On appeal from the Superior Court of New Jersey, Law Division, Morris County, Indictment No. 02-10-01279.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 23, 2007
Before Judges Axelrad and R. B. Coleman.
Defendant Pedro A. Capelli appeals from a June 18, 2004 order denying his motion to withdraw his guilty plea. A Morris County Grand Jury returned Indictment No. 02-10-01279, charging defendant with fourth degree possession of marijuana with the intent to distribute, N.J.S.A. 2C:35-5 (count one), and third degree possession of marijuana with the intent to distribute within 1000 feet of a school zone, N.J.S.A. 2C:35-7 (count two). On February 13, 2003, defendant entered into a plea agreement whereby the State agreed to recommend to the court a sentence of four years with a two-year parole ineligibility.*fn1 The plea form also included the State's representation and agreement that the "State will consider mitigating factor 12." That same day, defendant and the State entered into a written cooperation agreement, signed by the assistant prosecutor, defendant and defendant's attorney, which provided the following:
3. It is understood by the defendant that, by law, the potential maximum sentence he could receive under that plea of guilty is a maximum sentence of 5 years New Jersey State Prison with 36 months of parole ineligibility. The defendant also understands that pursuant to the negotiated Brimage plea, the State will recommend a 4-year prison sentence with 24 months parole ineligibility at the time the defendant is sentenced on Indictment 02-10-01279-I. It is further understood and agreed by the parties that the defendant shall consent to the adjournment of sentencing until such time as his cooperation is no longer required by the Morris County Prosecutor's Office.
The State's sentencing recommendation to the court would ultimately depend upon the nature and extent of defendant's cooperation. More particularly, at Paragraph 4, the cooperation agreement provided:
At sentencing, this Office will make the nature and extent of the defendant's cooperation known to the Court and make whatever specific sentence recommendation is deemed appropriate by this Office under the circumstances. If this Office concludes that the defendant has provided full and complete truthful cooperation, this Office will recommend the following sentence recommendation: upon completion of a 2nd degree controlled dangerous substance prosecution, a 4-year prison sentence; upon completion of a 1st degree controlled dangerous substance prosecution, a 3-year prison sentence; upon completion of both a second degree and a separate first degree controlled dangerous substance prosecution, a probationary sentence with a maximum of 364 days in the Morris County Correctional Facility. Separate prosecutions does not include co-defendants in the same investigation. The defendant understands that this Agreement is conditioned upon the production of a viable first and/or second degree criminal prosecution. The determination as to whether the defendant has provided full and complete cooperation shall be solely in the discretion of this Office.
The cooperation agreement also contained a provision at Paragraph 10, whereby defendant expressly recognized that "the Court has the authority to reject any sentence recommendation made by [the State] and sentence the defendant to a more severe sentence the Court deems appropriate." Although that same Paragraph 10 recited that defendant waived his right to withdraw his plea of guilty, on May 14, 2004, defendant moved to withdraw his guilty plea.
On his motion, defendant contended, as he does on this appeal, that he believed that if he helped the State prosecute a second degree offender, he would receive only a probationary term. Defendant's motion was heard on June 18, 2004, where all parties agreed that defendant had, in fact, cooperated in the prosecution of a second degree offender. The judge rejected defendant's motion to withdraw the plea of guilty, finding that the cooperation agreement was clear on its face. Thereafter, the judge sentenced defendant, in accordance with the plea agreement, to a four-year term in prison with a two-year parole disqualifier.*fn2
Defendant's motion to file his appeal nunc pro tunc was granted on November 12, 2004. In this brief on appeal, defendant raises a single issue. His point heading simply states:
THE APPELLANT'S SENTENCE SHOULD BE VACATED.
We find insufficient merit in defendant's position to warrant a written opinion, R. 2:11-3(e)(2), but we add the following comments.
On appeal, defendant contends that he should be allowed to withdraw his guilty plea because he believed that, if he assisted in the prosecution of a second degree offender, he would be sentenced to only a probationary term. That contention is premised on an alleged off-the-record conversation between defendant and his counsel at the time of the plea hearing, at which time counsel told defendant that he would only need to provide cooperation for a second degree conviction in order to receive the probationary term. On that premise, defendant argues that "[s]ince [he] was misinformed as to his rights and obligations, he was not counseled competently and his plea could not have been made intelligently or knowingly." The motion judge determined that defendant's position -- supported only by an understanding that was ...