June 30, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
OVICK LEON, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. 04-11-1462.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 3, 2007
Before Judges A. A. Rodríguez and C. L. Miniman.
Defendant Ovick Leon was charged by a Morris County Grand Jury with eighteen offenses, which occurred in Morris, Essex and Union Counties. Defendant moved for severance and transfer of venue for the offenses that occurred outside Morris County. Judge Catherine M. Langlois denied this motion. Defendant then entered a negotiated plea of guilty to: second-degree burglary of a residence in Chatham Borough (Morris County), N.J.S.A. 2C:18-2a(1) (count two); second-degree eluding of police officers in the municipalities of Springfield (Union County) and Millburn (Essex County), N.J.S.A. 2C:29-2b (count six); third-degree receiving stolen property (a 1996 Nissan pick-up truck) in the municipalities of Chatham, Springfield and Montclair (Essex County), N.J.S.A. 2C:20-7a (count fifteen); and third-degree burglary of a residence in Montclair, N.J.S.A. 2C:18-2a(1) (count seventeen). In exchange, the State agreed to dismiss the remaining charges and recommend the following sentence: an eight-year term on count two, subject to a NERA*fn1 parole disqualifier; a concurrent seven-year term on count six; a consecutive four-year term on count fifteen; and four years for count seventeen, to run concurrently with count fifteen. Thus, the aggregate custodial sentence was twelve years.
Defendant's plea was conditional upon his right to appeal the denial of his motion for severance and change of venue. Judge N. Peter Conforti imposed the recommended sentence to run concurrently with a sentence that Leon was already serving. Defendant moved for a reduction or change in his sentence pursuant to R. 3:21-10. Judge Conforti denied the motion.
On appeal, defendant contends:
THE MOTION COURT ERRONEOUSLY DETERMINED THAT VENUE WAS PROPER IN MORRIS COUNTY FOR COUNTS SIX THROUGH EIGHTEEN OF THE INDICTMENT, AND THEREFORE THE DEFENDANT MUST BE AFFORDED AN OPPORTUNITY TO WITHDRAW HIS CONDITIONAL GUILTY PLEA.
A. The Motion Court Erroneously Determined That Venue Was Proper In Morris County For Offenses That Allegedly Occurred In Essex and Union Counties.
B. Receiving Stolen Property Within The State Is Not A Continuing Offense[.] Therefore[,] Venue Is Proper In The County In Which Possession Or Control Of The Property Was Acquired.
C. When A Pretrial Motion Is Wrongly Decided, The Defendant Must Be Afforded An Opportunity To Withdraw His Conditional Guilty Plea.
THE CONSECUTIVE SENTENCE IMPOSED BY THE COURT IS EXCESSIVE UNDER THE FACTS AND CIRCUMSTANCES OF THIS CASE.
This is a summary of the facts alleged by the State. At 12:45 p.m. on May 28, 2004, Morris County Police Officer George M. Holmes responded to Scotland Road to investigate the hijacking of a 1996 red Nissan pick-up truck. Holmes spoke with the owner of the pick-up truck, who stated that after exiting his truck, a man jumped in the driver's seat and sped off.
At 5:25 p.m. the next day, Montclair Police Detective David O'Dowd investigated a burglary at a single-family residence on Euclid Place. The homeowners reported that nobody was at home when the burglary occurred. Upon returning home later that evening, the homeowners noticed that the rear basement casement window had been kicked-in and the rear door was ajar. Detective O'Dowd interviewed a neighbor who observed a red pick-up truck pull in to the driveway and a man (later identified as defendant) exiting the vehicle and proceeding to the back of the house. Another neighbor became suspicious and walked over to the house. That neighbor discovered a broken window and then saw defendant run out of the front door carrying a duffle bag. Defendant threw the duffle bag into the red pickup truck and fled the scene. A subsequent police investigation revealed that the red pick-up truck had been stolen in Orange the previous day.
At 2:09 p.m. on June 1, 2004, Chatham Borough Detective Steven Donnelly investigated a residential burglary in the Borough. Donnelly interviewed one of the homeowners. The homeowner reported that, upon returning home that afternoon, she observed a red pick-up truck in her driveway. She pulled her vehicle behind the pick-up truck. She noticed that her back screen door had been propped open and that the kitchen window screen had been slashed near the latches. She returned to the front of the house and saw defendant, who was calmly walking out of the front door. She confronted him. Defendant threatened to shoot her if she did not move her vehicle. She did so and defendant sped off.
After hearing a police radio broadcast instructing officers to be on the lookout for a red pick-up truck involved in a burglary, a Millburn police officer saw defendant driving a red Nissan pick-up truck eastbound on Route 78. The officer closely followed the vehicle. Upon reaching the Union County border, the officer ordered defendant to stop. Defendant disregarded the order, put the pick-up truck in reverse, and drove away nearly hitting the officers, who had already exited their squad cars. Defendant eventually crashed the pick-up truck and attempted to flee on foot. He was apprehended by the officers in Springfield.
The first contention raised by defendant is that he should have been permitted to withdraw his conditional guilty plea because Judge Langlois erroneously denied his motion for severance and change of venue. We disagree.
Pursuant to the New Jersey Criminal Code, the "State is vested with the power to prosecute and punish crimes that occur only within its territorial borders." State v. Denofa, 187 N.J. 24, 36 (2006) (citing N.J.S.A. 2C:1-3(a)(1)). Thus, "a person may be convicted under the law of this State of an offense committed by his own conduct . . . if . . . either the conduct which is an element of the offense or the result which is such an element occurs within this State." N.J.S.A. 2C:1-3(a)(1).
Here, defendant does not challenge this State's territorial jurisdiction over all counts contained in the original indictment, as it is without question that defendant's conduct was committed in this State. Rather, defendant argues that venue is improper, thereby permitting him to withdraw his guilty plea.
Venue is a court rule that relates to "that territorial area within the State, where an offense should be prosecuted." State v. Greco, 29 N.J. 94, 104 (1959) (quoting State v. O'Shea, 28 N.J. Super. 374, 379 (App. Div. 1953), aff'd, 16 N.J. 1 (1954)). In New Jersey, venue rules are governed by Rule 3:14-1, which states:
An offense shall be prosecuted in the county in which it was committed, except that
(a) If it is uncertain in which one of 2 or more counties the offense has been committed or if an offense is committed in several counties prosecution may be had in any of such counties.
Questions relating to venue have generally been regarded as "a mere matter of practice and procedure." Greco, supra, 29 N.J. at 104. In fact, venue is not jurisdictional; hence the improper laying of venue is considered a mere technical defect required to be raised by a pretrial motion. Ibid.; State v. DiPaolo, 34 N.J. 279, 288, cert. denied, 368 U.S. 880, 82 S.Ct. 130, 7 L.Ed. 2d 80 (1961); State v. Seaman, 114 N.J. Super. 19, 32 (App. Div. 1971), cert. denied, 404 U.S. 1015, 92 S.Ct. 674, 30 L.Ed. 2d 662 (1972).
Defendant argues that subsection (a) of Rule 3:14-1 was not satisfied. In making a decision to deny the application to sever counts of the indictment, Judge Langlois found that subsection (a) of Rule 3:14-1 was satisfied with respect to the eluding charge (count six) primarily because "the defendant was seen in Chatham [Morris County] by the homeowner, proceeded out of the driveway in the particular vehicle and within minutes[,] . . . was observed in Millburn [Essex County]." According to the judge, all of the crimes committed by the defendant were "part and parcel of an offense committed in several counties." Furthermore, the judge found that a venue change was not warranted in view of the fact that the car, the theft[,] and the defendant's own statements making a connection . . . in the context of the possession of this vehicle over the course of three or four days, the fact that he had the car, he stole it in one county, committed a burglary in Essex, came to Morris County, committed a burglary, attempted to run from that, [and] had proceeds of the burglary in his vehicle when ultimately stopped.
Thus, the judge stated, "in this context all the counties are appropriate venue[s] and [the crimes] [were] committed in several counties, and the prosecution can be had in any such county."
We conclude that denial of the motion for severance and change of venue was sound and affirm substantially for the reasons expressed by Judge Langlois in her July 28, 2005 oral opinion.
In any event, even if one were to accept defendant's argument, this alone would not afford him the relief requested pursuant to Rule 3:21-1, i.e., to withdraw his guilty plea after sentencing. Rule 3:21-1 requires that a motion to withdraw a guilty plea be made prior to sentencing, but allows a defendant to bring such motion thereafter only to correct a manifest injustice. See also State v. Taylor, 80 N.J. 353, 360 (1979); State v. Deutsch, 34 N.J. 190, 197-98 (1961). In the context of a negotiated plea bargain, there is an even higher degree of finality affixed to such agreements as compared to that normally afforded to pleas which occur during the course of trial. State v. Smullen, 118 N.J. 408, 416-17 (1990); State v. Gonzalez, 254 N.J. Super. 300, 303 (App. Div. 1992).
Turing to the burden of proof, the defendant must show that he was "misinformed about a material element of a plea negotiation or that his . . . reasonable expectations, grounded in the terms of the plea agreement were not fulfilled, and that he . . . is prejudiced by enforcement of the agreement." State v. Luckey, 366 N.J. Super. 79, 88 (2004) (quoting State v. Howard, 110 N.J. 113, 122-23 (1988)) (internal quotations omitted). No such argument can be sustained by defendant on the facts of this case.
In sum, the record simply does not support defendant's claim that he was unfairly prejudiced by the denial of his motion for severance and change of venue.
Next, defendant challenges Judge Conforti's imposition of consecutive terms on counts fifteen and seventeen. We are not persuaded.
The imposition of consecutive sentences generally lies within the discretion of the trial court and is not governed by the Criminal Code. State v. Carey, 168 N.J. 413, 422 (2001). The Code simply states that "multiple sentences shall run concurrently or consecutively as the court determines at the time of sentence." Ibid. (quoting N.J.S.A. 2C:44-5a).
In State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014, 106 S.Ct. 1193, 89 L.Ed. 2d 308 (1986), the Supreme Court recognized the need for sentence uniformity and set forth six guidelines to assist trial courts in making such decisions. Id. at 643-44. The Yarbough guidelines, which instruct courts in deciding whether to impose consecutive or concurrent sentences, are as follows:
(1) there can be no free crimes in a system for which the punishment shall fit the crime;
(2) the reasons for imposing either a consecutive or concurrent sentence should be separately stated in the sentencing decision;
(3) some reasons to be considered by the sentencing court should include facts relating to the crimes, including whether or not:
(a) the crimes and their objectives were predominantly independent of each other;
(b) the crimes involved separate acts of violence or threats of violence;
(c) the crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior;
(d) any of the crimes involved multiple victims; and
(e) the convictions for which the sentences are to be imposed are numerous.
[Id. at 643-44.]
The Court also cautioned that "there should be no double counting of aggravating factors" and that "successive terms for the same offense should not ordinarily be equal to the punishment for the first offense." Id. at 644.*fn2 It has since been noted that the third guideline (and its five subparts) provide the clearest guidance to trial courts when making a determination as to whether a concurrent or consecutive sentence is appropriate. Carey, supra, 168 N.J. at 423.
Judging the decision to impose consecutive terms against that standard, we conclude that the sentence is in accordance with the Yarbough guidelines and N.J.S.A. 2C:44-5a. The overall sentence does not shock our judicial conscience. State v. Roth, 95 N.J. 334, 364 (1984). In reaching this conclusion, we considered that this thirty-nine-year old defendant has a history of twenty-eight indictable convictions. This led Judge Conforti to note that defendant had "an unfortunate pattern of committing residential burglaries."
Finally, we reject defendant's argument that his actions cannot be so intertwined for venue purposes and then separate for sentencing purposes. This argument does not persuade us. Procedural and substantive rules are subject to different legal considerations. As such, a procedural challenge, whether successful or unsuccessful, will likely have no impact on substantive judicial decision-making.