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State v. Spencer

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


October 17, 2007

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
FORLANG SPENCER, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 05-07-0936.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 24, 2007

Before Judges Lintner and Sabatino.

On December 12, 2005, defendant Forlang Spencer pled guilty to all eleven counts charging him within a broader forty-one count indictment. Through that plea, defendant acknowledged his culpability for third-degree conspiracy to possess cocaine, contrary to N.J.S.A. 2C:5-2 and N.J.S.A. 2C:35-10a(1) (Count 1); second-degree conspiracy to distribute cocaine, contrary to N.J.S.A. 2C:5-2, N.J.S.A. 2C:35-5a(1), and N.J.S.A. 2C:35-5b(2) (Count 2); third-degree possession of cocaine, contrary to N.J.S.A. 2C:35-10a(1) (Counts 21, 24 and 27); third-degree distribution of cocaine, contrary to N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3) (Counts 22, 25 and 28); and second-degree distribution of cocaine on or near a public park, contrary to N.J.S.A. 2C:35-7.1 (Counts 23, 26 and 29). The court thereafter sentenced defendant to various custodial terms, some of them on a consecutive basis and others on a concurrent basis. Defendant now appeals his convictions and his resulting sentence. We affirm the convictions, but remand for resentencing.

I.

The underlying charges arose out of ongoing activities, involving defendant and at least five other persons, in which they packaged and distributed controlled dangerous substances ("CDS") in Perth Amboy and at other places in Middlesex County, from September 2003 to February 2004. Pursuant to that conspiracy, defendant sold cocaine to undercover narcotics officers on three occasions: twice on October 9, 2003 and once on December 9, 2003. The three undercover sales all occurred within five hundred feet of a public park.

Initially, defendant, who has an extensive criminal history, was assigned an attorney to defend him in the case. However, disagreements arose between defendant and his attorney. The disagreements led to defendant requesting the court, before the scheduled trial date, to allow him to represent himself. That request was first discussed on the record on May 10, 2005 at a status conference with the trial judge. During the course of that conference, the following pertinent colloquy occurred:

THE COURT: Good afternoon, sir. A couple things, by way of housekeeping.

Sir, I heard you would like to fire Mr. West, and proceed on your own? If you want to do that, I certainly have no objection to you doing that. Obviously, I'm going to ask Mr. West to be here to advise you. If that's what your wish is -- okay -- I have no problem with it. We'll try to take things as slowly as possible, so, you fully understand what is going on. You understand that I can't give you legal advice and I won't. And, understanding that, I'll do everything I can to insure that you understand. The proceeding is going forward.

THE DEFENDANT: Yes, sir.

THE COURT: You want to, basically, be the captain of your own ship?

THE DEFENDANT: Yes, sir.

THE COURT: Understand what I'm saying. You can do this, but I'm not recommending it. You understand that?

THE DEFENDANT: Yes.

THE COURT: Mr. West [defendant's assigned attorney] is an experienced attorney. He has done a lot of criminal work. And he knows the procedures. And he, frankly, is a pretty darn good trial lawyer. And in letting him go, or in asking to proceed on your own, you're going to be held accountable, just as if you were the lawyer. You understand that?

THE DEFENDANT: Uh-hum. Yes, sir.

THE COURT: Anybody forcing you to do that?

THE DEFENDANT: No.

THE COURT: Voluntarily?

THE DEFENDANT: Yes, sir.

The judge then reviewed the charges in the indictment in detail and the range of potential sentences with defendant, as clarified by defense counsel and the assistant prosecutor. The judge then resumed addressing defendant's request to represent himself:

THE COURT: You're not under the influence of drugs or medications? Anything, sir?

THE DEFENDANT: No, sir.

THE COURT: Now, is it accurate to say, you want to represent yourself, sir?

THE DEFENDANT: Yes, sir.

THE COURT: You'll pass that over. I put on his, over here, which says, the defense counsel, and I wrote pro se, meaning representing yourself. You have to sign the memo.

Mr. West, I'm going to direct that you be co-Counsel, so to speak. Be present at all times, in case Mr. Spencer has any questions. And if, at some point, he makes a determination that, maybe he can use Counsel, you'll be prepared. And you'll have a history of having been here, and knowing where the case is.

MR. WEST: I want to stand in.

THE COURT: At this point, you will be Stand-by Counsel.

A colloquy ensued, in which arrangements were made to allow defendant to review the State's discovery. The judge then addressed defendant one more time:

THE COURT: Mr. Spencer, we will get you right back [to your jail facility]. It is quarter to one. You decide what you want to file.

Mr. West will review the file, as to what he needs, and what you are entitled to. And then you will listen to the tapes.

And we should know early next week. And as soon as we can get the defendant up here, with the equipment, and a pad and a pencil, with Mr. West, so, you can review all your tapes, review all your conversations, and make appropriate notes, and make any challenges that you want, to any other areas. Is that satisfactory to you?

THE DEFENDANT: Yes, it is.

THE COURT: Is there anything that you believe we have missed, sir?

THE DEFENDANT: No, sir.

THE COURT: Mr. West, is there anything you believe that we missed?

MR. WEST: No, your Honor.

Thereafter, the defendant filed a formal motion to appear pro se in his case. The trial judge granted that motion in open court on June 2, 2005, in the presence of defendant, his attorney and the assistant prosecutor. The judge also confirmed that defendant's former attorney would function as standby counsel. The colloquy underscored defendant's voluntary assent to these arrangements:

Q: Mr. Spencer, I am going to hand to you two items; one is a letter that everyone who received a copy of, Mr. West and myself, sent by the prosecutor dated June 2nd. And the other is a list of questions that has been sent to me by Mr. Lamb [the assistant prosecutor] that recommended that we review to make sure you're making an intelligent, voluntary decision to represent yourself. What I would like to do, sir, is go over representation, that is, your representing yourself to make sure that you are making a decision that is, you know, done with the most possible understanding you can possibly have of the nature and consequences of what you're about to face.

So, Mr. Spencer, let me ask you to make sure. Do you fully understand the nature of the charges against you, sir?

A: Yes, I do.

Q: All right. Could you tell me what they are?

A: Conspiracy.

Q: I am sorry, sir?

A: What does that have to do with anything? I understand why, I understand the whole process.

Q: Let me explain to you why. You have every right to represent yourself and I would not stand in the way of that, but to do that we would like to make sure and I'd like to make the record as clear as possible that you're doing that, fully aware of what the charges are and of what you're facing, all of that stuff?

A: I told you I understand. I mean, you brought me here on several occasions and explaining to me what I was facing, the time. I am looking at all of that. I'm fully aware of that.

Q: Well, this is the last time I am going to do it. And the reason I am doing it is to make sure that I cover all the bases. And I am not trying to interfere with your right to represent yourself at all, okay? So when I say to you, well, do you understand the nature of the charges, I've asked you before and you said yes. I don't know that I have actually asked you what your understanding of the charge[s] are, so some of the questions will be repeated, but some of them might be new and I just wanted to make sure you have all the possible information necessary, that the record's clear you got it, that is all I am trying to do, sir. Okay?

A: Well, conspiracy to possess CDS. Conspiracy to distribute CDS. Three counts of a possession, three counts of possession with the intent to distribute. Three counts of possession with the intent on or near a public park.

Q: In fact, the plea I think called for a fraction of the maximum exposure that you could go to jail. You understand all of that, right?

A: Everything.

Q: Okay. Do you understand that discovery in the case, this is going to be quite large, I am sure you have gotten much of it, but it includes wiretap information and recordings and it is quite voluminous. You understand that?

A: Yes, sir.

Q: You understand that wiretap information and using it in a trial may not be an easy matter. It is a little bit different than just a standard CDS case where there is police and who sees it go down, if you will, and you're cross-examining a witness?

A: That is why I have co-counsel.

Q: Say it again?

A: That is why I think I have co-counsel.

Q: Mr. West is standby counsel?

A: Standby counsel.

Q: So are you understanding that to the extent that you may not understand something you will be speaking to Mr. West?

A: Yes.

Q: Okay. You do understand that rejecting having him actually try the case, you're rejecting a gentleman who's got 20 years?

MR. WEST: Thirty-two.

Q: Thirty-two years experience.

A: Yes, sir.

Q: I am not suggesting that you need to use him to actually represent your position, but you understand in having him as standby what you're doing is you're substituting your experience in cross-examining witnesses and understanding evidence rather than --

A: Yes, sir. Yes, sir. Yes, sir, I understand.

Q: I see you're smiling because I suspect what you're thinking why are they trying to talk me out of this?

A: I mean, this seems to me like some type of game. I am going to say that, game. It is funny. I mean, I clearly stated on several occasions that I fully understand. I fully understand. I'm not understanding these questions, that is why it is not --

Q: You have absolutely stated that several times and, as I said, to you this will be the last time, I am going to ask you. At least, I don't anticipate asking you any time after this.

A: All right.

Q: But that is why I am going through all this stuff including like making sure you understand, you know, the lack of training that you have and the extent of training that Mr. West has. That kind of stuff that I never asked you before I want to make sure you understand those issues. And do you understand those issues?

A: Yes, sir.

Q: All right. Now I don't know what defenses you have, nor would I frankly be involved in what defenses you have, but you understand that there may be defenses and that you are going to have to raise them yourself. Do you understand that?

A: Yes, sir.

Q: You will have to comply with the law and the Court rules and all the regulations just as though you were licensed to practice. You're going to have to do that which is expected of you and anybody in a courtroom. DO you understand that?

A: Yes, sir.

Q: I have said this to you before, I'll say it to you again, the Court believes this to be an unwise move, but I cannot and will not substitute my position for yours, but you do understand that I strongly advise you to reconsider and let Mr. West represent you? You do understand that. Correct?

A: Yes, sir.

Q: Okay. Anybody force you to make this decision? Threaten you? Coerce you in any way to make you do this?

A: No, sir.

Q: Okay. You're doing this freely and voluntarily, is that correct?

A: Yes, sir.

Q: Are there any questions that you have that comes to your mind that you might want to ask me or anyone else in this courtroom concerning the representation issue?

A: No, sir.

The judge thereafter verified that defendant was not under the influence of any substances and that he was of sound mind:

Q: Mr. Spencer, you're not, as you sit here on, any medication, are you? Any drugs, alcohol, anything that might cloud your judgment?

THE DEFENDANT: No sir.

The judge then concluded by reiterating to defendant the pitfalls of self-representation:

THE COURT: I just wanted to close this by saying I am just very concerned because representation is important and I am just concerned that you may not do something that you should do or will do something that you shouldn't do, and I just want to make real clear, Mr. Spencer, that the risk you run by representing yourself is substantial and, again, if you want to do that, that's fine, but you're shaking you head yes.

A: You keep telling me the same thing over and over.

Q: I am not trying to change your mind at all. I am just trying to make sure that the decision you're making is an informed one. You have a right --

A: I understand.

Q: -- okay, and I will not interfere with that right. I will support you in that right, provided I am convinced it is knowingly, intelligent and voluntarily made. And it seems to me, sir, you're making it knowing the pitfalls, if you will, understanding your rights and it seems to me you're doing it voluntarily, intelligently and with a full understanding of the possible ramifications. And, accordingly, I will not change my decision to permit you to proceed on your own.

Later on in that same hearing, the court made sure that defendant understood the upcoming deadlines for any pretrial motions:

Q: Mr. Spencer, what I'm setting is July 1st for you to file all your motions, whatever they might be. The State will respond by July 25th. About three weeks later they got to get their responses in and July 29th we're all going to come back here. I will go through the motions and see what's there, see whether we need witnesses. See whether we need testimony. See what else has to happen and I will set a schedule based upon what I've got and what needs to be done and I should be able to set a trial date. Now, if it has not been filed by that date you're out of time, okay?

A: Okay.

Q: So make sure whatever you feel necessary to file is done by July 1, all right? Any questions about that, sir?

A: No, sir.

Defendant was then given the opportunity to review the State's discovery. He was summoned back to the courtroom that afternoon. The judge then verified that defendant had a full opportunity to review the materials:

THE COURT: Mr. Spencer, I just asked you to come up to make sure that you got the opportunity to read everything before I send you back -- I am sorry, I can't hear you?

THE DEFENDANT: Yes, sir.

THE COURT: So you got a chance to review everything and you got all the paperwork you need?

THE DEFENDANT: Yes, sir.

THE COURT: All right, I'll send you back then. Thank you. Several months later, after unsuccessfully moving to dismiss the indictment, defendant elected to forego a trial and plead guilty. On December 12, 2005, defendant appeared before the court with standby counsel, signed the requisite plea form, and placed his guilty pleas on the record. Once again, the trial judge ascertained the voluntary nature of defendant's decisions and his opportunity to confer with standby counsel:

THE COURT: Mr. West, if you would, sir?

MR. WEST: Mr. Spencer, I have in front of me a copy of the plea form, that you and I just completed about ten minutes ago; is that right?

THE DEFENDANT: Yes, sir.

MR. WEST: I went through every page, and I explained the questions and the answers. Then you signed the last page; correct?

THE DEFENDANT: Yes, sir.

MR. WEST: The supplemental form, for drug offenses, which you also signed; is that correct?

THE DEFENDANT: Yes.

MR. WEST: Do you understand, by pleading guilty, obviously, you are giving up your right to a jury trial, that we were supposed to start today? You understand that?

THE DEFENDANT: Yes.

MR. WEST: You are giving up your right to cross-examine the witnesses. You understand that?

THE DEFENDANT: Yes, sir.

MR. West: You are giving up your right to remain silent by pleading guilty? You understand that?

THE DEFENDANT: Yes sir.

MR. WEST: You further understand that, if , for some reason, the Judge can't accept your plea, you can take back your plea, plead not guilty, and anything you say today cannot be used against you? You understand?

THE DEFENDANT: Yes.

MR. WEST: Basically, there is not a plea bargain as such. The only thing that the State, through Mr. Lamb, has agreed to, is he is not going to seek an extended term of confinement, which you would be eligible for. You understand that?

THE DEFENDANT: Yes, sir.

MR. West: No other promises have been made?

THE DEFENDANT: No.

MR. WEST: No threats have been made to get you to plead guilty?

THE DEFENDANT: No, sir.

MR. WEST: Are you pleading guilty willingly?

THE DEFENDANT: Yes, sir.

MR. WEST: Are you pleading guilty voluntarily?

THE DEFENDANT: Yes.

MR. WEST: Are you pleading guilty because you are, in fact, guilty?

THE DEFENDANT: Yes.

MR. WEST: Mr. Spencer, over time, you and I have had difficulties. But are you satisfied with my advice at this time?

THE DEFENDANT: Yes.

MR. WEST: Okay. Do you have any questions concerning this plea?

THE DEFENDANT: No, sir.

THE COURT: If you wanted a trial, we'd be picking a jury now, and we would proceed to trial. As I indicated to you, I would, to the best of my ability, give you the fairest possible trial I can. You understand that, sir?

THE DEFENDANT: Yes, sir.

THE COURT: BY acknowledging responsibility, as you have, you waive that right to go to trial. You understand that?

THE DEFENDANT: Yes, sir.

THE COURT: Anybody forcing you or threatening you, in any way, to get you to do that, sir?

THE DEFENDANT: No, sir.

THE COURT: So, is it fair to say, you do so voluntarily at this point?

THE DEFENDANT: Yes, sir.

THE COURT: Have you had sufficient time to speak to Mr. West?

THE DEFENDANT: Yes, sir.

THE COURT: I understand, as he indicated, there were times when you guys didn't really get along very well. Putting that aside, and considering that, if you will, at least, at this point in time, have you had sufficient time? As I've said, have you gotten along with him well enough to ask him whatever questions you have?

THE DEFENDANT: Yes, sir.

THE COURT: And has he represented you satisfactorily with reference to this matter to date?

THE DEFENDANT: Yes, sir.

THE COURT: And as you sit here, you indicated, sir, that you might have a headache. Anything in your mind that would prevent you from understanding what's going on today?

THE DEFENDANT: No, sir.

THE COURT: Are you under the influence of any drug or alcohol or medication, prescribed or not prescribed? Not any kind of psychiatric or psychological illness? Anything at all that might interfere with your ability to be objective today?

THE DEFENDANT: No, sir.

THE COURT: Is it fair to say, for the lack of a better way of putting it, are you asking me to accept this plea stone cold soberly, with counsel with whom you are satisfied, understanding the full extent of the negotiated plea?

THE DEFENDANT: Yes, sir.

THE COURT: You understand, as I sit here, I have no clue what the ultimate sentence will be?

THE DEFENDANT: Yes, sir.

THE COURT: That the exposure -- I know that I went over the actual exposure. But, understand, I don't know what I'm going to sentence you to. Do you understand that?

THE DEFENDANT: Okay.

THE COURT: Before I accept this negotiated plea, do you have any questions for me, Mr. West, the Prosecutor, or anyone, sir?

THE DEFENDANT: No, sir.

Three months later, on March 24, 2006, defendant appeared for sentencing. Again, defendant was accompanied by his standby counsel. At the outset of the sentencing hearing, defendant moved to withdraw his guilty pleas. He asserted that it was his son's birthday, and that he had "finally realize[d]" that he had pled guilty in December 2005 only because he had been distraught by the mistaken belief that his son had been abducted. The judge denied the motion to withdraw the plea, finding "nothing that leads the court to believe that any of the statements made by [defendant] that day under oath when [he] put the plea in [place] were inaccurate or untruthful." The judge then imposed a sentence, the particulars of which are addressed later in this opinion.

On appeal, defendant raises the following points:

POINT I

THE COURT'S INQUIRY WITH THE DEFENDANT WITH REGARD TO HIS WAIVER OF COUNSEL IN ORDER TO PROCEED PRO SE DID NOT MEET THE REQUIREMENTS OF RECENT CASE LAW TO PERMIT AN ADEQUATE RECORD TO ESTABLISH THAT THE DEFENDANT MADE A KNOWING AND INTELLIGENT DECISION IN THIS MATTER. [Not raised below.]

POINT II

THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED THE DEFENDANT'S MOTION TO WITHDRAW FROM HIS GUILTY PLEAS BEFORE SENTENCE.

POINT III

THE COURT IMPOSED AN EXCESSIVE SENTENCE WHICH DID NOT TAKE INTO CONSIDERATION ALL APPROPRIATE CODE SENTENCING GUIDELINES. THE COURT IMPROPERLY APPLIED AGGRAVATING FACTOR A(11). THE SENTENCE IMPOSED VIOLATED THE DEFENDANT'S DOUBLE JEOPARDY RIGHTS WHEN IT IMPOSED SENTENCES ON THE DISTRIBUTION COUNTS AND THE PUBLIC PARK COUNTS. AT THE LEAST, THIS MATTER MUST BE REMANDED TO INSURE THAT THE SENTENCING HEARING PROCEEDED IN ACCORD WITH THE RECENT SUPREME COURT DECISION IN STATE V. NATALE.

We have carefully considered these points. Although we find no merit to defendant's substantive claims, we do agree that the matter should be remanded for resentencing.

II.

Defendant's first contention is that the trial judge inadequately explained to him the risks of self-representation before granting his request to proceed on a pro se basis. In this regard, defendant relies upon the precepts expressed by the Supreme Court in State v. Crisafi, 128 N.J. 499, certif. denied, 130 N.J. 398 (1992), more recently amplified by the Court in State v. Reddish, 181 N.J. 553 (2004) and State v. DuBois, 189 N.J. 454 (2007).

A criminal defendant's waiver of his right to counsel under the Sixth Amendment must be knowing and voluntary. Crisafi, supra, 128 N.J. at 509; see also McKaskle v. Wiggins, 465 U.S. 168, 173, 104 S.Ct. 944, 948, 79 L.Ed. 2d 122, 130 (1984). As the Court elaborated in Crisafi, and summarized in DuBois, supra, 189 N.J. at 468-69, a trial judge making this assessment of voluntariness should inform the defendant of several considerations. In particular, the judge ordinarily should address:

(1) the nature of the charges, statutory defenses, and possible range of punishment; (2) the technical problems associated with self-representation and the risks if the defense is unsuccessful; (3) the necessity that defendant comply with the rules of criminal procedure and the rules of evidence; (4) the fact that the lack of knowledge of the law may impair defendant's ability to defend himself or herself; (5) the impact that the dual role of counsel and defendant may have; (6) the reality that it would be unwise not to accept the assistance of counsel; (7) the need for an open-ended discussion so that the defendant may express an understanding in his or her own words; (8) the fact that, if defendant proceeds pro se, he or she will be unable to assert an ineffective assistance of counsel claim; and (9) the ramifications that self-representation will have on the right to remain silent and the privilege against self-incrimination.

[DuBois, supra, 189 N.J. at 468-69 (citing Crisafi, supra, 128 N.J. at 511-12, and Reddish, supra, 181 N.J. at 594-95).]

Before allowing defendant to represent himself in the present case, the trial judge did explore on the record with defendant many of these so-called Crisafi/Reddish/DuBois factors during the proceedings on May 10 and June 2, 2005. Indeed, the judge reviewed several of these factors with defendant more than once. Specifically, the judge painstakingly went over with defendant the nature of the charges, his right to present any defenses, and his potential sentencing exposure. The judge also repeatedly cautioned defendant about the pitfalls of self- representation, and the wisdom of taking advantage of the expertise of his assigned attorney, who had nearly three decades of criminal trial experience. The judge went over several of these items through open-ended questions, consistent with case law. See Reddish, supra, 181 N.J. at 594-95.

Even after defendant nonetheless insisted that he wanted to represent himself, the judge made clear that he could consult with his former attorney as standby counsel. Toward that end, the judge made sure at the June 2, 2005 hearing that standby counsel would be supplied with a CD-ROM copy of the State's undercover audiotapes and transcripts, so that counsel would have an informed basis to lend advice to defendant about those proofs upon request. Further, as in DuBois, "the record demonstrates that standby counsel assisted defendant," even after his role was shifted to a standby status. DuBois, supra, 189 N.J. at 474. Indeed, standby counsel appeared with defendant when he subsequently moved to dismiss the indictment, and appeared again with defendant when he entered his guilty pleas. At the plea hearing, standby counsel guided defendant through the appropriate colloquy under R. 3:9-2 and the necessary factual predicates for the entry of the pleas.

The State acknowledges that, despite the extensive record at the May and June 2005 proceedings, the court did not expressly address some of the Crisafi/Reddish/DuBois factors. Specifically, the judge did not describe the relationship between self-representation and the Fifth Amendment privilege, did not detail the problems that can arise in defendant's dual role as client and counsel, and did not mention that defendant would not be able to interpose a future claim of ineffective assistance of counsel if he chose to represent himself. We agree with the State, however, that none of these omissions is consequential in the setting of this particular case. Defendant did not go to trial. He chose instead to enter, voluntarily, a guilty plea. Accordingly, none of the adverse aspects of pro se status that can manifest during a criminal trial apply. Defendant never had to appear before a jury in a dual role. Defendant never had to pose or respond to evidentiary objections. He never had to cross examine any witnesses. Given his ultimate choice to plead guilty, it is immaterial that the judge failed to provide defendant with even more reasons why it would be imprudent to try the case on his own.

The only arguable omission from the Crisafi/Reddish/DuBois litany of any pertinence here is the judge's failure to tell defendant specifically that he would be unable to assert a future claim of ineffective assistance of counsel if he represented himself. We do not regard that omission as sufficient to undermine defendant's conviction in this case. Defendant points to no specific action or inaction by his attorney, who later became his standby attorney, that was deficient. By virtue of his prior adult convictions and prison sentence, defendant was obviously experienced with the criminal justice system. We discern no appreciable prejudice in the manner in which he was addressed by the trial judge.

Here, as in DuBois, a minor "shortcoming" in the manner in which the trial judge explored the various aspects of self- representation does not amount to reversible error. DuBois, 189 N.J. at 474-75 (involving circumstances where the trial court failed to go over the pertinent factors with defendant in one continuous proceeding). The fundamental issue is whether "defendant's waiver of counsel is knowing and intelligent." Id. at 474. The record before us clearly demonstrates this. The judge verified that defendant was not under the influence of alcohol, drugs or medication. He patiently covered the dangers of pro se status, and repeatedly urged defendant to keep his experienced attorney as counsel of record. Nevertheless, defendant was adamant, and at one point even denigrated the efforts to talk him out of representing himself as "a game." We are satisfied that the judge did not abuse his discretion in concluding that defendant knowingly and intelligently waived his right to counsel.

III.

Defendant's second argument on appeal is that the trial judge erred in denying his motion to withdraw his guilty pleas.

We perceive no such error.

Rule 3:21-1 governs motions to withdraw a plea of guilty, which must "be made before sentencing, but the court may permit it to be made thereafter to correct a manifest injustice." R. 3:21-1. The burden rests on the defendant to establish why the motion to withdraw his or her guilty plea should be granted. State v. Luckey, 366 N.J. Super. 79, 86 (App. Div. 2004). Moreover, "the trial court has considerable discretion in entertaining such a motion, and our review must recognize the discretion to which the trial court's decision is due." Id. at 87 (citing State v. Bellamy, 178 N.J. 127, 135 (2003)).

Applying these deferential standards here, we are satisfied that the judge possessed ample grounds to deny the eleventh-hour effort of defendant to withdraw his pleas of guilt. Defendant's claim that he had been under duress at the plea hearing about the supposed abduction of his son are belied by his consistent answers at the plea hearing asserting that he was thinking clearly and was not being pressured by anyone. Although defendant did mention to the judge at the plea hearing that he had a headache, upon further probing, he acknowledged that he was feeling "good" and denied that anything was interfering with his ability to be objective. Furthermore, defendant did not assert in his attempted plea withdrawal that he was, in fact, innocent of the charged offenses. See State v. Deutsch, 34 N.J. 190, 198 (1961).

Defendant's arguments lack merit, and the denial of his plea withdrawal is sustained.

IV.

We do agree, however, with defendant that the judge's sentencing determinations are in some respects unclear, and that they potentially rely upon improper factors.

The sentence was a rather complicated amalgam of seven sentences, arranged in four sets. The sentencing documents do not make entirely clear whether defendant's aggregate sentence is for twenty-four years or thirty-two years, depending upon how one interprets the judgment of conviction. Further, the State concedes that an improper aggravating factor, factor 11, was invoked by the judge in this setting where custodial terms were imposed. See N.J.S.A. 2C:44-1a(11).

The State also concedes that under State v. Wesner, 372 N.J. Super. 489, 491 n.1 (App. Div. 2004), certif. denied, 183 N.J. 214 (2005), the judge should have merged defendant's three convictions for distributing CDS into his three separate convictions for distributing CDS near a public park.

Additionally, the judge's rather abbreviated sentencing analysis possibly may have been improperly guided by the former scheme of presumptive terms, contrary to State v. Natale, 184 N.J. 458, 484, 495-96 (2005), rather than explicitly considering the full range of available terms.

Consequently, we deem it most prudent to remand the matter for resentencing. Our disposition makes it unnecessary to reach defendant's claim that the sentence was excessive under State v. Roth, 95 N.J. 334, 363-64 (1984).

Affirmed as to convictions, remanded for resentencing.

20071017

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