                                NOT FOR PUBLICATION WITHOUT THE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-2215-17T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

JOSE CASTILLO, a/k/a
JORGE CASTILLO,

     Defendant-Appellant.
________________________

                    Submitted May 2, 2019 – Decided June 4, 2019

                    Before Judges Simonelli and Firko.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Union County, Indictment No. 95-02-0122.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Monique Moyse, Designated Counsel, on the
                    brief).

                    Jennifer Davenport, Acting Union County Prosecutor,
                    attorney for respondent (Meredith L. Balo, Special
                    Deputy Attorney General/Acting Assistant Prosecutor,
                    of counsel and on the brief).

PER CURIAM
      Defendant Jose Castillo appeals from a December 12, 2017 order denying

his motion to withdraw his guilty plea to first-degree possession of a controlled

dangerous substance (CDS) with intent to distribute, N.J.S.A. 2C:35 -5(a)(1),

and third-degree possession of a CDS with intent to distribute in a school zone,

N.J.S.A. 2C:35-7, prior to sentencing. On appeal, defendant raises the following

points for our consideration:

            POINT ONE

            [DEFENDANT] IS ENTITLED TO A REMAND
            BECAUSE THE TRIAL COURT USED THE WRONG
            STANDARD WHEN RULING ON HIS MOTION TO
            WITHDRAW THE PLEA.

            POINT TWO

            [DEFENDANT] IS ENTITLED TO WITHDRAW THE
            PLEA PURSUANT TO STATE V. SLATER, 198 N.J.
            145 (2009).

                  A.   DEFENDANT ASSERTED A
                  COLORABLE CLAIM OF INNOCENCE.

                  B.   THE NATURE AND STRENGTH
                  OF DEFENDANT'S REASONS FOR
                  WITHDRAWAL ARE COMPELLING.

                  C.   THE EXISTENCE OF A PLEA
                  BARGAIN   DOES    NOT  MEAN
                  DEFENDANT'S MOTION SHOULD
                  NOT HAVE BEEN GRANTED.



                                                                         A-2215-17T4
                                       2
                  D.   WITHDRAWAL WOULD NOT
                  RESULT IN UNFAIR PREJUDICE TO
                  THE STATE OR UNFAIR ADVANTAGE
                  TO DEFENDANT.

                  E. TRIAL COURT'S FINDINGS ARE
                  UNSUPPORTABLE AND THE ORDER
                  DENYING THE MOTION MUST BE
                  REVERSED.

For the reasons that follow, we affirm.

                                          I.

      We derive the following facts from the record. In February 1995, a grand

jury indicted defendant for third-degree possession of a CDS in violation of

N.J.S.A. 2C:35-10(a)(1) (count one); first-degree possession of a CDS with

intent to distribute in violation of N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-

5(b)(1) (count two); and third-degree possession of a CDS with intent to

distribute within 1000 feet of school property in violation of N.J.S.A. 2C:35 -7

(count three).

      On August 7, 1995, plea forms were completed when the matter was

assigned to Judge Edward Toy, but the plea hearing took place on August 21,

1995, before Judge Walter R. Barisonek. At the plea hearing, defendant pled

guilty to counts two and three of the indictment in exchange for a dismissal of

count one. The State agreed to recommend a ten-year sentence with a three-


                                                                        A-2215-17T4
                                          3
and-one-half year stipulated period of parole ineligibility.    The plea forms

provided State v. Subin 1 applied, and if defendant failed to appear at the

sentencing hearing, the court was not bound to the plea agreement terms. 2

Defendant was continued on bail until his sentencing hearing, which was

scheduled for October 13, 1995. Defendant failed to appear for sentencing, and

Judge Barisonek issued a bench warrant for his arrest, which was not executed

until August 10, 2016.

       Defendant filed a sentencing memorandum before Judge Scott J.

Moynihan stressing health concerns (a stroke in May 2016 and gallbladder

problems), and seeking a non-custodial sentence because he was "in too poor

health to go to prison." Notwithstanding defendant's request for leniency, on

September 24, 2017, he moved to withdraw his guilty plea, claiming he never

pled guilty in this matter, never signed the plea forms, was not the person who

appeared before Judge Barisonek to enter the plea, and was not interviewed by

the probation department relative to his pre-sentence report.




1
    222 N.J. Super. 227, 238-39 (App. Div. 1988).
2
  The 1995 court transcripts are no longer available due to the passage of time.
The factual basis of the pleas was reconstructed from notes taken on August 21,
1995.
                                                                        A-2215-17T4
                                       4
      On October 27, 2017, Judge Lisa Miralles Walsh heard defendant's motion

and considered the testimony of defendant and his former counsel, Thomas

Betancourt, Esq., during an evidentiary hearing. Defendant testified as follows:

            Q.    Mr. Castillo, do you recall having had an open
            criminal case against you in Union County around the
            time frame of 1995?

            A.    Yes.

            Q.    Okay. Do you recall what the charges were
            against you?

            A.    Not exactly, not at this particular time.

            Q.    Do you recall . . . having been arrested with
            another individual?

            A.    Yes.

            Q.    Okay. And what kind of case was it, what was it
            about?

            A.    Drugs.

            Q.    Okay. Now, at some point did you hire an
            attorney to represent you?

            A.    Yes.

            Q.    Do you recall the name of that attorney?

            A.    Not right now.

            Q.    Do you recall where that attorney's offices were
            located?

                                                                        A-2215-17T4
                                        5
A.    Yes. I[t] was around the place the location where
I used to live at that time, Clifton, New Jersey. And the
attorney was from that area.

Q.    In what language did you communicate with that
attorney?

A.    That attorney only spoke English, but I had a
friend who was the one who interpreted for me every
time I went to see that attorney.

Q.    Okay. Did that attorney that you hired represent
you in court proceedings?

A.    Yes.

Q.    Do you recall how many times you went to court?

A.    No. No, I do not because it's been like, what,
[twenty-two, twenty-three] years and I don't recall that
far back.

Q.    Would it be more than [three] times or less than
[three] times, for example? If you can't recall, that's
fine.

A.    Yes, more than [two] or [three] times.

Q.    Okay. Was there a time that you stopped going
to court?

A.    Correct.

Q.    And can you explain why that was?

A.    Yes. There was a time in which I went to that
courthouse and the hearing had been cancelled. At one

                                                            A-2215-17T4
                           6
              point they called the [co-]defendant [3] failed to appear.
              And then another time they called [co-]defendant did
              not appear also. And it was then that the sister-in-law
              told me that that person was not going to appear and
              that he was going to place all the blame on me.

              Q.   So when you found out or when you believed that
              he was going to place all the blame on you, how did that
              make you feel?

              A.     Well, because at that particular time I felt bad. I
              felt betrayed. I had [three] or [four] children at the time
              and I was afraid. And that's how come I stopped
              appearing. I didn't show up any more.

              Q.     At any point in time, Mr. Castillo, did you appear
              in court to enter a guilty plea to charges with regard to
              this case?

              A.    No.

              Q.     You do realize that the [c]ourt has in its system
              that Jose Castillo pled guilty in this case?

              A.   No, not really. I never did declare myself guilty.
              I have always kept saying the same thing from the
              beginning.

        On cross-examination, defendant confirmed he was arrested in 1994 and

again in summer of 2016. He met with his attorney in 1994 and 1995 "several

times," and defendant was "out on bail." Defendant reiterated his co-defendant

"was going to put all the blame on [him]" and defendant never showed up again


3
    The co-defendant is identified as Waldo Torres in the record.
                                                                            A-2215-17T4
                                          7
in court. Defendant also admitted to moving to Clifton in July 1990; stated he

was the youngest of eight children; provided the identities of his parents and

siblings; and provided his employment and immigration documents. Defendant

lived with his wife Ida in 1995, and conceded on cross-examination that the

three children he testified about on direct were Ida's daughters, not his. He

confirmed his date of birth on the plea form, which was shown to him.

      Mr. Betancourt testified at the hearing as follows:

            Q.    Can you please tell us what you do?

            A.    Presently?

            Q.    Yes.

            A.  I'm an administrative law judge and I sit in
            Newark.

            Q.    Can you tell us what you did in 1994?

            A.    I was an         attorney   practicing    out   of
            (indiscernible).

            Q.    And as part of your practice did you do any
            criminal (indiscernible)?

            A.    Yes.

            Q.   Do you recall if you ever defended a man by the
            name of Jose Castillo?

            A.    I do now. (Indiscernible) paperwork in that file.


                                                                        A-2215-17T4
                                       8
            Q.    And I'm going to approach with what's been
            marked S-2[4] and S-3.[5] Let's start first with S-2. Can
            you take a look at that and tell me if you recognize it?

            A.    Yes. It's a letter from my law firm from me to
            Judge Toy.

            Q     And what is that letter regarding?

            A.   Jose Castillo, regarding indictment number 95-
            02-00122.

            Q.    And did you write that letter?

            A.    I did.

            Q.    And how do you know that you wrote that letter?

            A.    It's my scribbled signature.

            Q.    And what was this letter regarding?

            A.    I was filing a brief in support of a motion to
            suppress.

            Q.    And do you recall at the motion to suppress that
            there was a hearing?

            A.    I do. Actually, for reasons unrelated to Mr.
            Castillo, I do recall arguing this motion in front of
            Judge [Barisonek].

4
  Mr. Betancourt identified S-2 as a letter and brief he sent to Judge Toy on
April 19, 1995, on behalf of defendant.
5
  Mr. Betancourt identified S-3 as a letter dated August 22, 1995, which he sent
to Judge Barisonek seeking bail pending appeal and thanking the court for
staying defendant's sentence.
                                                                        A-2215-17T4
                                       9
Q.    And do you recall how many times you appeared
in court on this matter?

A.    I do not. My only recollection would actually be
there was on the motion to suppress.

Q.   Okay. And do you have a recollection of that
motion, do you recall who it was before?

A.    Judge [Barisonek].

Q.    And was your client with you at that time?

A.    I believe so, but I'm not positive.

Q.    And did you appear for Mr. Castillo for other
matters besides just -- that are on this matter on other
occasions besides just the motion?

A.    I don't have an independent recollection of
coming here other than on a motion, so I mean I
represented him.

Q.    Do you recall if in the brief for the motion, Mr.
Castillo's version of events as put forth?

A.     On the brief. Is that your question? I read the
brief after you sent it to me (indiscernible). It was
addressing the search as being unjustified.          My
recollection was (indiscernible) on a tip. They searched
the trunk of his vehicle and found (indiscernible).

Q.    Do you recall if you spoke to Mr. Castillo about
what happened while writing the brief if you recall?

A.    I don't recall.


                                                           A-2215-17T4
                           10
Q.    At the time this brief was written in 1995, how
long had you been an attorney?

A.    I was admitted in [19]83, so [twelve] years.

Q.    And was it your practice to meet with clients?

A.    Oh, absolutely.

Q.    And was it your practice at the time to appear for
any status conferences or other court appearances they
might have?

A.    Oh, sure.

Q.    And did you know your clients?

A.    Prior to being retained?

Q.   No. Once you were representing them, did you
know them?

A.    Oh, sure, sure.

Q.    Would you be able to recognize them?

A.    (Indiscernible).

Q.    And I'm going to show you D-1. Let me show
you what's been previously marked D-1. Can you take
a look at D-1 and tell me if you recognize it?

A.    It's a plea form. There is my signature.

Q.    On what pages does it bear your signature?

A.    On the third page and on the fourth page.


                                                           A-2215-17T4
                          11
Q.    Is there anyone else's signature on there?

A.    There's the prosecutor's signature and Mr.
Castillo's signature.

Q.   And in 1995 would you have been able to
recognize Mr. Castillo?

A.    Certainly.

Q.    I'm going to approach with what's been marked
S-3 for identification. Can you take a look at S-3 and
tell me if you recognize that?

A.    The letter that I wrote to Judge [Barisonek]
regarding Mr. Castillo. It's regarding a stay of
sentence.

Q.    And what is the date on that letter?

A.    August 22[], 1995.

Q.    And I'll actually take that back. Finally, I'm
going to approach with what's been -- well, S-1 in
evidence. Can you take a look at S-1 and tell me if you
recognize that?

A.    It’s a pre-sentence report for Mr. Castillo.

Q.    And does that pre-sentence report indicate Mr.
Castillo's attorney at the time?

A.    I'm sure it does.

Q.    I can draw your attention to the bottom --

A.    That's my office –


                                                          A-2215-17T4
                           12
                   ....

            Q.    Would you have ever allowed someone who's not
            your client to enter a guilty plea for someone else?

            A.    Never.

Betancourt testified his office was located in Hackensack in 1995, and he was

arguing a motion to suppress on defendant's behalf. 6

      On November 1, 2017, Judge Walsh rendered an oral decision on

defendant's motion and concluded:

            While this [c]ourt is aware that . . . defendant claimed
            he did not enter the guilty plea, this claim is not
            supported by evidence provided to this [c]ourt.
            Furthermore, this [c]ourt did not find the testimony of
            . . . defendant to be credible. Defendant has an interest
            in the outcome of this motion.

            The [c]ourt felt that he was testifying with an intent to
            deceive the [c]ourt in a last ditch effort to avoid State
            prison.     Conversely, the [c]ourt finds that Mr.
            Betancourt testified credibly. While Mr. Betancourt
            did not have a specific recollection of the 1995 plea, he
            did remember the motion to suppress. He did indicate
            that it was his practice to meet with clients at his office
            in order to prepare his case.

            Mr. Betancourt stated that he would have known
            defendant and that he would not have allowed someone
            else to take the plea. In addition, it is clear that Mr.
            Betancourt's signature appears on the plea form,

6
  The Promis/Gavel record revealed Betancourt appeared in these proceedings
and his name is listed on defendant's pre-sentence report.
                                                                          A-2215-17T4
                                       13
             showing that he in fact was present in 1995 when the
             plea was taken.

             As far as the corrections made to the plea form, it
             appears that Judge Toy was set to take this plea on
             August 7[], 1995. And that the plea was then moved to
             Judge [Barisonek]. And I believe that Mr. Betancourt
             also indicated that he recalled having the case go back
             to Judge [Barisonek] for the plea. And that occurred on
             August 21[], 1995.

             There's no doubt that there is an application on that date
             to have . . . defendant not go into custody on this charge.
             This [c]ourt finds that it defies logic that someone else
             would have put themself in the position to go to jail for
             a defendant -- for this defendant on that date. As a
             result, this [c]ourt finds for all of the reasons that I have
             just mentioned that there is no colorable claim of
             innocence here.

                   ....

             And this all comes from State v. Slater.[7] Efforts to
             withdraw the plea after sentencing must be
             substantiated by strong compelling reasons.           By
             contrast, a lesser showing is required for motions raised
             before sentencing as we have here. That's Slater[, 198
             N.J.] at 150.

             As I stated previously, this [c]ourt is not persuaded with
             defendant's contention that defendant failed to appear
             for a court date he was scheduled for and in his absence
             someone else came in pretending to be him. This
             unknown person then entered into a guilty plea with the
             defendant's own counsel, Judge [Barisonek], and other


7
    198 N.J. 145 (2009).
                                                                             A-2215-17T4
                                         14
            court personnel without any of them taking notice that
            this man was not in fact Jose Castillo.

            Further, also the defense states that the element of
            timing militates in defendant's favor because he has not
            yet been sentenced, warranting a lower level of
            scrutiny, this [c]ourt still finds that there is no basis for
            . . . this defendant to take his plea back.

            The State is proper in asserting that . . . defendant has
            been a fugitive for over [twenty] years, which created
            this large gap in time. As such, defendant should not
            benefit from a gap in time that he created himself.

This appeal followed.
                                         II.

      We review a trial judge's decision on a motion to withdraw a guilty plea

for abuse of discretion, State v. Munroe, 210 N.J. 429, 441-42 (2012), and will

only overturn a judge's decision if it was clearly erroneous. State v. O'Donnell,

435 N.J. Super. 351, 372 (App. Div. 2014). An abuse of discretion "arises when

a decision is 'made without a rational explanation, inexplicably departed from

established policies, or rested on an impermissible basis.'" Flagg v. Essex Cty.

Prosecutor, 171 N.J. 561, 571 (2002) (quoting Achacoso-Sanchez v.

Immigration & Naturalization Serv., 779 F.2d 1260, 1265 (7th Cir. 1985)).

      Before sentencing, the standard for plea withdrawal is "the interests of

justice[.]" R. 3:9-3(e). After sentencing, the standard is "to correct a manifest



                                                                            A-2215-17T4
                                        15
injustice." R. 3:21-1. Our Supreme Court outlined a framework to assess claims

to withdraw a plea in Slater:

            In evaluating motions to withdraw a guilty plea, trial
            courts should consider the following factors: (1)
            whether the 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.

            [198 N.J. at 150.]

      We are satisfied Judge Walsh applied the proper standard under Slater.

This is evidenced by the judge stating: "Efforts to withdraw the plea after

sentencing must be substantiated by strong[,] compelling reasons. By contrast,

a lesser showing is required for motions raised before sentencing as we have

here." As to the first Slater factor, defendant asserted his innocence over twenty

years after entering a guilty plea, according to Betancourt's testimony, which

Judge Walsh found credible. We reject defendant's argument that his "not

guilty" plea at the time of his arraignment serves as a colorable claim of

innocence because he failed to "present specific, credible facts and, where

possible, point to facts in the record that buttress [his] claim." Id. at 158.

      As to the second Slater factor, we see no support for defendant's insistence

that his reasons for withdrawing his plea are compelling. The judge was "not

                                                                            A-2215-17T4
                                        16
persuaded by defendant's claim that he was not the person who had entered the

guilty plea[,]" and she found the signature on the plea form appeared "nearly

identical" to the signature on letters attributable to defendant.        Although

conceding she is not a handwriting expert, the judge observed the differences in

the handwriting such as a "slight hook in the J, as well as a slight hook in the C

of Jose and of Castillo" on the plea form. These slight discrepancies "could be

explained by the passage of over [twenty] years[,]" or due to defendant's stroke.

The judge aptly found only defendant would have known the specifics of his

family history contained in the pre-sentence report.

      Next, defendant argues the court abused its discretion by finding he was

the individual who in fact entered the guilty plea, and the plea was not entered

by an imposter, because "the other three Slater factors weigh so heavily" in

defendant's favor. In Slater, our Court noted "defendants have a heavier burden

in seeking to withdraw pleas entered as part of a plea bargain[,]" but the Court

did "not suggest that this factor be given great weight in the balancing process."

Id. at 160-61. The proofs support the judge's conclusion that "it defies logic that

someone else would have put [themselves] in the position to go to jail for a

defendant[.]"




                                                                           A-2215-17T4
                                       17
      Finally, we agree with the trial judge that defendant failed to show any

justifiable reasons to withdraw his guilty plea. He delayed filing the motion and

attempted to persuade the court to sentence him to a non-prison sentence after

providing his medical records.     As aptly noted in Judge Walsh's decision,

defendant should not benefit from being a fugitive for two decades. Moreover,

without the plea agreement, defendant faced twenty-five years imprisonment.

The Slater Court stated, "[p]lea bargaining is a legitimate, accepted practice in

the administration of criminal justice." Id. at 161.

      After balancing all four of the Slater factors, we determine defendant has

not met his burden of substantiating his request with "strong, compelling

reasons." Id. at 160. Defendant has not shown that the denial of his motion was

manifestly unjust, overcoming the "formidable barrier" created by the

acceptance of his guilty plea. Id. at 156 (quoting Blackledge v. Allison, 431

U.S. 63, 74 (1977)).

      We deem the balance of defendant's arguments to be without sufficient

merit to warrant discussion in this decision. R. 2:11-3(e)(2).

      Affirmed.




                                                                         A-2215-17T4
                                       18
