State v. Truglia

• Decision Date: 11 September 1984
• Citation: 480 A.2d 912,97 N.J. 513
• Parties: STATE of New Jersey, Plaintiff-Appellant and Cross-Respondent, v. Patsy John TRUGLIA, Jr., Defendant-Respondent and Cross-Appellant.
• Court: New Jersey Supreme Court

Page 513

97 N.J. 513

480 A.2d 912

STATE of New Jersey, Plaintiff-Appellant and Cross-Respondent, v. Patsy John TRUGLIA, Jr., Defendant-Respondent and Cross-Appellant.

Supreme Court of New Jersey.

Argued Dec. 13, 1983.

Decided Sept. 11, 1984.

Larry R. Etzweiler, Deputy Atty. Gen., argued the cause for plaintiff-appellant and cross-respondent (Irwin I. Kimmelman, Atty. Gen. of New Jersey, attorney; Larry R Etzweiler and Gilbert Miller, Deputy Attys. Gen., on the briefs).

Donald T. Thelander, Asst. Deputy Public Defender, argued the cause for defendant-respondent and cross-appellant (Joseph H. Rodriguez, Public Defender, attorney).

The opinion of the Court was delivered by

CLIFFORD, J.

This appeal and cross-appeal pose issues of merger of criminal convictions entered pursuant to guilty pleas, and of defendant's waiver of any merger by virtue of his having pleaded guilty pursuant to a plea agreement. Defendant raised the merger issue for the first time on appeal.

The Appellate Division, in an unreported opinion, did not decide the issue of merger, nor did it conclude that defendant, by pleading guilty to both offenses, had waived his newly-raised contention that the convictions merged. Rather, the court below held that inasmuch as there had been no meeting of the minds on the plea agreement, the pleas would be vacated. It concluded further that the State should have the option of moving before the trial court for vacation of one of defendant's convictions and the accompanying sentence.

We granted the State's petition for certification, 94 N.J. 545, 468 A.2d 195 (1983), and defendant's cross-petition, 95 N.J. 203, 470 A.2d 423 (1983), to consider whether the two offenses merged; whether, if there was merger, defendant's guilty pleas amounted to a waiver of his merger argument; and finally, if there was merger and no waiver, whether defendant would be, as he puts it, "entitled to specific performance of a plea bargain when the charges that he pleads guilty to as a matter of law merge and other charges are dismissed".

I

Defendant, Patsy J. Truglia, and one John De Rosa were named in a fourteen-count indictment charging them with a number of offenses arising out of a series of incidents that occurred in the early morning hours of August 6, 1980, in Long Branch. We derive much of our understanding of the facts from the presentence report, which shows that before the occasion in question there was bad blood between Truglia and the victim, Louis Acerra; that on August Sixth Acerra was in the Club 95 West in Long Branch, when he saw Truglia; that Acerra, fearing trouble and wishing to avoid it, left the bar; that as the victim was walking away from the area (having first stopped to speak to a friend sitting in a car), defendant hailed him, saying that he had heard Acerra had a gun, whereupon defendant displayed in his hand what appeared to be a gun; that Acerra ran north on Second Avenue, with defendant and De Rosa in pursuit; that while the chase was in progress, defendant fired one shot at Acerra "from a gun, which he had held in his right hand"; that in his effort to elude defendant, Acerra ran through hedges and yards and later ran to the area of his home, where he hid in some bushes; that while secluded in the bushes, the victim saw defendant and De Rosa approach his car, tear up the roof, and "fire a gun at it."

The presentence report further discloses that "[a]fter the defendant stopped chasing the victim, he went to the car [that] the victim had previously stopped at[,] * * * leaned into the car for several seconds and while in this position, fired one shot from his gun * * *," striking the driver, William Patterson, in the right shoulder. Patterson was able to drive to the hospital for emergency treatment. As of the time of the presentence report the bullet was still lodged against Patterson's ribs and there were no plans to remove it, inasmuch as it presented "no hazard" at that time.

Our only other source of information about the significant events is the plea transcript, in which the factual basis for the guilty pleas was established as follows:

A. Well, it was trouble in the bar. I just remodeled the bar.

Q. What bar was that?

A. 95 West in Long Branch. And the guys came in, came in the night before causing trouble, threatened my son and me. And the next night they came back, one kid had a gun. A few of them chased him and I chased him myself. And I fired a gun at him.

Truglia was charged with two counts of attempted murder, two counts of aggravated assault, possession of a gun without a permit, possession of a gun by a convicted felon, and criminal mischief. After initially pleading not guilty, defendant negotiated a plea agreement pursuant to which he entered retraxit pleas of guilty to Counts II and III of the indictment. Count II accused Truglia of committing aggravated assault by "knowingly * * * pointing and discharging a firearm at Louis Acerra" and by "attempting to cause serious bodily injury" in violation of N.J.S.A. 2C:12-1b(1) (a second-degree crime, carrying a maximum sentence of ten years), and -1b(4) (a fourth-degree crime, with a maximum sentence of eighteen months). Count III charged defendant with possessing a handgun with the purpose of using it unlawfully against Acerra, contrary to the provisions of N.J.S.A. 2C:39-4a (a second-degree crime).

In exchange for the guilty pleas the prosecutor moved for dismissal of the remaining counts of the indictment, dismissal of another outstanding indictment, dismissal of the "DeMaio matter" then pending before the grand jury, and dismissal of a Long Branch Municipal Court complaint charging defendant with possession of less than twenty-five grams of marijuana. The prosecutor further agreed not to seek an extended term of imprisonment and undertook to recommend that any custodial term should run concurrently with defendant's sentence for violating probation on an unrelated prior conviction. Finally, and significantly, the prosecutor promised to recommend that the aggregate sentence not exceed fifteen years, with seven-and-one-half years of parole ineligibility.

The trial court sentenced defendant to seven years, with three-and-one-half years of parole ineligibility, on each count. The terms were to run consecutively, for a total of fourteen years with seven years mandatory minimum parole ineligibility concurrent with the term that defendant was then serving for parole violation.

Truglia's initial appellate brief claimed only that the sentence was excessive. It was not until his pro se supplemental brief was filed that he raised the merger question. The Appellate Division vacated the pleas without passing on the merger issue.

II

Our first inquiry is whether there was a merger of the two offenses to which defendant pleaded guilty: aggravated assault upon Acerra under N.J.S.A. 2C:12-1b(1) and -1b(4), and possession of a handgun with the purpose of using it unlawfully against the person of Acerra under N.J.S.A. 2C:39-4a. The factual picture on which the guiding principles must be brought to bear is less than clear. There are no "findings" as such below, and the parties, not surprisingly, draw different conclusions from the recitation in the presentence report and the plea transcript. The difficulty stems from the want of precision in the elements of time, distance, and sequence of events--details that are usually of significance in any merger case. Appellate courts should not have to be concerned with the determination of those details, and henceforth we expect not to be.

For example, the sparse record does not enlighten us as to how much time elapsed between the beginning of the incident and the shot into Acerra's car, nor as to the distance between the Club 95 West and Acerra's home, nor as to at what point in the series of events it was that Patterson was shot. We conclude that under the circumstances defendant should bear the consequences of whatever ambiguity inheres in the record, inasmuch as he voluntarily pleaded to both offenses, failed to raise any merger issue until after sentencing, and derived a substantial benefit from the plea agreement. In that state of the case--negotiated plea, sentencing according to an agreement that benefits defendant, and merger argument first raised on appeal--we hold that defendant has the burden of demonstrating by a preponderance of the evidence, that the record supports his merger claim.

Defendant's argument in favor of merger is posed in terms of the test enunciated in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932):

The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not. [Id. at 304, 52 S.Ct. at 182, 76 L.Ed. at 309 (emphasis added).]

Resorting to the Blockburger rule, defendant contends that identical facts established the commission of both offenses; that the conviction for aggravated assault--attempting to inflict serious bodily injury on Acerra by shooting at him--could be sustained only by the fact that defendant possessed the gun with the intent to shoot Acerra; and that inasmuch as his possession and use of the gun in itself elevates what would otherwise be simple assault to the level of aggravated assault, defendant has already been punished by virtue of his conviction for aggravated assault on the basis of his possession of the pistol with the intent to use it unlawfully against Acerra. He relies as well on State v. Dively, 92 N.J. 573, 458 A.2d 502 (1983), which he says gives this Court's approval to the Blockburger test; State v. Mirault, 92 N.J. 492, 457 A.2d 455 (1982), with its emphasis on the absence of separation in time to show that two separate offenses occurred, id. at 503, 457 A.2d 455, as defend...