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NOT FOR PUBLICATION WITHOUT THE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

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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

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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).

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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

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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

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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.

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