Opinion
DOCKET NO. A-4732-12T2
08-06-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. FREDDY R. SOLORZANO, a/k/a FREEDY R. SOLORZANO, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Frank M. Gennaro, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Ian C. Kennedy, Deputy Attorney General, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Simonelli and Leone. On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 11-10-2418. Joseph E. Krakora, Public Defender, attorney for appellant (Frank M. Gennaro, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Ian C. Kennedy, Deputy Attorney General, of counsel and on the brief). PER CURIAM
Defendant Freddy R. Solorzano appeals from his April 2, 2013 judgment of conviction arising from the death of Deziree Vivian. He contends the trial court erred in denying his motion to withdraw his guilty plea, and in sentencing him. We affirm.
I.
On April 21, 2011, defendant had an argument with Vivian, became angry with her, and followed her into an Atlantic City deli. Defendant had a knife, and stabbed Vivian four times, causing her death.
The grand jury charged defendant in Count One with first-degree murder, N.J.S.A. 2C:11-3(a)(1)-(2). The remaining counts charged third-degree possession of a weapon for unlawful purposes, N.J.S.A. 2C:39-4(d); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d); and third-degree hindering apprehension or prosecution, N.J.S.A. 2C:29-3(b)(1).
Defendant entered into a plea agreement in which he agreed to plead to an amended Count One charging first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a), with the remaining charges being dismissed. The State retained its right to argue for the thirty-year maximum sentence, the trial court agreed to cap his exposure at twenty years, and he reserved his right to argue for a lower sentence. The sentence was subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, requiring he serve 85% of his sentence without parole eligibility, with five years of parole supervision upon his release, as well as restitution.
On August 22, 2012, defendant appeared before Judge Mark H. Sandson to enter into his guilty plea. Defendant indicated his understanding of the plea agreement both in the plea form and in his plea colloquy. His plea colloquy also reviewed his rights, the facts, and the elements of the offense. Defendant indicated his understanding of his plea, his acceptance of the plea agreement, and his satisfaction with plea counsel. The trial court accepted the plea, finding:
Defendant has had the advice of competent counsel with whom he is satisfied. Defendant entered into his plea freely and voluntarily. Defendant knowingly, intelligently, and freely waived his rights to a trial . . . . Defendant understands the range of the sentence that may be imposed as a result of this plea.
In November 2012, defendant retained new counsel and filed a motion to withdraw his guilty plea. After hearing testimony from defendant's prior plea counsel and a police detective, Judge Sandson denied the motion in a written opinion dated February 19, 2013.
Pursuant to the plea agreement, Judge Sandson sentenced defendant to twenty years in prison, subject to NERA, five years of parole supervision upon release, and $5000 restitution. Defendant appeals the April 2, 2013 judgment of conviction, raising the following claims:
POINT ONE - DEFENDANT'S MOTION TO WITHDRAW HIS GUILTY PLEA WAS TAINTED BY TESTIMONY FROM HIS FORMER ATTORNEY WHICH VIOLATED THE ATTORNEY-CLIENT PRIVILEGE.
POINT TWO - THE TRIAL COURT WRONGFULLY DENIED DEFENDANT'S MOTION TO WITHDRAW HIS GUILTY PLEA.
POINT THREE - THE TRIAL COURT IMPROPERLY APPLIED AGGRAVATING FACTORS ONE AND TWO IN IMPOSING SENTENCE UPON DEFENDANT.
II.
We first address defendant's claim that the trial court wrongly denied his motion to withdraw his plea. "The withdrawal of a guilty plea is not an 'absolute right'; it is a matter within the broad discretion of the trial court." State v. Simon, 161 N.J. 416, 444 (1999). "Thus, the trial court's denial of defendant's request to withdraw his guilty plea will be reversed on appeal only if there was an abuse of discretion which renders the [trial] court's decision clearly erroneous." Ibid. We must hew to that standard of review.
"In moving to withdraw a guilty plea, the defendant bears the burden of presenting a 'plausible basis for his request' and a good-faith basis for 'asserting a defense on the merits.'" State v. Munroe, 210 N.J. 429, 442 (2012) (quoting State v. Slater, 198 N.J. 145, 156 (2009)). A trial court should consider: "(1) whether defendant has asserted a colorable claim of innocence; (2) the nature and strength of defendant's reasons for withdrawal; (3) the existence of a plea bargain; and (4) whether withdrawal would result in unfair prejudice to the State or unfair advantage to the accused." Slater, supra, 198 N.J. at 157-58.
For substantially the reasons given in Judge Sandson's written opinion, we agree that defendant failed to show withdrawal of his plea was "in the 'interests of justice.'" Id. at 156 (quoting R. 3:9-3(e)). We highlight the following.
Defendant's new counsel asserted defendant had a colorable claim of innocence because he was intoxicated and acting in self-defense when he killed Vivian. Defendant's new counsel indicated he had no evidence to support either defense. During the plea colloquy, defendant suggested he "was under some kind of influence, narcotics or something" when he stabbed Vivian. However, defendant expressly acknowledged that he and plea counsel had "discussed defenses such as voluntary intoxication," and had "decided to waive those defenses" because they decided he did not have any defenses that "would actually work if [he] went to trial." In any event, "intoxication is not a defense to a crime predicated on recklessness," such as aggravated manslaughter. State v. Bey, 112 N.J. 123, 145 (1988); see N.J.S.A. 2C:2-8(b).
Defendant never claimed self-defense during the plea colloquy. Cf. State v. Urbina, ___ N.J. ___, ___ (2015) (slip op. at 23-25). After defendant first raised a self-defense claim in his motion to withdraw, the trial court admitted into evidence and watched a video of the crime recorded by the deli's security camera. The court found the video showed Vivian "raising her arms in a surrendering fashion and posing no threat to the defendant when he attacks her with the knife." Accordingly, the court properly found defendant had not asserted "a colorable claim of self-defense" or a "colorable claim of innocence and this Slater factor had not been satisfied." See Slater, supra, 198 N.J. at 158.
Defendant's new counsel said defendant's reason for withdrawal was that he did not understand the nuances of the English language, thought he would get a ten-year sentence for manslaughter, and did not understand the difference between aggravated manslaughter and manslaughter. However, defendant attested in the plea form and in his plea colloquy that he was a citizen of the United States. He testified that he reads, writes, and understands the English language. The trial court, having presided over the plea colloquy and reviewing the video recording of the plea in the motion hearing, found that defendant conversed in English without apparent difficulty. At the conclusion of the colloquy, plea counsel stated that she and defendant had met on numerous occasions, that defendant was fluent in English as well as Spanish, and that defendant had said he did not need an interpreter to plead guilty.
Moreover, in the plea colloquy, defendant affirmed that he understood he was pleading guilty to "aggravated manslaughter." The court made clear to defendant that it was "going to cap your sentence at 20 years," his "lawyer is going to argue for less," the "prosecutor is going to argue for more," and "there is no recommended sentence." Defendant stated he "totally underst[ood] everything [the court] said to [him]" at the plea colloquy. Thus, the trial court correctly found that defendant "fully comprehended English during the plea process," and "has not provided a strong reason for withdrawal."
The court noted that defendant's plea bargain avoided the prospect of a life sentence. See Munroe, supra, 210 N.J. at 443 ("this factor should not be discounted"). Because defendant did not satisfy the other Slater factors, the court did not need to address whether there was prejudice to the prosecution, but noted that withdrawal "would be a waste of judicial resources" and "unnecessarily burden the victim's family members."
III.
On appeal, defendant argues it was improper for his prior plea counsel to testify at his plea withdrawal hearing. Because defendant never objected in the trial court, he must show plain error. R. 2:10-2. As a result, he "'has the burden of proving that the error was clear and obvious,'" and that it had "'the clear capacity to bring about an unjust result.'" State v. Koskovich, 168 N.J. 448, 529 (2001).
Defendant's plea counsel testified as follows. Defendant read English, wrote to her in English, and used and understood English in his meetings with her. He declined her offer to use interpreters, and did not want an interpreter for the plea hearing. Prior to the plea, they discussed and decided not to pursue an intoxication defense or a claim of self-defense, which she advised was not colorable given the video of the crime. In deciding to accept the plea agreement, defendant understood plea counsel could argue for a sentence below the trial court's promised twenty-year cap, but she never made any representation that he would get ten years. Indeed, she told him she saw no way he would get less than fifteen years. Thus, plea counsel's direct testimony largely echoed information otherwise available from the plea colloquy and withdrawal hearing.
Defendant's new counsel then cross-examined plea counsel, and elicited the following. Plea counsel believed defendant understood the nuances of her questions at the plea colloquy. Initially, his answers were not consistent with the answers he had given her when they went through the colloquy before coming to court. He was nervous in the presence of the victim's family and the media, and was trying to shift the blame. She and defendant had an off-the-record discussion, and he then gave a proper factual basis. Defendant's new counsel also asked plea counsel what she had advised defendant about the difference between manslaughter and aggravated manslaughter.
Defendant complains that he did not expressly waive his attorney-client privilege at the plea withdrawal hearing. However, a privilege can be waived in various ways, including if defendant "consented to such a disclosure" of "any part of the privileged matter." N.J.R.E. 530. Similarly, "[i]f a defendant does not object to [privileged] testimony at trial at all, the defendant has surely waived the objection." State v. Ospina, 239 N.J. Super. 645, 654 (App. Div.), certif. denied, 127 N.J. 321 (1990).
Thus, the Supreme Court has held that, by allowing his former counsel to testify as a defense witness, a "defendant waived the attorney-client privilege." Bey, supra, 161 N.J. at 296. Here, "defendant made no objection at the trial to the admission of [his attorney's] testimony on the basis of lawyer-client privilege," and "enjoyed the benefit of a plenary cross-examination." Balazinski v. Lebid, 65 N.J. Super. 483, 494 (App. Div. 1961). Particularly as defendant tried to use his cross-examination of plea counsel to elicit evidence to support his argument for withdrawal of his plea, "[s]uch conduct precludes the defendant from raising the question of privilege for the first time on appeal." Ibid.
Moreover, "our courts have also recognized that a privilege may be waived 'implicitly' where a party puts a confidential communication 'in issue' in a litigation." State v. Mauti, 208 N.J. 519, 532 (2012). The attorney-client privilege does not extend "to a communication relevant to an issue of breach of duty by the lawyer to his client, or by the client to his lawyer." N.J.R.E. 504(2) (quoting N.J.S.A. 2A:84A-20(2)). Thus, a client "waives the protection of the attorney-client privilege" when he charges his attorney with malpractice. State v. Garron, 177 N.J. 147, 175 (2003), cert. denied, 540 U.S. 1160, 124 S. Ct. 1169, 157 L. Ed. 2d 1204 (2004); see R.P.C. 1.6(d)(2). Similarly, the attorney-client privilege "does not extend to communications relevant to an ineffective-assistance-of-counsel claim." Bey, supra, 161 N.J. at 296. "In essence, in each of those circumstances, the party who places a confidential communication in issue voluntarily creates the 'need' for disclosure of those confidences to the adversary." Mauti, supra, 208 N.J. at 532; e.g., State v. Humphreys, 89 N.J. Super. 322, 324-26 (App. Div. 1965) (finding the attorney-client "privilege not to be applicable" to a defendant's former attorney's testimony, because the defendant claimed he pled guilty because he was wrongly advised by his former attorney).
Here, defendant sought to withdraw his plea, claiming he did not understand the plea agreement, specifically the nature of the crime he was admitting and sentence he would receive. Such a claim arguably alleges a breach of duty, as a "defense counsel has an obvious duty to fully explain the terms of the plea agreement to his client[.]" State v. Cartier, 210 N.J. Super. 379, 382 (App. Div. 1986). Further, such a claim puts at issue defendant's discussions with his attorney prior to the plea. See Mauti, supra, 208 N.J. at 532 (noting where a party "alleges misrepresentations during negotiations, she cannot claim attorney-client privilege in respect of her attorney's participation in those negotiations"). Defendant cannot show that allowing his former plea counsel to testify to those discussions was plain error, as he cites no case showing that any "error is clear under current law." United States v. Olano, 507 U.S. 725, 734, 113 S. Ct. 1770, 1777, 123 L. Ed. 2d 508, 519 (1993); see State v. Chew, 150 N.J. 30, 82 (1997), cert. denied, 528 U.S. 1052, 120 S. Ct. 593, 145 L. Ed. 2d 493 (1999).
IV.
As set forth above, in his motion to withdraw his plea under Slater, defendant argued he had a colorable claim of innocence because he was intoxicated and acting in self-defense when he killed Vivian. His reason for withdrawing his plea was his claimed inability to understand the nuances of the English language. To support his claimed difficulties with English, he cited the extended questioning necessary to establish the factual basis for aggravated manslaughter. He did not dispute he ultimately provided a proper factual basis.
Nonetheless, on appeal defendant claims that he did not state a proper factual basis. However, defendant did not make "a motion to vacate a guilty plea for lack of an adequate factual basis," which involves a different claim than "a motion to withdraw a guilty plea" that is governed by "a Slater analysis." State v. Tate, 220 N.J. 393, 403-04 (2015). Because defendant's motion did not claim a lack of adequate factual basis, and the trial court thus did not address such a claim, defendant must show plain error. R. 2:10-2.
"The essential elements of aggravated manslaughter are found in N.J.S.A. 2C:11-4(a)(1)." Urbina, supra, slip op. at 17. Under N.J.S.A. 2C:11-4(a)(1), "[c]riminal homicide constitutes aggravated manslaughter when . . . [t]he actor recklessly causes death under circumstances manifesting extreme indifference to human life[.]" A defendant acted "recklessly" when he "was aware of and consciously disregarded a substantial risk of death, i.e., a probability that death would result[.]" State v. Cruz, 163 N.J. 403, 417 (2000); see N.J.S.A. 2C:2-2(b)(3).
Here, defendant admitted he "stabbed [Vivian] a total of four times," twice "in her trunk or chest area," "result[ing] in [her] dying." Those admissions themselves indicated that defendant "'manifested extreme indifference to human life, [because] the focus is not on the defendant's state of mind, but on the circumstances under which the defendant acted.'" State v. Wilder, 193 N.J. 398, 409 (2008); see, e.g., State v. Bowens, 108 N.J. 622, 638 (1987) (finding "a single stab wound to the abdomen" resulting in death "suggest[ed] that level of indifference and provide ample basis for a conviction").
"The factual basis for a guilty plea can be established by a defendant's explicit admission of guilt or by a defendant's acknowledgment of the underlying facts constituting essential elements of the crime." State v. Gregory, 220 N.J. 413, 419-20 (2015) (citing State v. Campfield, 213 N.J. 218, 231, 236 (2013) (finding recklessness for manslaughter based on underlying facts)); see, e.g., Urbina, supra, slip op. at 4-8, 25 (finding "the trial court's colloquy on aggravated manslaughter," which focused on the factual circumstances, "would have been appropriate").
Indeed, defendant admitted he acted with such indifference:
Q. At the time when you were angry, Mr. Solorzano, did that [] lead you to disregard the likelihood that your actions could kill Ms. Vivian?Moreover, as defendant now concedes, he admitted he acted recklessly by acting without thinking:
A. Yes.
Q. And when you approached Ms. Vivian, and when you used the knife against her, was it with indifference to the value of her life? You realized it could kill her?Indeed, defendant admittedly met the definition of "recklessly":
A. I wasn't thinking.
Q. Mr. Solorzano, when you used that knife against Ms. Desiree Vivian, did you understand that it was probable that that could result in her death? It was a likely result of stabbing her?Defendant's claimed lack of intent to kill is irrelevant, as aggravated manslaughter "does not require an intention to cause [death or] serious bodily injury or an awareness that death is 'practically certain' to follow." Wilder, supra, 193 N.J. at 409 (quoting Cruz, supra, 163 N.J. at 417).
A. Yeah, I don't mean to kill her.
Defendant notes he also answered that he understood "now" Vivian's death was a "likely result" of stabbing her. Plea counsel testified that those answers reflected defendant's nervousness in the face of the victim's family and the media, rather than a lack of prior understanding. Regardless of those answers and any "reluctance to speak" about the crime, "defendant responded affirmatively" in his answers quoted above. State v. Perez, 220 N.J. 423, 436 (2015). The quoted answers showed he recklessly caused death under circumstances manifesting extreme indifference to human life, and thus "provided an adequate factual basis." Ibid. He fails to show plain error.
V.
Lastly, defendant claims that the trial court improperly found aggravating factors one and two at sentencing. "[A]ppellate courts review the trial court's 'sentencing determination under a deferential standard of review.'" State v. Grate, 220 N.J. 317, 337 (2015). An appellate court is "'bound to affirm a sentence, even if [it] would have arrived at a different result, as long as the trial court properly identifies and balances aggravating and mitigating factors that are supported by competent credible evidence in the record.'" Ibid. "On the other hand, if the trial court fails to identify relevant aggravating and mitigating factors, or merely enumerates them, or forgoes a qualitative analysis, or provides little 'insight into the sentencing decision,' then the deferential standard will not apply." State v. Case, 220 N.J. 49, 65 (2014).
Aggravating factor one concerns "[t]he nature and circumstances of the offense, and the role of the actor therein, including whether or not it was committed in an especially heinous, cruel, or depraved manner." N.J.S.A. 2C:44-1(a)(1). "[A]n application of aggravating factor one must be premised upon factors independent of the elements of the crime and firmly grounded in the record." State v. Fuentes, 217 N.J. 57, 63 (2014). "When it assesses whether a defendant's conduct was especially 'heinous, cruel, or depraved,' a sentencing court must scrupulously avoid 'double-counting' facts that establish the elements of the relevant offense." Id. at 74-75. If a defendant is being sentenced for aggravated manslaughter, "the sentencing court's application of aggravating factor one must be based on factors other than the death of the victim and the circumstances essential to support a finding that the defendant has acted with extreme indifference to human life." Id. at 76. In Fuentes, the Court held that the sentencing "court failed to adequately explain its application of aggravating factor one to defendant." Id. at 77.
By contrast, the trial court here "discussed in detail the circumstances of the offense [and] identified the facts in the record -- distinct from the facts necessary to prove the elements of aggravated manslaughter -- that supported its finding." Ibid. The trial court did not rely on the number of times defendant stabbed Vivian or the other facts showing that defendant acted with extreme indifference. Rather, the court cited the video exhibit showing defendant "hunting her down" and "chas[ing] her down" even though she was "trying to run away." This indicated that "'defendant's behavior extended to the extreme reaches of the prohibited behavior'" for aggravated manslaughter. Id. at 75. Further, the court noted that defendant chased and stabbed Vivian in "a public place," namely an open supermarket-type store. This suggested defendant's conduct "'threatened the safety of its direct victim[] and the public.'" Id. at 74. Moreover, the court watched and relied on the video of the slaying which showed it to be "horrifying," "terrifying," and "particularly heinous, cruel, and depraved." "The reviewing court must not substitute its judgment for that of the sentencing court." Id. at 70.
Defendant has not supplied us with a copy of the video.
Aggravating factor two concerns:
The gravity and seriousness of harm inflicted on the victim, including whether or not the defendant knew or reasonably should have known that the victim of the offense was particularly vulnerable or
incapable of resistance due to advanced age, ill-health, or extreme youth, or was for any other reason substantially incapable of exercising normal physical or mental power of resistance[.]
[N.J.S.A. 2C:44-1(a)(2).]
This section "focuses on the setting of the offense itself with particular attention to any factors that rendered the victim vulnerable or incapable of resistance at the time of the crime." State v. Lawless, 214 N.J. 594, 611 (2013). The section "does not limit 'vulnerability' to age or other physical disabilities of the victim." State v. O'Donnell, 117 N.J. 210, 218-19 (1989) (finding that when "a victim is so constrained [by being tied up] as to make physical resistance virtually impossible, he or she has been rendered vulnerable within the meaning of section 1a(2)"). We have upheld a finding that a gas station attendant alone at night is "'particularly vulnerable'". State v. Faucette, 439 N.J. Super. 241, 272 (App. Div.), certif. denied, 221 N.J. 492 (2015).
Here, in finding aggravating factor two, the trial court stated: "having viewed the video, [it] saw that all the victim was looking to do was to find some kind of place where she could get away from you." As noted above, the trial court found the video also showed Vivian "raising her arms in a surrendering fashion and posing no threat to the defendant when he attacks her with the knife." Persons raise their arms in surrender precisely to show they are "particularly vulnerable [and] incapable of resistance." N.J.S.A. 2C:44-1(a)(2). Again, having not seen the video, we will not substitute our judgment for that of the sentencing court.
The court added that Vivian was trying to get away from defendant's "anger and [his] murderous intent." As the State concedes, defendant's mens rea has no relevance to aggravating factor two.
"Even if this finding is error, we would regard the court's error as harmless." State v. Gallagher, 286 N.J. Super. 1, 21 (App. Div. 1995), certif. denied, 146 N.J. 569 (1996); see also R. 2:10-2. As in Gallagher, the trial court here found no mitigating factors and five aggravating factors, including factors three, six, and nine. Moreover, the court imposed a mid-range sentence at the twenty-year cap it had promised.
On appeal, defendant notes that at sentencing, it was suggested defendant was the subject of an immigration detainer and would be deported. Because defendant did not raise any such claim in the plea withdrawal proceedings, we decline to consider this issue on appeal. State v. Robinson, 200 N.J. 1, 20 (2009). --------
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION