Opinion
DOCKET NO. A-2713-11T4
07-21-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. CELSO LAREDO MADRIGAL, a/k/a CELSO MADRIGAL-LAREDO, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Reisner and Ostrer.
On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 10-06-1210.
Joseph E. Krakora, Public Defender, attorney for appellant (Joshua D. Sanders, Assistant Deputy Public Defender, of counsel and on the brief).
Joseph D. Coronato, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Supervising Assistant Prosecutor, of counsel; William Kyle Meighan, Assistant Prosecutor, on the brief). PER CURIAM
An Ocean County jury found defendant Celso Laredo Madrigal guilty of third-degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1); first-degree possession of five ounces or more of cocaine with intent to distribute, N.J.S.A. 2C:35-5(a)(1), -5(b)(1); and first-degree distribution of five ounces or more of cocaine, N.J.S.A. 2C:35-5(a)(1), -5(b)(1). After merger, the court sentenced defendant on the distribution count to a fifteen-year term, with a seven-and-a-half-year parole bar.
Defendant raises the following points on appeal:
POINT I
DEFENSE COUNSEL WAS UNCONSTITUTIONALLY INEFFECTIVE WHEN HE NEEDLESSLY AND REPEATEDLY INJECTED, INTO THIS TRIAL FOR THE DISTRIBUTION OF COCAINE, THE SPECTER THAT MR. MADRIGAL WAS ILLEGALLY DISTRIBUTING MILITARY-GRADE WEAPONRY. (Not Raised Below).
POINT II
MR. MADRIGAL'S SENTENCE IS EXCESSIVE, UNDULY PUNITIVE, AND MUST BE REDUCED; ALTERNATIVELY, REMAND IS NECESSARY FOR A STATEMENT OF REASONS FOR THE PERIOD OF PAROLE INELIGIBILITY.
Having reviewed defendant's arguments in light of the record and applicable principles of law, we affirm the conviction, without prejudice to defendant raising his claim of ineffective assistance of counsel in a timely petition for post-conviction relief (PCR). We affirm the fifteen-year term, but reverse and remand as to the period of parole ineligibility.
I.
We consider first defendant's challenge to the conviction. The State's case against defendant was presented primarily through the testimony of FBI Special Agent Thomas Wagner; Ocean County Prosecutor's Office Detective Juan Pastrana, who was assigned to an FBI task force; and a confidential informant, (CI). Under the supervision of Pastrana and Wagner, the CI participated in three controlled purchases of cocaine from defendant between July and September 2009. In total, the CI purchased almost ten ounces of cocaine, which he surrendered to the law enforcement officers immediately after the transactions, and which was admitted into evidence.
The State's witnesses' testimony was also supported by video recordings of the transactions. Although the cocaine and currency were not visible, the recordings depicted defendant, and captured conversations consistent with drug transactions, including oblique discussions of quantities, and counting, apparently of money. In one instance, defendant asked, "How many do you want?" The CI responded, "Four." Defendant confirmed, "Four? Of the good ones?" And the CI answered, "Of the good ones." In another incident, the CI asked defendant, "Do you have some?" Defendant responded, "Yeah." The CI demanded "two." The sound of counting, and a shuffling noise then followed.
The defense theory of the case was that the recorded conversations between defendant and the CI pertained not to drugs, but to the CI's interest in purchasing firearms from defendant. Testifying in his own defense, defendant asserted that the CI paid him in advance for guns, with the understanding that if defendant could not procure the guns, which he never did, then defendant would return the money. Defense counsel elicited from a law enforcement witness that the CI was directed to inquire about procuring weapons, and the CI admitted that he asked defendant whether he had weapons, including a bazooka and a submachine gun.
To establish a motive for the CI to incriminate defendant, defendant asserted that he resisted the CI's repeated efforts to get him to join the CI's gang. Defendant also admitted that he had a prior conviction for drug possession, but maintained the drugs were for personal use, and he successfully completed a probationary sentence. The jury apparently did not credit defendant's version of events, and returned its verdict after deliberating for just over an hour.
On appeal, defendant asserts that the guns-instead-of-drugs defense was, on its face, ineffective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 ( 1984) (defendant must establish (1) that his counsel's performance was deficient and he made errors so serious that counsel was not functioning as guaranteed by the Sixth Amendment and (2) that defendant was prejudiced such that there existed a reasonable probability that, but for counsel's unprofessional errors, the result would have been different); State v. Fritz, 105 N.J. 42, 58 (1987) (adopting Strickland standard). Defendant argues that the guns-instead-of-drugs strategy, rather than suggest a defense to the drug-related charges, simply injected additional criminal activity into the case, and prejudiced defendant.
Defendant acknowledges that claims of ineffective assistance of counsel generally must be brought in a collateral proceeding, through a petition for PCR, because such claims must rely on evidence outside the trial record. See State v. Preciose, 129 N.J. 451, 460 (1992) ("Our courts have expressed a general policy against entertaining ineffective-assistance-of-counsel claims on direct appeal because such claims involve allegations and evidence that lie outside the trial record."). However, defendant argues that this is one of the exceptional cases in which the trial record itself demonstrates ineffective assistance. We disagree.
We recognize that a "defendant should not be required to wait until post-conviction relief to raise the issue" of ineffective assistance if "the trial record discloses the facts essential to his ineffective assistance claim." State v. Allah, 170 N.J. 269, 285 (2002); see also State v. Castagna, 187 N.J. 293, 313 (2006) (stating that it is only "when the trial itself provides an adequately developed record upon which to evaluate defendant's claims, [that] appellate courts may consider the issue [of ineffective assistance] on direct appeal"). In Allah, counsel failed to raise a meritorious double jeopardy defense by pre-trial motion as required by Rule 3:10-2(c), thereby waiving defendant's right to present such a defense at trial. Allah, supra, 170 N.J. at 284-85. "At oral argument, all counsel acknowledged that the failure to file the double jeopardy defense motion was due to attorney negligence. No assertion of strategy complicate[d] this analysis." Id. at 285.
By contrast, this case involves a strategic decision by defense counsel. Although the record certainly discloses that defendant's guns-instead-of-drugs strategy was unsuccessful, it does not disclose facts essential to a claim that trial counsel was ineffective in pursuing it. The evidence that defendant sold almost ten ounces of cocaine to the CI was overwhelming. The strategy counsel pursued, despite its risks, was supported by defendant's sworn testimony, and provided an alternative explanation for the evidence presented.
We cannot conclude on the trial record alone that ineffective assistance is inherent in the strategy pursued. The record before us includes no evidence regarding any alternative defenses that may have been available to trial counsel. The record is also silent on any consultations that may have occurred between defendant and trial counsel regarding the strategy. The record does reflect that defendant rejected a plea offer of a ten-year term, with a thirty-month parole bar, at a time when defendant had already served almost two years. Defendant, who already had an immigration detainer against him, insisted upon a trial.
In sum, we decline to reach the merits of defendant's ineffective assistance claim. It must await the timely filing of a PCR petition.
II.
Defendant argues the sentencing judge erred in imposing a fifteen-year term, subject to seven-and-a-half years of parole ineligibility. He also argues the court failed to justify its imposition of a seven-and-a-half-year parole bar.
The trial court found that defendant had one prior conviction for third-degree possession of CDS, N.J.S.A. 2C:35-10(a)(1), for which he received two years of probation in 2000; and a 2006 conviction for disorderly persons assault, N.J.S.A. 2C:12-1(a). He also was arrested by federal immigration officials in 2008. The court found aggravating factor three, likelihood of reoffending, N.J.S.A. 2C:44-1(a)(3); factor six, prior record of convictions, N.J.S.A. 2C:44-1(a)(6); and factor nine, need to deter, N.J.S.A. 2C:44-1(a)(9).
We reject defendant's argument that the court doublecounted
aggravating factors by considering the fact that he had reoffended after a period of probation, in finding aggravating factor three, and by considering the prior conviction that gave rise to the probationary sentence, in finding aggravating factor six.
[I]mplicit in a sentencing court's assessment of the defendant's risk of recidivism (factor (3)), the seriousness and extent of a defendant's prior criminal record (factor (6)), and the need to deter defendant and others (factor (9)) is a qualitative assessment that we want and expect the court to make. A court's findings assessing the seriousness of a criminal record, the predictive assessment of chances of recidivism, and the need to deter the defendant and others from criminal activity, do all relate to recidivism, but also involve determinations that go beyond the simple finding of a criminal history and include an evaluation and judgment about the individual in light of his or her history.In short, the court did not engage in improper double-counting.
[State v. Thomas, 188 N.J. 137, 153 (2006).]
We do agree that the court failed to provide reasons for imposing the seven-and-a-half year minimum term. The court was obliged to impose a minimum term of "between, one-third and one- half of the sentence imposed," N.J.S.A. 2C:35-5(b)(1), which in this case was five to seven-and-a-half years. In determining the minimum term, or period of parole ineligibility, within that range, the court was required to re-balance the aggravating and mitigating factors in light of the fifteen-year base term imposed. See State v. Kirk, 145 N.J. 159, 179 (1996); State v. Towey, 114 N.J. 69, 81-82 (1989). We therefore remand for that purpose.
Affirmed as to conviction and sentence of base term; reversed and remanded for reconsideration and statement of reasons as to period of parole ineligibility.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPSLJATE DIVISION