September 10, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
WILLIE MCHELLON, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Ocean County, 04-08-1384.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 5, 2007
Before Judges Cuff and Lintner.
Defendant was charged under three Ocean County indictments. A ten-count indictment, No. 03-09-1219, returned on September 24, 2003, charged defendant with multiple drug charges involving cocaine and marijuana. Count Five charged defendant with third-degree distribution of cocaine within 1000 feet of school property, N.J.S.A. 2C:35-7, on July 25, 2003. Count Nine charged defendant with third-degree distribution of marijuana within 1000 feet of school property, N.J.S.A. 2C:35-7, on August 13, 2003.
Indictment No. 04-06-1128, returned on June 23, 2004, charged defendant with one count of fourth-degree resisting arrest, N.J.S.A. 2C:29-2a. Indictment No. 04-08-1384, returned on August 25, 2004, charged defendant with third-degree eluding, N.J.S.A. 2C:29-2b (Count One); third-degree possession of cocaine, N.J.S.A. 2C:35-10a(1) (Count Two); and fourth-degree tampering with physical evidence, N.J.S.A. 2C:28-6(1) (Count Three).
Defendant was initially accepted into drug court, thus being eligible for special probation, N.J.S.A. 2C:35-14. However, he subsequently failed to cooperate with testing and did not appear for a scheduled court appearance, causing a bench warrant to issue. Defendant resisted arrest when the authorities attempted to execute the bench warrant. At a hearing on March 11, 2005, following argument of counsel, the judge revoked defendant's eligibility for special probation and returned him to the regular trial calendar for prosecution on the offenses delineated in the three indictments.
On March 29, 2005, pursuant to a negotiated plea agreement, defendant pled guilty to the fifth and ninth count school zone charges in Indictment No. 03-09-1219; the resisting arrest charge in Indictment No. 04-06-1128; and the eluding charge in Indictment No. 04-08-1384. Thereafter, defendant moved to withdraw his plea, claiming that he was innocent of all charges. On August 5, 2005, the judge denied defendant's motion, granted the State's motion for a mandatory extended term, N.J.S.A. 2C:43-6f, and imposed an aggregate six-year custodial sentence with forty-two months of parole ineligibility in accordance with the plea agreement.
Defendant appeals the order denying his motion to withdraw his plea and the sentence imposed, raising the following contentions:
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO WITHDRAW HIS GUILTY PLEAS BECAUSE THE FACTUAL BASES FOR THE PLEAS WERE INSUFFICIENT. (NOT RAISED BELOW).
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO WITHDRAW HIS GUILTY PLEAS BECAUSE DEFENDANT WAS NOT PROPERLY ADVISED AS TO THE DIRECT PENAL CONSEQUENCES OF THE PLEA. (NOT RAISED BELOW).
DEFENDANT'S SENTENCE IS ILLEGAL BECAUSE THE MINIMUM PERIOD OF PAROLE INELIGIBILITY IMPOSED EXCEEDS STATUTORILY PRESCRIBED LIMITS. (NOT RAISED BELOW).
THE TRIAL COURT ERRED IN FAILING TO PROVIDE A SUFFICIENT STATEMENT OF REASONS IN SUPPORT OF THE SENTENCE IMPOSED. (NOT RAISED BELOW).
We affirm the ordering denying withdrawal of defendant's plea, as well as the six-year term imposed, but remand to correct the illegal period of parole ineligibility imposed.
In his first two points, defendant argues that his plea was not knowing and voluntary because (1) the factual basis was obtained through leading questions and (2) he was not advised of the full consequences of his plea because the judge did not inform him of the maximum penalty for the crimes to which he pled guilty.
The general principles are well settled. A plea bargain is "a legitimate, respectable and pragmatic tool in the efficient and fair administration of criminal justice." State v. Taylor, 80 N.J. 353, 360-61 (1979). The plea bargaining process provides "mutuality of advantage" to both a defendant and the State. Id. at 361. A motion may be made to withdraw a guilty plea. R. 3:21-1. Specifically, R. 3:21-1 provides:
A motion to withdraw a plea of guilty or non vult shall be made before sentencing, but the court may permit it to be made thereafter to correct a manifest injustice.
A guilty plea that is entered voluntarily may not be withdrawn, except pursuant to a trial judge's discretion. State v. Smullen, 118 N.J. 408, 416 (1990) (citing State v. Huntley, 129 N.J. Super. 13, 16 (App. Div.), certif. denied, 66 N.J. 312 (1974)); State v. Phillips, 133 N.J. Super. 515, 518 (App. Div. 1975).
When the plea is entered into pursuant to a plea bargain, defendant has a heavier burden to present a plausible basis to withdraw his plea. Smullen, supra, 118 N.J. at 416 (citing Huntley, supra, 129 N.J. Super. at 18. A trial judge should weigh particular policy considerations when determining whether to permit a plea to be withdrawn. State v. Herman, 47 N.J. 73, 76-77 (1966). Where a defendant does not understand the material terms and relevant consequences of a plea, a defendant should be permitted to withdraw the plea. Smullen, supra, 118 N.J. at 417. If a motion to withdraw is filed on what appears to be "a whimsical change of mind," then an entered plea should not be disturbed. State v. Gonzalez, 254 N.J. Super. 300, 303 (App. Div. 1992). In exercising that discretion, "the important interest of finality to pleas" should be considered. Smullen, supra, 118 N.J. at 416.
Initially, we note that the challenges defendant raises to the judge's acceptance of his plea were not raised in his motion, thus requiring us to review the alleged error in accordance with the plain error standard. R. 2:10-2. Although we agree with defendant that the judge obtained the factual basis by the use of leading questions, we part company with his contention that the factual basis given was "cursory" and insufficient. In support of his contention, defendant relies on two unpublished Appellate Division decisions, State v. Subhan, No. A-1384-04 (App. Div. June 12, 2006) and State v. Daniels, No. A-3752-04 (App. Div. August 4, 2006), neither of which is attached to defendant's appellate appendix. Indeed, the opinion in Daniels is provided by the State, which asserts that the facts before us are distinguishable. Generally,
[a]n unpublished opinion does not constitute precedent nor is it binding upon us unless it is required to be followed by reason of res judicata, collateral estoppel, the single controversy doctrine, or similar principle of law. R. 1:36-3. However, the rule permits an unpublished opinion to be called to a trial court's attention as secondary research so long as the party using the unpublished opinion provides all parties and the court with a copy of the full text of the opinion, as well as any other favorable and unfavorable relevant unpublished material known to exist. [Nat'l Union Fire Ins. Co. of Pittsburgh, PA v. Jeffers, 381 N.J. Super. 13, 18 (App. Div. 2005).]
The State correctly observes that in Daniels the defendant had to be "repeatedly cajoled" to respond to questions for which she gave no verbal response reflecting "great hesitancy" and "reticence" on her part. Daniels, supra, slip op. at 3, 6.
Thus, the panel in Daniels concluded that "the judge should have insisted on more than a single word response . . . to her attorney's leading questions." Id. at 6-7.
By contrast, although leading, defendant provided clear, distinct, and responsive "yes" answers to the judge's questions, which described the specific conduct making up each offense defendant was accused of committing and was pleading to. Moreover, defendant acknowledged that he understood the charges; by pleading guilty he was admitting to the charges; he was not forced or pressured to plead guilty; and he was doing so voluntarily. He also acknowledged that his attorney answered all his questions, he was satisfied with counsel's advice, and he fully understood that he was giving up his right to a jury trial.
As noted in State v. Mitchell, 126 N.J. 565, 577 (1992):
Our procedural Rules do require a judge to elicit a factual basis for a guilty plea.
R. 3:9-2. As long as a guilty plea is knowing and voluntary, however, a court's failure to elicit a factual basis for the plea is not necessarily of constitutional dimension and thus does not render illegal a sentence imposed without such a basis. A factual basis is constitutionally required only when there are indicia, such as a contemporaneous claim of innocence, that the defendant does not understand enough about the nature of the law as it applies to the facts of the case to make a truly "voluntary" decision on his own.
Although we would have preferred that defendant stated what he did in his own words, we are satisfied that the factual basis given was sufficient and defendant entered a knowing and voluntary plea. Under these circumstances, there is no manifest injustice warranting withdrawal of either his guilty plea or sentence.
We are likewise satisfied, contrary to defendant's contention, that he was amply advised of the nature of the charges and the consequences of his plea. Placing heavy reliance on State v. Cartier, 210 N.J. Super. 379 (App. Div. 1986), defendant asserts that the judge erred in not apprising him of the maximum term to which he was exposed. In Cartier, the defendant pled guilty to third-degree theft. Id. at 381. He was sentenced as a persistent offender to a maximum ten-year extended term with five years of parole ineligibility. At the time of his plea, the prosecutor reserved the right to move for an extended term. "Nevertheless, both the prosecutor and the trial judge stated that defendant was subject to a maximum sentence of five years and that he could be denied parole eligibility for one-half of that term." Ibid. The defendant's motion to withdraw his plea was denied prior to sentencing. He appealed, contending that he was never specifically told of his ten-year maximum custodial exposure permissible under N.J.S.A. 2C:43-7a(4). Reversing, the panel was "convinced . . . that the defendant was misinformed with regard to the maximum potential sentence to which he was exposed under the plea agreement." Id. at 383 (emphasis added).
Here, the plea form indicated, the judge advised, and defendant acknowledged his understanding that his maximum regular term exposure was five years on each of the three third-degree offenses and eighteen months on the fourth-degree offense, for a total aggregate term of sixteen and one-half years. At the same time, defendant acknowledged, in response to the judge's question, that he understood that under the plea agreement his maximum exposure was a six-year term with forty-two months of parole ineligibility.
The judge's failure to use the word "extended term" or describe defendant's potential exposure above the maximum regular term if convicted does not, in our view, amount to a manifest injustice warranting withdrawal of either his guilty plea or sentence. Here, unlike the facts in Cartier, defendant was told of his maximum extended term exposure under the plea agreement and, thus, was made fully aware of consequences of his plea.
Defendant's Point Four contention that the judge erred in failing to give reasons for imposing an extended term under N.J.S.A. 2C:43-6f is devoid of merit. "Procedurally, when a prosecuting attorney makes application under N.J.S.A. 2C:43-6(f), the sole determination for the sentencing court is to confirm that the defendant has the predicate prior convictions to qualify for enhanced sentencing. No other fact-finding, or collateral assessment of the prior convictions, takes place." State v. Thomas, 188 N.J. 137, 150 (2006); see also State v. Fowlkes, 169 N.J. 387, 391 (2001); State v. Brimage, 153 N.J. 1, 11 (1998), State v. Lagares, 127 N.J. 20, 31 (1992).
In finding the required predicate, the judge specifically noted defendant's October 5, 1989, conviction for possession of cocaine in a school zone, in addition to the two separate school zone violations, which were the subject of his guilty plea. No other reasons are necessary. Moreover, the judge considered and found the appropriate aggravating*fn1 factors and no mitigating factors. Indeed, the six-year term not only comports with the plea agreement, but also represents the low end of an extended term for a third-degree offense.
Finally, the State concedes that the imposition of a forty-two month period of parole ineligibility exceeded the limits proscribed by N.J.S.A. 2C:43-6f, which sets forth that the minimum term of a parole ineligibility "shall be fixed at or between one-third and one-half the sentence imposed by the court or three years, whichever is greater". Simply stated, the eligibility term imposed is illegal.
We affirm the order denying withdrawal of defendant's plea, as well as the six-year term imposed, but remand for re-sentencing on the period of parole ineligibility in accordance with the range proscribed by statute. We do not retain jurisdiction.