STATE OF NEW JERSEY v. LUIS NEGRON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LUIS NEGRON,

Defendant-Appellant.

August 21, 2014

Submitted August 12, 2014 Decided

Before Judges Nugent and Carroll.

On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 08-07-1606.

Robert J. DeGroot, attorney for appellant (Oleg Nekritin, on the brief).

Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Ian D. Brater, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Luis Negron appeals from a November 16, 2012 order denying his motion to vacate his sentence and order his immediate release, or alternatively to amend the judgment of conviction (JOC) and impose a reduced sentence. We affirm, substantially for the reasons stated in the cogent oral opinion issued by Judge Ronald L. Reisner.

In 2008, defendant was charged in a sixteen-count indictment filed in Monmouth County in which it was alleged that he acted as the leader of a narcotics network that was engaged in a pattern of racketeering. On February 25, 2010, that indictment was resolved by a plea agreement, in which defendant pled guilty to first-degree racketeering conspiracy, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:41-2d (Count One), and first-degree distribution of a controlled dangerous substance, N.J.S.A. 2C:35-5b(1) (Count Six). In return, the State agreed to dismiss the remaining counts, and recommend an aggregate prison term of fourteen years, half to be served without parole.

Because defendant was also facing imprisonment for violation of his federal supervised release, the State further agreed to recommend that defendant's sentence "run concurrent to any federal sentence that may be imposed." Notably, during the plea colloquy, the following exchange between defendant and his counsel ensued:

[Counsel]: Now you understand that you have a detainer for a violation of -- supervised release from a federal sentence. You understand that?

[Defendant]: Yes.

[Counsel]: And you understand that that has not come to any finality yet pending the disposition of this case?

[Defendant]: Yes.

[Counsel]: And you understand that the Prosecutor here cannot bind the U.S. Attorney but they have agreed that we may go to the federal court and resolve that matter there and any sentence you get here would run concurrent to any sentence that a federal district court judge may give you for the violation of that supervised release. You understand that?

[Defendant]: Yes.

[Counsel]: And that may occur in some delay in this sentencing process because under the peculiarities of the federal system vers[u]s the state system, we may have to go to the state and resolve -- go to the federal court and resolve that first before we come back before Judge Reisner. You understand that?

[Defendant]: Yes.

Consistent with the plea agreement, on June 3, 2010, defendant was sentenced on the Monmouth County charges to concurrent prison terms of fourteen years on Counts One and Six, with a seven-year parole disqualifier on Count Six.1

Defendant later pled guilty in federal court to violating the conditions of his supervised release.2 Consequently, in August 2010, the United States District Court revoked defendant's previously imposed term of supervised release, and imposed a two-year prison term "to run consecutively to the state sentence that [] [d]efendant is currently serving."

On September 3, 2010, defendant filed a motion in the Law Division seeking to vacate his state sentence and be re-sentenced consistent with the plea agreement. On October 1, 2010, the court granted the motion, and ordered3 (1) that the June 3, 2010 sentence be vacated; (2) that defendant be released from state custody to begin serving his two-year federal sentence; (3) that the original sentence be re-imposed, to run concurrent to the federal sentence; and (4) that after service of his federal sentence defendant be returned to state custody for completion of any sentence not served during the concurrency period. A corresponding JOC issued on October 15, 2010.

After federal authorities refused to take custody of defendant, on March 31, 2011, defendant again moved before the Law Division to vacate his sentence. Defendant also sought to withdraw his guilty plea, although he subsequently withdrew that request for relief. On July 15, 2011, the court vacated defendant's sentence, and ordered that he be transferred to federal custody to commence his federal sentence. Notwithstanding, federal prison officials still declined to take custody of defendant, and on July 20, 2011, the court vacated its July 15 order.

On March 12, 2012, defendant filed a third motion to vacate his state sentence, and to order his immediate release.4 Alternatively, defendant requested that his state sentence be decreased so that he would not serve more prison time than the plea agreement contemplated. In response to the motion, the assistant prosecutor who conducted the plea negotiations certified:

2. During the course of the negotiations, I made it very clear to [defense counsel] that I was acting on behalf of the Monmouth County Prosecutor's Office and not the federal government. I also discussed that a state plea provision is not binding on a federal court, that such a recommendation in the plea is not a promise, and [defense counsel] acknowledged that the provision was not binding on the federal court. [Defense counsel] advised that the [d]efendant was cooperating with the federal authorities, and that he anticipated the United States Attorney's Office would also recommend concurrent terms.

[3]. I further agreed that if defendant were sentenced to consecutive terms by the federal court after his state sentence was imposed, I would accommodate defendant so that he could be resentenced in State Court after his federal sentence was imposed. I did so.

Judge Reisner, who had taken defendant's guilty plea and decided the prior motions to vacate sentence, heard oral argument on November 16, 2012. Defense counsel emphasized the previous unsuccessful efforts that were made to effectuate the plea agreement, and argued that the only available recourse was to impose a lesser prison term and parole disqualifier so that defendant would ultimately serve the same amount of prison time contemplated under the terms of his plea bargain. Accordingly, defendant urged the court to resentence him to a ten-year prison term, with a five-year parole disqualifier. In response, the State noted the plea transcript reflected that defendant was aware that the State could not bind the U.S. Attorney's Office, so that a concurrent sentence was not guaranteed. The State further argued that if defendant did not enter a knowing and voluntary plea, his proper remedy was to move to withdraw his plea and return the case to the trial list, rather than seek resentencing.

In his oral opinion denying the motion, Judge Reisner noted that defendant's "application to alter, or amend or vacate [his] sentence in accordance with Rule 3:21-10" was filed beyond the time period authorized by the rule, which is non-relaxable pursuant to Rule 1:3-4(c). Turning to the merits, the court distinguished Finch v. Vaughn, 67 F.3d 909 (11th Cir. 1995), where defendant's counsel and the state judge advised defendant that his state sentence would run concurrent to his federal parole violation, without alerting him that the federal court was not bound by the state plea bargain. In contrast, the judge found that in the present case "[i]t was contemplated at the time of the plea that this [c]ourt could not bind the federal authorities, which is explicitly stated in the transcript of the plea agreement," over which he had presided.

On this appeal, defendant presents the following arguments for our consideration:

THE TRIAL COURT COMMITTED REVERSIBLE ERROR DURING THE MOTION HEARING WHEN IT REFUSED TO FASHION A REMEDY TO ENSURE THAT THE APPELLANT OBTAINS THE BENEFIT OF THE PLEA AGREEMENT ENTERED INTO WITH THE STATE OF NEW JERSEY.

A. The United States and New Jersey Constitutions guarantee a Defendant accused of a crime the right to trial which cannot be waived absent a voluntary, knowing, and intelligent waiver of those rights. Should a Defendant enter a guilty plea pursuant to a plea agreement, the plea agreement must thereafter be meticulously adhered to.

B. In order to effectuate the terms of the plea agreement, the Trial Court must order the unconditional release of the Appellant, thereby resulting in the [Bureau of Prisons] taking custody of the Appellant. In the alternative the Court should resentence the Appellant to two ten year terms to run concurrent to each other, with a parole disqualifier of 5 years.

Having reviewed the record, we find these arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). As previously noted, we affirm for the reasons stated in Judge Reisner's opinion. We add these comments.

On appeal, defendant again seeks to vacate or reduce his sentence. As support for his argument, he continues to rely on Finch, supra, 67 F.3d at 909. However, like the trial court, we find Finch factually distinguishable.

In Finch, after learning that his state sentence would not run concurrent to his federal sentence for violating parole, Finch filed a habeas corpus petition to vacate his guilty plea to the state charges. Id. at 914.5 On appeal, he argued that his plea, negotiated explicitly for a state prison term concurrent with the balance of his federal sentence, was not knowing, intelligent, and voluntary, and that he had received ineffective assistance of counsel. Ibid. The court found no evidence in the record that Finch was advised that a "federal sentencing court is not bound by a state plea bargain unless the federal government directly or indirectly was involved in the state plea bargaining process." Id. at 915. Moreover, the court found that "[t]he advice concerning the concurrency of his state and federal sentences given to Finch by [his counsel], the state in its plea bargain, and the state trial judge was worse than misleading, it was erroneous." Ibid. Finding that Finch's guilty plea was not knowing, intelligent, and voluntary, and that he had received ineffective assistance of counsel, the court granted his petition for habeas relief with instructions to allow him to withdraw his plea and proceed to trial. Id. at 916-17.

More apposite is Lee v. Gammon, 146 F.3d 615 (8th Cir.), cert. denied, 525 U.S. 953, 119 S. Ct. 384, 142 L. Ed. 2d 317 (1998), where defendant Lee, who was also facing revocation of his federal probation, pled guilty in state court to a reduced charge of second degree murder. Id. at 616. Lee claimed that he understood from his attorney that any federal sentence would run concurrent and that he pled guilty with that understanding. Ibid. However, similar to the present case, the federal court then imposed a two-year consecutive term. Ibid.

After Lee unsuccessfully sought PCR in state court, he filed a petition for habeas corpus in federal court arguing that his state guilty plea was entered involuntarily because his counsel did not fully advise him about the nature and consequences of the plea agreement or that the state agreement was not binding on the federal court. Ibid. Distinguishing Finch, the court found that the record supported the state court finding that Lee was informed that his state and federal sentences would not necessarily run concurrently. Id. at 617. Accordingly, Lee failed to make the required showing that his plea was not knowing and voluntary, and his habeas petition was denied. Ibid.

In the present case, the State agreed to recommend a sentence concurrent to defendant's federal sentence. It did so. Judge Reisner, who presided over the plea hearing, found that defendant clearly understood that the State's plea agreement could not bind the federal authorities. Defendant in his brief concedes he was aware of this. Although the court thereafter twice vacated defendant's sentence in an effort to accommodate the plea arrangement, which the State does not appear to have opposed, efforts to have the federal authorities take defendant into custody to begin serving his federal sentence proved futile. Defendant then sought his unconditional release, or alternatively, a lesser sentence. Nothing in the plea agreement obligated the State to recommend such relief, or the court to impose it.

Affirmed.

1 We have not been provided with the sentencing transcript or the original JOC. However, the parties agree on the date and terms of defendant's sentence.

2 The record does not indicate the date of the plea to the federal charge, nor have we been provided with the plea transcript.

3 The order recites that the motion was unopposed.

4 The record does not include defendant's supporting certification.

5 As noted, in the present case defendant also previously filed a motion to withdraw his plea, which may be filed after sentence to correct a manifest injustice. See R. 3:21-1. However, defendant withdrew that requested relief, has not since renewed it, and does not assert a claim of innocence. Nor has defendant filed a petition for post-conviction relief (PCR), which is guided by a standard that is separate and distinct from the standard for determining a plea withdrawal motion. See State v. O'Donnell, 435 N.J. Super. 351, 369 (App. Div. 2014). Accordingly, we offer no opinion on the merits of such applications.