April 16, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
PEDRO A. CAPELLI, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Morris County, Indictment No. 02-10-01279.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 23, 2007
Before Judges Axelrad and R. B. Coleman.
Defendant Pedro A. Capelli appeals from a June 18, 2004 order denying his motion to withdraw his guilty plea. A Morris County Grand Jury returned Indictment No. 02-10-01279, charging defendant with fourth degree possession of marijuana with the intent to distribute, N.J.S.A. 2C:35-5 (count one), and third degree possession of marijuana with the intent to distribute within 1000 feet of a school zone, N.J.S.A. 2C:35-7 (count two). On February 13, 2003, defendant entered into a plea agreement whereby the State agreed to recommend to the court a sentence of four years with a two-year parole ineligibility.*fn1 The plea form also included the State's representation and agreement that the "State will consider mitigating factor 12." That same day, defendant and the State entered into a written cooperation agreement, signed by the assistant prosecutor, defendant and defendant's attorney, which provided the following:
3. It is understood by the defendant that, by law, the potential maximum sentence he could receive under that plea of guilty is a maximum sentence of 5 years New Jersey State Prison with 36 months of parole ineligibility. The defendant also understands that pursuant to the negotiated Brimage plea, the State will recommend a 4-year prison sentence with 24 months parole ineligibility at the time the defendant is sentenced on Indictment 02-10-01279-I. It is further understood and agreed by the parties that the defendant shall consent to the adjournment of sentencing until such time as his cooperation is no longer required by the Morris County Prosecutor's Office.
The State's sentencing recommendation to the court would ultimately depend upon the nature and extent of defendant's cooperation. More particularly, at Paragraph 4, the cooperation agreement provided:
At sentencing, this Office will make the nature and extent of the defendant's cooperation known to the Court and make whatever specific sentence recommendation is deemed appropriate by this Office under the circumstances. If this Office concludes that the defendant has provided full and complete truthful cooperation, this Office will recommend the following sentence recommendation: upon completion of a 2nd degree controlled dangerous substance prosecution, a 4-year prison sentence; upon completion of a 1st degree controlled dangerous substance prosecution, a 3-year prison sentence; upon completion of both a second degree and a separate first degree controlled dangerous substance prosecution, a probationary sentence with a maximum of 364 days in the Morris County Correctional Facility. Separate prosecutions does not include co-defendants in the same investigation. The defendant understands that this Agreement is conditioned upon the production of a viable first and/or second degree criminal prosecution. The determination as to whether the defendant has provided full and complete cooperation shall be solely in the discretion of this Office.
The cooperation agreement also contained a provision at Paragraph 10, whereby defendant expressly recognized that "the Court has the authority to reject any sentence recommendation made by [the State] and sentence the defendant to a more severe sentence the Court deems appropriate." Although that same Paragraph 10 recited that defendant waived his right to withdraw his plea of guilty, on May 14, 2004, defendant moved to withdraw his guilty plea.
On his motion, defendant contended, as he does on this appeal, that he believed that if he helped the State prosecute a second degree offender, he would receive only a probationary term. Defendant's motion was heard on June 18, 2004, where all parties agreed that defendant had, in fact, cooperated in the prosecution of a second degree offender. The judge rejected defendant's motion to withdraw the plea of guilty, finding that the cooperation agreement was clear on its face. Thereafter, the judge sentenced defendant, in accordance with the plea agreement, to a four-year term in prison with a two-year parole disqualifier.*fn2
Defendant's motion to file his appeal nunc pro tunc was granted on November 12, 2004. In this brief on appeal, defendant raises a single issue. His point heading simply states:
THE APPELLANT'S SENTENCE SHOULD BE VACATED.
We find insufficient merit in defendant's position to warrant a written opinion, R. 2:11-3(e)(2), but we add the following comments.
On appeal, defendant contends that he should be allowed to withdraw his guilty plea because he believed that, if he assisted in the prosecution of a second degree offender, he would be sentenced to only a probationary term. That contention is premised on an alleged off-the-record conversation between defendant and his counsel at the time of the plea hearing, at which time counsel told defendant that he would only need to provide cooperation for a second degree conviction in order to receive the probationary term. On that premise, defendant argues that "[s]ince [he] was misinformed as to his rights and obligations, he was not counseled competently and his plea could not have been made intelligently or knowingly." The motion judge determined that defendant's position -- supported only by an understanding that was inconsistent with the plea form, with defendant's acknowledgement at the plea hearing and with the clear terms of the cooperation agreement -- was insufficient to bring into question the actual plea. We agree.
In order for a guilty plea to be valid, it must be intelligent and voluntary. R. 3:9-2. When a defendant makes a motion to withdraw his guilty plea, he or she has the burden of showing why the plea should be withdrawn. State v. Huntley, 129 N.J. Super. 13, 17 (App. Div.), certif. denied, 66 N.J. 312 (1974). "Thus, it is clear that the burden rests on defendant, in the first instance, to present some plausible basis for his request, and his good faith in asserting a defense on the merits, so the trial judge is able to determine whether fundamental fairness requires the granting of the motion." Ibid. "Generally, representations made by a defendant at plea hearings concerning the voluntariness of the decision to plead, as well as any findings made by the trial court when accepting the plea, constitutes a 'formidable barrier' which defendant must overcome before he will be allowed to withdraw his plea." State v. Simon, 161 N.J. 416, 444 (1999) (quoting Blackledge v. Allison, 431 U.S. 63, 74, 97 S.Ct. 1621, 1629, 52 L.Ed. 2d 136 (1977)). A trial court's denial of defendant's request to withdraw his guilty plea will be reversed on appeal only if there was an abuse of discretion which renders the lower court's decision clearly erroneous. Ibid. (citing State v. Smullen, 118 N.J. 408, 416 (1990)).
Here, while nominally seeking to withdraw his guilty plea, defendant does not argue a deficient factual basis for the plea, nor that the plea agreement or cooperation agreement was unclear, nor that the judge misled him at his plea hearing.
Rather, defendant asserts that his trial counsel misinformed him as to his rights and obligations under a cooperation agreement which, on its face, is wholly unambiguous.
As the State points out in its respondent's brief, defendant's assertion is, in effect, a claim of ineffective assistance of counsel. Such claims however are not appropriate for consideration on direct appeal, but are more appropriately raised in petitions for post-conviction relief (PCR). State v. Preciose, 129 N.J. 451, 458-61 (1992). Through a petition for PCR, defendant may seek an evidentiary hearing wherein he may be able to develop more fully his claims through proofs from his former attorney that may tend to establish what off-the-record advice, if any, the attorney may have given defendant. As the matter was presented to the judge considering the motion, what defendant's prior counsel told him is established only by defendant's unsworn statement or current counsel's arguments. Such arguments and arguments by defendant's appellate counsel are no substitutes for a sworn statement by someone with first hand knowledge. See, e.g., State v. Dolce, 41 N.J. 422, 428-29 (1964). The reliance on off-the-record statements and unsworn statements also makes meaningful review of defendant's claim of ineffective assistance difficult, if not impossible. Indeed, such a claim is not officially before us.
In seeking to withdraw his plea, defendant utterly failed to make the essential showing of fundamental unfairness that might dictate that the court should permit him to withdraw his plea. In accepting defendant's plea, the judge, through her questioning of defendant, satisfied herself that defendant was aware of and understood the terms of the plea agreement and that the terms of the cooperation agreement were clear. The judge also made the requisite determination that defendant was voluntarily entering into the plea agreement and that no one had coerced him or promised him anything outside the terms of his agreement.
In denying the motion to withdraw the plea, the court's conclusion concerning the clarity of the argument is amply supported by the record. For this reason, we find no abuse of discretion in the judge's denial of defendant's motion to withdraw his guilty plea.