State
v.
Figueroa

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISIONJul 26, 2013
DOCKET NO. A-5732-10T4 (N.J. Super. App. Div. Jul. 26, 2013)

DOCKET NO. A-5732-10T4 DOCKET NO. A-0087-11T4

07-26-2013

STATE OF NEW JERSEY, Plaintiff-Respondent, v. ROBERT FIGUEROA, Defendant-Appellant.

Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief). Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Travis H. Carter, Assistant Prosecutor, of counsel and on the brief).


NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

Before Judges Espinosa and Guadagno.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment Nos. 04-04-0312 (A-5732-10) and 04-04-0310 (A-0087-11).

Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief).

Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Travis H. Carter, Assistant Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief. PER CURIAM

Defendant Robert Figueroa appeals from the order denying his petition for post-conviction relief (PCR) entered on August 31, 2010, and from the final judgment of conviction and sentence entered December 21, 2010. By order entered April 23, 2012, we consolidated the two appeals for purposes of this opinion. For the reasons that follow, we affirm both the judgment of conviction and the order denying defendant's PCR petition.

I.

On April 14, 2004, defendant was charged by a Union County grand jury under Indictment Number 04-04-310 (Indictment 310) with distribution of heroin, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35(b)(1) (count one); distribution of heroin within 500 feet of certain public property, N.J.S.A. 2C:35-7.1 (count two); two counts of possession of heroin, N.J.S.A. 2C:35-10(a)(1) (counts three and seven); two counts of possession with intent to distribute more than five ounces of heroin, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(1) (counts four and eight); possession with intent to distribute heroin within 500 feet of certain public property, N.J.S.A. 2C:35-7.1 (count five); two counts of distribution of heroin within 1000 feet of a school, N.J.S.A. 2C:35-7 (counts six and nine); possession of heroin and/or cocaine, N.J.S.A. 2C:35-10(a)(1) (count ten); possession with intent to distribute heroin and/or cocaine, N.J.S.A. 2C:35-10(a)(1) (count eleven); two counts of unlawful possession of a handgun, N.J.S.A. 2C:39-5(b) (counts fifteen and sixteen); possession of a firearm during the commission of a controlled dangerous substance offense, N.J.S.A. 2C:39-4.1(a) (count seventeen); and conspiracy to distribute heroin, N.J.S.A. 2C:5-2, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(1) (count eighteen).

On the same day, the grand jury returned Indictment Number 04-04-312 (Indictment 312), charging defendant with second-degree possession of a handgun by a convicted felon, N.J.S.A. 2C:39-7(b).

Defendant entered into a plea agreement that encompassed and resolved both indictments and on November 24, 2004, defendant pled guilty to count four of Indictment 310, a first-degree crime, and to the only charge contained in Indictment 312.

On January 21, 2005, defendant was sentenced on count four of Indictment 310 to sixteen years, subject to eight years parole ineligibility. All other counts of that indictment were dismissed. For reasons not clear on the record before us, the court failed to impose sentence on Indictment 312. The court promptly recognized the error however, and notified the prosecutor and defendant's counsel by letter dated January 26, 2005. The court proposed two options: defendant could be returned to court for sentencing or defendant could waive his appearance and be sentenced in abstentia. There is no indication in the record that either party responded to the court's letter, and no further action was taken.

On January 27, 2010, defendant filed a PCR petition seeking to set aside his guilty plea and sentence on Indictment 310. Still unsentenced on Indictment 312, defendant also moved to dismiss or, in the alternative, withdraw his guilty plea under that indictment. After oral argument, the court filed a written opinion and order on August 31, 2010, denying both the motion to withdraw and the petition for PCR.

On December 10, 2010, a different judge sentenced defendant to ten years, subject to five years parole ineligibility on Indictment 312. That term was to run consecutive to both the sixteen-year sentence under Indictment 310 and another unrelated sentence.

On July 25, 2011, defendant filed a notice of appeal of the conviction under Indictment 312 (A-5732-10), followed by a notice of appeal of the order denying his petition for PCR on August 31, 2011 (A-0087-11). Defendant presents the following arguments regarding A-5732-10:

POINT I
THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S MOTION TO DISMISS THE INDICTMENT OR PRECLUDE THE IMPOSITION OF SENTENCE OR,
IN THE ALTERNATIVE, TO WITHDRAW HIS GUILTY PLEA.
POINT II

THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.


Defendant raises the following points regarding A-0087-11:

POINT I
THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION THAT HE FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION AT THE TRIAL LEVEL.
A. THE PREVAILING LEGAL PRINCIPLES REGARDING CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL, EVIDENTIARY HEARINGS AND PETITIONS FOR POST-CONVICTION RELIEF.
B. SINCE THE DEFENDANT PRESENTED A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF COUNSEL RELATING TO THE GUILTY PLEA HE ENTERED PURSUANT TO A PLEA AGREEMENT, THE TRIAL COURT ERRED IN DENYING HIS PETITION FOR POST-CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS THIS CONTENTION.


Defendant filed a pro se supplement brief raising the following additional point:

POINT I
THE SENTENCING COURT CLEARLY DISPLAYED BIAS WHEN IT ALLOWED CO-DEFENDANT'S [SIC] RASHEED SCOTT TO BE SENTENCED TO TEN YEARS WITH A FIVE YEAR PAROLE INELIGIBILITY, HENRY SALCEDO TO A FIFTEEN YEARS TERM WITH A FIVE
YEAR PAROLE INELIGIBILITY, AND SENTENCED PETITIONER TO SIXTEEN YEARS WITH A[N] EIGHT YEAR PAROLE INELIGIBILITY CREATED A DISPARITY OF SENTENCE ISSUE BETWEEN PETITIONER AND THE OTHER TWO CO-DEFENDANTS.



II.

We begin by considering the law that applies to ineffective assistance of counsel claims and motions to withdraw guilty pleas. We analyze ineffective assistance of counsel claims by applying the two-prong test established by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984). The first prong of Strickland requires a defendant to establish that counsel's performance was deficient. State v. Preciose, 129 N.J. 451, 463 (1992). "The second, and far more difficult, prong . . . is whether there exists 'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Id. at 463-64 (quoting Strickland, supra, 466 U.S. at 694); see also State v. Fritz, 105 N.J. 42, 60-61 (1987). Even if counsel was ineffective, under the second Strickland prong, prejudice is not presumed and must be proven by the defendant. Fritz, supra, 105 N.J. at 60-61. To justify withdrawing a guilty plea premised on ineffective assistance of plea counsel, a defendant must satisfy both prongs of the Strickland/Fritz standard, as modified to apply to guilty pleas rather than convictions after trial:

For a defendant to establish a case of ineffective assistance of counsel, the defendant must show that "[defense] counsel's performance was deficient," and that "there exists 'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'"
When a guilty plea is part of the equation, we have explained that "[t]o set aside a guilty plea based on ineffective assistance of counsel, a defendant must show that (i) counsel's assistance was not within the range of competence demanded of attorneys in criminal cases; and (ii) that there is a reasonable probability that, but for counsel's errors, [the defendant] would not have pled guilty and would have insisted on going to trial."
[State v. Nunez-Valdez, 200 N.J. 129, 138-39 (2009).]


When applying the Strickland standard to guilty pleas, the United States Supreme Court has described the second prong as follows: "to obtain relief on this type of claim, a petitioner must convince the court that a decision to reject the plea bargain would have been rational under the circumstances." Padilla v. Kentucky, 559 U.S. 356, _____, 130 S. Ct. 1473, 1485, 176 L. Ed. 2d 284, 297 (2010).

When addressing a motion to withdraw a guilty plea, our Supreme Court set forth the following standards:

[T]rial judges are to consider and balance four factors in evaluating motions to withdraw a guilty plea: (1) whether the 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.
[State v. Slater, 198 N.J. 145, 157-58 (2009).]


Defendant claims there was "significant confusion as well as a misunderstanding" as to the plea agreement at the time he entered his guilty plea. Defendant ascribes part of his "confusion" to his conviction after trial on unrelated charges of aggravated manslaughter one month prior to entering these pleas. He maintains his innocence and claims his "will had been overborne by the cumulative impact" of the conviction, his incarceration and the urging of his attorney to plead guilty.

A review of the plea transcript lends no support to defendant's claim. The plea judge first determined that defendant was satisfied with his attorneys and that he had spent enough time reviewing both plea agreements with them, "line-by-line." The judge then discussed the penalties defendant was facing and noted the recommended sixteen-year sentence on Indictment 310 would run consecutively to any sentence he would receive on the recent aggravated manslaughter conviction, and the sentence on Indictment 312 would run consecutive to both cases. Defendant acknowledged that he understood this agreement.

When asked by the judge if any other promises had been made to him about the sentence, defendant replied, "No." Defendant also denied that anyone had forced or threatened him to plead guilty, and the judge confirmed that he was pleading guilty "because you did the crime." Defendant's bare assertion of innocence without specific, credible facts, is insufficient to justify withdrawal of a plea. Slater, supra, 198 N.J. at 158.

Defendant also claims his attorneys "inadequately negotiated" with the prosecutor's office and urged him to accept an "unreasonable as well as unfavorable" plea agreement. Not only is this claim inconsistent with defendant's claim of innocence, but there is a heavier burden in seeking to withdraw pleas entered as part of a plea bargain. State v. Smullen, 118 N.J. 408, 416-17 (1990). Defendant was charged with sixteen felonies under the two indictments, including a first-degree offense and five second-degree offenses.

We are satisfied that defendant has not established a prima facie claim of ineffective assistance of counsel requiring a hearing on his claims that he did not enter his pleas voluntarily or that trial counsel pressured him to plead guilty.

Defendant next asserts his due process right to a speedy sentencing was violated by the lengthy delay between his guilty plea and his sentencing on Indictment 310. Defendant relies on United States v. Ray, 578 F.3d 184 (2d Cir. 2009), in arguing that the "inexcusable delay in sentencing" justified dismissal of the indictment. We disagree.

In Ray, the defendant pled guilty to mail fraud in 1991, but the case lay dormant for fifteen years until the defendant was finally summoned for resentencing in January 2008. Id. at 186-87. On appeal, Ray sought to dismiss the indictment and vacate her conviction on the ground that she was deprived of her right to a speedy sentencing under the Speedy Trial Clause of the Sixth Amendment and the Due Process Clause of the Fifth Amendment. Id. at 186.

The Second Circuit held that Ray, who was not incarcerated during the delay, had been "subject to a sentencing delay of extraordinary length which threaten[ed] serious disruption to her rehabilitation and to the law-abiding and productive life she has led for the last fifteen years." Id. at 202. The panel found that Ray had demonstrated "truly significant" prejudice, "considering [her] successful and prolonged rehabilitation, and the upset that a custodial sentence would now entail." Ibid. However, the court in Ray cautioned that a due process violation based on sentencing delay requires proof of "substantial and demonstrable" prejudice. Id. at 200. The Ray panel noted that "[e]ven substantial delays in sentencing do not in all circumstances amount to a due process violation, especially when a defendant has not requested timely sentencing and is unable to establish prejudice of the sort implicated here." Id. at 200.

Unlike the defendant in Ray, Figueroa has demonstrated no prejudice from the delay. During the six-year period between plea and sentence on Indictment 312, defendant was incarcerated, serving a sixteen-year sentence on his plea under Indictment 310, and another sentence for aggravated manslaughter. This is not the "unusual case where the dictates of fundamental fairness clearly compel [the Court] to conclude that [defendant's] rights were violated." See Ray, supra 578 F.3d at 202.

On April 26, 2007, the Supreme Court affirmed our decision reversing defendant's aggravated manslaughter conviction and remanding for a new trial. See State. v. Figueroa, 190 N.J. 219 (2007). On July 20, 2009, defendant pled guilty to aggravated manslaughter and was subsequently sentenced to six years in prison.

Defendant next claims the sentencing judge "abused [his] discretion by imposing a consecutive rather than a concurrent term." Defendant argues that, during the sentencing proceedings for Indictment 312, the judge only properly referenced the consecutive nature of the imposed sentence in relation to the manslaughter sentence and did not properly explain why the sentence imposed under Indictment 312 should run consecutive to the sentence imposed under Indictment 310.

The Code of Criminal Justice, N.J.S.A. 2C:1 to -104, generally does not specify when multiple sentences should run consecutively or concurrently. The Code simply states that "such multiple sentences shall run concurrently or consecutively as the court determines at the time of the sentence[.]" N.J.S.A. 2C:44-5(a). Due to the lack of uniformity in sentencing, our Supreme Court set forth guidelines to assist sentencing courts when deciding whether to impose a consecutive sentence. See State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986). The Yarbough factors, reaffirmed many times since their indoctrination, serve as a guidepost, not a mandate, and are enumerated as follows:

(1) there can be no free crimes in a system for which the punishment shall fit the crime;
(2) the reasons for imposing either a consecutive or concurrent sentence should be separately stated in the sentencing decision;
(3) some reasons to be considered by the sentencing court should include facts relating to the crimes, including whether or not:

(a) the crimes and their objectives were predominantly independent of each other;
(b) the crimes involved separate acts of violence or threats of violence;
(c) the crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior;
(d) any of the crimes involved multiple victims;
(e) the convictions for which the sentences are to be imposed are numerous;

(4) there should be no double counting of aggravating factors;
(5) successive terms for the same offense should not ordinarily be equal to the punishment for the first offense; and
(6) there should be an overall outer limit on the cumulation of consecutive sentences for multiple offenses not to exceed the sum of the longest terms (including an extended term, if eligible) that could be imposed for the two most serious offenses.
[Yarbough, supra, 100 N.J. at 643-44; State v. Carey, 168 N.J. 413, 422-23 (2001).]


The sentencing court, when imposing a consecutive sentence, must analyze the Yarbough factors and place its reasoning on the record. State v. Randolph, 210 N.J. 330, 353 (2012). When the sentencing judge fails to place proper reasons for imposing consecutive sentences on the record, remand for resentencing is normally required. Id. at 352-55.

Here, when sentencing defendant under Indictment 312, the sentencing judge stated that a "consecutive sentence is consistent with the principles in State v. Yarbough." The judge then fully analyzed the factors with regard to Indictment 312 and the aggravated manslaughter charge. We find the sentencing judge did not abuse his discretion in imposing a sentence consecutive to the aggravated manslaughter conviction. During sentencing, the judge did not specifically analyze the Yarbough factors as they related to the convictions under Indictment 310 and Indictment 312.

However, this court has the discretion to affirm a sentencing judge's imposition of consecutive sentences, even if that judge failed to place his reasoning on the record during the sentencing proceeding, if "the facts and circumstances leave little doubt as to the propriety of the sentences, and the sentences are not shown to be clearly mistaken." State v. Soto, 385 N.J. Super. 247, 257 (App. Div. 2006) (internal quotations omitted). Further, and quite notably, the parameters of a negotiated plea agreement can and should be considered and weighed in the decision to impose consecutive sentences. State v. Balfour, 135 N.J. 30, 37-40 (1994); see also Soto, supra, 385 N.J. Super. at 253 (defendant's explicit agreement via a negotiated sentencing recommendation will weigh against defendant if that sentence is imposed and defendant later argues it is excessive); State v. S.C., 2 89 N.J. Super. 61, 70-71 (App. Div.), certif. denied, 145 N.J. 373 (1996) ("[a] court's decision to impose a sentence in accordance with the plea agreement should be given great respect, since a presumption of reasonableness . . . attaches to criminal sentences imposed on plea bargain defendants.").

In our present case, during defendant's plea hearing, he was made explicitly aware that the plea agreement would have him serving consecutive sentences on Indictment 310 and Indictment 312. The aggravated manslaughter conviction is irrelevant to that portion of the negotiated plea. Defendant acknowledged he understood the terms:

THE COURT: By that he means the State was willing today to recommend a concurrent sentence on these cases significantly higher, probably in the area of 25 years without parole, but concurrent to your pending homicide. Do you understand? THE DEFENDANT: Yes.
THE COURT: You have through counsel told me you didn't want to do that because you want to process the appeal. Right?
THE DEFENDANT: Yes.
. . . .
THE COURT: But the other side of the coin is if you are denied the appeal, you are going to do more time because this is a consecutive sentence today. Do you understand me?
THE DEFENDANT: Yes.
THE COURT: You are taking that risk. Is that what you want to do?
THE DEFENDANT: Yes.


The plea agreement itself regarding Indictment 312 states as the specific sentence the prosecutor agreed to recommend being "10 yrs. w[ith] 5 yrs. parole disqualified consecutive to [aggravated manslaughter] and consecutive to [Indictment 310]." The sentencing judge for Indictment 312 made reference to this agreement when stating "[t]he plea agreement contemplated that both of those sentences could be imposed consecutively to each other and consecutive to any sentence imposed on the aggravated manslaughter . . . ."

The testimony of defendant at his plea hearing, as well as the language of the plea form, make clear that the sentences under these two Indictments were always intended to run consecutive to one another as part of the plea arrangement. Despite not specifically discussing the Yarbough factors when determining that the sentence for Indictment 312 would run consecutive to Indictment 310, we are satisfied the sentencing judge gave proper consideration to the plea agreement and, using his discretion, imposed proper sentences consistent with the gravity of the crimes committed by defendant.

We find the remaining arguments raised by defendant to lack sufficient merit to warrant further consideration in this opinion. R. 2:11-3(e)(1)(E).

Affirmed.

I hereby certify that the foregoing is a true copy of the original on file in my office.

CLERK OF THE APPELLATE DIVISION