Opinion
DOCKET NO. A-2968-10T4
02-22-2012
STATE OF NEW JERSEY, Plaintiff-Respondent, v. CECILIO DAVILA, Defendant-Appellant.
Cecilio Davila, Appellant pro se. Bruce J. Kaplan, Middlesex County Prosecutor, attorney for respondent (Brian D. Gillet, Assistant Prosecutor, of counsel; Marie McGovern, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes and Harris.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Warrant No. 2010-2437-1214.
Cecilio Davila, Appellant pro se.
Bruce J. Kaplan, Middlesex County Prosecutor, attorney for respondent (Brian D. Gillet, Assistant Prosecutor, of counsel; Marie McGovern, on the brief). PER CURIAM
On leave granted, we review pro se defendant Cecilio Davila's interlocutory application for a bail reduction. Based upon our analysis of the record, we conclude that the amount and conditions thereto of the bail imposed by the Law Division are (1) not violative of Davila's constitutional rights, (2) not the product of an abuse of discretion, and (3) not contrary to the legislative framework, supplemented by judicial guidelines, that informs the setting of bail. We affirm.
I.
In October 2010, Davila was arrested and charged with several drug and possession-of-a-weapon charges. Bail was initially set at $150,000 but was soon adjusted to $200,000. After agreeing to pay a bail bond premium of $20,000, Davila obtained a surety through Absolute Bail Bonds, Inc., and posted a bail bond for the $200,000.
Davila was alleged to have been twice previously convicted of violating N.J.S.A. 2C:35-7, and his criminal history revealed multiple arrests and convictions. Accordingly, the prosecutor moved to modify the bail to require full cash bail to be posted pursuant to N.J.S.A. 2A:162-12. On December 10, 2010, the Law Division modified the bail to require a full cash bail.
Davila filed motions for leave to appeal and for elimination of the full cash bail condition. On February 24, 2011, we granted leave to appeal and remanded the matter for a prompt statement of "findings and reasons in support of setting bail without a 10% cash option."
The order was filed on February 28, 2011, making it first available to the parties on or after that date.
On February 25, 2011, apparently independent of our ruling on the motion, the prosecutor applied to the Law Division to again modify Davila's bail — this time to lower the amount — because the State was in possession of laboratory results suggesting that the quantity of the controlled dangerous substances collected presented only potential third-degree — not second-degree as originally believed — crimes. On March 4, 2011, bail was reduced to $35,000, but the record is unclear whether that amount was permitted to be posted by bond or was still required to be all-cash.
Four days later, the prosecutor filed a formal motion, seeking again to modify the terms of bail and this time requesting an increase in the amount. The basis of this application was the State's recent revelation that Davila would likely be indicted shortly for multiple second-degree crimes.
The State suggested that because Davila was eligible to be treated as a persistent offender for sentencing purposes pursuant to N.J.S.A. 2C:44-3(a), his ultimate sentence would most likely be in the first-degree range.
A hearing was conducted on March 11, 2011 before a different Law Division judge than the one who had set the $200,000 bail in December. Davila, while eligible to have counsel appointed to him, represented himself pro se because the assignment of counsel had not yet administratively occurred. The parties were aware of our February 24, 2011 order, but apparently treated it as moot because in the interim the bail had already been reduced from $200,000 to $35,000.
The prosecutor who argued the application sought to increase the aggregate bail back to its $200,000 level and to require that it be all cash. The judge fully analyzed the nature of the current charges, was aware of Davila's criminal background, and considered such issues as Davila's links to the community and whether he was a flight risk. The judge then explained why he increased the amount of the bail to $95,000, all cash, but scheduled a bail review hearing for less than one week later.
On March 17, 2011, the final bail hearing was conducted. At that time, Davila was represented by counsel. The State proffered that coincidentally, that very day, a grand jury had returned two indictments against Davila. In the first indictment (consisting of fifty-three counts arrayed against seven individuals), Davila was formally charged with one first-degree crime, one second-degree crime, and seven third-degree crimes. In the second indictment (consisting of one count against Davila alone), Davila was charged with second-degree certain persons not to have weapons, N.J.S.A. 2C:3 9-7(a).
Specifically, Davila was charged with first-degree being the leader of a narcotics trafficking network, N.J.S.A. 2C:35-3; second-degree possession of firearm while engaged in controlled dangerous substances activity, N.J.S.A. 2C:39-4.1; third-degree conspiracy, N.J.S.A. 2C:5-2; third-degree possession of a controlled dangerous substance (heroin), N.J.S.A. 2C:35-10(a)(1); third-degree possession of a controlled dangerous substance (heroin) with the intent to distribute, N.J.S.A. 2C:35-5(a)(1); third-degree possession of a controlled dangerous substance (cocaine), N.J.S.A. 2C:35-10(a)(1); third-degree possession of a controlled dangerous substance (cocaine) with the intent to distribute, N.J.S.A. 2C:35-5(a)(1); third-degree maintenance of a fortified structure for the distribution of controlled dangerous substances, N.J.S.A. 2C:35-4.1(c); and third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-3(b).
Consequently, the prosecutor sought again to increase the bail, this time to $500,000, and cited N.J.S.A. 2A:162-12(c) in support of an all-cash bail. The Law Division decided to set an aggregate bail of $350,000 for all charges and imposed the all-cash condition. In so doing, the court stated the following:
Given the fact [Davila's] got a significant prior record, he's not a first offender, is not new to the system, and I've placed on the record previously the extent of his record, the combined bail at [$350,000], which is the highest end of the first degree charges, is appropriate given the fact that we have a cash recommendation for the nature of the charges under [N.J.S.A.] 2A:162-11. Cash only is required.
II.
Notwithstanding that circumstances had dramatically changed between the time Davila filed his motion for leave to appeal in December 2010 and the setting of the post-indictment bail in March 2011, Davila moved in this court for permission to rely upon his pro se motion brief as his merits brief. We granted that application in April 2011, and that is the sole source of Davila's arguments. In it, Davila argues that "current bail in the amount of $200,000 cash only . . . is excessive, constituting cruel and unusual punishment violating defendant['s] VIII Amendment constitutional right of due process and fundamental fairness." He further contends that the State failed to demonstrate the predicate conditions for Davila's eligibility for an all-cash bail under N.J.S.A. 2A:162-12. Lastly, he asserts that the 2010 legislative amendment to N.J.S.A. 2C:35-7, which allows for the reduction of a parole disqualifier in certain school zone cases, mitigates both the impact of his prior convictions and makes it unlikely that if convicted of the present charges, he would be sentenced to long-term incarceration. After reviewing the record and the parties' submissions, we are satisfied that none of these arguments has sufficient merit to warrant discussion in a written opinion, Rule 2:11-3(e)(2), beyond the following brief comments.
Davila makes a passing reference to having suffered the ineffective assistance of counsel. Our Supreme Court has expressed a preference for resolving ineffective assistance of counsel claims on collateral review after the completion of direct review of a conviction. State v. Preciose, 129 N.J. 451, 459-60 (1992). Because Davila's claims rest entirely upon evidence outside the record, are wholly undeveloped in his appellate arguments, and he has yet to be convicted of anything, they are not ripe for our review.
A defendant has a constitutional right to bail. N.J. Const. art. I, ¶ 11; State v. Johnson, 61 N.J. 351, 355 (1972). Nevertheless, because judges engage in a fact-sensitive analysis in setting bail, State v. Fajardo-Santos, 199 N.J. 520, 531 (2009), the imposition of conditions on pretrial bail is a matter of discretion. Johnson, supra, 61 N.J. at 364. "Of course, the discretion must be exercised reasonably, having in mind that the primary purpose of bail in this State is to insure presence of the accused at the trial, and that the constitutional right to bail should not be unduly burdened." Ibid.
In light of the factors set forth in Johnson and Rule 3:26-1, the setting of bail in this case constituted a proper exercise of the court's discretion. Moreover, Davila qualified for the special scrutiny of N.J.S.A. 2A:162-12, which provides, in pertinent part, as follows:
In deciding the appropriate amount of bail in a particular case, courts consider the following factors: (1) the seriousness of the crime charged against defendant, the apparent likelihood of conviction, and the extent of the punishment prescribed by the Legislature; (2) defendant's criminal record, if any, and previous record on bail, if any; (3) defendant's reputation, and mental condition; (4) the length of defendant's residence in the community; (5) defendant's family ties and relationships; (6) defendant's employment status, record of employment, and financial condition; (7) the identity of responsible members of the community who would vouch for defendant's reliability; [and] (8) any other factors indicating defendant's mode of life, or ties to the community or bearing on the risk of failure to appear, and, particularly, the general policy against unnecessary sureties and detention.
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a. As used in this section:
. . . .
"Crime with bail restrictions" . . . includes any first or second degree drug-related crimes under chapter 35 of Title 2C of the New Jersey Statutes and any first or second degree racketeering crimes under chapter 41 of Title 2C of the New Jersey Statutes.
c. There shall be a presumption in favor of the court designating the posting of full United States currency cash bail to the exclusion of other forms of bail when a defendant is charged with an offense as set forth in subsection a. of this section and:
. . . .
(2) has two prior convictions for a first or second degree crime or for a violation of section 1 of P.L.1987, c.101 (C.2C:35-7) or any combination thereof[.]
. . . .
unless the court finds on the record that another form of bail authorized in subsection b. of this section will ensure
the defendant's presence in court when required.
[N.J.S.A. 2A:162-12 (a), (c)(2).]
In the first of the two present indictments, Davila was charged with first-degree being the leader of a narcotics trafficking network, N.J.S.A. 2C:35-3 and second-degree possession of firearm while engaged in controlled dangerous substances activity, N.J.S.A. 2C:39-4.1. Moreover, he was twice convicted -- in May 1992 and again in March 1999 -- of violating the provisions of N.J.S.A. 2C:35-7. Because N.J.S.A. 2A:162-12 makes no reference to the remoteness of prior convictions Davila was presumptively subject to posting an all-cash bond.
The Law Division fully explained its rationale for imposing, on multiple occasions, the requirement of such an all-cash bail. We are unable to detect a failure on the part of that court to have ignored the possibility of an alternate form of bail. Consequently, we have no warrant to intervene in the Law Division's constitutionally-sound exercise of principled discretion.
Affirmed.