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State v. Quintana

Decided: March 11, 1994.


On appeal from Superior Court, Law Division, Middlesex County.

Pressler, Brochin and Kleiner. The opinion of the court was delivered by Pressler, P.J.A.D.


Defendant Barbara Quintana appeals from an order summarily adjudicating her in contempt in the presence of the court because of her nonappearance for sentencing on minor criminal charges to which she had pleaded guilty pursuant to a plea negotiation limiting her sentence to a probationary term. We are satisfied that the contempt order was improvidently entered, and we accordingly reverse.

In view of our obligation to review summary convictions for contempt de novo, R. 2:10-4, we find the following facts from the record before us. A two-count accusation was returned against defendant charging that on January 23, 1991, she and one Sophie Mercado had engaged in a third-degree conspiracy to commit burglary and theft and that on the same day, defendant had committed a third-degree burglary. Defendant was arrested on that day and, unable to post bail, remained incarcerated in the Middlesex County jail until February 13, 1991, when she waived indictment, pleaded guilty to both charges, and was released on her own recognizance.

Prior to the plea proceeding, defendant had entered into a plea negotiation with the State resulting in an agreement whereby the State, in exchange for the guilty plea, agreed to recommend a probationary term subject to time served. This was her first indictable offense, she was then twenty-five years old, had not completed high school, had sporadic employment and irregular living arrangements, and was a drug abuser. According to the

factual basis for the charge given by her at the plea proceeding, her friend Mercado suggested that they go to an apartment in New Brunswick to commit a burglary and theft. Defendant waited on the sidewalk while Mercado gained entry to the apartment by breaking a window and took some items of personal property, which she apparently then handed to defendant. Defendant was arrested shortly thereafter in a grocery store with the stolen property still in her possession. The victim advised the authorities that all his stolen property had been returned undamaged and that he was seeking restitution in the amount of $80 to pay for the broken window.

At the Conclusion of the plea proceeding, the Judge directed defendant's release on her own recognizance conditioned upon her appearing for sentencing. No date for sentencing was then set. According to the probation report, defendant's "place of residency has been short term and sporadic." Prior to the commission of this crime she had lived with a cousin in New Brunswick for several months and before that with a boyfriend, also in New Brunswick. Upon her release, she gave an address in Milltown as her mailing address but did not state with whom she was living and did not give a telephone number. It does not appear that she was asked if there was a telephone number at which she could be reached.

Sentencing was fixed for June 24, 1991, four and a half months after entry of the plea. Defendant did not appear. The record is silent as to how prior notice was given or was attempted to be given to her of that date. Nor is there anything in the record indicating what efforts, if any, the public defender assigned to represent her had made to locate her and to give her notice. Consequently, there is nothing in the record to support the factual Conclusion that defendant actually had notice of the sentencing date. In any event, as a result of her nonappearance, a bench warrant for her arrest was issued. The warrant was executed on February 12, 1992. The record does not indicate the place of execution or where defendant was then residing. In any event,

she was then again incarcerated in the Middlesex County jail from which she was released on March 18, 1992, after posting bail in the amount of $5,000. The record gives no indication as to why she was not sentenced on the original guilty plea either on her arrest or at any time during her ensuing 36-day incarceration. Nor, inexplicably, does the record contain the slightest clue as to what, if anything, defendant was told upon her release as to when and where the sentencing would take place. Nor does it indicate what information was then elicited from her, if any, respecting her place of residence. All we do know is that sentencing was scheduled for May 19, 1992, two months following her release. Again the record is completely silent in respect of the notice given or attempted to be given defendant of that date. Again she did not appear.

Following defendant's second nonappearance, another bench warrant was issued pursuant to which she was arrested on July 27, 1992. Again the record is silent as to its place of execution or defendant's then residence. This time, she was unable to post bail, which had been set at $25,000, and consequently remained incarcerated for another twenty-nine days. On August 24, 1992, she was finally brought before the court for sentencing on the original charges. By that time she had been incarcerated for a total of eighty-seven days on what was to be a probationary term subject to time served of twenty-two days. At the sentencing hearing a two-year probationary term was imposed on the original guilty pleas subject to the now eighty-seven days of time served. Drug-abuse rehabilitation conditions were imposed together with an $80 restitution order. At the same time, defendant also pleaded guilty to a new charge of fourth-degree criminal trespass, the sentence for which was concurrent to the probationary term. An aggregate Violent Crimes Compensation Board penalty of $90 was imposed.

Defendant does not appeal from any of these Dispositions. She appeals from the sentencing Judge's decision at the sentencing hearing to adjudicate her in ...

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