On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 06-06-513.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 29, 2008
Before Judges Skillman and Grall.
Defendant Francis Membreno appeals from a final judgment of conviction and sentence and from the denial of a motion to withdraw his guilty plea. The grand jurors for Union County charged defendant with vehicular homicide, N.J.S.A. 2C:11-5, and two counts of assault by auto, N.J.S.A. 2C:12-1c. In return for the State's agreement to dismiss the assault charges and recommend a five-year term of incarceration, eighty-five percent to be served prior to parole and a three-year term of parole supervision pursuant to N.J.S.A. 2C:43-7.2, the No Early Release Act (NERA), defendant pled guilty to second-degree vehicular homicide and driving while intoxicated, N.J.S.A. 39:4-50. Defendant received a sentence of incarceration consistent with the plea agreement. In addition, the court suspended defendant's driver's license for one year, required him to attend IDRC for forty-eight hours and imposed a $300 fine, a $50 VCCB assessment, a $30 LEOTF penalty and a $75 SNSF assessment. Defendant's motion to withdraw his guilty plea was filed two months after he was sentenced.
The accident that caused the victim's death occurred around 6:00 a.m. in November 2004. Defendant was driving on Watchung Avenue in Plainfield, and his car left the roadway and struck a tree. One of defendant's three passengers was killed in the accident, and two were injured. A breathalyzer test was administered and revealed that defendant had a blood alcohol concentration of .11 percent.
In a statement given to the police the day after the accident, defendant said the weather was "dry, clear [and] nice" and that he was driving at the speed limit because he had points on his license and "drive[s] carefully now." He claimed that his car spun around after he swerved to "miss" a sports car approaching on his side of the road. He admitted that on the evening before the accident he had consumed seven to eight twelve-ounce beers between eight and nine o'clock and then went to bed. When he gave this statement to the police, defendant, who was born in Honduras and had lived in the United States for eleven years, acknowledged his ability to read, write and understand "some [but] not all" of the English Language.
At the time of defendant's guilty plea an interpreter was present and translated. The trial court explained the penal consequences of the plea. In comparing the five-year term of incarceration defendant faced under the plea agreement and the maximum sentence defendant would face if he opted to reject the plea bargain, the court told defendant that "if [he] went to trial on this matter and [was] convicted, [he] could be sent to state prison for ten years, eight and a half years of which [he] could be sentenced without parole."
Prior to the hearing, defendant had signed a plea form and a supplemental plea form describing the consequences of NERA.
The text on both forms was printed in Spanish and English. The plea form indicated that defendant was pleading guilty to second-degree vehicular homicide and that the maximum sentence was a term of ten years. Defendant marked the NERA form so as to indicate he understood that he would not be eligible for parole until he served eighty-five percent of the sentence imposed and would be required to serve a three-year term of parole supervision after his release, which could be revoked and result in his return to prison.
Before accepting defendant's plea, the trial court asked defendant if he had spoken to his attorney about the charges and the plea forms he had signed, and defendant acknowledged that his attorney had answered all of his questions and explained the charges and the details. Defendant also said he was pleading guilty voluntarily and with the understanding that he was waiving his right to confront and cross-examine the State's witnesses and present witnesses in his own behalf. When asked, he said he had no questions for the court. The transcript includes no exchange that reflects any difficulty defendant experienced in addressing the court or responding to the court's questions.
In response to the court's questions, defendant admitted that he was driving while under the influence of alcohol, driving recklessly and that, as a consequence, Ismael Lopez was killed. He also responded in the affirmative when the court asked whether he was pleading guilty because he was, in fact, guilty of the charges.
Defendant raises two issues on appeal:
I. THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO ...