This is defendant, Derrick Samuels', motion to withdraw a guilty plea. Shortly after Samuels entered his plea but before sentencing, additional charges were filed against him. Defendant argues that he thought his guilty plea would dispose of all pending charges. He claims that the State's failure to include those charges in its plea offer justifies withdrawal of his plea. He further argues that if his plea is not withdrawn it would result in a criminal conviction that would prejudice his right to testify at a trial of the pending charges.
Absent prosecutorial misconduct, I find that where a guilty plea is knowingly and voluntarily entered, the State's failure to include all pending charges against a defendant in its plea offer is not, by itself, a sufficient basis to warrant withdrawal of the plea. Additionally, the fact that a criminal conviction may prejudice a defendant's right to testify at a future trial is a collateral consequence of the plea which does not justify withdrawal.
The facts may be summarized as follows. On May 1, 1991 a warrant was issued for Derrick Samuels' arrest as a result of a shooting incident that occurred earlier that day. Pursuant to the warrant, police arrested defendant on May 3, 1991. In the course of a search incident to the arrest, police found a 9mm handgun in his vehicle. Thus, apart from the May 1st incident, Samuels was separately charged with the unlawful possession of a weapon in violation of N.J.S.A. 2C:39-5.
Complaints relating to the May 1st shooting were not formally signed by the alleged victims until May 10th. In those complaints, Samuels was charged with two counts of second degree aggravated assault, in violation of N.J.S.A. 2C:12-1b; two counts of third degree unlawful possession of a weapon, in violation of N.J.S.A. 2C:39-5, and two counts of second degree possession of a weapon for unlawful purpose, in violation of N.J.S.A. 2C:39-4.
On May 22, 1991, Samuels pled guilty to possession of the handgun found in his car during his arrest. At the plea hearing defendant freely admitted that he put a handgun under the front seat of the car where it was found by police. The State agreed to recommend that any custodial sentence imposed not exceed 180 days as a condition of probation. Sentencing was originally scheduled for July 5, 1991. On that date, the charges concerning the May 1st shooting incident appeared in defendant's presentence report. Defense counsel requested an adjournment to discuss the pending charges with the prosecutor. The discussions were not productive. On the return date for sentencing defendant moved to withdraw his plea.
Samuels' primary argument is that he was under the impression all charges against him were being disposed of as a result of his plea. He claims that he would not have pled guilty had he known of the pending charges. He also says that at the time of the plea, he had no criminal record and if his plea is not withdrawn he will have an indictable conviction. This conviction, he asserts, will weaken his bargaining position as to the pending charges. Moreover, should he decide to go to trial on the pending charges, this conviction will impair his right to testify because it could be used to impeach his credibility. See N.J.S.A. 2A:81-12; State v. Sands, 76 N.J. 127, 386 A.2d 378 (1978); State v. Morris, 242 N.J. Super. 532, 543, 577 A.2d 852 (App.Div.1990). Furthermore, should he be convicted of the pending charges he will face enhanced sentencing because of his record. The State's opposition to the motion is based on the assertion that defendant knew his plea related to the May 3rd
handgun possession in his car and had nothing to do with the May 1st alleged shooting.
Rule 3:9-2 governs the entry of a plea of guilty. A guilty plea shall not be accepted unless the court determines that there is a factual basis for the plea. In addition, the plea must be made knowingly, voluntarily and intelligently with a full understanding of the nature of the charge and the consequences of the plea. Once the court is satisfied that the defendant has entered into a knowing and voluntary plea agreement, the terms and conditions of the plea must be meticulously carried out. State v. Jones, 66 N.J. 524, 526, 333 A.2d 529 (1975); State v. Marzolf, 79 N.J. 167, 183, 398 A.2d 849 (1979). A defendant's request to be relieved of its consequences has to be "weighed against the strong interest of the State in its finality." State v. Taylor, 80 N.J. 353, 362, 403 A.2d 889 (1979).
A motion to withdraw a plea should not be viewed with a set attitude of skepticism. Id. at 365, 403 A.2d 889. The defendant is entitled to fairness and protection of basic due process rights. Id. at 393, 403 A.2d 889. However, a defendant has no absolute right to withdraw a guilty plea. United States v. Moore, 931 F.2d 245, 248 (4th Cir.1991); United States v. Badger, 925 F.2d 101 (5th Cir.1991). Moreover, "a defendant attacking a guilty plea has little to lose and his contentions should be assessed with great care and realism." Id. 80 N.J. at 365, 403 A.2d 889. The defendant will not be allowed to withdraw the plea on a "whimsical change of mind by defendant or the prosecutor." State v. Huntley, 129 N.J. Super. 13, 18, 322 A.2d 177 (App.Div.1974), cert. denied, 66 N.J. 312, 331 A.2d 12. Nor will a "belated assertion of innocence upset an otherwise validly entered into plea bargain." Id. 129 N.J. Super. at 18, 322 A.2d 177. See also North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970). Further, defendant's failure to "correctly assess every relevant factor entering into his decision will not automatically
render his plea involuntary or unintelligent." State v. Taylor, supra, 80 N.J. at 364, 403 A.2d 889 (quoting Brady v. United States, 397 U.S. 742, 756, 90 S. Ct. 1463, 1473, 25 L. Ed. 2d 747 (1970)). As noted in Taylor, ...