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State of New Jersey v. Wilfredo Pagan

December 16, 2011

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
WILFREDO PAGAN, A/K/A WILFREDO GONZALEZ, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment Nos. 03-05-0437 and 02-04-0420.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted November 28, 2011

Before Judges Parrillo and Grall.

This is an appeal from a denial of post-conviction relief.

Pursuant to a plea agreement with the State, defendant Wilfredo Pagan pled guilty to charges in two multi-count indictments.

Specifically, defendant admitted that on December 13, 2002, he committed first-degree carjacking, N.J.S.A. 2C:15-2a(1); and third-degree terroristic threats, N.J.S.A. 2C:12-3. He entered that guilty plea in return for the State's agreement to: dismiss charges of first-degree robbery, N.J.S.A. 2C:15-1; and second- degree burglary, N.J.S.A. 2C:18-2; waive an extended term; and to recommend a twenty-two-year sentence on carjacking, subject to terms of parole ineligibility and supervision required by the No Early Release Act, N.J.S.A. 2C:43-7.2, concurrent with his sentence for third-degree terroristic threats.

Defendant also acknowledged that he committed first-degree robbery on October 25, 2001. In that case, the State agreed to dismiss charges of second- and fourth-degree aggravated assault, N.J.S.A. 2C:12-1b(1), -1b(4); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a; third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b; and second- degree possession of a handgun after being convicted of disqualifying crimes, N.J.S.A. 2C:39-7. The State further agreed to recommend a twenty-year sentence for first-degree robbery to run concurrent with defendant's sentences for carjacking and terroristic threats.

On March 21, 2004, defendant was sentenced in accordance with his plea agreements, and judgments of conviction were filed on March 22, 2004. This court affirmed defendant's sentences after hearing oral argument on his appeal in accordance with Rule 2:9-11, and the Supreme Court denied his petition for certification. State v. Pagan, 192 N.J. 74 (2007).

Defendant filed this petition for post-conviction relief on December 10, 2008. He indicated that he would raise a claim of ineffective assistance of counsel based on the decision of his attorney, who knew defendant had brain damage and suffered from schizophrenia, to proceed with plea bargaining and sentencing without first obtaining an evaluation of his competency. In addition, defendant asserted he did not intend to take the car of the carjacking victim. Counsel was appointed and submitted a supplemental brief raising the same issues.

The issue of defendant's competence was addressed at the plea hearing. The pertinent portions of the colloquies between the judge and defense counsel and the judge and the defendant are as follows:

[The court addressing defendant:]

Q. Okay. You understand, Mr. Pagan, that if after you tell me what you did and I agree to accept that - if I do - that will end the prosecution of all of the matters in both of these indictments.

Do you understand that?

A. Yes.

Q. The only thing that would happen in these cases is we would then prepare for the sentencing event and you already know what the sentence is going to be.

Do you ...


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