June 1, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
RICHARD A. PIZZI, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Union County, 05-04-00507.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 21, 2007
Before Judges Lintner and Seltzer.
On April 12, 2005, Union County Accusation No. 05-04-00507 charged defendant, Richard Pizzi, an attorney,*fn1 with two counts of second-degree misapplication of entrusted funds, N.J.S.A. 2C:21-15. Pursuant to a negotiated plea agreement, defendant waived indictment and pled guilty to both counts, with the understanding that the State would recommend a maximum nine-year sentence on each count to run concurrently, and defendant would make restitution to his victims.*fn2
Defendant's sentence hearing was held on August 16, 2005. Defense counsel argued that under the then two-week-old decision in Natale II,*fn3 after considering mitigating and aggravating factors, the judge should "under cut" the plea agreement and impose a seven- or eight-year sentence. The judge imposed concurrent eight-year terms. He ordered defendant to make restitution in accordance with the plea agreement. Appropriate fines and penalties were assessed.
On appeal, defendant raises the following points:
DEFENDANT IS ENTITLED TO WITHDRAW HIS GUILTY PLEA BECAUSE HIS REASONABLE EXPECTATIONS UNDER THE PLEA WERE NOT FOLLOWED.
THE EIGHT-YEAR TERM OF IMPRISONMENT IS TRULY EXCESSIVE FOR THIS DEFENDANT. INSTEAD OF A TERM OF IMPRISONMENT, THE COURT SHOULD HAVE IMPOSED A NON-CUSTODIAL TERM.
We reject defendant's contentions and affirm.
Defendant asserts he should be entitled to withdraw his plea because he "was not advised when he entered the plea that the presumptive sentencing system, which had governed sentencing . . . would no longer be in existence when he came due for sentencing." He argues that, as a result, his plea was not voluntarily and knowingly entered into because he no longer had the benefit of the presumptive term.
R. 3:21-1 provides that "[a] motion to withdraw a plea of guilty . . . shall be made before sentencing, but the court may permit it to be made thereafter to correct a manifest injustice." Defendant did not move to withdraw his plea prior to sentencing despite his knowledge of the decision in Natale II. The argument, now belatedly advanced on appeal, was not presented to the judge during sentencing, thus requiring us to view the issue in the context of plain error. R. 2:10-2. More importantly, the comments of defense counsel at sentencing made it abundantly clear that, in his view, the ruling in Natale II required the judge to "under cut" the recommended nine-year sentence by one or two years. The judge did just that, applying and balancing aggravating factor N.J.S.A. 2C:44-1a(9) (the need to deter) against mitigating factor N.J.S.A. 2C:44-1b(7) (no prior history of criminal activity), finding the aggravating factor weightier and imposing a term of one year above the former presumptive term.
To withdraw a plea following a negotiated plea agreement, a defendant is required to "show that he or she was '"misinformed" about a material element of a plea negotiation' or that his or her '"reasonable expectations," grounded in the terms of the plea agreement' were not fulfilled, and that he or she 'is prejudiced by enforcement of the agreement.'" State v. Luckey, 366 N.J. Super. 79, 88 (App. Div. 2004) (quoting State v. Howard, 110 N.J. 113, 122-23 (1988)). A "plea will not be vacated if knowledge of the consequences would not have made any difference in the defendant's decision to plead." Howard, supra, 110 N.J. at 123. Defendant's successful reliance on Natale II at the sentencing proceedings, without moving to withdraw his plea, forecloses any argument that the elimination of the prior presumptive term somehow prejudiced his rights.
Defendant argues that with the elimination of the presumptive term there is nothing to prevent a sentencing court from starting at the top of the sentencing range rather than the former presumptive term. In support of that argument, he relies on the following statement from Natale II, supra, 184 N.J. at 488:
Although judges will continue to balance the aggravating and mitigating factors, they will no longer be required to do so from the fixed point of a statutory presumptive.
Defendant's quoted reference leaves out the very next passage:
We suspect that many, if not most, judges will pick the middle of the sentencing range as a logical starting point for the balancing process and decide that if the aggravating and mitigating factors are in equipoise, the midpoint will be an appropriate sentence. That would be one reasonable approach, but it is not compelled. [Ibid.]
As we previously pointed out, the judge's decision to undercut the plea agreement by imposing concurrent eight-year terms was in accord with the specific arguments advanced by defendant. Simply stated, on this record, there is no showing that defendant's reasonable expectation under the plea agreement was dishonored by the application of the decision in Natale II. Likewise, absent is any reasonable demonstration that advanced knowledge of the intervening decision in Natale II would have in any way changed defendant's decision to enter into the plea agreement.
Finally, we are satisfied, after a full consideration of defendant's contention and supporting argument, that the sentence imposed is not manifestly excessive or unduly punitive and does not constitute an abuse of discretion. See State v. Ghertler, 114 N.J. 383, 393 (1989); State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Roth, 95 N.J. 334, 363-65 (1984).