March 7, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ROBERTO JIMENEZ, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 06-05-0520-1.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 11, 2008
Before Judges Parrillo and Baxter.
Following a one-count indictment charging fourth-degree attempted criminal sexual contact, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:14-2(c)(3), defendant, Roberto Jimenez, pled guilty to the charge. On the scheduled date for sentencing, without benefit of a formal motion, defendant sought an adjournment in order to allow recently retained new counsel to review discovery and determine whether further application for withdrawal of his guilty plea was indicated. The court denied the verbal request and sentenced defendant, in accordance with the plea agreement, to a two-year non-custodial probationary term, subject to supervision under Megan's Law, N.J.S.A. 2C:7-1 to -21. Defendant appeals, and we affirm.
Briefly, by way of background, at time of guilty plea on June 27, 2006, thirty-year old defendant admitted under oath that on October 23, 2005, while at home, he attempted to engage in non-consensual sexual contact with N.D., who was sixteen years old. According to defendant, he got on top of her on the bed and tried to touch her breasts against her will. N.D. tried to push defendant away and she eventually succeeded. Defendant acknowledged his actions were degrading to the victim and occurred while N.D. was under his care and supervision, since the girl's mother was in the hospital and her father was out-of-state.
In addition to providing a factual basis for the guilty plea, defendant acknowledged that he had sufficient time to consult with his attorney, was satisfied with his services, understood the proceeding, and entered his guilty plea freely and voluntarily. Following his guilty plea, defendant also admitted his guilt to the probation officer preparing his presentence report.
Approximately four months later, on October 20, 2006, the day before his scheduled date of sentencing, defendant retained new counsel. The following day, at sentencing, defendant, through new counsel, and without benefit of either a formal motion or a proffer, requested an adjournment to allow his attorney to review discovery and the transcript of the guilty plea hearing in order to further determine the propriety of moving to withdraw defendant's guilty plea. In support of the oral request, counsel claimed there was a witness, to whom he had not yet spoken, who supposedly could provide information favorable to the defense.
In requiring some minimal proffer, the judge allowed a brief intermission for counsel to confer with defendant. During the ensuing two-hour "lunch break," defendant apparently told counsel he had been pressured into pleading guilty. Also, according to counsel, a witness, Madeline Durante, who had previously accompanied the victim to the police station on November 23, 2005 to report the crime, may have relevant information. Supposedly, this witness was now denying the incident could have occurred and alleging the victim had coerced the testimony of another child to support her accusation against defendant. However, despite the opportunity afforded counsel, he was still unable to offer anything more specific than the vague, generalized allegations reported. Counsel failed to provide any details about the witness' version and, therefore, could not ascertain the credibility thereof. Nor did he or the witness ever review the victim's statement in the matter. In fact, counsel not only failed to appear in court after the lunch break, but apparently represented that defendant's original counsel would handle defendant's sentencing.
In ultimately rejecting the adjournment request, the judge noted:
This is completely vague and I can't even follow it, especially you, Mr. Fernandez [(new counsel)]. You don't have a lot of information. I can't even follow you.
The court continued, reiterating its conclusion that there were no grounds for withdrawal of the plea, even if a formal motion had been made:
Quite honestly, and I'm not being critical of Mr. Fernandez, I know he's in a difficult position and didn't have discovery, but it was basically relying on what defendant may be telling him and it was coming out pretty disjointed.
I didn't hear anything that would persuade me to adjourn the case when the victim is here and the defendant told me that he committed the offense and acknowledged or re-acknowledged his plea of guilty.
I then after lunch -- I then said I wasn't going to adjourn it. Mr. Fernandez indicated Mr. Sciro [(initial counsel)] is going to handle the sentence. Let me say this, if I get a motion, I'll read it. I'll carefully consider it. I'm just not going to do it -- I'm not going to adjourn the sentence on the information I received today, which, again, was somewhat disjointed and did not approach, in my mind, a reason to vacate this plea, at least from what I heard.
On appeal, defendant argues the trial court abused its discretion in denying his adjournment request. We disagree.
A trial court has considerable discretion in entertaining a motion for an adjournment. State v. McLaughlin, 310 N.J. Super. 242, 259 (App. Div.), certif. denied, 156 N.J. 381 (1998); State v. D'Orsi, 113 N.J. Super. 527, 532 (App. Div.), certif. denied, 58 N.J. 335 (1971). Here, there was no abuse of discretion in the denial of defendant's request given the lateness of the oral application, the lack of any formal motion, the sixteen-year old victim's presence in court on the day of sentencing, and the very nature of the crime for which defendant was scheduled to be sentenced. Just as significant, defendant offered nothing more than speculation to support the claimed reason for the adjournment request in the first place, namely the likely success of a motion to withdraw his guilty plea.
On this score, the trial court also enjoys considerable discretion in entertaining a motion to withdraw a guilty plea. State v. Luckey, 366 N.J. Super. 79, 87 (App. Div. 2004). Under Rule 3:21-1, which provides the governing standard, "the burden rests on the defendant to establish why . . . [such a] motion . . . should be granted." Luckey, supra, 366 N.J. Super. at 86. In considering a motion to withdraw a guilty plea, the timing of the plea, the fact that it was a negotiated disposition terminating the need for trial, and the nature of the charges, are factors that must be considered. Id. at 87-88.
Thus, "'defendant's burden of presenting a plausible basis for his request to withdraw his guilty plea is heavier' when the plea is entered pursuant to a plea bargain." State v. Smullen, 118 N.J. 408, 416 (1990) (quoting State v. Huntley, 129 N.J. Super. 13, 18 (App. Div.), certif. denied, 66 N.J. 312 (1974)). Moreover, "[t]hat the guilty plea [here] was to [a] sexual assault is of particular significance . . . ." Luckey, supra, 366 N.J. Super. at 88. As the Supreme Court has observed:
[C]hild-sexual-assault cases are extremely difficult, both for the defendants and the victims. Courts taking pleas are undoubtedly conscious of the need to end the suffering. The trial court tried to balance the interests of finality and fairness to the defendant by fully alerting him to all relevant consequences. This record clearly indicates that the plea of guilty was the product of a free and rational choice, made with the advice of competent counsel. There has been no showing that there may have been a miscarriage of justice. [Smullen, supra, 118 N.J. at 418.]
And, although the judge's discretion to vacate a guilty plea is liberally exercised when the defendant's motion is made before sentencing, State v. Deutsch, 34 N.J. 190, 198 (1961), nevertheless, in order to vacate a negotiated plea bargain, "the defendant must 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.'" Luckey, supra, 366 N.J. Super. at 88 (quoting State v. Howard, 110 N.J. 113, 122-23 (1988)); see also R. 3:21-1.
Here, defendant has presented no plausible basis -- much less fair and just reason -- for his request for an adjournment or, for that matter, for a putative motion for withdrawal of his guilty plea. His so-called proffer on the day of sentencing amounted to no more than vague, gauzy representations as to what the so-called witness might testify. Consequently, counsel's assertion as to the usefulness of this prospective testimony is simply rank speculation, grossly insufficient to support defendant's belated adjournment request, much less a potential motion to withdraw a guilty plea. In other words, defendant offers little more than a change of mind to commend itself to the discretion of the court. Indeed, absent here are even the late protestations of innocence that we nonetheless found wanting in Smullen, supra, 118 N.J. at 417 and Huntley, supra, 129 N.J. Super. at 18.
On the contrary, the record is clear that defendant's guilty plea was freely and intelligently entered, with advice of competent counsel and supported by a factual basis, all in full compliance with the mandates of Rule 3:9-2. Thus, given the negotiated disposition in this case, the sexual nature of the crime charged, defendant's knowing and voluntary admission of guilt, as well as the lateness of and lack of any plausible basis to support a motion for withdrawing the guilty plea, the trial court cannot be said to have mistakenly abused its discretion in denying the adjournment request and proceeding to sentencing as scheduled.
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