, and should consider not only a defendant's arguments, but also the interests of the State in the plea's finality. State v. Luckey, 366 N.J. Super. 79, 87 (App. Div. 2004).

Here, the trial court did not abuse its discretion in denying defendant's motion to withdraw his guilty plea. As the judge pointed out, the parties had multiple conferences over many months before defendant decided to plead guilty, giving him sufficient time to decide whether to plead or go to trial. The judge also found that defendant's attorney was experienced and competent.

In considering defendant's claim that he had been denied medication before entering his guilty plea, the court observed that at the time defendant entered his plea he showed no evidence of impairment. He was able to respond to the court's questions in a coherent manner. The record supports those findings. In fact, in his appendix on appeal, defendant submitted a number of inmate grievance forms that he had filed with the correctional institution in which he was held. On a grievance form dated April 28, 2005, three days after his sentencing, he indicated that he had been taking the same medications for the previous eleven months, but he was not given any on that date. Neither the April 28 grievance form nor any other grievance form states that he had been denied medication on the day he entered his guilty plea. Accordingly, we affirm the decision to deny defendant's motion to withdraw his plea substantially for the reasons expressed by the trial judge.

We turn next to defendant's sentence. At sentencing, the court imposed a six-year prison term on Indictment No. 04-10-2475, for a second-degree robbery conviction; a consecutive five-year term, under Indictment No. 04-10-2474, for the first-degree armed robbery conviction; and a concurrent four-year term on the third-degree burglary conviction under Indictment No. 04-10-2476. The sentencing transcript appears to show some confusion as to which charges were included under the various indictments. Ultimately, the court imposed a longer sentence for the second-degree robbery conviction than for the first-degree armed robbery conviction. Furthermore, the plea agreement called for concurrent eleven-year prison terms on the two robbery charges, not a six-year term on one charge and a consecutive five-year term on the other. Also, if the judge intended to impose consecutive terms, he was obligated, but failed, to provide reasons for imposing consecutive terms under the criteria established by the New Jersey Supreme Court in State v. Yarbough, 100 N.J. 627, 643-45 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986).

Given the confusion surrounding the charges and the absence of reasons for the consecutive terms, we vacate defendant's sentence and remand for resentencing consistent with the plea agreement, and for correction and amendment of defendant's judgments of conviction.

Double jeopardy does not preclude the restructuring of defendant's sentence; he has no legitimate expectation that his sentence will be less than that to which he agreed in the plea bargain. See State v. Erpino, 264 N.J. Super. 62, 69 (App. Div. 1993).

Affirmed in part, reversed in part and remanded.

Defendant's judgments of conviction contain multiple errors. For Indictment No. 04-10-2474, the judgment of conviction states that the first-degree robbery charge was amended to a second-degree robbery conviction. That is incorrect. The final charge was first-degree armed robbery. Defendant's judgment of conviction under Indictment No. 04-10-2476 indicates that he was charged with second-degree conspiracy to commit robbery. That too is incorrect as that indictment charged defendant, in count one, with conspiracy to commit burglary.

Defense counsel's certification of what defendant told him was inadmissible hearsay because it was not made on personal knowledge. R. 1:6-6.

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A-0469-06T4

November 7, 2007