STATE OF NEW JERSEY VS. LUIS A. DIAZ(13-04-0589, BERGEN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-1400-15T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
LUIS A. DIAZ,
Defendant-Appellant.
________________________________
Submitted September 25, 2017 – Decided October 18, 2017
Before Judges Sabatino and Whipple.
On appeal from Superior Court of New Jersey,
Law Division, Bergen County, Indictment No.
13-04-0589.
Joseph E. Krakora, Public Defender, attorney
for appellant (Stephen W. Kirsch, Assistant
Deputy Public Defender, of counsel and on the
brief).
Gurbir S. Grewal, Bergen County Prosecutor,
attorney for respondent (Elizabeth R. Rebein,
Assistant Prosecutor, of counsel and on the
brief).
Appellant filed a pro se supplemental brief.
PER CURIAM
Defendant appeals from a September 22, 2015 judgment of
conviction for second-degree conspiracy to commit robbery and
second-degree possession of a firearm for an unlawful purpose
after entering a guilty plea on May 8, 2014. He argues the
presentation of the factual basis to the court at the plea hearing
prior to the completion of the waiver of his rights is a fatal
defect rendering the plea involuntary. We affirm.
At a hearing that began on May 5, 2014, the Assistant
Prosecutor moved the plea agreement by representing that plea
forms were completed by the parties and defendant was expected to
plead guilty to the above-referenced second-degree charges. The
Assistant Prosecutor also placed on the record the State's
recommended sentence of seven years, subject to the No Early
Release Act (NERA), N.J.S.A. 2C:43-7.2, and Grave's Act components,
N.J.S.A. 2C:43-6, and stated defendant agreed to testify against
his co-defendants and his counsel was free to argue for a lesser
sentence.
Defendant, who was questioned by his counsel to establish a
factual basis for the plea, testified under oath that, on December
28, 2012, he and two co-defendants agreed to rob an owner of a
pizza shop. One co-defendant drove defendant and the other co-
defendant to the individual's home where they encountered the
owner, and the co-defendant fired a handgun that was jointly
2 A-1400-15T1
possessed. Defendant and co-defendant ran from the scene and
called the other co-defendant for a ride. All three co-defendants
were arrested shortly thereafter.
For reasons unclear from the record, the court halted the
hearing and instructed the parties to return on May 8, 2014 to
complete the plea proceeding. On May 8, 2014, the parties
returned, and defendant was sworn in again. The Assistant
Prosecutor reinitiated the plea, placing the same relevant
information on the record as the May 5, 2014 hearing. As
previously done, defendant's counsel questioned him under oath to
establish a factual basis, and defendant gave consistent testimony
about the plan to rob the pizza shop owner and the gun. The
Assistant Prosecutor then examined defendant, confirming he was
truthful and understood he might be asked to testify at a trial
of his co-defendants.
The judge then questioned defendant about his citizenship and
his understanding of the potential immigration consequences of
entering a plea. The judge confirmed defendant's plea was
voluntary and he was aware he was giving up the right to a trial
where defendant could challenge witnesses and the State's
evidence. Defendant also confirmed, through the court's
questioning, he was waiving motions and had agreed to testify
against his co-defendants. The judge asked defendant if he
3 A-1400-15T1
understood each relevant potential consequence of the plea to both
offenses, which defendant said he did. The judge then scheduled
a sentencing date.
On July 10, 2014, defendant moved to withdraw his guilty plea
pursuant to State v. Slater, 198 N.J. 145 (2009), asserting he
misunderstood the terms of the plea and the potential sentence,
his Miranda1 rights were violated, and he has three small children
for whom he cares. On September 9, 2015, defendant's new counsel
amended defendant's motion, asserting prior counsel misled
defendant into believing he had to plead guilty. Defendant did
not raise the issue now being presented on appeal regarding the
sequence of the plea colloquy.
A second judge heard the motion and, on September 11, 2015,
after applying the four factor test for a plea withdrawal under
Slater, supra, 198 N.J. at 157-58, denied defendant's motion
because the record belied the assertion he did not understand the
potential sentence. The executed plea forms and the plea
transcript demonstrated defendant was informed he could receive a
maximum term of seven years subject to NERA. The judge also
rejected defendant's unsupported assertion that his inculpatory
statements to police were made without a Miranda waiver that
1
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d
694 (1966).
4 A-1400-15T1
supported a colorable claim of innocence. Defendant provided no
facts to support a colorable claim of innocence, demonstrated no
flaw in the plea proceeding, and provided no evidence his lawyer
misled him into pleading guilty. The judge then sentenced
defendant to a term of five years, consistent with the plea
agreement. This appeal followed.
On appeal, defendant argues:
POINT I
DEFENDANT'S MOTION TO WITHDRAW HIS GUILTY PLEA
SHOULD HAVE BEEN GRANTED; IT IS IMPROPER FOR
A COURT TO DEMAND A FACTUAL BASIS FROM A
DEFENDANT BEFORE ENGAGING IN A COLLOQUY WITH
THAT DEFENDANT TO EXPLAIN THE RIGHTS THAT ARE
BEING WAIVED.
POINT II
MERGER OF THE DEFENDANT'S CONVICTIONS SHOULD
BE ORDERED. (NOT RAISED BELOW).
Defendant argues the plea hearing was procedurally invalid
and the Slater factors do not apply because the out-of-sequence
proceeding was fundamentally flawed, destroying any possibility
that defendant knowingly and voluntarily pled guilty. We agree
the Slater factors do not apply to a challenge of the adequacy of
the factual basis, State v. Tate, 220 N.J. 393, 403-04 (2015).
But defendant made no such challenge in support of his motion to
withdraw his plea.
Defendant asserts the plea hearing's "backwards" sequence
undermined the determination that he knowingly and voluntarily
5 A-1400-15T1
pled guilty. The Supreme Court of New Jersey has made clear the
standard for which a guilty plea may be entered under Rule 3:9-2
and the defendant's waiver cannot be deemed knowing, intelligent,
and voluntary "unless the defendant possesses an understanding of
the law in relation to the facts." State v. Urbina, 221 N.J. 509,
526 (2015). Rule 3:9-2 states in pertinent part:
A defendant may plead only guilty or not
guilty to an offense. The court, in its
discretion, may refuse to accept a plea of
guilty and shall not accept such plea without
first questioning the defendant personally,
under oath or by affirmation, and determining
by inquiry of the defendant and others, in the
court's discretion, that there is a factual
basis for the plea and that the plea is made
voluntarily, not as a result of any threats
or of any promises or inducements not
disclosed on the record, and with an
understanding of the nature of the charge and
the consequences of the plea.
Under the plain language of the rule, the meaning of "without
first questioning the defendant" does not mandate a sequential
order of questions but requires that, before the judge formally
accepts the guilty plea, certain information must be confirmed.
The trial judge must be satisfied whether (1) anyone had forced,
threatened, or put defendant under pressure to plead guilty, (2)
the defendant understood that he was relinquishing certain
constitutional rights, (3) the defendant understood the nature of
the charge and content of the sentencing recommendation, and (4)
6 A-1400-15T1
the defendant was in fact guilty of the specific charge. State
v. Campfield, 213 N.J. 218, 230-31 (2013) (quoting State ex rel.
T.M., 166 N.J. 319, 336 (2001)). The trial court's inquiry need
not follow a "prescribed or artificial ritual[,]" and defendant's
admissions should be examined in light of all surrounding
circumstances in the context of an entire plea colloquy. Id. at
231-32 (citation omitted). The trial court's purpose is to ensure
the defendant has articulated a factual basis for each element of
the offense to which he pleads guilty. Id. at 232.
While, as the preferred practice, we do not endorse conducting
a plea hearing by taking the factual testimony first because of
the volume of information a judge must consider when determining
the validity of defendant's acknowledgement and understanding.
However, the unconventional sequencing of the plea hearing does
not invalidate the court's ultimate determination that the guilty
plea was voluntarily made, when considering the entire
circumstances and context of the plea colloquy. We reject
defendant's argument analogizing the plea sequence to a waiver of
Miranda rights because there are major differences between
statements made in a police interrogation and voluntary statements
made during a plea hearing with the assistance of counsel. We
also reject the assertion there was an inadequate factual basis
or that the judge did not possess all the information needed to
7 A-1400-15T1
fully establish defendant voluntarily entered the plea and
understood its effects and consequences.
Finally, defendant's argument his convictions should merge
pursuant to State v. Demetrius Diaz, 144 N.J. 628, 636-39 (1996),
is without sufficient merit to warrant discussion in a written
opinion. R. 2:11-3(e)(1)(E).
Affirmed.
8 A-1400-15T1