STATE OF NEW JERSEY v. HUGO A. RIOS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3184-04T45245-05T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

HUGO A. RIOS,

Defendant-Appellant.

______________________________________________

 

Submitted October 17, 2007 - Decided

Before Judges Lisa and Simonelli.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 05-05-0647.

Theodore Campbell, attorney for appellant.

Anne Milgram, Attorney General, attorney for respondent (Jeanne Screen, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant Hugo A. Rios appeals from the May 4, 2006, Judgment of Conviction. On this appeal, defendant raises the following arguments:

POINT I

THE TRIAL COURT ERRED IN IT'S [sic] ASSESSMENT OF THE AGGRAVATING AND MITIGATING FACTORS.

POINT II

THE STATE'S PLEA OFFER CONTAINED A CHILLING EFFECT ON DEFENDANT'S UNFETTERED RIGHT TO COUNSEL ADVERSELY AFFECTING DEFENDANT'S KNOWING AND INTELLIGENT WAIVER OF HIS CONSTITUTIONAL RIGHTS.

We reject these arguments and affirm.

I

In May 1999, defendant sexually abused C.A., an eleven-year-old girl. From January 2000 to May 2004, defendant sexually abused another girl, K.A., when she was ten to fourteen-years-old. The incidents were eventually reported to the police. During a police investigation, defendant admitted he had sexually assaulted both girls.

On May 10, 2005, a grand jury indicted defendant on the following charges: first degree aggravated sexual assault, contrary to N.J.S.A. 2C:14-2a (count one); second degree sexual assault, contrary to N.J.S.A. 2C:14-2b (counts two and six); second degree sexual assault, contrary to N.J.S.A. 2C:14-2c (count three); second degree endangering the welfare of a child, contrary to N.J.S.A. 2C:24-4a (counts four and seven); and third degree aggravated criminal sexual contact, contrary to N.J.S.A. 2C:14-3a (count five).

Defendant faced the possibility of a twenty-year sentence if convicted of first degree aggravated sexual assault. By letter, dated May 23, 2005, the prosecutor notified defendant's counsel as follows:

In anticipation of the upcoming arraignment/status conference, the State makes the following post-indictment plea offer prior to motions being filed and heard:

Indictment No. 05-05-00647 - Guilty Plea to Count 1 (Aggravated Sexual Assault - 1st degree) and Count 6 (Sexual Assault - 2nd degree) of the Indictment with the remaining counts being dismissed. In exchange for your client's plea of guilty, the State will recommend that your client be sentenced on Count I to a 10 (ten) year term of incarceration and on Count 6 to a 5 (five) year term of incarceration with the Commissioner of the Department of Corrections. Both counts to run concurrent to each other.

If this offer is rejected and motions are filed, heard, and denied, the above plea offer is withdrawn, and the following plea offer is made:

The State will be seeking the maximum term of incarceration on all counts of the Indictment.

Defendant entered into a negotiated plea of guilty to counts two and six. In exchange for defendant's guilty plea, the State agreed to recommend a consecutive sentence of five years on count two, subject to an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and a consecutive sentence of five years on count six, subject to NERA. Defendant would also be subject to the provisions of Megan's Law, N.J.S.A. 2C:7-1 to -19, and community supervision for life, N.J.S.A. 2C:43-6.4. The State also agreed to dismiss the remaining counts.

On January 20, 2006, defendant, then represented by private counsel, appeared at a plea hearing before Judge Dennis V. Nieves and entered a negotiated plea of guilty to counts two and six. Defendant initialed and signed a Plea Form. Question 13 on the Form specified, in part, that the prosecutor agreed to recommend that the sentences would run consecutively. Defendant also responded to the judge's questions about the consecutive sentences as follows:

THE COURT: Now, Mr. Rios, at the time of sentencing what do you expect me to give you, if I go along with this plea bargain?

THE DEFENDANT: You can give me the maximum.

THE COURT: Well, I'm not going to give you ten. I can't - - if I accept this guilty plea, you know, Mr. Rios, I can't give you the maximum because the maximum would be on those counts ten and ten. But the deal is for less than ten and ten. What is it for?

THE DEFENDANT: Five to ten.

THE COURT: Five - -

THE DEFENDANT: [Five] to ten.

THE COURT: Five on each to run consecutively with each other. You understand that?

THE DEFENDANT: Yes.

THE COURT: They're not running at the same time. The plea calls for them to run one after the other. Do you understand that?

THE DEFENDANT: Yes, sir. Yes, sir.

Defendant then established the factual basis of his guilty plea, the essential elements of the crimes to which he pled guilty, and his admission of guilt. He testified that he sexually assaulted K.A. and C.A. when they were less than thirteen-years-old by letting them massage his penis for the purpose of sexually gratifying himself. Judge Nieves accepted defendant's guilty plea after determining he entered it voluntarily and understood the nature of the plea bargain and consequences of his plea.

Defendant was evaluated at the Adult Diagnostic and Treatment Center (ADTC) in Avenel. During the evaluation, defendant admitted having C.A. and K.A. masturbate him. He said K.A. "knew what to do," "did it on her own," twice, and on the second occasion, he touched her breasts over her clothes. Defendant also admitted the assaults took place "over a several month period," and after the final assault, he "did not think about his behavior" and "just put it out of [his] mind." He explained that his conduct may have been influenced by the fact that his wife was ignoring him sexually and may have been unfaithful to him and he may have taken out his anger at his wife on the two victims.

A psychologist found that there was "insufficient evidence" to characterize defendant "as a repetitive and compulsive sexual offender" under the New Jersey Sex Offender Act, N.J.S.A. 2C:47-1 to -10. The psychologist also found that defendant "admitted to assaults against his victims although in lesser form than the official version," and defendant's responses "generated a defensive profile as he appeared motivated to present himself in a consistently favorable light and free of even common problems admitted to more easily by most." The psychologist concluded that "a combination of hedonistic, opportunistic and exploitative factors likely contributed" to defendant's commission of the crimes, defendant "demonstrated limited insight into his offense behavior," and he was "relatively unmotivated for psychological treatment."

At the sentencing hearing on May 4, 2006, Judge Nieves heard argument relating to aggravating and mitigating factors. Defense counsel conceded that aggravating factor number two, N.J.S.A. 2C:44-1a(2), "would definitely apply." He asked the judge to find mitigating factors six, seven, nine, ten, eleven, and twelve, N.J.S.A. 2C:44-1b(6), (7), (9), (10), (11) and (12).

In pronouncing defendant's sentence, Judge Nieves found aggravating factor number two, N.J.S.A. 2C:44-1a(2), based upon "the gravity and seriousness of the harm that was inflicted on the victims, including whether or not [defendant] knew or reasonably should have known that the victim of the offense was particularly vulnerable or incapable of resistance due to in this particular case extreme youth." The judge also found aggravating factor number nine, N.J.S.A. 2C:44-1a(9), based upon "the need to deter [defendant] and others from violating the law."

The judge found only mitigating factor number seven, N.J.S.A. 2C:44-1b(7), because defendant had "no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time." The judge declined to find factor nine because there were two victims in this case, factor ten because defendant was being sentenced to State prison, factor eleven because defendant's wife had obtained a job and was going to survive without him, and factor twelve because defendant had not assisted the police in their investigation or prosecution of anyone. In declining to find other mitigating factors, the judge stated:

With regard to mitigating factors, I only found one, that for the most part you have no history of prior delinquency or criminal activity or have led a law-abiding life for a substantial period of time.

Mr. Rios, I can tell you that as an ex-criminal lawyer for so many years, as a Superior Court judge for going on four years, if it wasn't for your lawyer and the prosecutor agreeing on this, I would have given you much more. I'd have given you twenty years, but I'm mindful of the fact that we make mistakes. I'm mindful of the fact that you 'fessed up to it pretty quickly. The mitigating factor of cooperating with law enforcement doesn't apply to you because that's for people who are cooperating with law enforcement after they get arrested to get other people involved, like ratting on somebody. Those are the factors.

I struggled with it. I didn't find mitigating factor number nine that you're unlikely to commit another offense. See, Mr. Rios there's two victims in this case, not one. So that factor went right out the window.

Probationary treatment, would you respond? I don't know because you're going to state prison.

Would the imprisonment of -- your imprisonment entail excessive hardship to yourself and your dependents? From what I understand, your wife had to find a job in retail. She's going to survive this without you.

Mr. Rios, I honestly think you received the benefit of good lawyering and good prosecuting. Five years is the minimum on a second degree crime. Ten years is the maximum. And on a first degree crime the minimum is ten years and the maximum is twenty years. You were facing a substantial period of jail.

I can live with this plea bargain as long as you serve your time consecutively on a second degree crime.

Judge Nieves sentenced defendant in accordance with the plea agreement. The judge imposed consecutive terms of five years with a parole ineligibility period of eighty-five percent and a three-year period of parole supervision upon release under NERA. The judge also ordered defendant to comply with the provisions of Megan's Law, provide a DNA sample, and have no contact with the victims. The judge also imposed community supervision for life, and appropriate fees, assessments and penalties.

II

Defendant contends that this matter must be remanded for resentencing because Judge Nieves did not cite any independent evidence supporting his finding of aggravating factors two and nine, his assessment of aggravating factor two constitutes double counting, and he failed to find the mitigating factors defendant requested. This contention is without merit.

A trial judge's "decision to impose a sentence in accordance with a plea agreement should be given great respect." State v. S.C., 289 N.J. Super. 61, 71 (App. Div.), certif. denied, 145 N.J. 373 (1996). Where a defendant receives the exact sentence he bargained for, a presumption of reasonableness attaches to that sentence and we should not upset it absent a finding of a clear abuse of judicial discretion. State v. Tango, 287 N.J. Super. 416, 422 (App. Div.), certif. denied, 144 N.J. 585 (1996). A sentence that adheres to the plea agreement and the sentencing guidelines will not be disturbed unless it is "clearly unreasonable so as to shock the judicial conscience." State v. Roth, 95 N.J. 334, 364-65 (1984); State v. Sainz, 107 N.J. 283, 292 (1987).

Here, there was no abuse of discretion. Defendant received the exact sentence he bargained for and there is substantial credible evidence in the record supporting the judge's findings of aggravating factors two and nine. The judge also properly declined to find any of the mitigating factors defendant requested because they were not supported by the record. State v. Dalziel, 182 N.J. 494, 505 (2005) (citing Roth, supra, 95 N.J. at 356-64).

In addition, the sentence is not unreasonable as to shock the judicial conscience. The ordinary term of imprisonment for a second degree crime is between five and ten years. N.J.S.A. 2C:43-6a(2). Even discounting aggravating factor two, the five-year sentence defendant received on each count is at the very bottom of the range for second degree crimes. Thus, even if Judge Nieves erred in finding aggravating factor two, the sentence is proper because it is below the mid-range of an authorized sentence for a second degree crime. See State v. C.H., 264 N.J. Super. 112, 140 (App. Div.), certif. denied, 134 N.J. 479 (1993).

III

Defendant next contends that this matter must be remanded for resentencing because Judge Nieves failed to provide a statement of reasons for imposing consecutive sentences under the guidelines set forth in State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986). We disagree.

Consecutive sentences will be upheld absent the trial court's "explicit assessment of the Yarbough factors" where the reasons for consecutive sentences are "self evident," there were separate crimes committed on separate occasions, and the plea agreement called for consecutive sentences. State v. Soto, 385 N.J. Super. 247, 257 (App. Div.), certif. denied, 188 N.J. 491 (2006).

Here, the reasons for the consecutive sentences are self-evident. Defendant committed separate crimes against two children at different times. In addition, the plea agreement specifically provided that the sentences would run consecutively, as indicated on the Plea Form, which defendant initialed and signed, and defendant acknowledged at the plea hearing that he understood the sentences would run consecutively.

IV

Defendant next contends he should have received a sentence appropriate for a crime of one degree lower than the second degree crimes for which he was convicted. At the sentencing hearing, however, his attorney explicitly stated, "we're not asking that the court sentence [defendant] to a third degree offense." This was appropriate because there was no basis for a downgrade.

Defendant is not entitled to a sentence for a third degree crime. N.J.S.A. 2C:44-1f(2) permits the trial court to sentence the defendant to a term appropriate for a crime one degree lower if it is "clearly convinced that the mitigating factors substantially outweigh the aggravating factors and where the interests of justice demands." State v. Megargel, 143 N.J. 484, 501-02 (1996). However, "[t]he decision to downgrade a defendant's sentence 'in the interest of justice' should be limited to those circumstances in which defendant can provide 'compelling' reasons for the downgrade." Id. (quoting State v. Jones, 197 N.J. Super. 604, 607 (App. Div. 1984)). "The reasons justifying a downgrade must be 'compelling,' and something in addition to and separate from, the mitigating factors that substantially outweigh the aggravating factors." Id. at 505.

Here, the one mitigating factor Judge Nieves found did not clearly outweigh the aggravating factors, and defendant has provided no compelling reasons for a downgrade.

V

Finally, defendant contends for the first time that his guilty plea should be vacated because, in light of the prosecutor's representation that the plea offer would be withdrawn if motions were filed, heard and denied, he advised his attorney not to file a motion to suppress his statement, thereby precluding his attorney from determining whether defendant was voluntarily and intelligently waiving a constitutional right.

A defendant seeking to withdraw a guilty plea must first make an application to the trial court. State v. Staten, 327 N.J. Super. 349, 359-60 (App. Div.), certif. denied, 164 N.J. 561 (2000). We decline to consider issues not presented to the trial court, even constitutional issues, unless such issues go to the jurisdiction of the trial court or concern matters of substantial public interest. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). Here, defendant did not move to withdraw his guilty plea. Therefore, he is barred from raising issues on this appeal relating to his guilty plea, including constitutional issues. State v. Knight, 183 N.J. 449, 471 (2005).

In addition, "Generally a guilty plea constitutes a waiver of all issues which were or could have been addressed by the trial judge before the guilty plea." State v. Robinson, 224 N.J. Super. 495, 498 (App. Div. 1988). "[A] defendant who pleads guilty is prohibited from raising, on appeal, the contention that the State violated his constitutional rights prior to the plea." State v. Crawley, 149 N.J. 310, 316 (1997). There are only three exceptions to this general waiver rule: (1) grounds preserved under a conditional or retraxit plea under Rule 3:9-3(f); (2) review of denials of admissions to pretrial intervention programs under Rule 3:28(g); and review of denials of motions to suppress physical evidence due to an unlawful search or seizure under Rule 3:5-7(d). Knight, supra, 183 N.J. at 471. None of these exceptions apply here.

Further, on the merits we find no impropriety in the manner in which the prosecutor extended the plea offer.

Affirmed.

(continued)

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A-5245-05T2

December 10, 2007