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State v. D.P.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


October 18, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
D.P., DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hunterdon County, Docket Nos. FO-10-162-09, FO-10-163-09 and FO-10-164-09.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 29, 2010

Before Judges Payne and Baxter.

Defendant D.P. appeals from his April 2, 2009 conviction on three counts of disorderly persons contempt, N.J.S.A. 2C:29-9(b), arising from three separate violations of a domestic violence final restraining order (FRO). At sentencing, pursuant to the plea agreement, the judge dismissed one count of harassment, a petty disorderly persons offense, and sentenced defendant to a one-year term of probation subject to three concurrent sixty-day periods of incarceration in the Hunterdon County Jail.

On appeal, defendant raises the following claims:

I. THIS COURT MUST REMAND FOR A NEW TRIAL APPELLANT'S MATTER [SIC] AS THE TRIAL COURT ERRONEOUSLY ACCEPTED APPELLANT'S GUILTY PLEAS UNDER R. 3:9-2.

II. THIS COURT MUST REMAND FOR A NEW TRIAL AS APPELLANT WAS DENIED [THE] OPPORTUNITY TO HIRE AN EXPERIENCED ATTORNEY OF HIS OWN CHOOSING.

III. THE IMPOSITION OF A 60 DAY JAIL TERM ON EACH COUNT IS EXCESSIVE IN LIGHT OF THE "STRONG PROVOCATION" CITED AS A MITIGATING FACTOR BY THE TRIAL COURT.

We reject these claims and affirm defendant's conviction and sentence.

I.

Defendant and T.L. maintained a dating relationship for more than thirteen years.*fn1 They were never married and had no children but had two dogs that, according to defendant, "were like our kids to us." Defendant's relationship with T.L. ended, apparently due to his "substance abuse issues," which T.L. was no longer willing to accept. She ultimately obtained an FRO against him, which she dropped, after which she obtained a second FRO that she also dismissed. A third FRO, entered on May 29, 2008, was still in effect in December 2008, when T.L. contacted defendant telling him she missed him and wanted him to come visit the dogs.

Believing that even if the FRO was still in effect T.L. would not charge him with violating it, defendant went to T.L.'s home in December 2008 to bring gifts for the dogs. He contacted her by telephone on two occasions thereafter. According to defendant, T.L. later learned that he had a new girlfriend, and T.L.'s anger over his new girlfriend caused T.L. to file three charges of violating the FRO. It is those charges to which he ultimately pled guilty. As we shall discuss below, defendant did not deny that he had gone to T.L.'s home and contacted her by telephone. Instead, he maintained that the two had engaged in consensual sexual relations in August, September and October 2008 and that when he went to her home in December 2008 to bring gifts for the dogs, and when he called her in December 2008 and January 2009, he had done so with T.L.'s approval. He asserted she filed the three violation complaints against him only after learning that he had a girlfriend.

After several court appearances, defendant and the State were able to agree to the terms of a negotiated plea agreement, under which he would be sentenced to a one-year term of probation, subject to a maximum of ninety days in the Hunterdon County Jail on each of the three counts of violating the restraining order, with the jail time to run concurrently on each of the three counts. Because defendant had a prior conviction for violation of an FRO (which had been obtained by T.L.), he was subject to a mandatory minimum thirty-day period of incarceration on each count. See N.J.S.A. 2C:25-30.

The plea colloquy began with the judge asking defendant if he understood the rights he was surrendering by entering a plea of guilty, to which defendant answered in the affirmative:

THE COURT: . . . You've heard the colloquy on the record. Is it true that you wish to plead guilty to these three charges with the dismissal of the harassment charge?

[DEFENDANT]: Yes.

THE COURT: Okay. You understand that by pleading guilty you're giving up several rights. Let's go over them. First of all, you're giving up your right to have a trial on these charges -- each one of these charges. Right?

[DEFENDANT]: Yes.

THE COURT: And at trial there are certain rights you have that I need to go over with you. First of all, you're giving up your right to require the State to prove your guilt beyond a reasonable doubt. Do you understand that?

[DEFENDANT]: (No verbal response)

THE COURT: I need a verbal response.

[DEFENDANT]: Yes. I'm sorry.

THE COURT: Thank you. You're giving up your right to present evidence in the form of testimony by witnesses who would testify on your behalf. Do you understand that?

[DEFENDANT]: Yes.

THE COURT: You're giving up your right to have your attorney cross examine the State's witnesses in an effort to produce reasonable doubt in the mind of the trier of fact, who would be me, without a jury. Do you understand that you're giving that up?

[DEFENDANT]: Yes.

THE COURT: Finally, you're giving up the right to testify yourself on your own behalf or to choose to remain silent, and the court cannot infer anything negative or against you if you chose to remain silent. Do you understand you have that right?

[DEFENDANT]: Yes.

THE COURT: And you're giving up that right. Is that correct?

[DEFENDANT]: Yes.

Next, the judge reviewed the terms of the plea agreement, and defendant assured the judge he understood them:

THE COURT: Charges to which you're pleading guilty are all disorderly persons charges. Each one of them carries a maximum of six months in the county jail as a maximum sentence plus $1,000 in fines. So [your] exposure here, if they were to be sentenced concurrently -- I'm sorry --consecutively, would be 18 months and $3,000 in fines, and, theoretically, 18 months would make it a prison sentence.

[DEFENDANT]: Yes.

THE COURT: Do you understand that?

[DEFENDANT]: Uh-huh.

[DEFENDANT]: [W]as the probation going to run concurrent with my probation now? I thought that was the --

THE COURT: No, the request by the State is consecutive on the probation --

[DEFENDANT]: Oh.

THE COURT: -- but concurrent on the jail terms. So 90 -- instead of 90 days on each count running one after another, it's 90 days on each count to run concurrent with each other, but probation would add another year.*fn2 That's what the State's recommendation is. Understood?

[DEFENDANT]: Yes.

Later in the plea colloquy, defendant contradicted his earlier assurance, stating "the sentencing was kind of confusing to me, but I guess that's by the wayside now."

Next, the judge asked defendant if he was satisfied with the legal advice his attorney had provided. Defendant said he was not:

THE COURT: Okay. Have you had enough time to discuss this with your attorney?

[DEFENDANT]: Yes.

THE COURT: Have you -- has he answered all of your questions?

[DEFENDANT]: I'm sure a criminal attorney could answer them better, but to the best of his knowledge, he answered those questions.

THE COURT: Okay, and he has come in to court and asked a few questions of the court before we started this guilty plea colloquy. Is that correct?

[DEFENDANT]: Yes.

THE COURT: Are you satisfied that you're pleading guilty knowing all of the consequences of a guilty plea and -- well, let's start with that question.

[DEFENDANT]: I'm not satisfied. I can't say yes to that. I'd be lying.

THE COURT: Okay. Do you have any questions now? Let's go over a couple of other things. The Prosecutor has already put on the record, but let me make sure that you understand, that because this is a second or subsequent conviction under this particular statute, there is a mandatory minimum 30-day jail sentence already because of your previous guilty plea to this same offense. Right?

[DEFENDANT]: Yes.

THE COURT: You understand that. Okay. And do you have any questions now about the consequences of the guilty plea? You understand it results in a criminal record.

[DEFENDANT]: Yes.

THE COURT: -- at the disorderly persons level?

[DEFENDANT]: Yes.

THE COURT: Anything else?

[DEFENDANT]: Just the sentencing was kind of confusing to me, but I guess that's by the wayside now.

THE COURT: Okay. Do you have any questions of the Prosecutor as to their recommendation?

[DEFENDANT]: I'd recommend that, you know, I didn't have to do 90 days, but that's what she offered, and that's what I have to take.

[PROSECUTOR]: And I would just like to put on the record that counsel had throughout this time he's represented the defendant, we have had several phone discussions. We have had several discussions in the courtroom. We had a conference with Your Honor the last time we were here. We had another conference today, and to the best of my ability I answered counsel's questions. The defendant had asked counsel to ask me some questions, ask for my position on certain things, and each time I answered the question, and, as I understand, counsel has relayed that back to his client.

[DEFENSE COUNSEL]: Can I just make a one [sic] statement?

THE COURT: Yes, you may.

[DEFENSE COUNSEL]: I believe that my client's main concern here is that he had obtained a[n] experience[d] criminal attorney, Domenick Stampone, who wants to represent him. Mr. Stampone has requested a week's adjournment, which was not granted. I think that's my client's real main concern. That he felt that should've been granted, and I just want to have that on the record

[THE COURT]: Okay. That is on the record, and, yes, the court did not grant an adjournment for several reasons having to do with prior adjournment requests and the age of this case. There's also nothing to have prevented defendant from asking Mr. Stampone any questions defendant sought to ask Mr. Stampone as a backup attorney or consultant.

. . . The recommendation of the State is just that. It's a recommendation. The court isn't bound by it. If the court chooses to hand out a lesser sentence, I can certainly do so. My sentencing is still guided by sentencing guidelines including the aggravating and mitigating factors and the facts of the case. The court takes into account the State's recommendation, but again it's not bound by it. An[d] if I felt it were appropriate to give you a stiffer sentence, then I would tell your attorney before the guilty plea is entered and accepted, and at that point you could withdraw your guilty plea and this process would start all over. You could go to trial or whatever. Disposition was acceptable to you by way of another guilty plea with another deal or trial. So you understand that I'm not bound by the recommendation?

[DEFENDANT]: Yes.

THE COURT: Okay. All right. Do you feel that you understand the nature of these charges against you and what the State would have to prove?

[DEFENDANT]: Yes.

THE COURT: Are you pleading guilty voluntarily? Oh, one last very important question. Are you satisfied with your attorney's representation?

[DEFENDANT]: I wasn't.

THE COURT: Okay, and is that because he's not an experienced criminal attorney?

[DEFENDANT]: Yes.

THE COURT: Is that as he put on the record?

[DEFENDANT]: Yes.

Aware that defendant was not entirely satisfied with present counsel, the judge asked defendant if he was nonetheless pleading guilty voluntarily. He answered "yes":

THE COURT: Okay. Nevertheless, is it your choice today, given the information you've received, to go forward with this guilty plea in exchange for the recommendation the State is making?

[DEFENDANT]: That was what my attorney recommended me [to] do, yes.

. . . Did you call Mr. Stampone and chat with Mr. Stampone --

[DEFENSE COUNSEL]: Yes.

THE COURT: -- about it?

[DEFENSE COUNSEL]: Yes.

THE COURT: Okay. And with all of the information available to you, is it your wish to go ahead with this guilty plea today?

[DEFENDANT]: Yes.

THE COURT: Okay. Are you pleading guilty voluntarily?

[DEFENDANT]: Yes.

THE COURT: Has anybody threatened you to get you to plead guilty?

[DEFENDANT]: No.

THE COURT: -- promised you you're going to get off scot-free --

[DEFENDANT]: No.

THE COURT: or 30 days or --

[DEFENDANT]: I can't get that lucky.

THE COURT: Okay. All right. Have you today ingested any drugs, alcohol, medication, or any other substance that would impair your judgment?

[DEFENDANT]: No.

THE COURT: You're making this decision with a clear mind?

[DEFENDANT]: Yes.

THE COURT: All right. Let's get you sworn in . . . .

[(Emphasis added).]

At that point, the court clerk administered an oath to defendant. He admitted under oath that on the occasions specified in the three complaints he had made contact with T.L., either by going to her home or by repeatedly calling her on the telephone, and he knew that the restraining order was in effect.

In particular, the judge asked him, "When you committed each of those acts that violated the domestic violence restraining order, did you know at the time that it was a violation?"

Defendant answered "yes."

The judge made a specific finding that defendant's guilty pleas were entered knowingly and voluntarily and defendant had provided a factual basis for each of the three guilty pleas.

The judge immediately proceeded to sentencing, at which time defendant exercised his right of allocution. He told the judge that T.L. wanted him "to come back, wanted me to come over and have sex with her, she missed me, that sort of thing."

According to defendant, "[T.L.] swore to me on her grandchildren's heads that she would have this restraining order dropped. I said, well, that's the only way that anything could be reconciled between us." He stated that he and T.L. had engaged in consensual sexual relations in August, September and October, 2008. Then, when T.L. learned that defendant was dating someone else, "she blew a gasket . . . and then . . . started harassing [him], . . . calling [his] girlfriend, calling at the house late at night . . . ." Defendant maintained that T.L. became so jealous that on one occasion she called his girlfriend "and told her that I was there having sex with [T.L.] right now. My girlfriend called me up and I'm sitting in a truck with my father."

Defendant explained that he then called T.L. and told her to stop calling him and his girlfriend. He insisted that T.L. retaliated by charging him with violating the restraining order, telling the judge:

And then [T.L.] has the power, because she has the restraining order against me to turn it on me, and that's what she did, she turned it on me. She turned the power that she has with a restraining order. She turned it around on me, and that's why I'm standing here right now.

After defendant completed his allocution, the judge turned to an analysis of the aggravating and mitigating factors. The judge found the existence of three aggravating factors, namely, the risk defendant would commit another offense, N.J.S.A. 2C:44-1(a)(3) (number three); the extent of defendant's prior record, N.J.S.A. 2C:44-1(a)(6) (number six); and the need for deterrence, N.J.S.A. 2C:44-1(a)(9) (number nine). In particular, as to aggravating factor three, the judge found there was "some degree of obsessive contact not only . . . by the defendant toward the victim but also by the victim toward the defendant, and that in and of itself creates a risk that defendant will commit another offense." The judge observed that "the correct course of action would have been to decline to take [T.L.'s] calls when she called him." As to aggravating factor six, the judge noted that defendant was "no stranger to the Prevention of Domestic Violence Act" because this was "the third time a final restraining order was obtained by [T.L.] against him." With aggravating factor nine, the need for deterrence, the judge observed that defendant (and T.L.) had not taken the restraining order seriously and there is a strong societal need to deter disrespect of such orders.

The judge discussed the mitigating factors, finding that mitigating factor five applied, the victim of the offense "induced or facilitated its commission." N.J.S.A. 2C:44-1(b)(5). The judge observed this was "a very heavy . . . mitigating factor" because the defendant acted under a strong provocation. The facts, as they've come out in this guilty plea colloquy, suggest that defendant had sexual relations with the victim, and the victim willingly with h[im] . . . . That there were many text messages back and forth. There were phone calls back and forth, and . . . the victim actually invited the defendant to come see the dogs. It is . . . these facts which lead the court to conclude that there has been some obsessive behavior here on the part of both the defendant and the victim, and that is a strong consideration here. It's a strong mitigating factor.

The judge also found mitigating factor ten, N.J.S.A. 2C:44-1(b)(10), defendant was likely to benefit from probationary treatment, which would include anger management and substance abuse treatment. Although the judge found that the aggravating factors outweighed the mitigating factors, she imposed a sentence that was "somewhat less than the State's recommendation" of ninety days incarceration on each count.

Instead, the judge imposed a sixty day county jail sentence on each count, to run concurrently, observing that she was required to impose a minimum of thirty days on each count because defendant had a prior conviction for violation of an FRO.

II.

Before accepting a defendant's guilty plea, the judge must be satisfied "that there is a factual basis for the plea and that the plea is made 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.

In Points I and II, which we consider jointly, defendant maintains that he should be permitted to withdraw his guilty plea and proceed to trial because his "answers to fundamental questions lacked the requisite of voluntariness" and the judge compounded that error by improperly denying him an adjournment.

Without an adjournment, he had no opportunity to "hire an experienced attorney of his own choosing." Notably, defendant does not maintain that his plea was not entered knowingly. He confines his argument to a contention that his plea was not voluntary because -- without the adjournment -- he had not had the benefit of proper legal advice.

Rule 3:9-2 specifies that a plea will not be deemed voluntary if it is "a result of any threats or of any promises or inducements not disclosed on the record." We have carefully reviewed the record and find no evidence that would even remotely support a conclusion that defendant's entry of his guilty plea resulted from unfair coercion or threats. On the contrary, when asked by the judge whether he was pleading guilty voluntarily, defendant's answer was an unequivocal and straightforward "yes." He also assured the judge that no one had "threatened" him to "get [him] to plead guilty" and no one had "promised [him] anything other than the State's recommendation for sentencing." Thus, the very claims defendant now presents on appeal are belied by the answers he himself provided at the time he entered his pleas of guilty.

Defendant's reliance on State v. Kovak, 91 N.J. 476 (1982), and State v. Rhein, 117 N.J. Super. 112 (App. Div. 1971), is entirely misplaced. In Rhein, we set aside the defendant's guilty plea, not because the plea was involuntary, but instead because defendant did not understand his sentencing exposure were he to proceed to trial. Id. at 117. Nothing in our opinion in Rhein addressed the issue defendant now raises.

In Kovak, the Supreme Court held that a plea is not deemed knowing if the defendant is not properly advised of the required parole ineligibility term. Kovak, supra, 91 N.J. at 479. Here, defendant points to nothing about the particular terms of the plea agreement of which he was unaware at the time he entered his plea. Kovak is inapposite. We therefore reject defendant's argument that his plea was not voluntary and the judge erred by accepting it.

We turn next to defendant's claim that because the trial judge denied him an adjournment, he was placed in the untenable position of pleading guilty without the benefit of legal advice from an experienced criminal defense attorney of his own choosing. Defendant cites no precedent to support this proposition, which is not surprising because "there is no absolute right to a particular counsel." State v. Coon, 314 N.J. Super., 426, 438 (App. Div.), certif. denied, 157 N.J. 543 (1998). A court is not obliged to accede to a defendant's untimely request to change attorneys unless the defendant is able to demonstrate "substantial cause." Ibid.

Nothing in this record suggests, much less demonstrates, the "substantial cause" that would have required the judge to grant defendant's adjournment request. This was especially so because defendant had already been granted several adjournments, and he had already availed himself of the opportunity, over a two-week period, to consult with Domenick Stampone, the attorney of his choosing.

Under such circumstances, we see no mistaken exercise of the judge's discretion in refusing to grant defendant yet another adjournment. See State v. Matarama, 306 N.J. Super. 6, 14-15 (App. Div. 1997) (observing that denial of an adjournment request is reviewed for an abuse of discretion), certif. denied, 153 N.J. 50 (1998). This wholly proper exercise of the judge's discretion is in no way equivalent to an unfair pressure that changed an otherwise voluntary plea into one that was involuntary. We are satisfied, defendant's claims to the contrary notwithstanding, that his plea was entered voluntarily. We reject the claims defendant advances in Point I and II.

III.

In Point III, defendant maintains that the sentence imposed was excessive. Our review of sentencing decisions is deferential. State v. Noble, 398 N.J. Super. 574, 598 (App. Div.), certif. denied, 195 N.J. 522 (2008). In the context of appellate review of sentencing, a reviewing court focuses on:

(1) whether the trial court followed the sentencing guidelines;

(2) whether the aggravating and mitigating factors that the

trial court found are based upon competent, credible evidence in the record; and (3) whether, even though the court sentenced in accordance with applicable sentencing guidelines, nevertheless, the application of the guidelines to the facts of the case is so clearly unreasonable as to "shock the judicial conscience."

State v. Roth, 95 N.J. 334, 364-65 (1984).

It bears repeating that the judge was obliged to impose a minimum sentence of thirty days incarceration on each count in light of the provisions of N.J.S.A. 2C:25-30. In imposing sentence, the judge obviously recognized the substantial mitigation caused by T.L.'s conduct, which induced defendant to commit the offenses in question. The judge's remarks demonstrate a keen grasp of the dynamic between defendant and T.L., which included "obsessive" behavior by both. The judge characterized T.L.'s role in the commission of the offense as "a strong mitigating factor." Nonetheless, in light of defendant's prior conviction for violating a domestic violence restraining order with the same victim, the judge chose not to impose the bare minimum sentence of thirty days incarceration on each count, but instead imposed a sixty-day county jail sentence on each.

We have carefully considered defendant's arguments in light of the record and applicable law. Defendant has presented no meritorious basis for us to interfere with the broad sentencing discretion afforded the judge by Roth. The sentence imposed was a fair one, taking into consideration all of the applicable aggravating and mitigating factors. The sentence imposed was not excessive and we have no occasion to disturb it. We therefore reject the sentencing claim defendant advances in Point III.

Affirmed.


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