Opinion
DOCKET NO. A-1542-09T1 DOCKET NO. A-1543-09T1
08-29-2011
STATE OF NEW JERSEY, Plaintiff-Respondent, v. DANIEL SANCHEZ, Defendant-Appellant.
Howard A. Miller, attorney for appellant. Edward J. DeFazio, Hudson County Prosecutor, attorney for respondent (Gina Giordano, Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Lihotz and Baxter.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment Nos. 08-04-0624 and 08-11-2000.
Howard A. Miller, attorney for appellant.
Edward J. DeFazio, Hudson County Prosecutor, attorney for respondent (Gina Giordano, Assistant Prosecutor, on the brief). PER CURIAM
Following the entry of two negotiated pleas of guilty, defendant Daniel Sanchez appeals his convictions, arguing that neither one was supported by a sufficient factual basis, and that the sentences imposed were excessive. We reject these contentions and affirm.
I.
Defendant pled guilty to a single charge in each of two unrelated indictments. We begin with Indictment No. 08-04-0624, to which defendant entered a plea of guilty on July 15, 2008, to the third-degree crime of attempting to cause significant bodily injury, N.J.S.A. 2C:12-1(b)(7). During the plea colloquy, the following facts were elicited from defendant under oath:
In relevant part, count one on the indictment reads as follows: "on or about the 25th day of November, 2007, in the City of Union City [defendant] purposely did attempt to cause significant bodily injury to Edmundo Barrios[.]"
Q: At that time did you have some sort of altercation with Edmundo [Barrios]?
A: Yes.
Q: At that time you punched him attempting to cause significant bodily injury at that
time?
A: Yes.
Q: You gave him a punch and he was injured, because you[']r[e] punching him in the face, right?
A: Yes.
Q: What was it about?
A: We had an argument, he tried to shove me out of the way.
. . . .
Q: So, after he shoved you[,] you punched him?
A: Yea.
Q: And what happened, did he fall?
A: Yea, he fell.
[(Emphasis added).]
At the time of sentencing, the judge asked defendant some additional questions about the attempted aggravated assault charge to which he had pled guilty, to determine whether defense counsel had explained to defendant that the defense of self-defense was not available to him because he had used excessive force. Defendant responded, "Yes, he did explain it to me." When the judge queried, "you decided that you wanted to plead guilty, it was not in self-defense," defendant answered "[c]orrect."
We turn to the second indictment, number 08-11-2000, which charged defendant in count one with the first-degree crime of violating N.J.S.A. 2C:35-5(a)(1), by possessing more than five ounces of cocaine with the intent to distribute. During the guilty plea colloquy on June 3, 2009, the judge began by observing that the indictment charged defendant with "possession with intent, and it's a first degree crime," to which defense counsel responded, "Yes[,] judge." In the presence of defendant, the prosecutor explained the terms of the plea agreement, noting that defendant would be entering a plea of guilty to count one of the indictment, which charged him with "a first degree offense," namely possession of cocaine with intent to distribute. The prosecutor commented that at the time of sentencing the State would be seeking "a contract plea sentence of 10 years with 27 months without parole," which would be "concurrent to the pending sentence in the aggravated assault case where he's facing a flat three year sentence." Defendant provided the following factual basis:
Q: And specifically at that time you, whether it was at the direction of others or on your own, but mostly . . . at the direction of others, actually obtained over five ounces of cocaine; correct?
A: Correct.
Q: And you went in, you picked it up, and your job was to turn it over to somebody else; correct?
A: Correct.
[(Emphasis added).]
At the time of sentencing on October 7, 2009, the judge reiterated his earlier observation that defendant had pled guilty to a first-degree drug distribution charge, stating that defendant had "pled guilty to two offenses," the first of which was "a first degree," on which "you're going to receive a 10 year sentence, 27 months without parole." The judge then proceeded to impose sentence on the drug distribution charge, sentencing defendant to a ten-year term of imprisonment, subject to a twenty-seven month parole ineligibility term, which was the lowest sentence available for a first-degree crime. Next, the judge imposed a concurrent three-year term of imprisonment on the charge of attempting to cause significant bodily injury, as set forth in Indictment No. 08-04-0624.
On appeal, defendant raises the following claims:
I. THERE WERE INSUFFICIENT FACTUAL BASES FOR THE GUILTY PLEAS.
II. THE SENTENCE OF TEN YEARS ON THESE THIRD DEGREE CRIMES IS EXCESSIVE.
II.
We turn to Point I, in which defendant argues that his guilty pleas must be vacated, and his conviction reversed, because he did not provide a sufficient factual basis for either of the two charges to which he pled guilty. In particular, on Indictment No. 08-04-0624, he argues that a violation of N.J.S.A. 2C:12-1(b)(7) requires an admission that a defendant caused significant bodily injury, and he had made no such admission.
Defendant's argument ignores the express language of both the relevant statute and the indictment to which he pled guilty. Notably, N.J.S.A. 2C:12-1(b)(7) provides that an actor is guilty of violating that statute if he:
attempts to cause significant bodily injury to another or causes significant bodily injury purposely or knowingly or, under circumstances manifesting extreme indifference to the value of human life recklessly causes such significant bodily injury[.]The indictment charged defendant not with causing significant bodily injury, but instead with attempting to cause such injury, stating:
[N.J.S.A. 2C:12-1(b)(7) (emphasis added).]
Daniel Sanchez . . . purposely did attempt to cause significant bodily injury to Edmundo Barrios[.]
Thus, defendant's conviction on Indictment No. 08-04-0624 required defendant to admit only that he attempted to cause significant bodily injury, not that he actually accomplished that result. By admitting that he had punched the victim in the face so hard that the victim fell to the ground, defendant's factual basis for attempting to cause significant bodily injury was more than sufficient. See N.J.S.A. 2C:5-1(a)(3) (defining an attempt as purposely engaging in conduct that constitutes "a substantial step in a course of conduct planned to culminate in [the] commission of a crime"); N.J.S.A. 2C:11-1(d) (defining "significant bodily injury" as "bodily injury which creates a temporary loss of the function of any bodily member or organ or temporary loss of any one of the five senses"). We thus reject defendant's argument that the factual basis he provided for his plea of guilty to the aggravated assault charge was insufficient.
We turn to Indictment No. 08-11-2000. Defendant claims that the factual basis he provided on the drug distribution charge was inadequate because it included no acknowledgment that he knew the substance in question was cocaine. As we have noted, defendant was asked during the plea colloquy whether he had "actually obtained over five ounces of cocaine," to which he responded "correct." He also acknowledged that he understood that his attorney had stipulated to the lab results, which revealed that the substance in question was indeed cocaine. The following discussion ensued between defense counsel and defendant:
Q: And I've explained to you by admitting it's cocaine, I'm going to stipulate to the lab [results], and it was your intent to share or distribute that with others; correct?
A: Correct.
Thus, it is abundantly clear that defendant admitted that at the time he distributed the substance, he knew that it was cocaine. Consequently, we reject defendant's contention that his guilty plea on the drug distribution charge was not supported by a sufficient factual basis. We therefore reject the entirety of defendant's arguments in Point I.
III.
In Point II, defendant argues that because he pled guilty to a third-degree drug distribution charge under Indictment No. 08-11-2000, the ten-year term of imprisonment the judge imposed was manifestly excessive and must be reversed. He points to the judgment of conviction (JOC), which notes that the crime in question is a third-degree crime. Defendant's argument lacks merit.
Throughout defendant's guilty plea colloquy, and throughout the sentencing proceeding, each time the prosecutor or the judge described the offense, the reference was to a "first degree" crime. There was not a single reference to the drug distribution charge being only a third-degree crime. Unquestionably, defendant was convicted of a first-degree crime despite the reference to a third-degree conviction on the JOC. Moreover, when there is a discrepancy between the judge's oral pronouncement of sentence and the written JOC, the oral pronouncement of sentence controls. State v. Pohlabel, 40 N.J. Super. 416, 423 (App. Div. 1956). We conclude it is necessary to remand this matter to the trial court for correction of the JOC to reflect a first-degree conviction.
The plea papers are not part of the record on appeal.
Thus, we evaluate defendant's claim of an excessive sentence on the drug distribution charge by evaluating that sentence in relation to the sentencing range specified by the relevant statutes. N.J.S.A. 2C:43-6(a)(1) specifies that any defendant convicted of a crime of the first degree shall be sentenced to a term of imprisonment "between 10 years and 20 years." As is evident, the ten-year sentence the judge imposed was the lowest possible sentence for a first-degree crime.
Further, N.J.S.A. 2C:35-5(b)(1) requires the judge to impose a mandatory period of parole ineligibility on a first-degree drug distribution conviction, with such minimum term being "fixed at, or between, one-third and one-half of the sentence imposed, during which the defendant shall be ineligible for parole." Thus, the judge was required to have imposed a period of parole ineligibility of at least, in this case, three and one-third years. We note that the parole ineligibility term imposed here was considerably less than that, as it was only twenty-seven months. Neither party has raised this issue, and we therefore decline to address any irregularity in the parole ineligibility term. In conclusion, because the sentence imposed was the bare minimum for a first-degree crime, we reject defendant's claim that the sentence imposed on indictment 08-11-2000 was excessive.
As to defendant's additional claim that the concurrent three-year term of imprisonment on the aggravated assault charge was excessive, we conclude that this argument lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed. Remanded for correction of the JOC on Indictment No. 08-11-2000.
I hereby certify that the foregoing is a true copy of the original on file in my office.
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CLERK OF THE APPELLATE DIVISION