October 18, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
SAMUEL A. VERDUCCI, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Hunterdon County, 05-01-0024-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 2, 2007
Before Judges Winkelstein and Yannotti.
Defendant Samuel Verducci pleaded guilty to second-degree eluding, N.J.S.A. 2C:29-2b (count one); third-degree receiving stolen property, N.J.S.A. 2C:20-7 (count two); and third-degree criminal simulation, N.J.S.A. 2C:21-2.1c (count three). The court imposed a ten-year prison term on the eluding charge, and five-year prison terms on the receiving stolen property and criminal simulation charges, all concurrent with each other and with another sentence defendant was serving at the time.
In addition to the three charges in the indictment, defendant was charged with ten motor vehicle offenses: two charges of speeding; having no registration for the vehicle he was driving; having no insurance for the vehicle he was driving; not having a valid driver's license at the time he was driving the vehicle; reckless driving; failing to maintain a lane; not wearing a seatbelt; having an uninspected vehicle; and a marker violation. As part of his plea agreement, he pleaded guilty to one speeding charge, and to three additional charges: that he had no registration for the vehicle; that he had no insurance for the vehicle; and that he did not have a valid driver's license while he drove the vehicle. The remaining six motor vehicle charges were dismissed as part of the plea agreement.
On appeal, defendant raises the following two points:
IT WAS PLAIN ERROR NOT TO ALLOW THE DEFENDANT TO WITHDRAW HIS PLEA; A REVERSAL IS WARRANTED (NOT RAISED BELOW).
THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE AND SHOULD BE REDUCED.
According to defendant's testimony at his plea hearing, on March 18, 2004, he was stopped by the police for speeding in Readington Township, Hunterdon County. At that time, he had an outstanding warrant against him. Believing he was going to be arrested, he fled the scene, driving away at over 100 miles per hour. He called 911, asked the dispatcher to have the state police terminate their chase, and told the dispatcher that the high speed chase was creating a risk of death or injury to others. He was aware at the time that the vehicle he was driving was "purchased under false pretenses" and later reported stolen. He also testified that he had exhibited a fraudulently-obtained Arizona driver's license, in that it did not represent his real identity. He further acknowledged that the car was neither registered nor insured in his proper name.
At sentencing, defendant sought to withdraw his guilty plea. He asserted that he was innocent of the motor vehicle charges to which he had pleaded guilty; that he had a valid driver's license, that the car was registered and insured, even though the registration and insurance were in another name, and that his driver's license "was under one of [his] aliases." Defendant also asked the judge to make his sentence coterminous with a state prison sentence that he was already serving. The trial judge declined both applications.
An application to withdraw a guilty plea before sentencing is entitled to a more liberal standard than is an application made after sentencing. State v. Williams, 342 N.J. Super. 83, 89 (App. Div.), certif. denied, 170 N.J. 207 (2001). Nevertheless, "a plea entered pursuant to a plea agreement is entitled to a higher degree of finality." Ibid.
Here, even though defendant did not make a formal application to withdraw his plea pursuant to Rule 3:21-1, the court entertained his oral application and denied his request. We agree.
At the time defendant entered his plea, the court questioned him extensively about all the material terms of the negotiated plea agreement. Though during the plea colloquy defendant had asked a question pertaining to the traffic offenses, the court answered his question and defendant entered a guilty plea to each of the four traffic offenses. He testified that he understood he would be pleading guilty to traffic offenses, and he admitted his guilt to those charges. He understood the nature and consequences of his plea. He entered his plea voluntarily, and provided an adequate factual basis to support the plea. See R. 3:9-2; State v. Smullen, 118 N.J. 408, 414-15 (1990). Defendant's protestations to the contrary are without sufficient merit to warrant additional discussion. R. 2:11-3(e)(2).
We turn next to defendant's sentence. In imposing the ten-year term on the second-degree eluding charge, the judge made the following findings:
The presentence report reveals an extensive adult criminal background with multiple indictable convictions in New Jersey, New York, Arizona, Pennsylvania and Florida.
You [defendant] have served time for assault, aggravated assault, obstructing police, escape, robbery, robbery with a weapon, burglary, and forgery. You have had two escapes while in custody, and currently have an active bench warrant out of Arizona for possession of CDS and paraphernalia, both felony charges. You also have a pending charge in Union County for aggravated assault, eluding, receiving stolen property, and hindering your own prosecution, a criminal sex contact charge.
In reviewing the statutory sentencing factors, I find three aggravating factors. Number three, the risk that you will commit another offense. Your criminal history goes back to 1978 with multiple convictions and incarcerations, that has not deterred you from further criminal activity. Number six, the extent of your prior criminal record and the seriousness of the offenses of which you have been convicted. And number nine, the obvious need to deter you and others from violating the law.
There are no mitigating factors.
The aggravating factors outweigh the nonexisting mitigating factors.
The court also imposed appropriate fines and court costs, and suspended defendant's driving privileges, on the four motor vehicle violations to which defendant had pleaded guilty.
We conclude that the sentence imposed pursuant to the plea agreement, with a total prison term of ten years, was neither excessive nor in violation of State v. Natale, 184 N.J. 458 (2005). The judge followed the sentencing guidelines, appropriately weighed the aggravating and mitigating factors, and applied correct legal principles. State v. Roth, 95 N.J. 334, 364-65 (1984). The sentence was not an abuse of discretion.
Defendant's prison term was negotiated pursuant to a plea agreement. While a plea agreement, standing alone, does not constitute implicit consent to judicial factfinding of aggravating factors to support a sentence above the presumptive term, as long as a defendant stipulates to relevant facts or consents to judicial factfinding, and the sentence falls within the statutory sentencing range, a sentencing court is authorized to exceed the presumptive term for each conviction. State v. Soto, 385 N.J. Super. 247, 253-54 (App. Div.), certif. denied, 188 N.J. 491 (2006). Under these principles, we conclude that the judge did not violate Natale, supra, 184 N.J. 458, in imposing the ten-year term on the second-degree conviction, and the two concurrent five-year terms on the third-degree convictions.
Defendant's remaining argument, that his sentence should have been coterminous with the sentence he was then serving, is without sufficient merit to warrant discussion. R. 2:11-3(e)(2).
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