State v. Camacho

• Decision Date: 12 December 1996
• Docket Number: No. A-6146-94T5,A-6146-94T5
• Citation: 295 N.J.Super. 585,685 A.2d 961
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Franklin CAMACHO, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 585

295 N.J.Super. 585

685 A.2d 961

STATE of New Jersey, Plaintiff-Respondent, v. Franklin CAMACHO, Defendant-Appellant.

No. A-6146-94T5.

Superior Court of New Jersey,

Appellate Division.

Argued Oct. 21, 1996.

Decided Dec. 12, 1996.

Timothy P. Reilly, Cherry Hill, for appellant (Mr. Reilly, of counsel and on the brief).

Linda Shashoua, Special Assistant Deputy Attorney, Acting Assistant Prosecutor, for respondent (Lee A. Solomon, Special Deputy Attorney General, Acting Camden County Prosecutor, attorney; Kathleen M. Delaney, Special Deputy Attorney General, Acting Assistant Prosecutor, of counsel and on the brief).

Before Judges HAVEY, BROCHIN and EICHEN.

The opinion of the court was delivered by

HAVEY, P.J.A.D.

A person who has been convicted under N.J.S.A. 2C:39-4a of possession of a firearm with intent to use it against the person of another is subject to the mandatory provisions of the Graves Act. N.J.S.A. 2C:43-6c. In this case, the trial judge held that it was his function, as opposed to the jury's, to decide after a Graves Act hearing whether defendant's intention in possessing the firearm was to use it against the person, as opposed to the property, of another. We disagree, and accordingly reverse and remand for further proceedings.

Under a Camden County indictment defendant was charged with fourth-degree aggravated assault, N.J.S.A. 2C:12-1b(4), a Graves Act offense. See N.J.S.A. 2C:43-6c. He was also charged with possession of a firearm with a purpose to use it unlawfully against the person or property of another. N.J.S.A. 2C:39-4a.

Prior to trial, defense counsel requested that a special interrogatory be presented to the jury for it to decide whether defendant's purpose in possessing the firearm was to use it against the person, as opposed to the property, of another. Counsel reasoned that since the Graves Act applied only to a person "convicted" of possessing the firearm with intention to use it against a person, the jury should decide the issue. The trial judge denied the request, holding that it was his function to decide that issue after a Graves Act hearing was conducted.

Defendant thereupon entered into a negotiated plea agreement to both charges. The parties agreed that in the event the trial judge determined that defendant's purpose was to use the firearm against the person of another, defendant would receive a seven-year custodial term with a three-year mandatory term pursuant to the Graves Act.

At the plea hearing, the trial judge reiterated his intention to decide whether defendant intended to use a firearm against the person of another. Defense counsel then explained that after discussing the trial judge's decision with defendant, defendant intended to enter guilty pleas to both offenses. However, counsel stated, "[defendant] indicated a desire to plead guilty to the proposed plea agreement. He understands the rights he's giving up. We don't have waiver of appeal in this case due to the fact it's a somewhat unusual set of circumstances." (Emphasis added). Thereafter, the judge received a factual basis for the plea from the defendant. Defendant explained that while attending a party he turned on a stereo. After a woman turned the stereo off, defendant "got p___ed off" and shot the stereo and a wall with his handgun. He stated, "I never pointed the gun at nobody." Defendant then acknowledged that: (1) he was giving up his rights, including a right to a trial by jury; (2) he understood that he was exposed to a three-year mandatory term as a result of his guilty plea; (3) he was satisfied with the representation of his attorney; and (4) he freely and knowingly answered all questions under the plea agreement.

At sentencing, the trial judge conducted a Graves Act hearing. See N.J.S.A. 2C:43-6d. Defendant again explained the incident involving use of his handgun. After the hearing, the trial judge found that defendant intended to use a firearm against the person of another, and thereupon sentenced defendant to a seven-year custodial term with a three-year period of parole ineligibility for the conviction under N.J.S.A. 2C:39-4a. A concurrent eighteen-month term with no parole ineligibility was imposed for the fourth-degree aggravated assault conviction. No immediate notice of appeal was filed by defendant.

Approximately thirteen months after sentencing, defendant moved for post-conviction relief (PCR). At the PCR hearing, defendant argued that he was deprived of his constitutional right to a jury trial on the issue of whether he intended to use a firearm against the person of another. He also claimed that his trial counsel was ineffective because she never explained to him his entitlement to a jury trial on the issue. The trial judge denied the PCR petition. He concluded first that the application was procedurally barred because the issue could have been raised on direct appeal and had not, and second, he was satisfied that he had the power under the Criminal Code to decide the person/property issue, not the jury.

Thereafter, defendant filed an appeal from the order denying his PCR application. We also granted his motion to file an appeal nunc pro tunc from his judgment of conviction. On appeal, defendant raises the following points:

Point I--Defendant was denied his constitutional right to a fair trial when the trial court advised him that he did not have the right to a jury determination on the issue of whether the handgun was possessed with the intent [to] use it unlawfully against the person of another. U.S. Const. Amends. V, VI and XIV; N.J. Const. (1947) Art. I, pars. 1 and 10.

Point II--The plea agreement in the instant case should be vacated since the plea was not made with full knowledge of the consequences of the plea.

Point III--The plea agreement should be set aside since defendant did not provide an adequate factual basis to support his guilty plea.

We first address the State's argument that defendant waived any challenge to the trial judge's ruling concerning the person/property issue by pleading guilty to the weapons possession offense.

There is no question defendant fully understood that he was exposed to a mandatory term of three years under the Graves Act, and that the trial judge would determine whether the Graves Act applied. However, the record suggests that defendant consented to the procedure with the understanding that he was reserving the right to appeal from the judge's ruling. See R. 3:9-3(f). From the outset, defense counsel took exception to the trial judge's determination that he, and not the jury, would decide the person/property question. At the plea hearing, she explained the ruling to defendant and placed on the record, without objection by the prosecutor, that although defendant "understands the rights he's giving up ... [w]e don't have waiver of appeal in this case due to the fact it's a somewhat unusual set of circumstances."

Further, during the PCR hearing defendant's trial counsel testified that she and the assistant prosecutor who attended the plea hearing agreed that the judge's ruling was appealable, and that she had explained this fact to defendant. The State did not dispute counsel's testimony. Finally, in denying defendant's PCR application, the trial judge observed that defendant's challenge to the judge's person/property ruling was barred because it "could have been made on appeal[.]" See R. 3:22-3 and R. 3:22-4. ¹ We therefore deem defendant's plea as a conditional plea under R. 3:9-3(f), which permits a defendant, with the approval of the court and the consent of the prosecutor, to enter a guilty plea reserving on the record the right to appeal from the adverse determination of any specified pretrial motion. Although there is no express "approval" of the court or "consent" of the prosecuting attorney we believe there was tacit approval and consent evident in the record as a whole. See State v. Matos, 273 N.J.Super. 6, 15, 640 A.2d 1176 (App.Div.1994). We therefore reach the merits of defendant's argument.

As originally enacted, L. 1981, c. 31, the Graves Act provided for a mandatory term for the commission of enumerated crimes, including the weapons possession offense under N.J.S.A. 2C:39-4a. For Graves Act purposes, it made no difference whether, under N.J.S.A. 2C:39-4a, defendant's purpose in possessing the firearm was to use it against a person or property.

The Graves Act was amended in 1982, L. 1982, c. 119, § 1. The amendment made convictions under N.J.S.A. 2C:39-4a applicable to the Graves Act only when the actor possessed a firearm with intent to use it against the person of another. See Cannel, New Jersey Criminal Code Annotated, Comment 4 on N.J.S.A. 2C:43-6 (1997). The amendment was "passed to avoid harsh treatment of persons who merely use a firearm against property." Ibid.; see also State v. Des Marets, 92 N.J. 62, 79 n. 16, 455 A.2d 1074 (1983). This is evident from the comments to the Bill which led to the enactment of L. 1982, c. 119:

The purpose of the language being eliminated by the amendment was to remove from the scope of the mandatory sentencing law those persons who had not committed crimes of violence against persons. It appears, however, that this purpose can be accomplished more clearly and simply by limiting application of the law in cases of violation of [N.J.S.A.] 2C:39-4a to violations involving possession of a firearm with the intention of using it against another person.

[Senate Law, Public Safety & Defense Comm., Statement to Senate Bill No. 1370 (emphasis added).]

As a consequence of the 1982 amendment, we concluded in State v. Latimore, 197 N.J.Super. 197, 221, 484 A.2d 702 (App.Div.1984) , certif. denied, 101 N.J. 328, 501 A.2d 978 (1985), that:

it now appears that to impose an extended term under N.J.S.A. 2C:43-6c it will be necessary to obtain, by special interrogatory, a finding by the jury as to whether or not a conviction under N.J.S.A. 2C:39-4a is for possession of a...