January 14, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
RAFAEL BERRIOS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 06-05-1020; Bergen County, Indictment No. 05-06-1016.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 17, 2008
Before Judges Payne and Newman.
On June 1, 2005, a Bergen County Grand Jury returned Indictment No. 06-05-1016, charging defendant Rafael Berrios with second degree luring, N.J.S.A. 2C:13-6 (count one) and third degree endangering the welfare of a child, N.J.S.A. 2C:24-4a (count two). On May 3, 2006, an Atlantic County Grand Jury returned superseding Indictment No. 06-05-1020, charging defendant with six counts of second degree possession of a weapon, a firearm, by a previously convicted person, N.J.S.A. 2C:39-7 (counts one, two, three, four, five and six), and fourth degree possession of a weapon by a previously convicted person, N.J.S.A. 2C:39-7 (count seven).
On May 26, 2006, defendant entered an unconditional guilty plea to the Atlantic County charges. The plea was open, but the State agreed that, with mergers, the maximum sentence would be ten years in prison with a five year parole ineligibility period. On June 19, 2006, defendant entered an unconditional guilty plea to count one of the Bergen County indictment. The State agreed to recommend a sentence of five years in prison, consecutive to the sentence to be imposed in Atlantic County.
On July 14, 2006, defendant was sentenced in Atlantic County on count two to eight and one-half years imprisonment with a five year parole ineligibility period. Counts one, three four, five, six and seven were merged into count two.
On August 4, 2006, the court sentenced defendant in Bergen County, consistent with the plea agreement, to a term of five years in prison, consecutive to the sentence imposed in Atlantic County. Pursuant to Megan's Law, defendant was also sentenced to parole supervision for life and the usual penalties and assessments.
Between September 8 and October 14, 2004, defendant had electronic conversations over the internet with someone he believed to be a fourteen-year-old girl named "Jules," but who was an undercover officer from the Bergen County Prosecutor's Office. Defendant was attempting to lure the young girl into having a sexual relationship with him.
Bergen and Atlantic Counties cooperated in this investigation. On October 14, 2004, the Bergen County Prosecutor's Office informed the Hammonton Police Department that defendant had changed his computer screen name and mentioned on his profile that he had weapons. Later that day, defendant displayed several weapons to the undercover officer on an internet webcam.
The next morning, members of the Bergen County Prosecutor's Office and the Hammonton Police Department executed a no-knock search warrant at defendant's room in the Ramada Inn at 308 South White Horse Pike. Seized from defendant's room were a Smith and Wesson revolver, a single shot New England twelve-gauge sawed off shotgun, a Mossburg twelve-gauge pistol grip shotgun, three Crosman .177 caliber pellet guns and a large knife, all possessed by defendant, who had previously been convicted of stalking.
On appeal, defendant raises the following issues for our consideration:
POINT I: THE BERGEN COUNTY AND ATLANTIC COUNTY CHARGES SHOULD HAVE BEEN JOINED INTO A SINGLE PROSECUTION PURSUANT TO N.J.S.A. 2C;1-8b AND RULE 3:15-1b, OR AT LEAST CONSOLIDATED INTO A SINGLE PROCEEDING FOR PLEA AND SENTENCING PURPOSES PURSUANT TO RULE 3:25A-1. ALTERNATIVELY, UNDER THE CIRCUMSTANCES OF THIS CASE, DEFENDANT SHOULD HAVE BEEN SENTENCED FOR HIS OFFENSES IN A SINGLE PROCEEDING BY A SINGLE JUDGE SO AS TO EFFECTUATE THE SENTENCING GOALS OF UNIFORMITY AND CONSISTENCY UNDER THE CODE OF CRIMINAL JUSTICE
A) PROSECUTION IN THIS CASE SHOULD HAVE BEEN JOINED
B) AT THE VERY LEAST, THE CASES SHOULD HAVE BEEN CONSOLIDATED INTO A SINGLE PROCEEDING FOR PLEA AND SENTENCING PURPOSES PURSUANT TO RULE 3:25A-1
C) ALTERNATIVELY, UNDER THE CIRCUMSTANCES OF THIS CASE DEFENDANT SHOULD HAVE BEEN SENTENCED FOR HIS SEVERAL OFFENSES IN A SINGLE PROCEEDING BY A SINGLE JUDGE SO AS TO EFFECTUATE THE SENTENCING GOALS OF UNIFORMITY AND CONSISTENCY UNDER THE CODE OF CRIMINAL JUSTICE POINT II: INSUFFICIENT REASONS WERE GIVEN FOR IMPOSING CONSECUTIVE SENTENCES
We reject defendant's arguments and affirm.
Before we address the arguments, we note that these pleas were unconditional. As such, defendant effectively twice waived any claim that his case should have been joined pursuant to Rule 3:15-1(b) or consolidated pursuant to Rule 3:25A-1. Our Supreme Court has enforced the general rule that "a defendant who pleads guilty is prohibited from raising, on appeal, the contention that the State violated his constitutional rights prior to the plea." State v. Crawley, 149 N.J. 310, 316 (1997). See also State v. Wakefield, 190 N.J. 397, 417 n.1 (2007); State v. Knight, 183 N.J. 449, 470 (2005).
Our Rules provide for three exceptions to the general rule of waiver. Rule 3:5-7(d) and Rule 7:5-2(c) permit a defendant to appeal the denial of a Fourth Amendment motion to suppress evidence after conviction whether based on the guilty plea or conviction following trial. Rule 3:28(g) allows a defendant to appeal a denial of admission into a pretrial program. Rule 3:9-3(f) expressly authorizes defendant to "enter a conditional plea of guilty reserving on the record the right to appeal from the adverse determination of any specified pretrial motion." Here, none of the exceptions to the waiver rule apply. Defendant, therefore, has effectively waived his right to appeal.
Nonetheless, we elect to address the issues he has raised, none of which have merit.
Defendant contends that the offenses were required to be joined under Rule 3:15-1(b) and N.J.S.A. 2C:1-8b or at least consolidated pursuant to Rule 3:25A-1. By not having all the charges in one county before a single judge, he contends that the sentencing goals of uniformity and consistency were violated. He also maintains that there were insufficient reasons for imposing consecutive sentences.
There was no requirement that all the charges should have been brought in a single prosecution since they were incurred in different jurisdictions. Moreover, even though the charges were brought against the same defendant, the nature of the charges was unrelated to each other. Thus, there was no mandatory joinder requirement.
Permissible joinder was not sought under Rule 3:15-1(a). Defendant never requested that the charges all be brought before a single judge in either Atlantic or Bergen County. Nor did the prosecutor of either county seek such a result. Moreover, even had the charges been consolidated in the same county before a single judge, there is no likelihood that the plea agreement terms would have been any different from the ones defendant voluntarily entered into.
The plea agreement in Bergen County called for a consecutive sentence because the luring charge constituted a very distinct offense from the weapons possessed by defendant as a person not entitled to possess weapons that were bought as a result of the seizure in Hammonton in Atlantic County. Because the offenses were distinct, the consecutive sentencing was appropriate. The fact that one judge found a mitigating factor that another judge did not find would not have changed the sentencing result. Nor did the fact that defendant received jail credit for both crimes because he was held on both charges and was thus legally entitled to the double credit.
While the sentencing judge in Bergen County did not address the guidelines for imposing a consecutive sentencing as set forth 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), it is clear that the nature of the crimes and their objectives were independent and unrelated. Separate crimes deserve separate punishment. State v. Sutton, 132 N.J. 471, 485 (1993). Where the facts and circumstances leave little doubt of the appropriateness of the sentence, even where a sentencing judge does not specifically articulate the standards enunciated in Yarbough, the Court has not been reluctant to affirm such consecutive sentences. State v. Molina, 168 N.J. 436, 443 (2001). There was no abuse of discretion by the sentencing court in imposing consecutive sentences and no remand was necessary even though no statement of reasons was provided where consecutive sentences fell within Yarbough guidelines. State v. Jang, 359 N.J. Super. 85, 97-98 (App. Div.) certif. denied, 177 N.J. 492 (2003).
Here, the reasons for consecutive terms are obvious. Defendant, as a convicted felon, possessed seven weapons prohibited by N.J.S.A. 2C:39-7(b)(1). Possession of weapons by convicted criminals, a second degree offense, carries a mandatory minimum term of five years imprisonment during which defendant is ineligible for parole. Ibid. Luring young victims for sexual activity involves a very different objective, deserving of separate punishment. The facts and circumstances here show the sentences to be appropriate even when the sentencing judge did not expressly refer to the Yarbough standards. As noted by Yarbough, there cannot be free crimes in a system where additional unrelated criminal acts are committed. Yarbough, supra, 100 N.J. at 639. Imposing consecutive sentences was clearly warranted.