On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Indictment No. 02-04-00269-I.
The opinion of the court was delivered by: S.L. Reisner, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Coburn, Collester and S.L. Reisner.
Charged with absconding from parole, N.J.S.A. 2C:29-5b, defendant Jose Pineiro entered a plea of guilty on the second day of trial, after the jury was selected and sworn. Almost a month later, prior to sentencing, defendant filed motions to withdraw his guilty plea, to relieve assigned counsel, and to proceed pro se. The trial judge denied the motions and sentenced him to five years imprisonment with a two and one-half year parole bar, to be served concurrent to any sentence imposed for violation of parole.
These are the most pertinent facts. On September 21, 2001, defendant was convicted for conspiracy to possess a controlled dangerous substance with intent to distribute and was sentenced to three years in prison. He was paroled on March 14, 2002. On April 23, 2002, he was indicted for absconding from parole.*fn1 Before trial, defendant's counsel advised the trial judge that defendant refused to wear street clothes and insisted on appearing before the jury in his prison clothing. On the second day of trial, defense counsel told the judge that he had refused his client's request to file a motion to dismiss the indictment, and that defendant was dissatisfied with his representation. Defendant had also rejected a plea offer of three years "flat" because it would not include credit for time served after he was returned to prison for parole violation. After defense counsel explained to the judge his understanding that jail credit was not available in this situation, the judge asked if the jury should be recalled. The following colloquy took place among the court, defense counsel, and defendant, who was speaking through an interpreter:
THE COURT: Shall we recall the jury?
MR. SMITH: Do you want to enter a plea or do you want to proceed to trial?
MR. PINEIRO: Whatever plea you want to give me now, give it to me, I'll go.
MR. SMITH: Judge, I'm not sure what Mr. Pineiro is asking. Perhaps you can inquire as to whether or not he wishes to enter a plea at this point or proceed to trial. . . .
INTERPRETER: Tell him that I don't want to go to trial and I'll plead.
THE COURT: I am not inclined at this point to accept this defendant's plea of guilt. I am convinced that this trial should proceed in this defendant's interest. There is a single charge, it is a straightforward charge, and I am not able to imagine at this point this defendant entering . . . an acceptable credible, honest factual basis for the plea, and without such a basis, I am not permitted to accept [a] plea of guilty.
After explaining to the court that his client was "obviously extremely distraught," defense counsel requested a break to speak to his client. The judge agreed, reminding counsel that I will not accept a plea should your client explain . . . that he is doing this to get it over with, that he doesn't like his lawyer, that he doesn't understand. . .
[U]nless he is prepared to be sworn and offer a factual basis which in his own words establishes his guilt freely, voluntarily, soberly, I will not accept the plea.
After the break, defendant advised the court that his client wished to plead guilty "without a plea bargain." The prosecutor agreed, after reiterating on the record that defendant was "extended-term eligible" and "could conceivably receive a 10- year state prison sentence with a 5-year parole ineligibility."
The judge then addressed the defendant:
Q: Why do you now wish to plead guilty in the middle of this trial?
A: Okay, Your Honor, I know that in this -in this case and this indictment, okay, I never report I move from room 9 to Wildwood, I never see my parole officer, I never called him, nothing, Your Honor. I know I'm guilty.
The judge read the indictment to defendant, who indicated that he understood it and wished to plead guilty to absconding. When asked if he had consumed any "medicine or other substance that might affect your ability to think clearly," defendant responded that he took "psych medication." He indicated that he took the medication at night and "had one last night but not today." The purpose of the medication, according to defendant was "to sleep at night, and also to keep me calm so that I don't . . . hear voices." But he indicated that he was "thinking clearly now."
The following factual basis was then placed on the record:
Q: [O]n August 6th of 2001 were you placed upon parole as a result of a conviction that you received in Cape May County?
Q: At the time you were placed under parole you were given certain rules and regulations that you were to comply, is that correct?
Q: And, in fact, you signed a certificate of parole indicating what the conditions of your parole would be, is that correct?
Q: You understood those conditions when you signed it?
Q: One of those conditions was that you were to report to your parole officer, is that correct?
Q: And subsequent to signing those parole conditions did there come a period of time during March and April of 2002 when you failed to report to your parole officer?
Q: Did there - was there also a condition of your parole that was explained to you that you were to report to your parole officer or to the parole office any change in residence?
Q: And did there come a time when you were living at the Economy Motel, which was your approved residence in Cape May County, and that you moved from that residence?
Q: And did you fail to report that change of residence -
Q: - to your parole officer?
The trial judge then asked defendant why he failed to report the change of residence, leading to the following exchange:
THE COURT: Why did you fail to report the change?
MR. PINEIRO: Your Honor, I had a lot of things on my mind at that time. When I came out from ...