STATE OF NEW JERSEY v. HJALMAR PINTO

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4146-06T44146-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

HJALMAR PINTO,

Defendant-Appellant.

___________________________________

 

Submitted on December 3, 2008 - Decided:

Before Judges Rodr guez and Waugh.

On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Monmouth County, Indictment No. 05-07-1598.

Yvonne Smith Segars, Public Defender, attorney for appellant (Raquel Y. Bristol, Assistant Deputy Public Defender, of counsel and on the brief).

Anne Milgram, Attorney General, attorney for respondent (Teresa A. Blair, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant Hjalmar Pinto appeals his conviction, after a guilty plea, for second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and :15-1, as well as the resulting eight-year sentence of incarceration with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. We reverse and remand to the trial court for further proceedings consistent with this opinion.

I

We discern the following facts from the record, primarily from Pinto's testimony at the plea hearing on February 6, 2006.

On March 12, 2005, Pinto went for a ride to Asbury Park with four individuals: Anthony Pate, Luis Morales, German Lopez, and Carlos Rosajio. Of the four, Pinto was acquainted only with Rosajio. According to Pinto, Rosajio told him that he needed his assistance in construction repair.

Rosajio told Pinto that he knew of a brothel and recommended a Cuban woman there. Pinto, Rosajio, and the others drove to the brothel. Rosajio directed Pinto to call him on his cell phone to let him know whether the Cuban woman was at the brothel. Pinto determined that she was not there, but decided to use the brothel's services. After he called Rosajio, Pinto went "into one of the rooms with one of the women."

While still inside the room, Pinto heard a lot of noise. When he came out of the room, he saw that the men who had brought him there were inside the brothel, wearing masks, and carrying guns. According to Pinto, he did not know about their plan to rob the brothel until after he came out of the room.

Pinto saw the four men trying to control the brothel owners and patrons by tying their hands with plastic, putting duct tape on their mouths, and confiscating their cell phones. He then observed Lopez take the owners to the second floor. The robbers threatened the owners with blow torches and guns to force them to disclose the location of their cash.

Morales, Rosajio, and Pate began fighting with a patron who resisted them. As a result of the fight, there was a lot of blood on the living room floor. Rosajio directed Pinto to clean up the blood. Pinto complied with his direction. Rosajio then ordered Pinto to watch the door to ensure that no one entered. Pinto again complied with the direction.

On July 13, 2005, Pate, Morales, Lopez, Rosajio, and Pinto were indicted and charged with: second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and :15-1 (count one); seventeen counts of first-degree robbery, N.J.S.A. 2C:15-1 (even-numbered counts two through thirty-four, inclusive); seventeen counts of first-degree kidnapping, N.J.S.A. 2C:13-1(b) (odd-numbered counts three through thirty-five, inclusive); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count thirty-six); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count thirty-seven); fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(4) (count thirty-eight); and third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count thirty-nine).

On February 6, 2006, Pinto agreed to plead guilty to a single count of second-degree conspiracy to commit robbery, with the understanding that the State would dismiss the remaining counts and recommend eights years of incarceration with an eighty-five percent period of NERA parole ineligibility. Pinto agreed that he would testify "truthfully" if called at any trial involving the co-defendants.

At the plea hearing, Pinto had an interpreter. He testified that he had attended some medical school in Bolivia. He was questioned extensively as to the voluntariness of his decision to accept the plea, his understanding of its terms, including the sentence, and his understanding of his right to a trial. Although he denied any prior knowledge of the robbery, Pinto testified that he helped the co-defendants when they directed him to do so.

The following exchanges took place during the plea hearing:

BY THE COURT:

Q. The charge that you pled guilty to is agreeing with them to commit an armed robbery. As I understand your testimony, you were aware when you came out of the room that an armed robbery was occurring, is that correct? In other words, you saw the individuals that you knew that you came down with, is that correct?

A. I didn't know until I came outside the room.

Q. That is [what] I just said. When you came out of the room, you saw the individuals were masked and guns but you recognized them as being the people you came down with, correct?

A. Yes.

Q. And when you were asked by Mr. [Rosajio] . . . to assist them by acting as a lookout and by doing other things, as I understand your testimony, you agreed to do that, is that correct?

A. Yes.

Q. And at the time that you agreed to do that, did you understand that you were then aiding them and assisting them in their commission of this offense?

A. At that moment [of the] raid. I saw them with guns and I had come in[] the car with them.

THE COURT: I'm not going to accept the plea of guilty unless I'm satisfied that you assisted them voluntarily after this agreement you reached with Mr. [Rosajio]. Is that what happened?

A. Yes.

The judge then proceeded to accept the plea, finding that there was an adequate factual basis and that it was entered voluntarily.

On May 23, 2006, Pinto filed a pro se motion seeking to withdraw his plea. The motion was subsequently joined by defense counsel. Pinto took the position that he was not guilty and that he participated in the events of March 12, 2005, under duress from the other defendants.

No testimony was taken at the July 14, 2006, hearing on the motion. The motion was denied because the motion judge, who had taken the plea, concluded that the plea had been voluntary and that there was a sufficient factual basis for its acceptance. We denied Pinto's motion for leave to appeal on September 20, 2006.

On January 26, 2007, Pinto filed a pro se motion for reconsideration of the denial of his earlier motion to withdraw the plea. It was joined by his new defense attorney. In addition to maintaining that he was coerced into helping the co-defendants, Pinto maintained that his prior attorney told him that he would not prevail before a jury with a defense of duress, N.J.S.A. 2C:2-9(a). The motion was denied, essentially for the same reasons given on July 14, 2006.

On March 23, 2007, the trial judge imposed the sentence agreed upon in Pinto's plea agreement. This appeal followed.

II

On this appeal, Pinto raises the following issues:

POINT I

BECAUSE DEFENDANT DID NOT PROVIDE AN ADEQUATE FACTUAL BASIS FOR THE OFFENSE OF CONSPIRACY TO COMMIT ROBBERY, HIS CONVICTION AND SENTENCE MUST BE VACATED AND THE MATTER REMANDED FOR FURTHER PROCEEDINGS. (Not raised below.)

POINT II

THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING THE DEFENDANT'S PRE-SENTENCE MOTIONS TO WITHDRAW THE GUILTY PLEA AND FOR RECONSIDERATION. U.S. CONST. AMENDS. V, VI, VIII, AND XIV; N.J. CONST. ART. I, 1, 10.

POINT III

BECAUSE THE COURT APPLIED AND WEIGHED THE AGGRAVATING AND MITIGATING FACTORS IMPROPERLY, THE SENTENCE IT IMPOSED ON THE DEFENDANT WAS EXCESSIVE. (Not raised below.)

Because we (1) question whether Pinto gave the trial judge an adequate factual basis for the plea under the circumstances of this case and (2) conclude that the trial judge applied the wrong standard on the motion to withdraw the plea, we find that the trial judge erred when he refused to allow Pinto to withdraw the plea.

At the plea hearing, Pinto denied any advance knowledge of the robbery, but admitted that he assisted the co-defendants in cleaning up the blood and watching the door when they told him to do so. During the plea voir dire, Pinto responded to the trial judge's question about whether he "understand that [he was] then aiding them and assisting them in their commission of this offense," by mentioning that he "saw them with guns." This caused the trial judge to state that he was "not going to accept the plea of guilty unless [he was] satisfied that [Pinto] assisted them voluntarily after this agreement [he] reached with Mr. [Rosajio]." When asked: "Is that what happened," Pinto responded: "Yes." The trial judge then accepted the plea.

Clearly, Pinto's pointed reference to the co-defendants' guns in response to the question about his "aiding and assisting" the armed robbers raised the possibility of a duress defense. See N.J.S.A. 2C:2-9(a) ("[I]t is an affirmative defense that the actor engaged in the conduct charged to constitute an offense because he was coerced to do so by the use of, or a threat to use, unlawful force against his person or the person of another, which a person of reasonable firmness in his situation would have been unable to resist."). Given Pinto's recitation of the underlying facts at the plea, duress was at least a plausible defense, subject to a jury's credibility finding. See State v. Simon, 161 N.J. 416, 444 (1999) ("'A guilty plea voluntarily entered should not generally be vacated in the absence of some plausible showing of a valid defense against the charges.'" (quoting State v. Gonzalez, 254 N.J. Super. 300, 303 (App. Div. 1992))).

Once Pinto raised facts that suggested the possibility of a duress defense, the trial judge should have explored that issue further, rather than just indicating that he would not accept the plea, asking only the one further question, and then accepting the plea. See State v. Mitchell, 126 N.J. 565, 577 (1992) ("A factual basis is constitutionally required only when there are indicia, such as a contemporaneous claim of innocence, that the defendant does not understand enough about the nature of the law as it applies to the facts of the case to make a truly 'voluntary' decision on his own."). See also State v. Shabazz, 263 N.J. Super. 246, 250-51 (App. Div.), certif. denied, 133 N.J. 444 (1993).

While we do not go so far as to characterize Pinto's suggestion that he did what he was asked to do by Rosajio and the others because they had guns as "a contemporaneous claim of innocence," we hold that it should have prompted further questioning by the trial judge to determine whether, in fact, Pinto harbored a belief that he was not culpable despite his having assisted the co-defendants and whether he understood and was voluntarily foregoing his right to raise such a defense. Those issues go to the voluntariness of the plea itself. Ibid.

Less than three months after entering the plea, Pinto filed a pro se motion to retract it, arguing that he was not guilty, specifically taking the position that he had been subject to coercion. In denying the motion to withdraw the plea, the trial judge failed to apply the correct legal standard. In his initial oral decision on July 14, 2006, as well as his oral decision of January 26, 2007, denying reconsideration, the trial judge relied upon Rule 3:9-3(e), which is applicable if at "the time of sentencing the court determines that the interests of justice would not be served by effectuating the agreement reached by the prosecutor and defense counsel or by imposing sentence in accordance with the court's previous indications of sentence." That rule was inapplicable in this case because: (1) Pinto made his motion prior to sentencing; and (2) the trial judge had not determined that he could not impose the agreed upon sentence. In fact, the motion to withdraw was timely made before sentencing, as required by Rule 3:21-1.

In State v. Deutsch, 34 N.J. 190, 198 (1961), the Supreme Court held that "where before sentence the defendant asserts his innocence and seeks to withdraw his plea and proceed to trial, the courts in our State, in practice, generally exercise their discretion liberally to enable withdrawal of the plea and a trial on the merits; this approach conforms with the enlightened views expressed in many judicial opinions elsewhere."

However, the defendant's burden is heavier when the plea was entered in connection with a plea bargain. State v. Means, 191 N.J. 610, 619 (2007); State v. Luckey, 366 N.J. Super. 79, 87-88 (App. Div. 2004). In considering such a motion, the trial court must also consider the State's interest in finality. Luckey, supra, 366 N.J. Super. at 87. We note, in that regard, that the State did not articulate any particular prejudice when it opposed both the original motion to withdraw the plea and the subsequent motion for reconsideration.

This not a case, like State v. Smullen, 118 N.J. 408, 417 (1990), or State v. Huntley, 129 N.J. Super. 13, 18 (App. Div.), certif. denied, 66 N.J. 312 (1974), in which there is a "late protestation[] of innocence." Nor can Pinto's assertion that he has a viable defense of duress be characterized as "unworthy of belief." Huntley, supra, 129 N.J. Super. at 18. Indeed, as we have already noted, Pinto's mention of the co-defendants' weapons in connection with his decision to follow their direction prompted the trial judge to express his initial reluctance to accept the plea.

Our review of the record leads us to the conclusion that Pinto has carried his burden to demonstrate: (1) a "plausible basis for his request" to withdraw the plea; and (2) "his good faith in asserting a defense on the merits." Huntley, supra, 129 N.J. Super. at 17. See also State v. Russo, 262 N.J. Super. 367, 372-73 (App. Div. 1993) (citing Smullen, supra, 118 N.J. at 414-18; Deutsch, supra, 34 N.J. at 198; and Huntley, supra, 129 N.J. Super. at 17). The determination of a motion to withdraw a plea is ordinarily left to the sound discretion of the trial courts. Means, supra, 191 N.J. at 619-20. However, in light of the above conclusions and our concerns that Pinto was not adequately questioned at the plea hearing with respect to the potential defense of duress, we have concluded that the discretion should have been exercised more liberally to permit him to withdraw his plea and proceed to trial.

III

Consequently, we reverse the orders denying Pinto's application to withdraw his guilty plea and remand to the trial court for further proceedings consistent with this opinion. In light of our ruling, we need not reach the issue of Pinto's sentence.

Reversed and remanded.

 

Although indicted as Carlos Rosajio, Pinto referred to him as Juan Carlos and Carlos Rosario at his plea hearing.

We are considerably hampered in deciding this appeal because the motions for leave to withdraw and for reconsideration, including the supporting certifications, were not made part of the record. See R. 2:6-1(a)(1)(I).

We are aware that there was some suggestion that Pinto was under some pressure from the co-defendants to withdraw the plea and, presumably, his willingness to testify against them. There was no proof of that in the record. In addition, it appears that he has persisted in his efforts to withdraw the plea after the cases of the co-defendants have been resolved.

It is not entirely clear from the record whether Pinto was ever called to testify at the trial of a co-defendant, although it does not appear that he did so. His sentencing was postponed several times until the charges against the other defendants were resolved.

As the trial judge noted at the time he accepted the plea, Pinto's testimony makes his role, if culpable, sound more like that of an accomplice, N.J.S.A. 2C:2-6(b)(3), than a conspirator, N.J.S.A. 2C:5-2. However, there is considerable overlap between the theories of liability. See State v. Roach, 146 N.J. 208, 223 (1996) ("A defendant, moreover, may be found guilty of murder even if jurors cannot agree on whether the defendant is a principal, accomplice, or co-conspirator.").

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A-4146-06T4

December 29, 2008