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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2502-06T42502-06T4 STATE OF NEW JERSEY, Plaintiff-Respondent, v. ANGEL CARTAGENA, Defendant-Appellant. _________________________________

Submitted: August 27, 2008 - Decided: Before Judges C.L. Miniman and Lihotz. On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Mercer County, Indictment No. 05-04-0317. Yvonne Smith Segars, Public Defender, attorney for appellant (Marcia Blum, Assistant Deputy Public Defender, of counsel and on the brief). Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney for respondent (Dorothy Hersh, Assistant Prosecutor, of counsel and on the brief). PER CURIAM Defendant Angel Cartagena appeals from his conviction and sentence on a plea of guilty to first-degree aggravated manslaughter in connection with the death of his two-month old son. We affirm. The Mercer County Grand Jury returned Indictment No. 05-04-0317 charging defendant with murder, contrary to

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N.J.S.A. 2C:43-7.2, with five years of parole supervision upon release. At defendant's plea hearing, the judge examined defendant with respect to his understanding of the plea and its consequences. He testified that he understood the same and all of the paperwork in connection with it and testified that his plea was knowing, voluntary, and made only in exchange for the agreement placed upon the record. Defendant testified that he understood the rights that he was waiving by pleading guilty and the consequences of NERA sentencing. He was then placed under oath and testified to the following facts. During the months of October and November 2004, defendant, his wife, and their infant son were residing with defendant's sister-in-law and her family. Between October 24, 2004, and November 13, 2004, defendant was in charge of caring for his son and during that time he shook and squeezed his baby to the extent that his son was taken to a doctor for medical attention. His son was then returned to his care. On November 13, 2004, defendant was under the influence of cocaine and Percocet and the baby woke up crying. Defendant shook his son on two occasions and then threw him onto a futon. The baby hit his head and neck where he landed. Defendant admitted at that point he may have passed out and fallen on his son, partially smothering him and causing him further injury. Thereafter, someone called 911 and defendant's son was taken to the hospital where he died. Although defendant was under the influence of drugs, he admitted that he knew what he was doing and appreciated the consequences of his acts. Before sentencing took place, defendant moved to withdraw his guilty plea. Defendant's new counsel informed the court on March 17, 2006, that defendant had a long-standing history of treatment for psychiatric and psychological issues and that he wanted to have defendant evaluated to determine whether he had a psychiatric defense to the charge of aggravated manslaughter. He also asserted that he believed there were some communication issues between defendant and his former counsel that led defendant to believe that if he did not accept the plea offer that day any further plea negotiations would be cut off. Counsel also represented that defendant asserted that the factual basis for the plea was inaccurate and, in any event, counsel argued that the factual basis did not support a plea to aggravated manslaughter because it did not show an extreme indifference to the value of human life. The judge noted that there was no medical documentation of a psychiatric condition and no affidavits to support vacating the plea on that basis. She then considered the sufficiency of the factual basis for the plea. First, she concluded under State v. Smullen, 118 N.J. 408 (1990), that in a case such as this asking the defendant leading questions to establish the factual basis for the plea was not impermissible. She then found that defendant's responses to those questions were made with knowledge of the charge and the significance of the plea bargain.

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The judge continued: I had questioned him myself prior to getting into the factual basis and I note that [in reviewing] the plea transcript . . . he was . . . asked if he was forced or pressured, asked if he read the plea papers, asked if he had the opportunity to review them with his counsel and if his counsel answered all his questions to his satisfaction. . . . I recall, although it's not reflected in the transcript . . . at the time the plea was taken, or towards the end of it, Mr. Cartagena was wiping tears from his eyes at one point. I do recall that. I believe that he did know what he was admitting to at the time . . . . I understand that [defense counsel] has cited State v. Huntley, he is aware that if the burden is on the defendant seeking to withdraw a plea then he must first present some plausible basis for the request. And second, he must present a good-faith basis for defense on the merits. A plausible basis for the request, I just don't find that it exists here. Again, if the argument is because these were leading questions and he didn't know what he was saying, I don't find that that is the case and I rely on Smullen. If their good-faith basis for the defense on the merits is that Mr. Cartagena was under the influence of mind-altering substances at the time of the incident, specifically cocaine and Percocet, again, I don't understand the argument that he could be convicted of reckless manslaughter because that requires . . . consciously disregarding the risk of death. I also note Mr. Cartagena's response to the specific question of even though he was under the influence of cocaine and Percocet did he still appreciate the consequences of his act, was he so much under the influence that he did not know what he was doing. And the Court is satisfied as to that. So for those reasons, I deny the defense's motion to withdraw the guilty plea. The defendant presented for sentencing on May 12, 2006. The parties had no corrections or amendments to the presentence report and the judge stated that she had also received defendant's medical records and a letter from the baby's mother. The State sought imposition of a twenty-year term in light of the severity of the crime and the multiple serious injuries inflicted on the baby over a course of three weeks. Defense counsel acknowledged that the medical records did not establish a defense, but argued that he did have mental issues and had previously been prescribed psychotropic medication, although he was not taking it at the time of the offense and urged that he should be sentenced at the lower end of the sentencing range. After defendant expressed his remorse at length, the judge found aggravating factor number two based on the victim's extreme youth, vulnerability, and incapacity to resist. She found aggravating factor number three based on the difficulty defendant had kicking his drug habit and the risk that he would again not treat his depression and addiction. Because he had five prior municipal court convictions, the judge found aggravating factor number six. Last, she found aggravating factor number nine, the need to deter defendant and others. The judge then turned to the mitigating factors and found that defendant's medical history partially satisfied factor number two in that he did not intend the harm. Finding that the aggravating factors outweighed the mitigating factor, the judge imposed an eighteen-year term of incarceration subject to NERA with a five-year period of parole supervision upon release.

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Defendant was entitled to 543 days of jail credit and appropriate fines and penalties were imposed. Restitution in the amount of $3,039.16 was imposed for the family's medical bills, counseling, and funeral expenses. This appeal followed. Defendant raises the following issues on appeal: POINT I - THE TRIAL COURT SHOULD HAVE GRANTED THE MOTION TO VACATE THE PLEA BECAUSE DEFENDANT: 1) DID NOT ENTER THE PLEA KNOWINGLY AND VOLUNTARILY; 2) DID NOT PROVIDE AN ADEQUATE FACTUAL BASIS TO ESTABLISH THAT HE WAS GUILTY OF THE CHARGED OFFENSE; AND 3) MAINTAINED THAT HE IS NOT GUILTY OF THE OFFENSE. A. CARTAGENA DID NOT ENTER THE PLEA KNOWINGLY AND VOLUNTARILY BECAUSE COUNSEL DID NOT INVESTIGATE HIS MENTAL-IMPAIRMENT DEFENSE. B. THE FACTUAL BASIS DOES NOT SATISFY THE ELEMENTS OF THE CHARGED OFFENSE OF AGGRAVATED MANSLAUGHTER. C. CLAIM OF INNOCENCE. POINT II - THE SENTENCE OF 18 YEARS, 15 YEARS AND FOUR MONTHS WITHOUT PAROLE, IS GROSSLY EXCESSIVE. Defendant argues that he should have been permitted to withdraw his plea because, when such motions are made before sentencing, the judge's discretion to vacate the plea is to be "liberally exercised," citing State v. Herman, 47 N.J. 73, 78 (1966). With respect to his assertion that his plea counsel did not investigate whether he had a mentalimpairment defense, the judge considered this claim and rejected it on the ground that, at the time of the plea, there was no medical evidence to support it. Although it is apparent from the transcript of the sentence proceeding that some medical information had been supplied to the judge, the defense counsel at that time stated that it did not rise to the level of a defense. That medical information is not in the record before us, but even if it were, there is no expert opinion that defendant was mentally incapacitated such that the elements of aggravated manslaughter did not exist. This issue is really a claim of ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052; 80 L. Ed.2d 674 (1984), as adopted in State v. Fritz, 105 N.J. 42 (1987), which in this case can only be demonstrated with evidence extrinsic to the record before us. See also State v. Preciose, 129 N.J. 451 (1992). We do not consider the remand for a plenary hearing in State v. Deutsch, 229 N.J. Super. 374, 376 (App. Div. 1988), as precedent requiring a remand under these circumstances because the record on appeal does not include the medical records and defendant has yet to overcome the acknowledgment of plea counsel that the medical records, whatever they were, did not establish a defense. We express no opinion as to the merits of a properly supported claim of ineffective assistance of counsel and leave that issue to an application for post-conviction relief.

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We consider defendant's claims of innocence and an inadequate basis for the plea as one. A factual basis for a plea is mandated before a plea may be accepted by the court. R. 3:9-2. The judge accepting the plea must be satisfied that the factual basis is adequate. Smullen, supra, 118 N.J. at 410. In deciding a motion to withdraw a plea, the judge should consider (1) the existence and materiality of any mistake or omission and the resulting prejudice to the defendant, (2) the guilt of the defendant, and (3) the manner in which the plea was entered. State v. Rodriguez, 179 N.J. Super. 129, 135-36 (App. Div. 1981); see also, State v. Taylor, 80 N.J. 352, 363-64 (1979). When a guilty plea is knowing and voluntary, the plea may not be withdrawn because of a "whimsical change of mind" or a "belated assertion of innocence." State v. Huntley, 129 N.J. Super. 13, 18 (App. Div.), certif. denied, 66 N.J. 312 (1974). Defendant asserts that the plea colloquy "contains no evidence of the extreme indifference necessary to establish aggravated manslaughter" such as that found in State v. Bakka, 176 N.J. 533 (2003) (driving while intoxicated); State v. Gaines, 377 N.J. Super. 612 (App. Div.) (firing a gun), certif. denied, 185 N.J. 264 (2005); State v. Saunders, 277 N.J. Super. 322 (App. Div. 1994) (firing a gun), certif. denied, 139 N.J. 422 (1995); State v. Bogus, 223 N.J. Super. 409 (App. Div. 1988) (driving while intoxicated), certif. denied, 111 N.J. 567 (1988); and State v. Reed, 211 N.J. Super. 177 (App. Div. 1986) (firing a gun). He urges that he did not use such a deadly weapon or that he even employed significant force. He contends that, at most, his crime was no more than reckless manslaughter, citing State v. Jenkins, 178 N.J. 347, 363 (2004) ("In aggravated manslaughter, by contrast [to SBI murder], the defendant must have caused death with an awareness and conscious disregard of the probability of death. If, instead, the defendant disre possibility of death, the result is reckless manslaughter.") (internal quotations omitted). We completely disagree. Defendant admitted that he had been abusing his son over a three-week period and that on one occasion before November 13, 2004, his son required medical attention. He further admitted that he shook his son on two occasions on November 13 and that on the second occasion he threw him onto the futon, where he hit his head and neck. It was undisputed at sentencing that the autopsy revealed that his nine-week-old son had partially healed fractures of both legs and multiple ribs. The autopsy also revealed multiple hemorrhages and hematomas on the brain and the physician opined that the baby died of shaken-baby syndrome. In this case, defendant's own hands were the deadly weapon and significant force must be measured in the context of the person against whom it was directed. Defendant's acts of force against a fragile nine-week-old baby clearly satisfy the proof requirements for aggravated manslaughter. There was more than sufficient evidence to support the plea of guilty to the offense charge in the accusation. We find nothing grossly excessive about the sentence imposed. He urges that he was raised in foster care and was abused as a child, although the particulars of the abuse are not in the record. He contends that he suffers from
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bipolar disorder and schizophrenia, but the judge did not make any finding of these conditions and the record does not support this claim. He argues that the judge should not have relied on aggravating factors three, six, and nine because his prior convictions were all minor municipal offenses and he expressed heartfelt remorse for the death of his son. He contends that the judge erred in not finding mitigating factor number four, "substantial grounds tending to excuse or justify the defendant's conduct though failing to establish a defense," citing State v. Briggs, 349 N.J. Super. 496, 504 (App. Div. 2002); State v. Nataluk, 316 N.J. Super. 336, 349 (App. Div. 1998); and Penry v. Lynaugh, 492 U.S. 302, 319-20, 109 S. Ct. 2934, 2947, 106 L. Ed.2d 256, 278-79 (1989). We do agree that evidence of a "troubled youth" or a psychiatric history can support mitigating factors under our sentencing code. However, it is clear that the judge considered this evidence, found that it partially satisfied a mitigating factor, but concluded that the aggravating factors outweighed the mitigating factors. We do not have the evidence of defendant's childhood abuse or medical diagnoses before us and, as a result, we cannot say that this evidence was entitled to more weight than it was given by the judge. In any event, the scope of our review of sentencing decisions is limited. We "determine, first, whether the correct sentencing guidelines . . . have been followed." State v. Roth, 95 N.J. 334, 365 (1984). In this case, they were. Next, we consider "whether there is substantial evidence in the record to support the findings . . . upon which the sentencing court based the application of those guidelines." Ibid. There can be no doubt here that there was indeed substantial evidence to support the judge's findings. Last, we determine "whether in applying those guidelines to the relevant facts the trial court clearly erred by reaching a conclusion that could not have reasonably been made upon a weighing of the relevant facts." Id. at 366. We find no such clear error here. The sentencing range for the pled offense was ten to thirty years. A sentence of eighteen years on the facts before us can hardly be called "clearly unreasonable." State v. Jabbour, 118 N.J. 1, 6 (1990) (quoting Roth, supra, 95 N.J. at 364-65). Affirmed. The appeal was initially listed on our Sentence Oral Argument calendar but, on motion of defense counsel, it was transferred to our plenary calendar and a briefing schedule was established. (continued) (continued) 13 A-2502-06T4 October 6, 2008

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