STATE OF NEW JERSEY v. FRANCIS MEMBRENO

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2016-07T22016-07T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

FRANCIS MEMBRENO,

Defendant-Appellant.

________________________________________

 

Argued September 29, 2008 - Decided

Before Judges Skillman and Grall.

On appeal from Superior Court of New

Jersey, Law Division, Union County,

Indictment No. 06-06-513.

Adolph J. Galluccio argued the cause for appellant (Fontanella, Benevento, Galluccio & Smith, attorneys; Mr. Galluccio, on the brief).

Sara B. Liebman, Assistant Prosecutor, argued the cause for respondent (Theodore J. Romankow, Union County Prosecutor, attorney; Ms. Liebman, of counsel and on the brief).

PER CURIAM

Defendant Francis Membreno appeals from a final judgment of conviction and sentence and from the denial of a motion to withdraw his guilty plea. The grand jurors for Union County charged defendant with vehicular homicide, N.J.S.A. 2C:11-5, and two counts of assault by auto, N.J.S.A. 2C:12-1c. In return for the State's agreement to dismiss the assault charges and recommend a five-year term of incarceration, eighty-five percent to be served prior to parole and a three-year term of parole supervision pursuant to N.J.S.A. 2C:43-7.2, the No Early Release Act (NERA), defendant pled guilty to second-degree vehicular homicide and driving while intoxicated, N.J.S.A. 39:4-50. Defendant received a sentence of incarceration consistent with the plea agreement. In addition, the court suspended defendant's driver's license for one year, required him to attend IDRC for forty-eight hours and imposed a $300 fine, a $50 VCCB assessment, a $30 LEOTF penalty and a $75 SNSF assessment. Defendant's motion to withdraw his guilty plea was filed two months after he was sentenced.

The accident that caused the victim's death occurred around 6:00 a.m. in November 2004. Defendant was driving on Watchung Avenue in Plainfield, and his car left the roadway and struck a tree. One of defendant's three passengers was killed in the accident, and two were injured. A breathalyzer test was administered and revealed that defendant had a blood alcohol concentration of .11 percent.

In a statement given to the police the day after the accident, defendant said the weather was "dry, clear [and] nice" and that he was driving at the speed limit because he had points on his license and "drive[s] carefully now." He claimed that his car spun around after he swerved to "miss" a sports car approaching on his side of the road. He admitted that on the evening before the accident he had consumed seven to eight twelve-ounce beers between eight and nine o'clock and then went to bed. When he gave this statement to the police, defendant, who was born in Honduras and had lived in the United States for eleven years, acknowledged his ability to read, write and understand "some [but] not all" of the English Language.

At the time of defendant's guilty plea an interpreter was present and translated. The trial court explained the penal consequences of the plea. In comparing the five-year term of incarceration defendant faced under the plea agreement and the maximum sentence defendant would face if he opted to reject the plea bargain, the court told defendant that "if [he] went to trial on this matter and [was] convicted, [he] could be sent to state prison for ten years, eight and a half years of which [he] could be sentenced without parole."

Prior to the hearing, defendant had signed a plea form and a supplemental plea form describing the consequences of NERA. The text on both forms was printed in Spanish and English. The plea form indicated that defendant was pleading guilty to second-degree vehicular homicide and that the maximum sentence was a term of ten years. Defendant marked the NERA form so as to indicate he understood that he would not be eligible for parole until he served eighty-five percent of the sentence imposed and would be required to serve a three-year term of parole supervision after his release, which could be revoked and result in his return to prison.

Before accepting defendant's plea, the trial court asked defendant if he had spoken to his attorney about the charges and the plea forms he had signed, and defendant acknowledged that his attorney had answered all of his questions and explained the charges and the details. Defendant also said he was pleading guilty voluntarily and with the understanding that he was waiving his right to confront and cross-examine the State's witnesses and present witnesses in his own behalf. When asked, he said he had no questions for the court. The transcript includes no exchange that reflects any difficulty defendant experienced in addressing the court or responding to the court's questions.

In response to the court's questions, defendant admitted that he was driving while under the influence of alcohol, driving recklessly and that, as a consequence, Ismael Lopez was killed. He also responded in the affirmative when the court asked whether he was pleading guilty because he was, in fact, guilty of the charges.

Defendant raises two issues on appeal:

I. THE TRIAL COURT ERRED IN DENYING

DEFENDANT'S MOTION TO RETRACT HIS GUILTY PLEA.

II. DEFENDANT SHOULD BE SENTENCED IN THE

THIRD DEGREE SHOULD HE NOT BE PERMITTED TO WITHDRAW HIS GUILTY PLEA.

Defendant presents four distinct arguments in support of his claim that the trial court erred in denying his post-sentence motion to vacate his guilty plea. His argument that the factual basis is inadequate warrants no more than brief comment. What a trial court must do in evaluating the adequacy of a factual basis is "independently satisfy itself 'that there is a factual basis for the plea.'" State v. Smullen, 118 N.J. 408, 415 (1990) (quoting Rule 3:9-2). While defendant's admissions establishing the essential elements of the crime and motor vehicle violation were made in response to leading questions, we cannot conclude that this factual basis was insufficient because defendant did not provide details about his alcohol consumption or a description of his driving before he lost control of the car. Ibid. Defendant's post-sentence denial of guilt incorporates by reference the same explanation that he gave to the police on the day after the fatal crash. There can be no serious question that defendant opted to accept the guilty plea rather than attempt to raise a reasonable doubt about his guilt by testifying that he was driving carefully and swerved to avoid an oncoming sports car.

In the certification defendant submitted in support of his post-sentence motion to withdraw his guilty plea, defendant also asserted that due to the dialect of Spanish spoken by the attorney representing him at the time and the interpreter who translated for him at the plea hearing, he did not completely understand the proceeding. There is nothing in the record that provides any support for that assertion. Accordingly, we accept the trial court's determination that defendant entered his plea voluntarily and with full understanding, which is obviously based on the court's observations of defendant during their colloquy at the relevant time. State v. Locurto, 157 N.J. 463, 471 (1999).

Defendant also argues that he was not fully informed about the penal consequences of his guilty plea because the court did not mention or explain the significance of the NERA parole term. This argument lacks sufficient merit to warrant discussion.

R. 2:11-3(e)(2). Nothing in the record provided to us on appeal indicates that defendant presented this argument to the trial court in support of the motion to vacate the plea. Neider v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). Moreover, this case is distinguishable from State v. Johnson, 182 N.J. 232, 235 (2005), a case in which neither the trial court nor the plea form provided any information about NERA parole, and from State v. Freudenberger, 358 N.J. Super. 162, 166-67 (App. Div. 2003), a case in which the defendant had not marked the plea form to indicate her understanding of NERA parole. See Johnson, supra, 182 N.J. at 242 n.3 (disapproving Freudenberger to the extent that this court permitted withdrawal of a plea without a showing that information about NERA parole was material). This defendant signed a plea form and marked it to signify his understanding of paragraphs explaining NERA parole supervision, and he does not present any argument as to why the period of parole supervision was material to his decision as required by Johnson.

We also reject defendant's claim that he was misinformed and misled about the benefit of his plea bargain.

Some background is required for our discussion of this point. This indictment was returned in June 2, 2006. Although the text of the indictment did not recite a basis for a charge of vehicular homicide in the first degree, its caption designated vehicular homicide as a crime of the first degree.

On December 21, 2006, Assistant Prosecutor Bruce M. Holmes wrote to defense counsel indicating the State's willingness to consider defendant's offer to plead guilty in return for the State's agreement to recommend a seven-year sentence subject to the provisions of NERA. In that letter, Holmes advised that plea negotiations would be closed after January 15, 2007 and that any plea after that date would "have to be to the open indictment[] charging First-Degree Death By Auto."

As noted above, the charge to which defendant pled guilty was vehicular homicide in the second degree. The plea form and the court's colloquy with defendant at the time of his guilty plea indicated that the charge had been amended and that the maximum sentence of incarceration defendant could receive if he went to trial on that charge was a term of ten years. In addition, the five-year term finally accepted by defendant was two years lower than the term defense counsel suggested before the charge was amended.

When defendant's newly retained attorney relied on the indictment and letter during oral argument on the post-sentence motion to argue that defendant mistakenly believed he was avoiding a first-degree charge, Assistant Prosecutor Holmes explained that the charge was amended after defendant's prior attorney questioned the basis for a first-degree charge. According to Holmes, the charge was amended when the State recognized that the fatal crash did not occur within 1000 feet of a school, N.J.S.A. 2C:11-5b(3).

The trial court rejected defendant's claim. The court correctly noted that at the time of his plea defendant was fully advised that the maximum term of incarceration that could be imposed if defendant was tried and convicted of vehicular homicide was a term of ten years. On that basis, the court concluded that defendant could not have believed that he was at risk of being sentenced to a term longer than ten years if he did not accept the plea agreement.

The decision on the merits of an application to withdraw a guilty plea is committed to the sound exercise of the trial court's discretion. State v. Herman, 47 N.J. 73, 76 (1966). "In respect of the public interest in final and binding proceedings, the Court Rules permit a court to vacate a guilty plea after sentencing only if withdrawal of the plea is necessary to correct a 'manifest injustice.' R. 3:21-1."

Johnson, supra, 182 N.J. at 237. When "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." Ibid. (internal quotations and citations omitted). Where, as here, the claim is that defendant was uninformed or misinformed about the penal consequences, the defendant "must show that the mistaken belief . . . was material to the decision to plead guilty and prejudiced the defendant." Id. at 241.

There is no question that when it appears "from an objective standpoint [that] there is a significant possibility that . . . misinformation imparted to the defendant could have directly induced him to enter the plea, he should be allowed to withdraw from the bargain." State v. Taylor, 80 N.J. 353, 365 (1979). The record in this case, however, does not indicate any real possibility that defendant accepted this plea bargain and waived his right to a trial because the maximum sentence he faced if he went to trial was overstated. Regardless of the lack of clarity about the degree of the crime charged in the indictment or the reference to a first-degree charge in the prosecutor's letter, at the time of his plea defendant had accurate information if he went to trial and were found guilty of vehicular homicide he could be sentenced to prison for a term of no more than ten years.

Because there was no evidence that defendant entered this guilty plea under a misimpression about the severity of the potential sanction for vehicular homicide based on misleading information, the trial court did not abuse its discretion in denying the motion. There was no foundation for a finding of "manifest injustice." R. 3:21-1.

We also cannot conclude that the trial court abused its discretion because it did not impose a sentence appropriate for a crime of the third degree. Pursuant to N.J.S.A. 2C:44-1f(2), a court has discretion to sentence a defendant convicted of a crime of the second degree to a term appropriate for a crime one degree lower only if "the court is clearly convinced that the mitigating factors substantially outweigh the aggravating factors and . . . the interest of justice demands" a sentence in the lower range.

While the court's discussion of aggravating and mitigating factors was less than adequate, there is nothing in this record that would have permitted the court to make the findings required by N.J.S.A. 2C:44-1f(2). Indeed, at the time of sentencing defense counsel presented argument about mitigating factors but only in support of defendant's request for the court to impose the five-year term for which defendant had bargained. Our review of the record and "application of [N.J.S.A. 2C:44-1f(2)] to the facts" of the case does not lead us to the conclusion that imposition of the minimum sentence for a crime of the second degree is so "clearly unreasonable" as to be "shock[ing to] the judicial conscience." State v. Roth, 95 N.J. 334, 364-65 (1984).

Affirmed.

 

We fail to see any basis for a defense based on "extrapolation," and no relevant expert testimony was offered in support of his assertion that he may have been able to establish that his blood alcohol concentration was lower at the time of the accident. According to defendant's initial account of his alcohol consumption, which he incorporated in his certification in support of the motion to withdraw, defendant stopped drinking at 9:00 p.m. and did not drive until 6:00 a.m. Cf. State v. Tischio, 107 N.J. 504, 521 (1987) (discussing the possibility of rising level of blood alcohol within the period following consumption).

If anything, the information given to defendant understated the potential sanctions because it did not include a reference to the two charges of assault by auto that were to be dismissed as part of this plea agreement. In arguing that defendant received little in return for his guilty plea, defense counsel overlooks the fact that there were three victims.

(continued)

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A-2016-07T2

December 10, 2008