STATE OF NEW JERSEY v. JOSUE LAVARIN

Annotate this Case

NOT FOR PUBLICATION WITHOUT THE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.


JOSUE LAVARIN,


Defendant-Appellant.

_____________________________

March 5, 2014

 

Argued November 7, 2013 Decided

 

Before Judges Grall and Nugent.

 

On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 10-08-1423.

 

Edward C. Bertucio argued the cause for appellant (Hobbie, Corrigan & Bertucio, attorneys; Mr. Bertucio, of counsel; Justin Lee Klein, on the brief).

 

Paul H. Heinzel, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney; Mary R. Juliano, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).





PER CURIAM


Defendant Josue Lavarin pled guilty to ten offenses arising from three sales of a controlled dangerous substance (CDS) he made to undercover police nine third-degree CDS crimes and one second-degree CDS crime. The nine third-degree crimes are three counts of third-degree possession of a CDS, N.J.S.A. 2C:35-10a(1); three counts of third-degree possession of a CDS with intent to distribute, N.J.S.A. 2C:35-5b(3); and three counts of third-degree distribution of a CDS, N.J.S.A. 2C:35-5b(3). The second-degree offense is possession of a CDS with intent to distribute, N.J.S.A. 2C:35-5b(2), and that crime, which is charged in count ten, is based on the combined weight of the drugs involved in the three transactions, N.J.S.A. 2C:35-5c.1

Three of the thirteen counts charging defendant were dismissed. Two counts, eleven and twelve, were dismissed on the State's motion prior to defendant's guilty plea as a consequence of defendant's successful motion to suppress the pertinent evidence. The third count dismissed, which is count thirteen, charged defendant with resisting arrest, N.J.S.A. 2C:29-2a(3). It was dismissed at sentencing in accordance with a representation made by the prosecuting attorney at the plea hearing. The State offered to dismiss count thirteen, charging resisting arrest, because defendant did not provide an adequate factual basis to support a conviction.

At sentencing, the judge merged defendant's convictions for nine third-degree drug crimes with his conviction for second-degree possession of a CDS with intent to distribute. N.J.S.A. 2C:35-5b(2), c. Defense counsel indicated that his client had a prior conviction subjecting him to a mandatory extended term and period of parole ineligibility pursuant to N.J.S.A. 2C:43-6f, and the prosecuting attorney argued that the judge should impose the maximum sentence allowed but did not refer to the extended term sentence. The judge imposed the maximum extended term and maximum period of parole ineligibility authorized for a crime of the second degree twenty years with a ten-year period of parole ineligibility. N.J.S.A. 2C:43-6f; N.J.S.A. 2C:43-7a(3).

The judgment was entered on October 11, 2011, and defendant did not file a direct appeal. In March 2012, however, defendant retained new counsel and moved for an order vacating his plea or, in the alternative, correcting an illegal sentence. The illegality defense counsel claimed was that defendant's sentence of imprisonment was lengthier than the maximum sentence described by the court at the plea hearing and lengthier than the "plea agreement." In defense counsel's opinion, a plea agreement was reflected in and explained the unusual description of the mandatory parole ineligibility and mandatory extended term set forth on the plea form.

The judge assigned to the motion not the judge who accepted defendant's plea and imposed sentence denied defendant's application to withdraw his plea. As we understand the judge's oral decision on the motion to withdraw, it rests on two grounds, it was not timely filed, and it was not supported by a certification from defendant asserting that he would not have pled guilty if his then attorney or the judge had advised that he faced a twenty-year sentence with a ten-year period of parole ineligibility. See State v. Nunez-Valdez, 200 N.J. 129, 139 (2009) (explaining the showing of prejudice needed to withdraw a plea due to counsel's deficient performance is a reasonable probability that defendant would have gone to trial and not pled guilty if counsel had provided adequate representation); State v. Johnson, 182 N.J. 232, 241 (2005) (stating relief under Rule 3:21-1 requires a showing that defendant's "mistaken belief about, or lack of knowledge of, a penal consequence of a plea was material to the decision to plead guilty and prejudiced the defendant"). Despite defense counsel's request to supply a certification from defendant curing that defect, the judge decided the motion without one.

Although the judge denied the motion to vacate, she concluded that the extended term was not imposed in accordance with law. See State v. Acevedo, 205 N.J. 40, 45-46 (2011) (discussing the difference between an illegal and excessive sentence). To correct the illegality the judge perceived, which was the absence of an application by the State for the mandatory extended term, N.J.S.A. 2C:43-6f, she entered an order directing that defendant be resentenced to an ordinary term.2 Subsequently, a third judge sentenced defendant to the maximum ordinary term and maximum discretionary period of parole ineligibility available for a crime of the second degree ten years with a five-year period of parole ineligibility. N.J.S.A. 2C:43-6a(2), b.

Defendant now appeals the denial of his motion to vacate the plea and, in the alternative, contends that his corrected sentence is excessive. Specifically, defendant argues:

I. The Trial Court Erroneously Denied Mr.

Lavarin's Motion To Withdraw His July 12, 2011 Guilty Plea and Mr. Lavarin Is Entitled to Withdraw His Plea Because The Sentence Imposed Violated The Terms Of The Plea Agreement.

 

II. The Trial Court Imposed An Excessive

Sentence Upon Mr. Lavarin And Failed To Properly Consider And Weigh The Applicable Mitigating And Aggravating Factors.

 

The State has not filed a cross-appeal and urges us to affirm. The State notes that the corrected sentence is within the maximum exposure set forth on the plea form and explained by the judge at the time of the plea. And, the State argues that the corrected sentence is not excessive because it was within the range authorized by, and imposed in conformity with, the sentencing laws as construed by our courts. On those grounds, the State urges us to affirm the denial of the withdrawal motion because the corrected sentence, "obviate[s] the ground defendant alleged for plea withdrawal."

For the reasons that follow, we conclude that the sentence now in place is not excessive and adequately addresses defendant's objections to the denial of his motion to withdraw his plea.

I

We have considered the arguments defendant has offered to establish that his corrected sentence is excessive and determined that they lack sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). Defendant had three prior convictions qualifying him for the extended term for manufacturing, distributing, dispensing or possessing a CDS with intent to distribute, N.J.S.A. 2C:43-6f, and, defendant had pending charges for crimes allegedly committed while he was released on bail pending disposition of the charges in this indictment. In addition, defendant had six prior municipal court convictions and one adjudication of delinquency.

Based on defendant's criminal history and the variety of sentencing options previously imposed that had not deterred him, the judge found three aggravating factors, N.J.S.A. 2C:44-1a(3), (6) and (9), and explained why he did not find the mitigating factors argued by defense counsel, N.J.S.A. 2C:44-1b(3), (5), (11). The judge also made the finding required for imposition of a discretionary parole ineligibility term, stating that he was "clearly convinced that the aggravating factors substantially outweigh[ed] the mitigating factors in this case." See N.J.S.A. 2C:43-6b.

The judge's findings on and balancing of the aggravating and mitigating factors are supported by adequate evidence in the record, and the sentence is not inconsistent with the sentencing provisions of the Code of Criminal Justice or the judicial decisions construing them and is not shocking to the judicial conscience. See State v. Bieniek, 200 N.J. 601, 608 (2010); State v. Cassady, 198 N.J. 165, 180-81 (2009).

II

We turn to consider the denial of defendant's motion to vacate his plea. There is no question that defendant was advised that by entering a plea of guilty he was subjecting himself to the prospect of a ten-year sentence with a five-year period of parole ineligibility. On March 9, 2011, four months before defendant entered his plea, defendant, defense counsel, the assistant prosecutor and the judge signed a pretrial memorandum. It indicated that count ten of the indictment, which charged second-degree possession with intent to distribute, carried a presumption of imprisonment, a mandatory extended term and a mandatory ten-year period of parole ineligibility. It further indicated that the maximum sentence defendant could receive, including the extended term, was twenty-five years, with a mandatory parole ineligibility term of twelve and one-half years.

The form recited the favorable plea bargain the State had offered defendant at that time a ten-year sentence with a fifty-seven-month period of parole ineligibility. It also stated that trial would be held on July 11, 2011. Defendant did not accept the State's offer.

Nevertheless, on July 12, 2011, when a pool of prospective jurors was ready and awaiting selection, defendant elected to enter an "open" plea.3 In any event, the prosecutor advised the court that defendant had decided to enter an "open" plea of guilty to eleven counts of the indictment. The prosecutor identified the counts counts one through nine, charging third-degree drug crimes, count ten, charging second-degree possession with intent to distribute, and count thirteen, charging third-degree resisting arrest.

The judge reviewed the penal consequences of the plea with defendant prior to taking defendant's testimony on the factual basis. With respect to the second-degree crime, the judge asked: "So you understand that normal[ly] on a second[-]degree offense[,] and there is one of these, I can put you in jail for up to ten years and order up to five years minimum parole ineligibility, do you understand?" Defendant said he did.

The judge continued: "And on [the] third[-]degree [charges] and there are ten of those, I can put you in jail for up to five years and order up to [two] and a half years minimum parole ineligibility, do you understand?" Again, defendant said he did.

The judge went on to explain merger and the maximum sentences the judge could impose after merging the convictions as required. He did that by clearly explaining various scenarios.

Under one scenario, the judge explained that if he sentenced defendant on second-degree possession, he would likely merge the other drug charges with that count, in which case defendant's "exposure would be ten years with five years minimum parole ineligibility." The judge further advised that if he ran the sentence for resisting arrest consecutive with that sentence on count ten then defendant's sentence would be fifteen years with seven and a half years of minimum parole ineligibility. The judge asked defendant if he understood, and defendant said he did.

The judge provided one scenario under which defendant would be exposed to a twenty-year sentence with a ten-year parole ineligibility term. That scenario posited three consecutive five-year terms for distribution of a CDS, a merger of the second-degree crime with those convictions, and a fourth consecutive term for third-degree resisting arrest. After presenting that scenario, the judge asked defendant if he understood, and defendant again said he did.

At the conclusion of the judge's explanation, defendant expressed his understanding of what the judge had told him and his willingness to proceed with the "open plea" understanding those consequences. After that, defendant gave testimony to establish a factual basis for the ten drug charges and the single charge of resisting arrest.

Notably, however, defendant did not provide an adequate factual basis for resisting arrest. Instead, defendant insisted that the men who arrested him did not identify themselves as police officers until he was handcuffed. Defendant offered to enter a guilty plea to that crime anyway, but the judge explained that he could not accept a plea without a factual basis.

Following a recess, the State offered to dismiss the count charging defendant with resisting arrest, and the judge and defendant accepted. The judge then advised that he would amend the plea form to reflect the State's agreement to dismiss, which he did. There was, however, no discussion of the impact of that dismissal on the consequences of defendant's plea as the judge had explained them. Thus, based on the plea colloquy, defendant had no reason to understand that he had entered a plea exposing himself to a twenty-year sentence with a ten-year parole ineligibility.

There was no mention of the mandatory extended term for the second-degree crime at any point in the proceeding. Nor was there any mention of the pretrial memorandum that clearly indicated defendant's exposure to that mandatory extended term.

The plea form defendant signed prior to the plea proceeding similarly lacked any reference to the maximum extended term for a crime of the second degree, which is twenty years with ten years of parole ineligibility. N.J.S.A. 2C:43-6f; N.J.S.A. 2C:43-7a(3). It indicates defendant's intention to enter an "open" plea and the prosecutor's reservation of the right to speak at sentencing. The plea form lists ten counts charging drug crimes and one count charging resisting arrest, and it accurately reflects the maximum ordinary term of five years applicable to each of the ten third-degree charges. The form also accurately states the statutory maximum, ordinary term for the single second-degree drug offense, ten years, N.J.S.A. 2C:43-6a(2).

Defendant's "total exposure" as stated on the plea form was fifteen years. Although not expressly stated on the form, the fifteen-year "total exposure" accounts for and is wholly consistent with the merger options the judge outlined during the plea colloquy.

Another entry on the plea form, a reply to question 7, addressed mandatory and extended terms. But, as completed by the parties, that portion of the plea form was incomprehensible and nonsensical. It reports seven years and six months as both the minimum and maximum duration of the mandatory extended term, and it reports seven years and six months as both the minimum and maximum duration of the mandatory parole ineligibility. This portion of the plea form was not addressed during the plea proceeding. In any event, the minimum period of parole ineligibility it states is longer than the five-year period that is a component of defendant's corrected sentence.

III

The Supreme Court recently provided guidance for resolution of motions to withdraw pleas in State v. Slater, 198 N.J. 145 (2009). Whether made prior to, at the time of or after sentencing, the interests of justice control the decision.

R. 3:9-3(e); R. 3:21-1; Slater, supra, 198 N.J. at 156. Where, as here, the motion is made after sentencing a showing of "manifest injustice" is required. R. 3:21-1; Slater, supra, 198 N.J. at 156. Thus, in either circumstance, the determination requires an exercise of judicial discretion focused on the interests of justice. Ibid.

The discretionary determination requires a balancing of the competing interests of the defendant, whose rights to the presumption of innocence and against self-incrimination, among others, are at stake, and of the State, whose interests "'in having criminal wrongdoers account and in the finality of that accounting'" are at stake. Id. at 155 (quoting State v. Taylor, 80 N.J. 353, 365 (1979)).

Protection of the defendant's interests is provided at the time of the plea and by the availability of a motion to withdraw a plea. As the Court noted in Slater, "the court rules are designed to ensure that pleas are supported by a factual basis and are entered voluntarily and knowingly, that is, with a full understanding of the charge and the consequences of the plea. Id. at 154-55. To that end, Rule 3:9-2 requires a court accepting a guilty plea to first determine, by inquiring of the defendant, whether the plea is being entered with "an understanding of the nature of the charge and the consequences of the plea." Recognizing the importance of knowing and voluntary waiver, the Court has stressed that a judge should begin the inquiry on a motion to withdraw by considering whether the judge accepting the plea "followed the dictates of Rule 3:9-2." Slater, supra, 198 N.J. at 155.

Where the sentence actually imposed does not comport with the consequences defendant understood at the time of the plea, a motion to withdraw is an avenue available to address a discrepancy material to the defendant's decision to waive his or rights by entering the plea. See Nunez-Valdez, supra, 200 N.J. at 139; Johnson, supra, 182 N.J. at 241.

Assuming defendant, with supplementation of the record, could establish that he would not have pled guilty had he known his plea would expose him to a twenty-year sentence with a ten-year period of parole ineligibility, he would have been entitled to vacate his plea. But as a consequence of his resentencing, defendant did not receive an extended term. Defendant is now sentenced to a ten-year term of imprisonment, with a five-year parole ineligibility.

The record precludes any claim that defendant was unaware of the fact that his open plea to second-degree possession with intent to distribute exposed him to a ten-year term of imprisonment, with a five-year period of parole ineligibility. That sentence fully comports with the plea form and the plea colloquy explaining the consequences. Accordingly, in the present posture of the case, there is no plausible reason that would warrant an order vacating his post-sentence guilty plea to address a "manifest injustice." In short, as the State argues, the resentencing has eliminated the injustice that defendant contended would justify his withdrawal of the plea. It is important to our agreement with the State's view that defendant sought resentencing a remedy generally applied to enforce a plea agreement violated by the State, see, e.g., State v. Kovack, 91 N.J. 476, 479 (1982); State v. Thomas, 61 N.J. 314, 323-24 (1972) as an alternative remedy for an illegal sentence.

Defense counsel suggests that the incomprehensible description of the mandatory extended term and mandatory parole ineligibility period provided on the plea form led defendant to think he had a plea agreement for a seven year and six month sentence with a seven year and six month parole ineligibility period. In light of the legal impossibility of such a sentence and defendant's acknowledgment of his exposure to ten year's imprisonment with five year's parole ineligibility at the time of his "open" plea, this argument has insufficient merit to warrant any further discussion in a written opinion. R. 2:11-3(e)(2).

In the interest of avoiding any misunderstanding, we stress that our decision should not, in any way, be understood as approving the denial of this withdrawal motion as untimely. Rule 3:21-1 does not state a deadline for filing a withdrawal motion.

Nor should our opinion be understood as approving of the dismissal without allowing defendant the opportunity to establish, by way of testimony or supplemental certification, that he would not have pled guilty if the judge or his lawyer had advised him of the extended term at the time of his plea.

As the Supreme Court explained in Slater, a withdrawal motion requires a thorough consideration of the pertinent issues "in the context of the specific facts of the case." 198 N.J. at 155. The Court described the necessary analysis as a "flexible approach [that would] help ensure that justice is done in each case." Ibid.

Moreover, the Court's reasoning in Slater suggests that the "flexible approach" and focus on the facts of the case favors supplementation of the record where warranted. See id. at 164 (noting that the defendant's reasons for withdrawal in Slater included pressure exerted by his attorney and explaining that there was no need to remand to give the defendant "a chance to add to the record," because the Court was not relying on that reason to grant relief); State v. Deutsch, 34 N.J. 190, 204, 211 (1961) (noting that the trial court could have, but did not afford the defendant an opportunity to present evidence supporting his good faith assertion of a defense to the charge as reason for a motion to withdraw his plea and remanding because that would best serve the interests of justice); see also Slater, supra, 198 N.J. at 160 (implicitly recognizing testimony would be appropriate in some cases by noting that a trial court's determination on the strength of a defendant's reason for withdrawal of a plea, "may rest, of course, on its view of the defendant's demeanor and candor at the time of the plea proceeding and any later hearing on the withdrawal motion" (emphasis added)).

In a case such as this, where the record of the plea proceeding patently supported defense counsel's assertion of material omissions, a more flexible approach than the one taken was warranted. Because there no longer is a basis for relief, however, a remand for supplementation and reconsideration of the withdrawal motion in light of Slater is not necessary to correct an unjust result. R. 2:10-2. Here, a remand order would be meaningless.

Affirmed.

 

1 The judgment and amended judgment of conviction mistakenly indicate that defendant's second-degree conviction is for possession pursuant to N.J.S.A. 2C:35-10a(1).


2 The illegality the judge perceived was different than the one urged by defendant. It was based on the judge's interpretation of N.J.S.A. 2C:43-6f. Neither defendant nor the State questions the propriety of that interpretation. Consequently, the question is not before us. See generally State v. Kirk, 145 N.J. 159, 166-75 (1996); State v. Lagares, 127 N.J. 20 (1992). Importantly, at one point during oral argument on the motion defense counsel argued that the sentence was illegal for that reason as well as the reason defense counsel urged, which was that defendant pled guilty without understanding his exposure to a twenty-year sentence with a ten-year period of parole ineligibility.


3 At the time of his plea, defendant had been charged with additional crimes committed while he was released on bail pending trial and negotiations for a global resolution of new charges defendant incurred while released on bail as well as the charges pending in this indictment were underway. The judge explained that if he accepted defendant's plea, he would set a sentencing date so that the "parties would have an opportunity . . . to negotiate a further resolution on the pending charges and vis- -vis how they affect these charges." He stressed, however, that "[i]f a global resolution is made that concludes this matter at that time, so be it. If it's not, [defendant] will be sentenced on these matters and then go forward on the other matters."


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