December 10, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
VITO RUSSO, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 97-02-0209.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 8, 2007
Before Judges Lisa and Simonelli.
Defendant Vito Russo appeals from the September 5, 2006, order denying his petition for post-conviction relief (PCR). On this appeal, defendant raises the following arguments:
THE LOWER COURT ORDER MUST BE REVERSED SINCE THE SENTENCE WAS ILLEGAL DUE TO THE IMPOSITION OF CONSECUTIVE TERMS AND AN AGGREGATE SENTENCE WHICH IS EXCESSIVE.
THE LOWER COURT ORDER MUST BE REVERSED SINCE THE PLEA WAS NOT MADE VOLUNTARILY AND KNOWINGLY.
THE LOWER COURT ORDER MUST BE REVERSED IN LIGHT OF NUMEROUS ADDITIONAL ERRORS.
THE LOWER COURT ERRED IN NOT CONDUCTING AN EVIDENTIARY HEARING AND THE LOWER COURT ORDER MUST THEREFORE BE REVERSED.
Between June and August 1996, defendant was in Kennedy Park in Sayreville and approached a twelve-year-old boy, R.K., and touched R.K.'s buttocks through the child's clothes. On another date between June and August 1996, defendant was again in Kennedy Park and tried to persuade R.K. to sit with him on a park bench located near his truck. Defendant asked R.K. to come to the bench with the intention of touching him. Defendant was again in Kennedy Park between June and August 1996, and approached a thirteen-year-old boy, K.J., and asked him to sit on a park bench located near defendant's truck.
Defendant brought K.J. to the bench for the purpose of touching him. A grand jury indicted defendant for first degree aggravated sexual assault, contrary to N.J.S.A. 2C:14-2a (count one); third degree endangering the welfare of a child, contrary to N.J.S.A. 2C:24-4a (count two); third degree luring, contrary to N.J.S.A. 2C:13-6 (counts three and four); and fourth degree endangering the welfare of a child, contrary to N.J.S.A. 2C:24-4b(5)(b) (count five).
Defendant entered a retraxit plea of guilty to count one, which was amended to second degree sexual assault, and to counts three and four. In exchange for defendant's guilty plea, the State agreed to recommend a maximum sentence of ten years on count one with a five-year period of parole ineligibility and a consecutive four years on counts three and four with an eighteen-month period of parole ineligibility. The State also agreed to dismiss the remaining counts and a contempt warrant. On July 18, 1997, defendant, then represented by counsel, appeared at a plea hearing before Judge Barnett E. Hoffman and entered a negotiated plea of guilty to the amended count one and counts three and four. Judge Hoffman questioned defendant about his understanding of his rights and defendant acknowledged he wanted to voluntarily waive them. Defendant also acknowledged that he: understood the meaning of "consecutive"; would be sentenced to eighteen years and had to serve eight years before being eligible for parole; could have no contact with children when released from jail; had two prior sex convictions, which required him to serve five years before being eligible for parole; served time on his other charges at the Adult Diagnostic and Treatment Center (ADTC); and had to go to Avenel for another exam and, if found to be repetitive and compulsive, would serve his sentence at the ADTC and wanted to go back there. Defendant further acknowledged that he understood that if he served his sentence at the A.D.T.C., the normal parole guidelines would not apply and he could serve more time at the ADTC than he would in State prison; and had to comply with Megan's Law. Judge Hoffman accepted the plea after determining it was made voluntarily, had a factual basis, and defendant understood the nature of the charges and consequences of the plea.
At the sentencing hearing on January 12, 1998, defendant's counsel asked Judge Hoffman to deviate from the plea agreement and impose concurrent sentences on count one of ten years, with a five-year period of parole ineligibility, and on count three of four years with a one and one-half year period of parole ineligibility, and a consecutive sentence on count four of four years with a one and one-half year period of parole ineligibility. The judge declined to do so and sentenced defendant in accordance with the plea agreement, stating:
The reasons for my sentence, defendant who is fifty pled guilty to second degree sexual assault and two counts of third degree luring.
Defendant was found to be repetitive and compulsive by the A.D.T.C. He has a long history of similar crimes. He was previously incarcerated at the A.D.T.C. The evaluator stated that the defendant's history shows a clear pattern of chronic pedophilic interest in juvenile males. He also has other psychiatric problems. Defendant is a clear sexual predator to young men. He should be incarcerated as long as possible under the plea agreement. At least five years of the parole disqualifier is mandatory.
Aggravating factors are the risk of commission of another offense, harm to the victim, prior record and need to deter.
The only mitigating factor is defendant's realization of his problem which he cannot control.
Defendant did not appeal.
On December 9, 2003, defendant filed a PCR petition.*fn1 He contended that he did not enter his guilty plea voluntarily and knowingly because he was under the influence of prescription medication at the time, which made him unclear about the sentence. He claimed that he understood his sentences were to run concurrently, not consecutively. Defendant also contended that the three consecutive sentences were illegal and the aggregate term was excessive.
Judge Deborah J. Venezia rejected defendant's contention that his plea was not made voluntarily and knowingly because he was on medication, stating:
And the first point alleges that he was under the influence of prescription drug medications given to him while he was at the adult correctional center. And although he doesn't recall the names of the medications and does not produce because of unavailability ostensibly such records to support the administration of such medications, he maintains that they made him unclear and he didn't know what sentence he was facing; that he didn't understand that his sentence would run consecutive.
Resort to review of the plea transcript and the plea form demonstrates a clear indication that the defendant was told and clearly was aware of the exposure he faced and that the recommendation was for the maximum and that the sentences would run consecutive.
Judge Hoffman indicated that -- the defendant was asked if he understood what the term consecutive meant. He replied in the affirmative. Judge Hoffman went on further to explain, even though he indicated in the affirmative, "That means they run one after the other, not at the same time. So that means you get 18 years in jail and be required to serve eight before being eligible for parole." And when he was asked if he understood that, the defendant-petitioner again replied in the affirmative.
There is no indication from the plea transcript and no support for the allegation that this defendant-petitioner's plea was anything but knowing and voluntary. And, therefore, on that point I deny the request for post-conviction relief.
Judge Venezia also rejected defendant's contention that his sentence was illegal and excessive, stating:
As to the sentence and that the court should have sentenced the defendant to concurrent terms, albeit the sentence is lengthy, the crimes for which the defendant pled, again, pursuant to a sentence recommendation which came as the result of the negotiated plea, contemplated an aggregate sentence, which was clearly set forth and which the defendant indicated that he understood. And under the law clearly the court has -- was clearly within the sentence recommendation and the law by imposing consecutive terms.
They were -- we know that State v. Yarbough[, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014, 106 S.Ct. 1193, 89 L.Ed. 2d 308 (1986)] sets forth the factors to be considered, the guidelines to assist the courts in determining whether to impose concurrent or consecutive sentences. And that the judge stated his statement of reasons in that he considered the degree of recidivism as part of his statement of reasons supporting the sentence that he imposed.
Therefore, I do not find that this argument with respect to the imposition of a consecutive sentence as opposed to concurrent sentence warrants the relief requested in the petition.
On this appeal, defendant again contends that his plea was not voluntary and knowing because he was under the influence of prescription medication at the time of the plea. The record does not support this contention. There is no evidence that defendant was on any medication at the time of the plea, or, if he was on medication, which medication it was and whether it prevented him from voluntarily and knowingly entering the plea. Rather, the record clearly shows that defendant was fully informed about the plea agreement and understood the nature of the charges and the consequences of his plea.
Defendant also contends that his consecutive sentences were illegal and excessive. This contention is without merit. Defendant's crimes were not part of a continuing series of events. He committed three separate crimes against two young boys on three separate occasions over a three-month period. Thus, consecutive sentences were legal under Yarbough. Because the sentences were legal, their alleged excessiveness is not cognizable on a PCR petition, but must be raised on direct appeal, which did not occur here. R. 3:22-2; State v. Pierce, 115 N.J. Super. 346, 347 (App. Div), certif. denied, 59 N.J. 362 (1971); State v. Murray, 162 N.J. 240, 245-48 (2000).
Defendant also contends Judge Venezia erred in failing to conduct an evidentiary hearing. This contention is without merit. Defendant did not request an evidentiary hearing. Even if he did, he did not make the required showing that he was entitled to one. State v. Marshall, 148 N.J. 89, 157-58, cert. denied, 522 U.S. 850, 118 S.Ct. 140, 139 L.Ed. 2d 88 (1997); State v. Jack, 144 N.J. 240, 254 (1996).
Defendant's contention that Judge Venezia committed "numerous additional errors" is without sufficient merit to warrant discussion in a written opinion. Rule 2:11-3(e)(2).