June 3, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
GUAROA SOLANO, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 05-12-1472-A.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 7, 2008
Before Judges Sapp-Peterson and Messano.
On December 8, 2005, defendant Guaroa Solano pled guilty to Passaic County Accusation 05-12-1472, charging him with third-degree possession of marijuana with intent to distribute within a school zone, N.J.S.A. 2C:35-7, and two counts of third-degree possession of a handgun without a requisite permit to carry same, N.J.S.A. 2C:39-5(b). On April 6, 2006, after denying defendant's impromptu motion to retract his guilty plea, the judge sentenced defendant in compliance with the plea agreement to concurrent three-year terms on each count, with an eighteen-month parole disqualifier on the school zone count, and imposed the required monetary penalties and license suspension. Defendant consented to the entry of an order forfeiting the two handguns and $3777.
On appeal, defendant raises the following point for our consideration:
THE COURT ERRED IN DENYING DEFENDANT'S MOTION TO WITHDRAW HIS GUILTY PLEA BECAUSE IT WAS NOT MADE KNOWINGLY AND WITH AN UNDERSTANDING OF THE WAIVER OF HIS FOURTH AMENDMENT RIGHT TO SUPPRESS THE SEIZED EVIDENCE. IN ADDITION, DEFENSE COUNSEL'S FAILURE TO PURSUE THE RETRAXIT MOTION CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL.
In a pro se brief in support of the appeal, defendant also raises the following points:
DEFENDANT WAS DENIED HIS [SIXTH] AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL. THEREBY DENYING HIM HIS [FOURTH] AMENDMENT RIGHT TO UNLAWFUL ARREST, SEARCH AND SEIZURE, AND HIS [FOURTEENTH] AMENDMENT RIGHT TO DUE PROCESS.
DEFENDANT WAS ILLEGALLY CONVICTED AND SENTENCED, BECAUSE THE AFFIDAVIT THAT WAS USED TO SEARCH HIS RESIDENCE WAS DEFECTIVE, THEREBY THE DEFENDANT HAS BEEN UNLAWFULLY ARRESTED, CONVICTED, AND SENTENCED.
THE STATE FAILED TO ESTABLISH PROBABLE CAUSE TILL AFTER THE ARREST, AND THIS MAKES THE DEFENDANT'S SENTENCE  ILLEGAL.
Having considered these arguments in light of the record and applicable legal standards, we affirm.
At the time of his guilty plea and with defense counsel present, the judge extensively questioned defendant regarding the plea agreement. She advised defendant that although the plea agreement permitted the State to seek a maximum sentence of four years imprisonment, having conferenced the case with the prosecutor and defense counsel, she "believed" the prosecutor had no "real objection . . . to an outside number of three [years]," and that she was "willing to do that." R. 3:9-3(c). The judge further advised defendant that by pleading guilty to the accusation, he was foregoing his right to have the case presented to a grand jury, and defendant acknowledged that he was waiving that right freely and voluntarily. Defense counsel acknowledged his receipt of the discovery.
The judge advised defendant of the various rights he was waiving by not going to trial, and she specifically advised defendant that he was waiving his right "to challenge--in your case there was a search warrant, to challenge the validity of the search warrant." Defendant acknowledged those rights and freely waived them.
Defendant then provided a factual basis for his guilty plea, admitting that on the day in question 1) the police arrived at his residence with a search warrant; 2) he cooperated with them and showed them where he had marijuana, knowing it was illegal to possess it; 3) that he intended to "share or sell the marijuana"; 4) that his home was within one-thousand feet of a school; and 5) that he had two pistols that he had acquired outside of his home and "carried them without a permit" to his home.
On the day he was to be sentenced, defendant was represented by a different defense counsel whose partner had "put the plea through." Defense counsel explained that subsequent to the preparation of the pre-sentence investigation report, in which defendant "reaffirm[ed] his guilt," defendant "came to [defense counsel's] office," "wanted to see some discovery," which was provided, and "came back and said that he thought there was a problem with the affidavit in support of the search warrant."
Defense counsel explained that the affidavit "in addition to . . . two or three undercover sales," also alleged a prior arrest of defendant for "possession with intent to distribute heroin." Defense counsel explained that defendant's prior arrest was for distribution of marijuana, but the data had been erroneously entered into defendant's prior computerized criminal history upon which the affiant relied. Acknowledging that this was not a "willful misrepresentation" on the officer's part in completing the affidavit, defense counsel then indicated that "[i]t was both my partner's and my opinion that it wasn't material or relevant." Nevertheless, defense counsel advised the judge that defendant "wants me to request [you] to let him vacate his plea."
Defense counsel further explained that if defendant's guilty plea was retracted, he faced significantly greater exposure based upon the initial charges, "possession of . . . two handguns while committing a CDS offense." Noting that the State's original plea bargain offer was "five years with a five year stip concurrent to four years [with] eighteen [months]," defense counsel told the judge that he was making the request, "because that's what [defendant] has asked me to do."
The judge observed that she was hearing about the application for the first time, and that she did not have the affidavit before her. She inquired of the prosecutor regarding the State's position. He acknowledged the error in the affidavit, but noted that the affidavit also included the facts surrounding two "controlled buys" a confidential informant made from defendant. Therefore, he contended the warrant was based upon sufficient probable cause despite the error regarding defendant's prior arrest.
The judge determined the affidavit contained "excusable misinformation" regarding the prior arrest. She decided not to delay the sentencing, and indicated that "if [defendant] cho[se] to file a motion to retract his plea, [she] w[ould] hear it." When he was afforded an opportunity to speak regarding his sentence, defendant told the judge that the mistake regarding his prior record was "not the only error" in the affidavit. He told her that the "warrant wasn't filed in compliance with the Attorney General['s] directive regarding enforcement of search warrants." He further noted that the "dates and dispositions of the [prior] offenses . . . [were] not included" in the affidavit.
Defendant continued that "[a]fter [he] saw the discovery, which was after [he] entered the plea, [he] became aware of a case . . . [that] indicated that the disposition [of] offenses should be included in that warrant." He also contended that the officers executed a "no-knock entry" despite the fact that the warrant did not permit that.
The judge noted, "[T]his is very late to be bringing all this up." She continued, "I haven't heard one thing that would affect my decision on the plea." Defense counsel advised the judge that "we went over the discovery with the defendant," but acknowledged that he may not have reviewed the actual warrant with defendant because that was "not something that the defendant reviews." He concluded, "[Q]uite frankly when we reviewed the affidavit we thought it a good search warrant, and that's why we never pursued it." The judge denied defendant's request to retract his plea, once again noting he was free to make a motion, but concluding, "Everything you['re] raising if fully true would not effect (sic) my decision on the search warrant or the plea." She then imposed sentence.
The record does not disclose that defendant ever filed any subsequent motion to retract his plea based upon the issues he raised at the time of sentence. Like the judge, we have not been provided with the affidavit in question that supported the search warrant or any affidavits or certifications by defendant that would support his assertions regarding the alleged errors in the affidavit, the claimed violations of the Attorney General's guidelines he referenced, or the method the officers used to secure entry into his residence. Therefore, we decline the opportunity to address the substance of his claim, i.e., that the affidavit was deficient or that the search and seizure of the evidence violated his constitutional rights.
The inadequacy of the record in this regard equally limits our consideration of any claim that defendant makes regarding the ineffective assistance of his trial counsel. In order to succeed on such a claim, defendant must meet the dual prong test enunciated in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). First, he must show "'that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed . . . by the Sixth Amendment.'" Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693). Second, defendant must prove that he suffered prejudice due to counsel's deficient performance. Strickland, supra, 466 U.S. at 691-92, 104 S.Ct. at 2066-67, 80 L.Ed. 2d at 696. Defendant must show by a "reasonable probability" that the deficient performance affected the outcome. Fritz, supra, 105 N.J. at 58. It naturally follows that based upon the inadequate record, we can make no judgment regarding defendant's likely success as to the second prong, that is, whether a motion to suppress evidence, if brought, had a reasonable chance of success.
Moreover, although defendant acknowledges that most ineffective assistance claims should be reserved for post-conviction relief because they involve assertions outside the trial record, State v. Preciose, 129 N.J. 451, 460 (1992), he claims that "the ineffectiveness claim is ripe for review . . . because the record contains sufficient evidence." We disagree because 1) we cannot properly judge the likelihood of success of the motion to suppress that was never brought, and 2) factual disputes exist regarding defense counsel's decision to not file the motion in the first place, and what, if any knowledge defendant possessed in that regard. Defendant is free to pursue these issues in an appropriate petition for post-conviction relief.
As a result, defendant's claim that the judge should have permitted him to retract his plea of guilty must be examined in light of the circumstances that existed on the day of sentencing, when, for the first time, and without any support, defendant sought to retract his guilty plea. We cannot conclude that the trial judge mistakenly exercised her discretion in denying defendant's request.
The trial judge is entitled to exercise broad discretion when considering a motion to withdraw a guilty plea. State v. Bellamy, 178 N.J. 127, 135 (2003). "[T]he burden rests on the defendant to establish why the motion to withdraw his or her guilty plea should be granted." State v. Luckey, 366 N.J. Super. 79, 86 (App. Div. 2004). A defendant must "present some plausible basis for his request, and  good faith in asserting a defense on the merits, so the trial judge is able to determine whether fundamental fairness requires a granting of the motion." State v. Huntley, 129 N.J. Super. 13, 17 (App. Div.), certif. denied, 66 N.J. 312 (1974). Although the judge should exercise her discretion liberally when the motion is made before sentence, "[l]iberality in exercising discretion does not mean an abdication of all discretion." Ibid. Because of the important public interest in finality, a "'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 Huntley, supra, 129 N.J. Super. at 18). In the end, "the measure of what constitutes [a] fair and just reason for withdrawal must be reposed in the sound confidence of the [trial] court." Id. at 417.
Here, defendant does not contest that his decision to plead guilty was made freely and "voluntarily, not as a result of any threats or of any promises or inducements not disclosed on the record, and with an understanding of the nature of the charge and the consequences of the plea." R. 3:9-2. Specifically, defendant acknowledged that he was waiving his right to contest any illegality as to the search of his residence and the seizure of the marijuana and the guns that resulted in his arrest. What he now contends, as he did on sentencing day, is that he would not have waived that right if he had seen the affidavit in support of the search warrant, and, thus his decision to plead guilty was not a voluntary one.
We conclude that the trial judge did not mistakenly exercise her discretion by denying this unsupported, belated request. Defendant's pro se legal opinion that a motion to suppress might have been granted, despite his attorney's conclusion otherwise, hardly presents a reasonable basis to override the finality that should normally be accorded the earlier entry of a guilty plea that fully conformed with the requirements of Rule 3:9-2.
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