STATE OF NEW JERSEY v. RONALD SASALA (2013)

Defendant appeals from the denial of his petition for post-conviction relief (PCR).  For the reasons that follow, this court reverses the order denying defendant's petition and remands for an evidentiary hearing on defendant's claim alleging ineffective assistance of counsel and a hearing to determine whether he should be permitted to withdraw his guilty plea.

The charges against defendant arise from an incident that occurred on December 31, 2006.   On that day, Mauricio Alexander Lopez drove Daisy and Sonia Estrada to a laundromat in Perth Amboy in a Honda Accord.   Daisy ¹ was nine months pregnant at the time.   Lopez parked and began carrying bags of laundry inside, while Daisy and Sonia remained in the Honda with the engine running.   Defendant approached Lopez and offered to help him carry the laundry bags.   After all of the laundry had been carried in, defendant ran to the Honda, entered the driver's side door, and pushed Daisy, who was exiting the passenger's side door, from the car.   He then drove away with Sonia still in the backseat.   Initially, Sonia was too afraid to say anything to defendant, but she eventually started yelling.   Defendant pulled over and allowed her to leave.   Sonia fled back to the laundromat, where she provided police with a description of defendant.   She told the responding officers that defendant “did not realize that she was in the back seat until she screamed,” at which point he “ordered her to get out of the car[.]”

Later that day, Lopez contacted police and reported that he had seen defendant.   Police responded, and Lopez positively identified defendant, who was then placed under arrest.

In March 2007, defendant was charged with three counts of first-degree carjacking, N.J.S.A. 2C:15–2 (counts one, two, and three);  second-degree kidnapping, N.J.S.A. 2C:13–1(b) (count four);  and fourth-degree false swearing, N.J.S.A. 2C:28–2(a) (count five).   Defendant pled guilty to second-degree kidnapping on May 1, 2008, pursuant to a plea agreement in which the remaining counts of the indictment were dismissed.

The kidnapping statute, N.J.S.A. 2C:13–1(b), provides:

A person is guilty of kidnapping if he unlawfully removes another ․ a substantial distance from the vicinity where he is found, or if he unlawfully confines another for a substantial period, with any of the following purposes:

(1) To facilitate commission of any crime or flight thereafter;

(2) To inflict bodily injury on or to terrorize the victim or another;

(3) To interfere with the performance of any governmental or political function;  or

(4) To permanently deprive a parent, guardian or other lawful custodian of custody of the victim.

[ (Emphasis added).]

At the plea hearing, defendant provided the following factual basis for the kidnapping charge:

COURT:  ․ Do you understand what a second degree kidnapping means?

DEFENDANT:  Yes.

COURT:  Are you guilty of it?

DEFENDANT:  Yes.

․

[COUNSEL]:  On [December 31, 2006], did you enter a motor vehicle with the intention of taking that motor vehicle?

DEFENDANT:  Yes.

[COUNSEL]:  And when you drove away in the motor vehicle, there was, in the back seat of the motor vehicle, a woman, who we now know was Sonia Estrada?

DEFENDANT:  Yes.

[COUNSEL]:  If ․ I told you that there was a person in the back seat, would you agree there was a woman in the back seat?

DEFENDANT:  Sure.

[COUNSEL]:  You drove off with her in the back seat?   Without her permission;  right?

DEFENDANT:  Yeah.

[COUNSEL]:  And you took her for a distance from where she was?   And, eventually, you pulled over and released her from the car?

DEFENDANT:  In a safe place, yes, sir, I did.

[COUNSEL]:  That's what makes it a second degree.   But for that, it would have been a first degree kidnapping.   You understand that, and you acknowledge, that that's an illegal activity that you did?

DEFENDANT:  Yes.

[COUNSEL]:  I believe that's a sufficient factual basis, your Honor.

[PROSECUTOR]:  We're satisfied with that, Judge.

COURT:  The record should reflect, Mr. Sasala, you're hesitating.   You're shaking your head no.   What's the story?   You're under oath here.   What's the story?

DEFENDANT:  No. What I said was true.

COURT:  What?

DEFENDANT:  She was in the car, and I moved it.   Yes, that's true.

COURT:  Did you take her against her will?   Did you move the car?

DEFENDANT:  Yes.

COURT:  Against her will?

DEFENDANT:  Yes.

[COUNSEL]:  And then you, eventually, let her out?

DEFENDANT:  Yes.

[COUNSEL]:  And you didn't have anybody's permission to take the car, did you?

DEFENDANT:  No.

[COUNSEL]:  You didn't have any permission to take that woman, did you?

DEFENDANT:  No.

COURT:  Okay. State?

[PROSECUTOR]:  We are satisfied.

COURT:  I'm satisfied as well, that Mr. Sasala has provided a factual basis for the second degree kidnapping.   He is, in fact, guilty of that charge.   I'm satisfied that Mr. Sasala is entering the plea agreement freely, voluntarily, knowingly, and intelligently.   And, in that regard, I find that he is waiving his rights, and that he is aware of the terms of the plea agreement.   He is also aware of the potential consequences that he could face, without the benefit of a plea agreement, if he was to be convicted at trial.

Thus, although it is an essential element of kidnapping that a defendant have one of the purposes identified in the statute for removing or confining the victim, defendant was not asked and did not provide any factual basis for any of the purposes set forth in N.J.S.A. 2C:13–1(b).²

Before defendant was sentenced, he filed a motion to withdraw his guilty plea.³  At a hearing on the motion in November 2008, defendant asserted he was not guilty of second-degree kidnapping.   He described the circumstances of his guilty plea as follows:

I felt I was in a ․ no win situation.  [My trial counsel] was telling me I have to take this plea or else I'll never see my kid again.   I was shaking my head.  [The trial judge] stopped me.   I knew what I was saying was wrong.   I was shaking my head.   I knew what I was saying wasn't the truth.   I'm not guilty of these charges.

The trial judge did not address the fact that defendant had not provided a factual basis for any of the unlawful purposes of N.J.S.A. 2C:13–1(b) at the time of his guilty plea, but rather denied the motion based upon his findings on the defendant's credibility, stating:

I'm satisfied you were telling the truth at the time of your guilty plea and to me that's abundantly clear and you are just simply grasping at straws realizing the one thing missing from your application was an assertion of innocence and now you are curing that and I don't accept it.   I don't accept it.   I think you're lying now.

The judge then sentenced defendant in accordance with the agreement to a term of six years imprisonment with an eighty-five-percent parole ineligibility period pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43–7.2. Defendant did not file a direct appeal of his conviction or sentence.

Defendant filed a PCR petition in September 2010, in which he alleged ineffective assistance of counsel because, inter alia, his attorney had counseled him to accept the State's plea offer to second-degree kidnapping, an offer he would have rejected if he had been advised of the essential elements of the offense, and advised him there were no issues to raise on direct appeal.   In support of his petition, defendant filed a certification in which he stated he had observed only two occupants of the Honda, the driver and the front seat passenger, Daisy.   He stated further that when he took possession of the Honda,

18․  I did not observe and was unaware that Sonia Estrada (“Sonia”) was an occupant in the back seat of the Honda.

19. I had traveled several blocks from the laundromat at which point Sonia started screaming at me, which startled me because it was the first point I was aware that she was a back-seat occupant of the Honda.

20. Upon first hearing Sonia beginning to scream I immediately pulled over to the curb and permitted Sonia to voluntarily exit the Honda.

․

26. Had [I] been aware that [I] had not committed and was not guilty of the charged offense of kidnapping in the second degree [I] would not have accepted the plea offer from the State and would not have entered a plea of guilty to kidnapping in the second degree and would have proceeded to trial on the indictment.

In his certification, defendant stated further that he did not directly appeal from his judgment of conviction “because [he] was advised and told by [his] assigned trial counsel that there existed no appellate issues to be raised and that taking a direct appeal was frivolous and [he] relied upon and accepted such recommendations and advice.”

The State argued that defendant's petition was procedurally barred by Rules 3:22–4 and 3:22–5.   The PCR judge declined to find the petition procedurally barred.   The judge recognized defendant's assertion that he had given an inadequate factual basis for his guilty plea and his argument regarding a deficiency in the indictment “should have been raised on appeal[,]” but stated that defendant's ineffective assistance of counsel claim was properly raised in his petition for PCR. The judge reviewed defendant's statements at his plea in light of the elements of kidnapping and found both the kidnapping count properly pled ⁴ and defendant's statements sufficient to establish a factual basis for the guilty plea.   The court did not explicitly address defendant's statement that he was unaware that Sonia was in the Honda when he drove away, stating:

With regard to petitioner's unlawful removal of Sonia Estrada, when petitioner pled guilty to kidnap[p]ing, he provided a factual basis to the Court confirming that he drove away in the motor vehicle with Sonia Estrada in the back seat without her permission.   In response to additional questions from [the trial judge] the petitioner acknowledged Sonia Estrada was in the car and he moved it.   He didn't have anybody's permission to take the car and he didn't have any permission to [take] that woman.

The PCR judge denied defendant's petition without an evidentiary hearing on April 25, 2011.

Defendant presents the following arguments on appeal:

POINT I

THE ORDER DENYING POST–CONVICTION RELIEF SHOULD BE REVERSED BECAUSE DEFENDANT ESTABLISHED BY A PREPONDERANCE OF THE EVIDENCE THAT HIS FOURTEENTH AMENDMENT DUE PROCESS RIGHT TO BE PROTECTED AGAINST ENTERING A GUILTY PLEA TO A CRIME HE DID NOT COMMIT, AND HIS FOURTEENTH AMENDMENT DUE PROCESS RIGHT TO BE PERMITTED TO WITHDRAW A GUILTY PLEA FOR A CRIME HE DID NOT COMMIT, WERE VIOLATED.

POINT II

THE ORDER DENYING POST–CONVICTION RELIEF SHOULD BE REVERSED AND THE MATTER REMANDED FOR A FULL EVIDENTIARY HEARING BECAUSE THE DEFENDANT MADE A PRIMA FACIE SHOWING OF INEFFECTIVE ASSISTANCE OF COUNSEL UNDER THE STRICKLAND [[5]/FRITZ [6] TEST.

POINT III

THE COURT'S RULING DENYING POST–CONVICTION RELIEF VIOLATED DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.

A PCR petition is “a defendant's last chance to challenge the fairness and reliability of a criminal verdict in our state system.”  State v. Nash, 212 N.J. 518, 540 (2013) (internal quotation marks omitted).   It is “a built-in safeguard that ensures that a defendant was not unjustly convicted.”  Ibid. (internal quotation marks omitted).   At a PCR proceeding, the defendant bears the burden of establishing his right to relief “by a preponderance of the credible evidence.”  Id. at 541.   This court must defer to the PCR court's factual findings and uphold such findings if they “are supported by sufficient credible evidence in the record.”  Id. at 540.   This court need not, however, “defer to a PCR court's interpretation of the law;  a legal conclusion is reviewed de novo.”  Id. at 540–41.

I.

“Post-conviction relief is neither a substitute for direct appeal nor an opportunity to relitigate cases already decided on the merits.”  State v. Preciose, 129 N.J. 451, 459 (1992) (internal citations omitted).   Accordingly, the procedural bars embodied in Rule 3:22–4 and Rule 3:22–5 exist to prevent issues that could have been litigated on appeal or issues that previously have been litigated from being raised in a PCR setting.   However, as the Supreme Court observed, “[n]either rule ․ requires this Court to acquiesce to a miscarriage of justice.”  Nash, supra, 212 N.J. at 546.

As the Court observed, “Rule 3:22–5's bar to review of a prior claim litigated on the merits ‘is not an inflexible command.’ ”  Id. at 547 (quoting State v. Franklin, 184 N.J. 516, 528 (2005)).   In addition, a petitioner will be relieved from the procedural bar of Rule 3:22–4 if “enforcement of the bar ․ would result in fundamental injustice.”   R. 3:22–4(a)(2).

In determining whether a fundamental injustice would result, the court must

look to whether the judicial system has provided the defendant with fair proceedings leading to a just outcome.   Fundamental injustice will be found if the prosecution or the judiciary abused the process under which the defendant was convicted or ․ if inadvertent errors mistakenly impacted a determination of guilt or otherwise wrought a miscarriage of justice for the individual defendant.   The standard goes beyond constitutional infringements to any circumstances deemed unjust.   Although a petitioner would not have to prove that the issue of concern cost him the case, to establish injustice there should at least be some showing that [the alleged violation] played a role in the determination of guilt.

[State v. Martini, 187 N.J. 469, 481–82 (2006) (internal quotation marks omitted) (quoting State v. Mitchell, 126 N.J. 565, 587 (1992)).]

See also Nash, supra, 212 N.J. at 547;  State v. Laurick, 120 N.J. 1, 11, cert. denied, 498 U.S. 967, 111 S.Ct. 429, 112 L. Ed.2d 413 (1990);  State v. Brewster, 429 N.J.Super. 387, 400–401 (App.Div.2013).

The deficiency alleged in this case was germane to defendant's conviction for second-degree kidnapping.   There was no mention of the essential element that he have one of the purposes enumerated in N.J.S.A. 2C:13–1(b) in the colloquy when he entered his guilty plea.   The danger that defendant pled guilty to an offense while lacking a predicate purpose was exacerbated by the indictment's failure to allege this necessary element of the second-degree offense.   Defendant's belated assertion of innocence is supported by the victim's statement to police that he was unaware she was in the car when he drove off, a fact that would preclude a finding of any of the purposes set forth in the statute.   Further, pursuant to the exception of Rule 3:22–4(a)(2), precluding defendant's claim because it was not raised on direct appeal would be fundamentally unjust, considering defendant's claim that he did not pursue a direct appeal because he relied upon his trial counsel's representation that there were no appealable issues in his case.   We are therefore satisfied that defendant has made an adequate showing of “fundamental injustice” to warrant a review of his petition on the merits.

II.

Defendant first argues that his Fourteenth Amendment due process rights were violated because he was not permitted to withdraw his guilty plea for a crime he did not commit.   He argues that his trial counsel “misinformed him as to the material elements of the crime of kidnapping, and the differences between the crimes of kidnapping and joyriding[,]” and failed to elicit from him an adequate factual basis for second-degree kidnapping during the plea colloquy.

As we have noted, the kidnapping statute, N.J.S.A. 2C:13–1(b), requires that the unlawful removal or confinement of another be done with one of the following purposes:

(1) To facilitate commission of any crime or flight thereafter;

(2) To inflict bodily injury on or to terrorize the victim or another;

(3) To interfere with the performance of any governmental or political function;  or

(4) To permanently deprive a parent, guardian or other lawful custodian of custody of the victim.

Defendant argues that he is factually innocent of second-degree kidnapping because he was not aware that Sonia was in the backseat of the vehicle, an assertion corroborated by Sonia's statement to police.   As a result, he did not remove or confine her with any of the unlawful purposes outlined in N.J.S.A. 2C:13–1(b)(1)–(4).   In opposition, the State has failed to identify any of the predicate unlawful purposes that was either admitted by defendant or supported by the evidence.

It is an ineluctable conclusion that if defendant did not know Sonia was in the backseat of the vehicle, he could not have removed or confined her with one of the unlawful purposes outlined in N.J.S.A. 2C:13–1(b)(1)–(4).   It is patently clear that defendant's removal and confinement of Sonia was not intended “[t]o interfere with the performance of any governmental or political function[,]” see N.J.S.A. 2C:13–1(b)(3), nor was it related to any custody situation.   See N.J.S.A. 2C:13–1(b)(4).   Sonia's statement to the police refutes any argument that defendant acted with the purpose to “inflict bodily injury on [Sonia] or to terrorize [her] or another[.]”  See N.J.S.A. 2C:13–1(b)(4).   That leaves the first enumerated predicate purpose, to “facilitate commission of any crime or flight thereafter[.]”  N.J.S.A. 2C:13–1(b)(1).   Although it is theoretically possible that defendant could have had such a purpose, without such an admission the known facts do not support finding this purpose.   The removal of Sonia did not help defendant to either commit a crime or to flee thereafter.

Our Supreme Court has long been concerned that “the State might misuse kidnapping as a bonus count in an indictment”;  accordingly, “careful constraints [have been placed] on the prosecution of kidnapping offenses [.]”  State v. Jackson, 211 N.J. 394, 416 (2012);  see also State v. LaFrance, 117 N.J. 583, 591 (1990);  State v. Masino, 94 N.J. 436, 447–48 (1983).   The action prohibited by the statute is the unlawful removal or the unlawful confinement of another for a substantial period.   Whether the action alleged is asportation or confinement, the Court has made it clear that the action must be “criminally significant in the sense of being more than merely incidental to the underlying crime.” ⁷  See LaFrance, supra, 117 N.J. at 594;  Masino, supra, 94 N.J. at 447.   Similarly, the “substantial distance” requirement “was intended to preclude abusive prosecution, in the form of kidnapping convictions based on trivial changes of location having no bearing on the evil at hand.”  Jackson, supra, 211 N.J. at 415 (internal quotation marks omitted).

The criminal purposes for removal and confinement set forth in the statute “are the qualitative terms by which the Code distinguishes kidnapping from conduct that is merely incidental to the underlying crimes.”  LaFrance, supra, 117 N.J. at 590.   In the absence of any of these unlawful purposes, defendant cannot be guilty of kidnapping.   See id. at 590–91 (“[O]ur Code provides that when the defendant does not act with any of the stated purposes under N.J.S.A. 2C:13–1, the restraint of liberty is a third-degree crime if it exposes another to the risk of serious bodily injury or a condition of servitude.”);   see also State v. Brent, 137 N.J. 107, 122 (1994) (quoting Model Penal Code and Commentaries § 212.2 cmt. at 240–41 (Official Draft and Revised Comments 1985)) (stating that third-degree criminal restraint “comes into play for substantial removal or confinement that is not accompanied by one of the designated kidnapping purposes”).

The fact that defendant pled guilty to this charge does not preclude him from obtaining relief now.   It is not enough that defendant stated that he was guilty of second-degree kidnapping.   See State v. McDonald, 211 N.J. 4, 33 (2012) (Albin, J., dissenting) (“Asking [a] defendant ․ whether he is guilty of the crime charged is not the same as eliciting the factual underpinnings for the plea.”).   Each element of the offense needed to be established during the plea colloquy, including that defendant had one of the unlawful purposes outlined in N.J.S.A. 2C:13–1(b)(1)–(4) when he drove away with Sonia in the backseat of the vehicle.  “Rule 3:9–2 requires that, at a plea hearing, the court elicit a factual basis for each element of the offense before accepting a guilty plea.”  McDonald, supra, 211 N.J. at 33 (emphasis added);  see also State v. Taccetta, 200 N.J. 183, 198 (2009);  Slater, supra, 198 N.J. at 155.

The factual basis requirement of Rule 3:9–2 “is grounded in the concern that a defendant's plea of guilty, with its aura of finality, be entered with a full understanding by the defendant that his actions were in violation of the law.”  State v. Pena, 301 N.J.Super. 158, 162 (App.Div.), certif. denied, 151 N.J. 465 (1997).   It is “designed to ‘protect a defendant who is in the position of pleading voluntarily with an understanding of the nature of the charge but without realizing that his conduct does not actually fall within the charge.’ ”  State v. Barboza, 115 N.J. 415, 421 (1989) (quoting Fed.R.Crim.P. 11(f) advisory committee note (1966 amendment)).  “[I]f an appellate court subsequently determines that a plea has been accepted without an adequate factual basis, the plea, the judgment of conviction, and the sentence must be vacated, the dismissed charges reinstated, and defendant allowed to re-plead or to proceed to trial.”  Id. at 420.

Here, defendant was asked if he was guilty of second-degree kidnapping but was not asked for a factual basis that included the required predicate purpose.   Because the factual basis he provided was legally insufficient to support a conviction for second-degree kidnapping, this error “impacted a determination of [his] guilt[.]”  Martini, supra, 187 N.J. at 481.   Therefore, we reverse the order denying his petition for PCR and remand for an evidentiary hearing on his claim of ineffective assistance of counsel and a hearing to determine whether he should be permitted to withdraw his guilty plea.   We need not address defendant's remaining arguments.

Reversed and remanded.

FOOTNOTES

FN1. Because they have the same surname, we refer to Daisy and Sonia by their first names to avoid confusion..  FN1. Because they have the same surname, we refer to Daisy and Sonia by their first names to avoid confusion.

FN2. We note that the indictment in this case similarly failed to allege that defendant acted with any of the unlawful purposes identified in the statute..  FN2. We note that the indictment in this case similarly failed to allege that defendant acted with any of the unlawful purposes identified in the statute.

FN3. A motion to withdraw a guilty plea filed at or before the time of sentencing will be granted in “the interests of justice,” pursuant to Rule 3:9–3(e), which provides,If at the time of sentencing the court determines that the interests of justice would not be served by effectuating the agreement reached by the prosecutor and defense counsel ․ the court may vacate the plea or the defendant shall be permitted to withdraw the plea.“[C]ourts are to exercise their discretion liberally to allow plea withdrawals” when motions are made prior to sentencing.  Ibid. A different standard applies to post-sentencing withdrawal motions.   See R. 3:21–1;  see also State v. Slater, 198 N.J. 145, 156 (2009), which was issued after defendant's motion was decided..  FN3. A motion to withdraw a guilty plea filed at or before the time of sentencing will be granted in “the interests of justice,” pursuant to Rule 3:9–3(e), which provides,If at the time of sentencing the court determines that the interests of justice would not be served by effectuating the agreement reached by the prosecutor and defense counsel ․ the court may vacate the plea or the defendant shall be permitted to withdraw the plea.“[C]ourts are to exercise their discretion liberally to allow plea withdrawals” when motions are made prior to sentencing.  Ibid. A different standard applies to post-sentencing withdrawal motions.   See R. 3:21–1;  see also State v. Slater, 198 N.J. 145, 156 (2009), which was issued after defendant's motion was decided.

FN4. Defendant contended that the indictment was deficient because the count that charged second-degree kidnapping did not allege an unlawful purpose or the use of force..  FN4. Defendant contended that the indictment was deficient because the count that charged second-degree kidnapping did not allege an unlawful purpose or the use of force.

FN5. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L. Ed.2d 674 (1984)..  FN5. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L. Ed.2d 674 (1984).

FN6. State v. Fritz, 105 N.J. 42 (1987)..  FN6. State v. Fritz, 105 N.J. 42 (1987).

FN7. Defendant also argues that his confinement and asportation of Sonia were “merely incidental to the crime of joyriding[.]”.  FN7. Defendant also argues that his confinement and asportation of Sonia were “merely incidental to the crime of joyriding[.]”

PER CURIAM