STATE OF NEW JERSEY v. JOHN K. DEBENEDICTIS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2442-08T42442-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOHN K. DEBENEDICTIS,

Defendant-Appellant.

____________________________

 

Argued November 4, 2009 - Decided

Before Judges Skillman and Simonelli.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Accusation No. 01-11-2018.

Michael A. Orozco argued the cause for appellant (Howard W. Bailey, attorney, on the brief).

Carey J. Huff, Assistant Prosecutor, argued the cause for respondent (Luis A. Valentin, Monmouth County Prosecutor, attorney; Patricia B. Quelch, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant John K. DeBenedictis appeals from the denial of his petition for post-conviction relief (PCR) filed over a year after the expiration of the five-year time period set forth in Rule 3:22-12(a). We affirm.

On August 20, 2001, a police officer from the Spring Lake Police Department stopped defendant's vehicle after observing defendant driving without a seatbelt and without a registration sticker on his license plate. A subsequent search of defendant's vehicle revealed a pipe containing a burnt residue, a pocket knife with a burnt residue on the blade, a clear baggie containing an orange substance, which defendant told the officer was opium he had purchased in Asbury Park, and a package of rolling papers.

Defendant was arrested and charged with one count of third-degree possession of a controlled dangerous substance (CDS) (opium), N.J.S.A. 2C:35-10a(1), and two counts of possession of drug paraphernalia, N.J.S.A. 2C:36-2. He was also charged with three motor vehicle offenses, including possession of CDS in a motor vehicle, N.J.S.A. 39:4-49.1, which carried a mandatory two-year driver's license suspension. It was subsequently determined that the suspected opium was oregano. However, laboratory tests confirmed that the substance in the baggie and the burnt residue on the pipe was marijuana.

Defendant voluntarily waived prosecution by indictment and was charged under Accusation No. 01-11-2018 with third-degree possession of CDS (opium), N.J.S.A. 2C:35-10a(1). The charge was later amended to third-degree conspiracy to possess CDS (opium), N.J.S.A. 2C:5-2 and N.J.S.A. 2C:35-10a(1). On November 5, 2001, defendant pled guilty to the amended charge. In exchange, the State agreed to recommend a two-year term of non-custodial probation, to dismiss the motor vehicle charge of possession of CDS in a motor vehicle, and to remand the remaining motor vehicle charges.

At the plea hearing, the trial judge explained the charges and the plea terms. Defendant acknowledged his understanding of the plea agreement, waived his right to a jury trial, and confirmed that no one forced him to plead guilty. He further acknowledged that the amended charge carried a statutory maximum five-year term of imprisonment, and that his plea to that charge obviated the imposition of a jail term, a $1000 D.E.D.R. penalty and the mandatory two-year suspension of his driving privileges.

Defendant also acknowledged signing the plea form and reviewing each question with his attorney. In the plea form he acknowledged committing the offense to which he pled guilty, that he understood the charges, and that he understood that by pleading guilty he would have a criminal record.

In establishing the factual basis for the plea, defendant indicated that he believed he had purchased opium, and that the seller was involved in the transaction. The judge accepted this factual basis and the plea, finding that defendant "knowingly and voluntarily entered the plea with full knowledge and understanding of the essential terms including the statutory maximum penalty, his right to a jury trial and his right to remain silent both of which he has waived voluntarily." The judge subsequently sentenced defendant in accordance with the plea agreement and imposed the appropriate assessment, penalty and fee.

In March 2008, defendant's employer discovered defendant's criminal conviction and terminated him. This prompted defendant to retain an attorney to examine the circumstances leading to his conviction. As a result of that examination, on August 13, 2008, over six years after entry of the judgment of conviction, defendant filed his PCR petition, claiming excusable neglect based on his ignorance of the five-year limitation period of Rule 3:22-12(a) and his ignorance of the collateral impact the plea would have on his family members due to his loss of employment. Defendant also claimed that he suffered a manifest injustice because the factual basis for his plea to third-degree conspiracy to possess CDS was legally deficient.

The PCR judge denied the petition, finding that defendant's ignorance of the law did not constitute excusable neglect, that the factual basis supported the plea, and that defendant failed to show an injustice. This appeal followed. On appeal, defendant raises the same contentions he raised below.

Rule 3:22-12(a) provides that no PCR petition shall be filed "more than 5 years after rendition of the judgment or sentence sought to be attacked unless it alleges facts showing that the delay beyond said time was due to defendant's excusable neglect." Our Supreme Court has instructed that in the context of post-conviction relief, a court should only relax the time-bar embodied in Rule 3:22-12 under exceptional circumstances. State v. Afanador, 151 N.J. 41, 52 (1997). "The court should consider the extent and cause of the delay, the prejudice to the State, and the importance of the petitioner's claim in determining whether there has been an 'injustice' sufficient to relax the time limits." Ibid. (citing State v. Mitchell, 126 N.J. 565, 580 (1992)).

We agree with the trial court that defendant's lack of sophistication in the law will not satisfy the exceptional circumstances standard under Mitchell. State v. Murray, 162 N.J. 240, 246 (2000). We recognize that defendant's admission that he purchased opium from a seller would not support a conviction for conspiracy to possess CDS. "[A] simple agreement to buy drugs is insufficient to establish a conspiracy between the seller and the buyer." State v. Roldan, 314 N.J. Super. 173, 182 (App. Div. 1998). This holding is based on Wharton's Rule, which provides that "where an agreement between two parties is inevitably incident to the commission of a crime, such as the sale of contraband, 'conspiracy, which assumes the voluntary accession of a person to a crime of such a character that is aggravated by a plurality of agents, cannot be maintained.'" Ibid. (citing Illanelli v. United States, 420 U.S. 770, 785, 95 S. Ct. 1284, 1293, 43 L. Ed. 2d 616, 627 (1975)). The concerted criminal activity must go "beyond the kind of simple agreement inevitably incident to the sale of contraband." Id. at 182-83.

Further, Wharton's Rule applies to merge a conspiracy charge to a substantive offense when the substantive offense is proved. Illanelli, supra, 420 U.S. at 786, 95 S. Ct. at 1294, 43 L. Ed. 2d at 628. Thus, a conspiracy charge cannot survive as a discrete offense after the consummation of the substantive offense. Roldan, supra, 314 N.J. Super. at 182.

Here, the facts establish an agreement between a single buyer and a single seller to engage in a single drug deal. This does not constitute a conspiracy under Wharton's Rule. Accordingly, the factual basis for defendant's plea would not support a conviction for conspiracy to possess CDS.

We nonetheless affirm the denial of defendant's PCR petition, as we conclude that he suffered no injustice. Defendant was not innocent of all the criminal offenses for which he could have been charged. Had he raised at the plea hearing the lack of a factual basis for conspiracy to possess CDS, the State could have prosecuted him for possession of marijuana, possession of drug paraphernalia, and the motor vehicle offenses. By pleading guilty, defendant obtained a clear advantage. He received a short probationary term, did not pay a substantial fine, and did not have his driving privileges suspended for two years.

 
Affirmed.

The record does not reveal the disposition of those motor vehicle charges or the disposition of the two counts of possession of drug paraphernalia.

We reject any inference made in defendant's appellate brief and at oral argument of this appeal that either the trial judge or defense counsel had or breached an obligation to notify him of the collateral consequences of his plea. Defendant specifically advised the trial court that he was not raising this contention, and he cites no authority requiring such notice.

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A-2442-08T4

April 23, 2010