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

• Court: New Jersey Superior Court Appellate Division
• Decided: January 19, 2022
• Docket: A-2388-19
• Status: Unpublished

Opinion

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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