STATE OF NEW JERSEY v. JOSE M. GONZALEZ (09-09-1072, PASSAIC COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2022 )

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2388-19
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JOSE M. GONZALEZ,
a/k/a JOSE MIGUEL
GONZALEZ DEL ESTRE,
and JOSE DELESTRE,
Defendant-Appellant.
________________________
Submitted November 18, 2021 – Decided January 19, 2022
Before Judges Alvarez and Mitterhoff.
On appeal from the Superior Court of New Jersey, Law
Division, Passaic County, Indictment No. 09-09-1072.
Joseph E. Krakora, Public Defender, attorney for
appellant (Monique Moyse, Designated Counsel, on the
brief).
Camelia M. Valdes, Passaic County Prosecutor,
attorney for respondent (Marc A. Festa, Chief Assistant
Prosecutor, of counsel and on the brief).
Appellant filed pro se supplemental briefs.
PER CURIAM
Defendant Jose M. Gonzalez appeals the August 29, 2019 decision
denying his post-judgment application to vacate his guilty plea. After our
review of the record and relevant precedents, we affirm.
Defendant had been placed on community supervision for life (CSL) prior
to the February 22, 2008 amendment to the law, now referred to as "parole
supervision for life [(PSL)]." See N.J.S.A. 2C:43-6.4. The offenses which
triggered his CSL included, but were not limited to, second-degree criminal
attempt in 2000 1—the attempt being defendant's efforts to sexually assault an
adult female—and two Pennsylvania convictions for indecent assault of female
minors in 1996 and 1998.
On June 15, 2012, defendant was sentenced to 617 days' time served on a
third-degree child endangering. See N.J.S.A. 2C:24-4(a). The State agreed to
dismiss charges of second-degree sexual assault, N.J.S.A. 2C:14-2(c)(4), and
fourth-degree criminal sexual contact, N.J.S.A. 2C:14-2(c) and 2C:14-3(b). The
judgment of conviction provides defendant's sentence was "to run concurrent
1
Because we do not have the benefit of a presentence report in this matter, we
are relying upon the information in the State's commitment petition and the court
and counsel's on-the-record references to defendant's criminal history.
2 A-2388-19
with any sentence the defendant recently received for a [v]iolation of [CSL.]"
His prior CSL was converted to PSL. Defendant signed a plea form indicating
his placement on PSL. An attached page titled "parole supervision for life"
included the requirement that defendant report to his "assigned parole officer as
instructed." The disputed language in the completed and signed plea agreement
states: "The judge will give the defendant [time served] at time of plea. If the
State makes any attempt to civilly commit the defendant as a result of his plea,
he will be allowed to withdraw this plea."
At the time the plea was taken, the trial judge said:
I can say that this case, in conjunction with or in
combination with the earlier conviction, [defendant's
plea] could result in the Attorney General moving to
civilly commit him. . . . They may or may not move to
civilly commit him following this conviction.
I would note that question number seven . . . talks
about civil commitment, and the charge of endangering
[is not] one of the enumerated offenses. It doesn't say it
on the form. That doesn't mean it cannot, in
combination with what he has done in the past, result in
an application for civil commitment. And what I said
was if the Attorney General does move to civilly
commit the defendant, I would allow him to retract his
plea . . . .
....
What we're talking about is what's on the table
now, this event and the earlier conviction.
3 A-2388-19
Now, if [defendant] goes out and breaks the law
at some point in the future, and for that matter I don't
believe that it even would have to be a sexual offense,
it could just be a crime of violence, it could be
whatever, then all bets would be off because what . . . I
say to the defendants when they put a plea through [is],
"[d]o you understand that this plea, when combined
with something you may have done in the past, and/or
may do in the future, could result in you being civilly
committed?" . . . .
So, [defendant], if you do plead guilty, . . . and if
based on this plea and nothing else[,] this plea and items
that occurred in your life in the past or things that
occurred in your life in the past, if it results in a civil
commitment application, I will allow you to retract this
plea. But, should you go out two weeks from your
sentence date[,] or two months[,] or two years later[,]
and do something that results in a change in
circumstances, then I wouldn't let you retract your plea.
At defendant's sentencing hearing, the judge added:
[I]f the [Attorney General] makes an attempt to civilly
commit the defendant as a result of this plea, . . . the
defendant will be allowed to withdraw this plea. I did
say that and I'll put it on the Judgment [of Conviction.]
....
If based on this plea and everything that's gone
on in the past, if there was an attempt to civilly commit
[defendant], I would allow him to retract his plea. But
if he does something in the future and the combination
of this plea, what he's done in the past, [and] what he
does in the future, if all those combined result in an
attempt to civilly commit him, that would be a different
4 A-2388-19
story because then it's the new act that's the triggering
event in combination with this.
. . . If you basically stay out of trouble and there's
an attempt to civilly commit you, I'll allow you to
withdraw your plea. But if you commit a new act and
there's an attempt to civilly commit you, then I
wouldn't.
As a condition of his PSL, defendant had to wear a monitoring bracelet.
On September 9, 2013, he tampered with the bracelet, and thereafter failed to
report to his parole officer. He was rearrested and imprisoned on the parole
violation.
The January 29, 2015 petition for defendant's civil commitment under the
New Jersey Sexually Violent Predator Act, N.J.S.A. 30:4-27.24 to -27.38, states
he repeatedly violated his CSL conditions, and most recently, was incarcerated
for "tampering with the GPS equipment[,]" i.e., the destruction of his PSL
monitoring bracelet on September 9, 2013, and failing to report thereafter.
The petition was filed before defendant's release from state prison. The
petition recites the child endangering offense as the "sexual offense" for which
commitment was sought and recites his earlier sexual crimes and general
criminal history under "Prior History and Other Relevant Information,"
including "[seventeen] adult arrests including seven arrests for violations of
5 A-2388-19
condition[s] of special sentence." The State prevailed at the ensuing hearing,
and defendant was civilly committed.
In 2016, defendant filed a post-conviction relief (PCR) petition. On
appeal of the denial of relief, by way of a sua sponte order, we held defendant
failed to establish ineffective assistance of counsel, but remanded for a hearing
on whether defendant was entitled to withdraw his guilty plea because his
reasonable expectations regarding the plea agreement were not met. The
question on remand was whether defendant was entitled to now withdraw under
the express terms of the agreement.
During the hearing, the judge allowed only the testimony of the Deputy
Attorney General (DAG) who recommended commitment. The judge limited
the DAG's testimony to the issue of "why" the State proceeded to commit
defendant. The judge reiterated that he was not going to permit "the case to be
expanded into something that it's not."
The DAG described the factors her office routinely considers in making
commitment decisions. Here, the State considered two psychiatric reports, the
index offense, and defendant's prior criminal history. The DAG explained that
she initiated the review process leading to the filing of the petition, and that the
"tipping point" came late in 2014 after defendant tampered with his monitor. On
6 A-2388-19
two prior occasions in 2003 and 2010, the office had passed defendant over for
commitment. After the 2014 violation, the DAG concluded defendant could not
comply with his PSL conditions. It proved that "here we were dealing with
someone who not only had the sexual offenses but also was not following the
mandates of the law, which to us evidenced a high degree of an antisocial
personality disorder . . . ." She explained that, but for the PSL violations and
defendant's incarceration, the file would not have been again subjected to
review. When asked directly by the judge whether the State would have moved
for commitment absent the PSL violation, the DAG responded that PSL "was
not able to control [defendant's] behaviors and he was not complying[, and]
that's, if you will, what did it for us."
Defense counsel vigorously argued the DAG's in-house review memo
prepared as a step in the process leading to the commitment petition should be
produced to corroborate the DAG's memory. The State opposed production of
the memo on the basis that it was work product not otherwise discoverable.
The judge stated that he would review the memo in camera and notify
counsel if something important was revealed in the document. The DAG
represented that if the five-year-old memo was available, she would supply it to
the court by the end of the week.
7 A-2388-19
In his August 29, 2019 written opinion denying defendant's motion to
withdraw his guilty plea, the judge found the DAG "very credible despite the
lack of her memo." We cannot discern from this statement whether the memo
was unavailable due to the passage of time or whether the judge elected to decide
the matter without reviewing the memo.
The judge found that defendant's commitment stemmed from his
tampering with his monitoring bracelet and failing to report, not his guilty plea
on the endangering offense. Corroborating this conclusion was the fact that the
State did not seek commitment for defendant in 2012 when he was sentenced.
Additionally, he was then diagnosed as not eligible for treatment at the Avenel
Diagnostic and Treatment Center. Thus, the judge denied defendant the
opportunity to withdraw his guilty plea.
Defendant now appeals, raising the following point:
POINT I
[DEFENDANT] SHOULD BE ALLOWED TO
WITHDRAW HIS PLEA.
In his uncounseled brief, defendant argues that pursuant to In the Matter
of Commitment of P.C., 349 N.J. Super. 569 (App. Div. 2002), the plea
agreement was void ab initio because the clause allowing him to withdraw his
guilty plea if the State moved to commit him rendered his sentence illegal.
8 A-2388-19
Ordinarily, appellate courts review PCR courts' legal conclusions de novo.
State v. Harris, 181 N.J. 391, 415-16 (2004); State v. Belton 452 N.J. Super.
528, 537 (App. Div. 2017). However, we review plea withdrawal motions
applying an abuse of discretion standard. State v. O'Donnell, 435 N.J. Super.
351, 372 (App. Div. 2014). We reverse only if the PCR court's decision was
"clearly erroneous." State v. Hooper, 459 N.J. Super. 157, 180 (App. Div. 2019)
(quoting State v. Simon, 161 N.J. 416, 444 (1999)). Namely, the decision must
lack any rational explanation, depart from established policies, or rest on an
impermissible basis. State v. Williams, 458 N.J. Super. 274, 280 (App. Div.
2019).
Simply stated, the difficulty with defendant's argument is the irrefutable
fact that the "triggering" event was defendant's decision to cut his bracelet and
stop reporting to his parole officer. In other words, the illegality that initially
would have made defendant's plea "void ab initio" and warranted granting his
application to withdraw his plea has been resolved because of defendant's
conduct. Despite the technically illegal agreement prohibiting the State from
moving against defendant, defendant committed an independent act which was
itself illegal—destroying his ankle bracelet and failing to contact his parole
officer.
9 A-2388-19
There is no question that In re Commitment of P.C. prohibits precisely
what was attempted here, albeit in a different form. In P.C., defendant pled
guilty and the prosecutor and defendant stipulated that regardless of the SVPA,
the Attorney General could not seek civil commitment. 349 N.J. Super. at 576.
Clearly, "neither a county prosecutor nor a defendant may by plea agreement
frustrate the Attorney General's authority to protect the public from sexually
violent predators." Id. at 578. However, we said only the problematic portion
of the plea agreement was void: "the portion of the plea agreement . . . seeking
to exempt appellant from the operation of the . . . SVPA is contrary to New
Jersey law and public policy. It is unenforceable." Ibid.This agreement is different; it merely permits withdrawal. But the
difference between a plea agreement permitting a defendant to withdraw and
one which flatly purports to prohibit the Attorney General from filing a petition
for civil commitment is a distinction without a difference. In both cases, the
parties are attempting, with judicial participation, to gut the Attorney General's
authority to proceed in this very important and highly sensitive area.
Defendant's argument that he never could have had the benefit of the bargain,
and thus the plea agreement should be voided, is technical, purely theoretical,
and in his case irrelevant to the reality that his own subsequent illegal conduct
10 A-2388-19
triggered the Attorney General's review and ultimate decision to pursue civil
commitment.
Defendant could not attain the benefit of the bargain solely because of his
own conduct. He violated the very conditions under which he had been placed
before this plea was entered. He therefore does not have the right to retract his
plea at this point in time.
This situation is like that addressed in In re Civil Commitment of M.L.V.,
388 N.J. Super. 454 (App. Div. 2006). There, M.L.V. contended that the State
could not proceed to seek his commitment pursuant to the SVPA because the
Parole Board had decided to release him. We said:
The SVPA provides for the involuntary
commitment of persons who require "continued
involuntary commitment as a sexually violent predator"
as that term is defined in N.J.S.A. 30:4-27.26[(b)]. The
Act provides the Attorney General with authority to
initiate a court proceeding for the commitment of
persons who are currently in psychiatric facilities.
N.J.S.A. 30:4-27.28[(a)]. The Attorney General also
may initiate proceedings for the commitment "of an
inmate who is scheduled for release upon expiration of
a maximum term of incarceration. . . ." N.J.S.A.
30:27.28[(c)]. In addition,
The Attorney General, in an exercise of the
State's authority as parens patriae, may
initiate a court proceeding for the
involuntary commitment of any person in
accordance with the procedures set forth in
11 A-2388-19
this section by filing the required
submission with the court[] in the
jurisdiction in which the person whose
commitment is sought is located.
[M.L.V., 388 N.J. Super. at 462-63 (citing N.J.S.A.
30:4-27.28[(d)]) (emphasis in original).]
If the Attorney General has the power to pursue civil commitment of anyone
who fits the relevant criteria, including a person that the Parole Board considers
fit for release, surely the public policy behind the SVPA mandates that we
conclude this technically illegal plea agreement—which was not really relevant
to defendant's commitment—cannot obstruct SVPA proceedings triggered by
defendant's independent, illegal conduct.
Motions to withdraw guilty pleas are granted after sentencing "to correct
a manifest injustice." R. 3:21-1. No manifest injustice has occurred here.
Defendant's petition must be denied. Regardless of the technical anomaly and
impropriety in defendant's plea agreement, his own conduct made the issue
moot.
Defendant's hyper focus on the petition as being somehow dispositive
does not address the DAG's unchallenged testimony, which the judge found
credible. We defer to such findings. See State v. Hubbard, 222 N.J. 249, 262
(2015) ("Appellate courts reviewing a grant or denial of a motion to suppress
12 A-2388-19
must defer to the factual findings of the trial court so long as those findings are
supported by sufficient evidence in the record."). The DAG stated the obvious:
defendant would not have come under scrutiny but for his pending release from
state prison after he was incarcerated on violation of PSL. His own inability to
comply with PSL conditions pushed the State beyond the "tipping point" into
deciding to pursue civil commitment.
It would have been preferable if the judge had made a decision on the
record regarding the State's objection to production of the memo given the work
product argument, and if he would have explained why he proceeded to issue a
decision in the absence of the memo. Regardless, the record is clear on the key
facts. Defendant's conduct, which would have produced the same result even if
he had never pled to this offense, triggered the Attorney General's review of his
status. It was that final act of removing his bracelet and absconding from parole
that concerned the State. By doing so, defendant raised the specter that he could
not control his impulses and thus posed a danger to the public. Defendant's
argument that he never got the benefit of his bargain cannot succeed since his
own subsequent conduct caused him to face commitment, rather than anything
stemming from the plea agreement. Therefore, we affirm the judge's decision
denying defendant leave to withdraw from the plea.
13 A-2388-19
Affirmed.
14 A-2388-19