August 30, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
JESUS SERRANO, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued August 27, 2013
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 04-11-3505 and 04-09-3054.
James H. Maynard, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Maynard, on the brief).
John E. Anderson, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Carolyn A. Murray, Acting Essex County Prosecutor, attorney; Mr. Anderson, of counsel and on the brief).
Before Judges Harris and Fasciale.
Defendant appeals from the denial of his motion to withdraw two guilty pleas. We affirm for the reasons that Judge Joseph C. Cassini, III, expressed in his written opinion dated August 29, 2012.
In May 2005, defendant pled guilty to two counts of third-degree endangering the welfare of a child. At the plea hearing, defendant testified that he touched the breasts of two minors under their shirts. In September 2005, the judge followed the plea agreement and imposed concurrent three-year probationary terms, Community Supervision for Life (CSL) subject to Megan's Law,  and the appropriate fines and penalties. Defendant did not file a direct appeal from these convictions.
In July 2010, defendant filed a petition for post-conviction relief (PCR) and contended that he received ineffective assistance from his plea counsel. As part of his PCR petition, defendant sought to withdraw his guilty pleas. In December 2010, Judge Cassini denied the petition for PCR and determined that defendant's request to withdraw his guilty pleas was not a recognizable claim for PCR. We affirmed the denial of the petition without prejudice to allow defense counsel to file a motion to withdraw the guilty pleas. State v. Serrano, No. A-2746-10 (App. Div. Jan. 31, 2012).
In April 2012, defendant moved to withdraw his guilty pleas. In general, defendant argued that he was innocent, the victims recanted their allegations, he pled guilty to save counsel fees, and he did not understand the consequences of pleading guilty because his primary language is Spanish. Judge Cassini conducted oral argument and then issued a written decision. Applying the factors enunciated by the Court in State v. Slater, 198 N.J. 145, 157-58 (2009), Judge Cassini stated that
when defendant pled guilty, he provided a factual basis for this [c]ourt, under oath. He admitted to touching both victims' breasts. The defendant argues that he admitted only to touching the children while "horseplaying" and did not touch them for sexual gratification. However, at the time the plea was taken, this [c]ourt was satisfied with the factual basis provided by the defendant, including the mens rea for both counts of third[-]degree endangering the welfare of a child.
Furthermore, the defendant claims that the two victims' recantations show his innocence. However, the victims were the stepdaughter and daughter of the defendant. It is therefore clear that little weight, if any, should be given to the recantations, based on the familial relationship between the defendant and the victims, especially in light of the fact that the "so-called" recantations come nearly seven (7) years later. Accordingly, the defendant has not shown a colorable claim of innocence.
[D]efendant pled guilty over seven years ago, thus a greater level of scrutiny is needed to evaluate his claim. The defendant claims he only pled guilty because he could not afford his private attorney's trial fee and thought that taking the plea was his only option. The defendant also claims that he did not understand the terms of the plea form because of its "confusing legal language" and because it was only in English while the defendant . . . speaks Spanish. The defendant claims he did not know the consequences of Megan's Law and [CSL] when he pled guilty.
The defendant's reasons for withdrawal are not strong enough to assert manifest injustice. This [c]ourt took the defendant's plea, after numerous status conferences, and was able to observe the defendant's demeanor and level of understanding during those proceedings. Moreover, the defendant repeatedly stated that he understood what he was pleading to, on the record. He expressed no confusion with the legal language, English language and did not have any questions for his attorney.
The defendant also filled out a supplemental portion as part of his plea form which questioned the defendant as to his understanding of the ramifications for sexually-based offenses, the Megan's Law and [CSL]. The defendant initialed and signed this document, after a thorough review with his attorney, showing that he did have an understanding of the consequences of Megan's Law as a result of his plea.
The defendant's claim that he only pled guilty because he was unable to afford his private attorney's trial fees and did not know he would be entitled to [a] public defender is also of minimal force. It is a self-serving claim with no factual basis. When defendants are brought before the court, they are offered the opportunity to file what is known as a 5A, a petition for a public defender. In fact, initially, the defendant was assigned a public defender but chose to hire his own attorney.
As such, defendant's reasons for withdrawal . . . do not weigh in favor of granting his [m]otion . . . .
[T]here was extensive plea bargaining and the defendant received non-custodial probation as a result. In fact, this [c]ourt indicated to both the State and the defendant that the [c]ourt would sentence defendant to straight probation although the State recommended . . . prison. . . .
Seven years has lapsed since the defendant pled guilty and the incidents which gave rise to the charges occurred around ten to seven years ago. The State would be prejudiced by having the defendant withdraw his plea and retrying the case. Even if the witnesses are available and willing to testify, there are memory issues associated with such a prolonged lapse of time. . . . Judge Cassini then denied the motion and defendant filed this appeal.
On appeal, defendant raises the following points:
OVERVIEW OF THE LAW OF WITHDRAW[AL OF] GUILTY PLEAS WITH RELEVANCE TO THIS MATTER.
[DEFENDANT'S] REQUEST TO WITHDRAW HIS GUILTY PLEA SATISFIES ALL LEGAL REQUIREMENTS FOR SUCH RELIEF; THEREFORE, THE MOTION TO WITHDRAW [DEFENDANT'S] GUILTY PLEA SHOULD BE GRANTED.
[DEFENDANT'S] REQUEST TO WITHDRAW HIS GUILTY PLEA IS APPROPRIATE RELIEF; DUE TO THE FACT THAT [DEFENDANT'S] GUILTY PLEA WAS TAKEN WITHOUT THE EFFECTIVE ASSISTANCE OF COUNSEL.
DEFENDANT'S MOTION TO WITHDRAW HIS GUILTY PLEA SHOULD BE GRANTED, AS DEFENDANT DID NOT UNDERSTAND THE TERMS OF THE PLEA AGREEMENT.
After carefully considering the record and the briefs, we conclude that defendant's arguments are "without sufficient merit to warrant discussion in a written opinion." R. 2:11-3(e)(2).