NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-4861-18T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MIGUEL VASQUEZ, a/k/a VASQUEZ-HERNANDEZ,
Defendant-Appellant.
Argued November 2, 2020 – Decided December 18, 2020
Before Judges Currier and DeAlmeida.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Accusation No. 01-07-0913.
Leslie B. Posnock argued the cause for appellant (Schwartz & Posnock, attorneys; Leslie B. Posnock, of counsel and on the briefs).
Michele C. Buckley, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Lyndsay V. Ruotolo, Acting Union County Prosecutor, attorney; Albert Cernadas, Jr., Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Miguel Vasquez appeals from the denial of his petition for
post-conviction relief (PCR) and motion to vacate his guilty plea. Defendant
contends the trial court erred in denying his motion to vacate the plea because it
lacked an adequate factual basis and the Slater1 factors weigh in favor of
vacating the plea. We affirm.
In June 2001, defendant and a group of people set fire to a car that
belonged to his building's superintendent. Eyewitnesses identified defendant as
the person who started the fire. Defendant was charged with second-degree
aggravated arson in violation of N.J.S.A. 2C:17-1(a)(2).
In July 2001, defendant met with counsel to review the charge, discovery,
and a plea offer. Subsequently, defendant pled guilty to third-degree arson in
violation of N.J.S.A. 2C:17-1(b)(2).2 Under the plea agreement, the State sought
a sentence of three years' probation, 180 days in county jail, and payment of
restitution.
1 State v. Slater, 198 N.J. 145, 157-58 (2009). 2 The judgment of conviction reflects defendant correctly pled guilty to third - degree arson, however, the judgment of conviction mistakenly lists the statute for second-degree arson. A-4861-18T1 2 On the plea form, defendant indicated he committed the offense to which
he was pleading guilty and he responded affirmatively to question seventeen,
which asked: "Do you understand that if you are not a United States citizen or
national, you may be deported by virtue of your plea of guilty?" 3
Defendant appeared alongside three other individuals entering guilty pleas
for different offenses. When defendant responded he was not a U.S. citizen, the
judge asked: "you understand by pleading guilty this could affect your
citizenship and/or residency status?" Defendant responded: "Yes, ma'am." The
judge inquired whether defendant had sufficient time to review the charge
against him and the plea form with his attorney; defendant responded
affirmatively. Defendant also indicated he was not forced to plead guilty and
he was satisfied with his attorney's representation.
After the plea judge explained the rights defendant was forfeiting by
entering a guilty plea, she elicited a factual basis:
THE COURT: [O]n June 4th, in the City of Plainfield, did you unlawfully and purposely start a fire recklessly burning a car and placing others in danger because of that?
[DEFENDANT]: Yes.
3 Defendant was born in the Dominican Republic but was deemed a permanent legal resident of the United States in 1993. A-4861-18T1 3 After defense counsel stated he was satisfied there was a factual basis for
defendant's plea, the judge accepted the plea.
Defendant was sentenced in October 2001. The judge found the
mitigating factors outweighed the aggravating factors and imposed a sentence
below what the State sought under the plea agreement. Defendant was sentenced
to sixty days in county jail, three years' probation, and restitution and other fines.
In November 2017, defendant filed a PCR petition. In January 2019,
defendant amended his PCR petition and moved to vacate his guilty plea.
Defendant argued: (1) he was entitled to withdraw his guilty plea because it was
not supported by an adequate factual basis; (2) he was entitled to withdraw his
guilty plea because the Slater factors weighed in his favor; (3) he was deprived
of the effective assistance of counsel because his plea attorney did not properly
inform him of the immigration consequences of his guilty plea and his
sentencing attorney failed to review the presentence report with him, know his
name, and tell the court about defendant's claim of innocence; and (4) he was
entitled to withdraw his guilty plea or be resentenced because he received an
illegal sentence.
In June 2019, after entertaining oral argument, the PCR judge issued a
comprehensive, well-reasoned decision and order denying defendant's petition
A-4861-18T1 4 for PCR and other relief. The judge found defendant's plea was supported by a
proper factual basis as his responses to questions at the plea hearing established
the necessary elements for an arson conviction. The judge also found defendant
was not entitled to withdraw his plea under Slater because each of the four
required factors weighed against defendant—he did not assert a colorable claim
of innocence, he did not have clear, forceful reasons to withdraw his plea, he
entered his guilty plea pursuant to a plea agreement, and the State would incur
unfair prejudice from a withdrawal of the plea.
In addressing defendant's ineffective assistance of counsel claim, the
judge found defendant's claim was time-barred because he did not file his PCR
petition until sixteen years after his conviction and he did not establish excusable
neglect or fundamental injustice. The judge also found defendant's claim lacked
merit because his plea counsel did not provide affirmative mistaken advice and
he could not show that but for counsel's alleged errors, he would have rejected
the plea and gone to trial. Moreover, the record showed defendant's sentencing
counsel informed the court he had reviewed the presentencing report with
defendant and advised the court that there "was some denial as to [defendant's]
charge[.]"
A-4861-18T1 5 Finally, the PCR judge found that while defendant's judgment of
conviction incorrectly reflected the wrong statute, it was clear he was convicted
of third-degree arson, and the imposed sentence was within the statutory range
for third-degree arson.
On appeal, defendant presents a single point for our review:
THE COURT BELOW ERRED IN DENYING DEFENDANT'S MOTION TO VACATE HIS GUILTY PLEA AS NO ADEQUATE FACTUAL BASIS FOR SAME WAS ESTABLISHED
A. Defendant Must Be Permitted to Withdraw His Plea Even Pursuant to the Analysis Set Forth in State v. Slater
i. Colorable Claim of Innocence
ii. Nature and Strength of Defendant's Reasons for Withdrawal
a. Defendant's Plea Was Not Knowing and Voluntary in Accordance with R. 3:9-2
iii. Existence of a Plea Bargain
iv. Prejudice to State/Advantage to the Accused
Under Rule 3:9-2, a judge "shall not accept" a guilty plea without first
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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-4861-18T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MIGUEL VASQUEZ, a/k/a VASQUEZ-HERNANDEZ,
Defendant-Appellant.
Argued November 2, 2020 – Decided December 18, 2020
Before Judges Currier and DeAlmeida.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Accusation No. 01-07-0913.
Leslie B. Posnock argued the cause for appellant (Schwartz & Posnock, attorneys; Leslie B. Posnock, of counsel and on the briefs).
Michele C. Buckley, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Lyndsay V. Ruotolo, Acting Union County Prosecutor, attorney; Albert Cernadas, Jr., Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Miguel Vasquez appeals from the denial of his petition for
post-conviction relief (PCR) and motion to vacate his guilty plea. Defendant
contends the trial court erred in denying his motion to vacate the plea because it
lacked an adequate factual basis and the Slater1 factors weigh in favor of
vacating the plea. We affirm.
In June 2001, defendant and a group of people set fire to a car that
belonged to his building's superintendent. Eyewitnesses identified defendant as
the person who started the fire. Defendant was charged with second-degree
aggravated arson in violation of N.J.S.A. 2C:17-1(a)(2).
In July 2001, defendant met with counsel to review the charge, discovery,
and a plea offer. Subsequently, defendant pled guilty to third-degree arson in
violation of N.J.S.A. 2C:17-1(b)(2).2 Under the plea agreement, the State sought
a sentence of three years' probation, 180 days in county jail, and payment of
restitution.
1 State v. Slater, 198 N.J. 145, 157-58 (2009). 2 The judgment of conviction reflects defendant correctly pled guilty to third - degree arson, however, the judgment of conviction mistakenly lists the statute for second-degree arson. A-4861-18T1 2 On the plea form, defendant indicated he committed the offense to which
he was pleading guilty and he responded affirmatively to question seventeen,
which asked: "Do you understand that if you are not a United States citizen or
national, you may be deported by virtue of your plea of guilty?" 3
Defendant appeared alongside three other individuals entering guilty pleas
for different offenses. When defendant responded he was not a U.S. citizen, the
judge asked: "you understand by pleading guilty this could affect your
citizenship and/or residency status?" Defendant responded: "Yes, ma'am." The
judge inquired whether defendant had sufficient time to review the charge
against him and the plea form with his attorney; defendant responded
affirmatively. Defendant also indicated he was not forced to plead guilty and
he was satisfied with his attorney's representation.
After the plea judge explained the rights defendant was forfeiting by
entering a guilty plea, she elicited a factual basis:
THE COURT: [O]n June 4th, in the City of Plainfield, did you unlawfully and purposely start a fire recklessly burning a car and placing others in danger because of that?
[DEFENDANT]: Yes.
3 Defendant was born in the Dominican Republic but was deemed a permanent legal resident of the United States in 1993. A-4861-18T1 3 After defense counsel stated he was satisfied there was a factual basis for
defendant's plea, the judge accepted the plea.
Defendant was sentenced in October 2001. The judge found the
mitigating factors outweighed the aggravating factors and imposed a sentence
below what the State sought under the plea agreement. Defendant was sentenced
to sixty days in county jail, three years' probation, and restitution and other fines.
In November 2017, defendant filed a PCR petition. In January 2019,
defendant amended his PCR petition and moved to vacate his guilty plea.
Defendant argued: (1) he was entitled to withdraw his guilty plea because it was
not supported by an adequate factual basis; (2) he was entitled to withdraw his
guilty plea because the Slater factors weighed in his favor; (3) he was deprived
of the effective assistance of counsel because his plea attorney did not properly
inform him of the immigration consequences of his guilty plea and his
sentencing attorney failed to review the presentence report with him, know his
name, and tell the court about defendant's claim of innocence; and (4) he was
entitled to withdraw his guilty plea or be resentenced because he received an
illegal sentence.
In June 2019, after entertaining oral argument, the PCR judge issued a
comprehensive, well-reasoned decision and order denying defendant's petition
A-4861-18T1 4 for PCR and other relief. The judge found defendant's plea was supported by a
proper factual basis as his responses to questions at the plea hearing established
the necessary elements for an arson conviction. The judge also found defendant
was not entitled to withdraw his plea under Slater because each of the four
required factors weighed against defendant—he did not assert a colorable claim
of innocence, he did not have clear, forceful reasons to withdraw his plea, he
entered his guilty plea pursuant to a plea agreement, and the State would incur
unfair prejudice from a withdrawal of the plea.
In addressing defendant's ineffective assistance of counsel claim, the
judge found defendant's claim was time-barred because he did not file his PCR
petition until sixteen years after his conviction and he did not establish excusable
neglect or fundamental injustice. The judge also found defendant's claim lacked
merit because his plea counsel did not provide affirmative mistaken advice and
he could not show that but for counsel's alleged errors, he would have rejected
the plea and gone to trial. Moreover, the record showed defendant's sentencing
counsel informed the court he had reviewed the presentencing report with
defendant and advised the court that there "was some denial as to [defendant's]
charge[.]"
A-4861-18T1 5 Finally, the PCR judge found that while defendant's judgment of
conviction incorrectly reflected the wrong statute, it was clear he was convicted
of third-degree arson, and the imposed sentence was within the statutory range
for third-degree arson.
On appeal, defendant presents a single point for our review:
THE COURT BELOW ERRED IN DENYING DEFENDANT'S MOTION TO VACATE HIS GUILTY PLEA AS NO ADEQUATE FACTUAL BASIS FOR SAME WAS ESTABLISHED
A. Defendant Must Be Permitted to Withdraw His Plea Even Pursuant to the Analysis Set Forth in State v. Slater
i. Colorable Claim of Innocence
ii. Nature and Strength of Defendant's Reasons for Withdrawal
a. Defendant's Plea Was Not Knowing and Voluntary in Accordance with R. 3:9-2
iii. Existence of a Plea Bargain
iv. Prejudice to State/Advantage to the Accused
Under Rule 3:9-2, a judge "shall not accept" a guilty plea without first
eliciting a "factual basis for the plea." The trial court must be "satisfied from
the lips of the defendant that he committed the acts which constitute the crime."
A-4861-18T1 6 State v. Smullen, 118 N.J. 408, 415 (1990) (quoting State v. Barboza, 115 N.J.
415, 422 (1989)). Thus, a proper factual basis for a guilty plea "must obviously
include defendant's admission of guilt of the crime or the acknowledgment of
facts constituting the essential elements of the crime." State v. Sainz, 107 N.J.
283, 293 (1987). A factual basis may be established in "one of two forms;
defendant may either explicitly admit guilt with respect to the elements or may
'acknowledge [ ] . . . facts constituting the essential elements of the crime.'"
State v. Campfield, 213 N.J. 218, 231 (2013) (quoting Sainz, 107 N.J. at 293).
We are satisfied from our review of the record that defendant's guilty plea
was supported by an adequate factual basis. Defendant answered affirmatively
to the plea court's question, establishing the first and second elements of the
offense.
In turning to the Slater issue, defendant has not shown an entitlement to
relief under the four factors that guide whether to allow a defendant to vacate
and withdraw a guilty plea. 198 N.J. at 157-58. These factors are: (1) whether
defendant has asserted a colorable claim of innocence; (2) the nature and
strength of defendant's reasons for withdrawal; (3) the existence of a plea
bargain; and (4) whether withdrawal would result in unfair prejudice to the State
or unfair advantage to the accused. We review a trial court's denial of a motion
A-4861-18T1 7 to withdraw a guilty plea under an abuse of discretion standard. State v. Tate,
220 N.J. 393, 404 (2015).
First, defendant failed to assert a colorable claim of innocence. Although
defendant asserts during the pre-sentence interview that he was sleeping during
the incident, he also acknowledged he pled guilty and "took the six months." He
did not deny setting fire to the superintendent's car.
Turning to the second factor, defendant's proffered reasons for
withdrawing his plea are meritless. The record reflects the plea was knowing
and voluntary. Defendant indicated he understood the charge against him, as
well as the plea agreement and its consequences in his responses to questions
both on the plea form and from the judge at his plea hearing. Defendant stated
he was not forced to plead guilty and he was satisfied with his attorney's
services.
The PCR judge also correctly found the third Slater factor weighed against
defendant because he received a very favorable sentence. Defendant faced
exposure up to five years' incarceration for a third-degree arson conviction but
only received a sentence of sixty days' incarceration, three years' probation, and
monetary penalties. The error on the judgment of conviction is immaterial. The
A-4861-18T1 8 judgment notes correctly that defendant was convicted of and sentenced on the
third-degree arson charge.
Finally, if defendant was permitted to withdraw his plea, it would result
in unfair prejudice to the State given the sixteen-year gap between defendant's
conviction and the filing of his PCR petition. This passage of time would
certainly cause great difficulty in locating witnesses and presenting evidence at
trial.
We are satisfied from our review of the record that the PCR judge did not
abuse his discretion in denying defendant's motion to withdraw his plea.
Defendant failed to meet his burden under Slater to withdraw his plea.
We affirm the denial of defendant's motion to withdraw his guilty plea and
the denial of his petition. We remand to the trial court only to correct the
judgment of conviction to accurately reflect the proper statute under which
defendant was convicted of third-degree arson.
Affirmed and remanded with instructions to correct the judgment of
conviction. We do not retain jurisdiction.
A-4861-18T1 9