On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 05-02-0485.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 11, 2007
Before Judges Axelrad and Messano.
Defendant Eric Buck appeals from the judgment of conviction and sentence imposed following his plea of guilty to various counts of Monmouth County Indictment 05-02-0485. He argues that the facts adduced at the time of his plea allocution as to count five of that indictment charging him with armed burglary, N.J.S.A. 2C:18-2b(2), were insufficient to establish the essential elements of the offense and sustain a finding of guilt. He asks us to "make a judicial finding that second[-]degree burglary cannot be substantiated" under those facts, and re-sentence him on that count as a third-degree offender. Alternatively, he requests that we reverse the motion judge's order of October 12, 2005, and essentially permit him to withdraw his previously-entered guilty pleas to several counts of the indictment.
These arguments are framed as follows in the two points defendant raises in his brief:
COUNT [FIVE] OF INDICTMENT 05-02-0485 CHARGING SECOND DEGREE BURGLARY IS LEGALLY INSUFFICIENT AS A MATTER OF LAW. ALTERNATIVELY, AN INSUFFICIENT FACTUAL BASIS WAS PROVIDED BY THE DEFENDANT. (Partially Raised Below).
THE TRIAL COURT IMPROPERLY DENIED DEFENDANT'S REQUEST TO WITHDRAW HIS PLEA.
After consideration of these contentions in light of the record and applicable legal standards, we affirm.
The procedural history of the matter is complex and requires some explication. Defendant was charged with a series of offenses in two separate indictments. On May 12, 2005, represented by assistant public defender Michael Wicke, he entered guilty pleas under Indictment 05-02-0485 to burglary in the third degree, N.J.S.A. 2C:18-2a; burglary while armed in the second degree, N.J.S.A. 2C:18-2b(2); third-degree theft of movable property, N.J.S.A. 2C:20-3a; and third-degree unlawful possession of a firearm, N.J.S.A. 2C:39-5b. The State contended with respect to the burglary while armed charge that defendant broke into the car of a DEA officer and stole a duffel bag that contained a .40 mm Glock handgun. Pursuant to the plea bargain, the State agreed to recommend that all sentences imposed would run concurrently to a maximum five-year term of imprisonment with a mandatory eighty-five percent NERA*fn1 parole disqualifier on the armed burglary charge.
Thereafter, on May 31, 2005, defendant, represented by private counsel, entered guilty pleas to two counts contained in Indictment 04-12-2872, burglary in the third degree, N.J.S.A. 2C:18-2a; and possession of a controlled dangerous substance in the third degree, N.J.S.A. 2C:35-10a(1). Pursuant to this plea bargain, the State agreed to a maximum sentence of four years imprisonment on each charge, with both sentences to run concurrently to each other, and to the sentences imposed on Indictment 05-02-0485.
Defendant then filed a pro se motion to retract his guilty pleas.*fn2 At a hearing held on August 26, 2005, the judge first considered the application as to Indictment 04-12-2872. Defense counsel on that case had also moved to be relieved and represented that defendant's request to withdraw his guilty pleas was against her advice. Defendant lodged no objection to the relief sought by his attorney, requesting instead that the judge appoint counsel through the public defender's office if his motion to withdraw his guilty pleas was granted. Defendant specifically indicated that he did not wish to be represented by Wicke. Without any extensive discussion, the judge granted both motions.
As to the second indictment, defendant sought to both withdraw his guilty plea and discharge Wicke. We discern from the transcript of the proceedings that defendant claimed his attorney had "provided [him] information  regarding [his] plea that was not correct." When asked by the judge what this information was, defendant explained, "I was under the assumption that five with [eighty-five] was the lowest I could get . . . . But after doing my research I realized that it didn't have to be a second degree, first of all, which would make it -- the lowest would be probation."
The judge paraphrased defendant's explanation as follows:
[S]o you're saying because you don't have any superior court convictions, if [count five] was dropped to a third degree you would have a presumption of no incarceration. That's what you're saying to the Court?
Defendant responded affirmatively. The judge, however, explained that defendant's juvenile record and municipal court convictions could influence the ultimate sentence even if the conviction was for a third-degree crime. He then explained to defendant,
But more pertinent is the fact that because there was a weapon involved with regard to the auto burglary, it becomes a second degree crime, not a third degree crime. That's what the State indicted you for. This is the No Early Release Act crime. So the 85 percent parole ineligibility under our law applies.
It would not be within your province or even Mr. Wicke's province to drop this to a third degree . . . . Do you understand what I['ve] said?
Defendant again responded affirmatively.
Defense counsel objected to defendant's motion to relieve him as counsel essentially denying that he had misrepresented anything. The judge then further questioned defendant.
[The Judge]: Were you placed under any pressure at that time to enter your guilty plea? Is that what you are telling the Court? Because I asked you if you were voluntarily entering your plea. You indicated to me under oath that you were. I need to know now if at the time you entered your plea that you were placed under pressure to enter that plea?
[Defendant]: I was under pressure.
[The Judge]: Tell me about it. ...