November 9, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ERIC BUCK, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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. Go ahead.
[Defendant]: Because I was informed that my plea would go back up and that would be the only chance I got to cop out to a five with [eighty-five]. And that would be my lowest possible offer to get.
[The Judge]: And was there anything at the time that the Court was questioning you . . . that you didn't understand?
[The Judge]: You didn't have any questions about your plea at that time that you weren't clear on?
[Defendant]: At the time I was under the influence that that would be the best possible outcome.
The assistant prosecutor lodged an objection to both of defendant's motions because they were "non-conforming," having been filed pro se while defendant was still represented by counsel. She noted "[t]he State did not have a[n] opportunity to respond in writing."
The judge then granted both of defendant's motion, finding that "fundamental fairness" required that outcome. He noted that when "the defendant claims he was misinformed about a material element of his plea negotiation and that he would be prejudiced by the enforcement of his plea," the liberal exercise of judicial discretion compelled the result. The matters were then listed for trial.
The State moved for reconsideration.*fn3 On October 12, 2005, the judge conducted a plenary hearing on the application. Defendant was represented by his new pool attorney. Wicke testified on behalf of the State. Although the judge specifically forbade Wicke from testifying about defendant's "version of the facts," he allowed the attorney to describe in detail his conversations with defendant regarding all aspects of the case. Wicke denied misrepresenting anything to defendant or using coercion to obtain his agreement to plead guilty to the various charges in the indictment.
In particular, Wicke began by noting that he was contacted by an Ocean Township police detective seeking defendant's cooperation in locating the stolen Glock pistol. In his confession, defendant claimed to have sold the gun to a drug dealer in Long Branch. Wicke explained that if defendant would cooperate, the police were prepared to speak to the prosecutor's office and recommend defendant not be charged with second-degree burglary, thus removing the NERA considerations from any sentence. Wicke testified that he explained the elements of armed burglary to defendant, the impact of NERA upon any sentence imposed, the likelihood of prevailing at trial, including the likelihood of a jury verdict of guilty to a lesser charge, and the offer to cooperate. Apparently, defendant declined to cooperate because Wicke testified he called the detective back and advised him that the case should proceed to the grand jury.
Defendant chose not to testify at the plenary hearing. His new attorney urged the court to deny the State's reconsideration motion, noting defendant "still has in his mind that this is a third degree,  not a second degree." After listening to legal argument from both sides, the judge granted the State's motion for reconsideration.
First, the judge noted that he now had the benefit of the transcripts from both proceedings in May where defendant entered his guilty pleas. He then considered Wicke's testimony, which he found to be "honest and credible," "forthright and forthcoming." The judge concluded that defendant had "a whimsical change of mind regarding the entry of his plea," and that his claims of being pressured into accepting the plea based upon the inadequacy of Wicke's representation were "not truthful."
The judge reviewed the specific allegations defendant raised in his pro se motion. Defendant claimed Wicke "ha[d] not been helpful to [his] defense," and had not responded to defendant's letters regarding resolution of the case. Defendant further claimed Wicke was "not motivated" to help him and gave him "false information which convinced [defendant] to agree with the plea bargain" which he would have rejected "if properly informed." Lastly, defendant claimed he had not been "advised nor represented properly." The judge rejected all these contentions based upon the testimony and the actual transcripts from the plea proceedings. He granted the State's motion, vacated his earlier decision, and scheduled the matters for sentencing.*fn4
Defendant appeared for sentencing on October 28, 2005. When asked if he had anything to say before sentence was imposed, defendant told the judge, "I had no idea it was an officer's car. And I didn't know what was in the bag when I took it so I wasn't armed." In response to a further question by the judge, defendant continued to claim that he opened the DEA officer's bag "when he got home." Defendant claimed that he "thr[e]w [the gun] away because [he] was scared."
Realizing this part of defendant's claim was inconsistent with the confession he gave to the police when arrested, the judge asked, "I thought . . . you gave it to some guy from Long Branch." Defendant responded,
I said that because the police officer didn't believe what I was saying. So, I just said that just to go along with the other things. But I really, I threw all the stuff away.
The judge then asked if the prosecutor or defense counsel wished to comment on "any of the issues that [defendant] raised today?"
Defense counsel chose not to, but the prosecutor characterized defendant's claim as "incredible." He noted that under defendant's version of the events, "if the [duffel] bag was full of dirty laundry [defendant] would have brought it all the way home and then discovered what he found[.] [O]bviously he was taking things of value in the car."
The judge reviewed defendant's statements made at the time of the plea allocution. Implicitly finding that defendant had admitted all the necessary elements of armed burglary, the judge then imposed the sentences contemplated by the plea bargains. This appeal ensued.*fn5
Defendant first argues that count five of the indictment was "legally insufficient as a matter of law." Alternatively, defendant argues he provided "an insufficient factual basis" for the plea to second-degree armed burglary.
"Armed burglary," as defined by N.J.S.A. 2C:18-2b(2), differs from burglary in only one respect - the actor must be "armed with or display what appear[s] to be . . . a deadly weapon" while "in the course of committing the offense." Count five of Indictment 05-02-0485 clearly sets forth the essential elements of the offense and is not legally insufficient. If defendant's claim relates to the sufficiency of the evidence presented before the grand jury to obtain the indictment, we have not been provided with the transcript of those proceedings, but, more importantly, the argument was never raised below. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).
Defendant alternatively claims that the factual basis he gave at the time of his guilty plea to count five was insufficient. He contends that the only evidence supporting the charge of armed burglary is contained in the statement he gave to the police after his arrest. Then, he admitted breaking into the officer's vehicle, but claimed he did not know what was in the duffel bag when he removed it from the car. He only found the handgun after he "drove home," "opened up" the bag, and saw the weapon. He denied ever looking inside the bag until he was home.
In State v. Merritt, 247 N.J. Super. 425 (App. Div.), certif. denied, 126 N.J. 336 (1991), we construed N.J.S.A. 2C:18-2b(2) to apply to the actions of a defendant who obtains a deadly weapon "during the course of the offense," provided the weapon was "readily accessible to the perpetrator as if he had brought it to the scene initially." Id. at 430. Defendant concedes, therefore, even though he was unarmed when he entered the DEA officer's vehicle, having obtained the firearm during the course of the burglary, the statute could be applicable.
However, he contends that because he never knew what was in the duffel bag until after the burglary was committed and he was at home, Merritt does not apply. Essentially, he argues that since he had no knowledge of the contents of the duffel bag, the gun was not "readily accessible," and, thus, he was not "armed with a deadly weapon" "while in the course of committing" the offense.
We need not examine the merits of defendant's contention because in the actual factual basis he gave, as opposed to the version of events contained in his confession, he clearly admitted all the essential elements of the crime. When he entered his guilty plea to count five, the following exchange took place between defendant and Wicke:
Q: Did you enter that car?
Q: And what was your purpose?
A: To take money. It's for my drug habit.
Q: And you found some stuff. Correct?
Q: What did you find?
A: A duffel bag, CD player, palm pilot.
Q: Okay. And you took that stuff out of the car?
A: Yes. A little bit of cash. . . . .
Q: And inside the duffel bag, did you find equipment that was clearly marked that it was DEA property?
A: Yes, I did.
Q: Among that was a hand gun?
Q: And you took possession of that handgun?
Q: And that's part of what you stole from the car?
While we acknowledge the fact that the questioning never squarely addressed the issue defendant now raises - when he knew that the bag contained the Glock - we nevertheless conclude that based upon the answers he did supply, defendant admitted every essential element of the crime of armed burglary.
Rule 3:9-2 provides that the judge
[S]hall not accept [a guilty] plea without first questioning the defendant personally, under oath or by affirmation, and determining by inquiry of the defendant and others, in the court's discretion, that there is a factual basis for the plea and that the plea is made voluntarily, not as a result of any threats or of any promises or inducements not disclosed on the record, and with an understanding of the nature of the charge and the consequences of the plea.
In obtaining a factual basis for the plea, the judge need not "follow a prescribed or artificial ritual." In Re T.M., 166 N.J. 319, 327 (2001). The factual basis "should be examined in light of all surrounding circumstances and in the context of an entire plea colloquy" to determine its adequacy. Ibid.; State v. Sainz, 107 N.J. 283, 293 (1987).
Defendant's argument would require us to conclude, at least for the moment, that he knowingly pled guilty to a third-degree burglary, but unwittingly pled guilty to second-degree burglary, a charge unsupported by his actual conduct. We recognize that "[t]he factual-basis requirement . . . protects a defendant who voluntarily and knowingly pleads, but without recognition that his or her conduct does not fall within the charge." T.M., supra, 166 N.J. at 326. However, we have also recognized when faced with similar claims, that "the requirement to take a factual basis is not absolute. Every alleged deficiency in the taking of a factual basis does not constitute reversible error." State v. Pena, 301 N.J. Super. 158, 163 (App. Div.), certif. denied, 151 N.J. 465 (1997).
In Pena, the defendant was charged with possession of narcotics with intent to distribute after having been arrested at Newark Airport with cocaine in the suitcase he carried. Id. at 160. The defendant professed his innocence to the judge prior to entering his guilty plea claiming he was deceived about the contents of the bag. Id. at 163. And, while actually providing his factual basis, the defendant claimed he did not know narcotics were in the bag until after the police opened it. Ibid. Noting that "[d]efendant maintained his innocence throughout the case," ibid., we reversed the defendant's conviction because his guilty plea lacked an adequate factual basis. Id. at 164.
Similarly, and more recently, in State v. Pineiro, 385 N.J. Super. 129, 142 (App. Div. 2006), we reversed the defendant's conviction for absconding from parole, N.J.S.A. 2C:29-5b, based upon the inadequate factual basis of his guilty plea. Like the defendant in Pena, whose factual assertions negated an essential element of the crime - his knowing possession of cocaine - the defendant in Pineiro denied that he was "hiding" from the parole authorities, Pineiro, supra, 352 N.J. at 136, an essential element of the crime of absconding. Id. at 141.
Reversal was compelled in Pena because a factual claim made by the defendant at the time of the plea would, if true, negate an essential element of the crime; in Pineiro, because defendant expressly denied an essential element of the crime, reversal was appropriate. In each case, the plea allocutions raised issues of constitutional dimension because each defendant may not have "underst[oo]d 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." State v. Mitchell, 126 N.J. 565, 577 (1992). A similar analysis would apply to a defendant who makes "a contemporaneous claim of innocence" when supplying a factual basis for his guilty plea. Ibid.; State v. D.D.M., 140 N.J. 83, 96 (1995); Pena, supra, 301 N.J. Super. at 163.
Here, defendant never asserted a fact during his plea allocution that would negate a necessary element of the crime. Before the judge, he never claimed that he lacked any knowledge of the contents of the duffel bag when he stole it from the car. If those were the true circumstances, it is curious that defendant felt compelled to tell them to the police, but not to the judge when he entered his plea. Nor did defendant deny any essential element of the offense. To the contrary, during his plea allocution, he clearly and unequivocally admitted all the elements of the crime of second-degree burglary. Lastly, defendant never made "a contemporaneous claim of innocence" at any point during the plea proceedings. On the record before us, defendant claimed a lack of knowledge about the contents of the duffel bag for the first time as he was about to be sentenced and the full consequences of his negotiated agreement were about to be felt.
When faced with a defendant's belated claim that his factual basis was insufficient, and that he was not guilty of the offense, the Supreme Court has considered "the context of the entire plea colloquy," including "the written plea agreement that defendant signed and defendant's consultations with his attorney." State v. Smullen, 118 N.J. 408, 415 (1990). Here, during both plea proceedings, defendant acknowledged that he was fully aware of the charges against him, that he had discussed them fully with Wicke and his other attorney, and that he was in fact guilty of the crimes to which he was pleading guilty. In sum, we find the factual basis defendant gave, while perhaps not perfect, was surely adequate.
Defendant's second argument, that the trial judge abused his discretion by denying his request to withdraw his guilty plea, is also unavailing because, in large part, the contention rests upon the assumption that defendant's factual basis was inadequate.
The prerequisite that a guilty plea be voluntarily offered is one of "[t]hose 'touchstone' requirements [that] have their historical roots in our case law, but now are codified [in our Court Rules]." T.M., supra, 166 N.J. at 326 (quoting State v. Warren, 115 N.J. 433, 442-43 (1989)). "[A] guilty plea voluntarily entered may not be withdrawn except pursuant to leave granted in the exercise of the trial judge's discretion." State v. Huntley, 129 N.J. Super. 13, 16 (App. Div.), certif. denied, 66 N.J. 312 (1974). Because of the important public interest in finality, a "'defendant's burden of presenting a plausible basis for his request to withdraw his guilty plea is heavier' when the plea is entered pursuant to a plea bargain." Smullen, supra, 118 N.J. at 416 (quoting Huntley, supra, 129 N.J. Super. at 18).
Here, defendant was represented by counsel at the time of the plea, counsel discussed the on-going plea negotiations in detail with defendant, and defendant executed a written plea form that clearly set forth the rights he waived as a result of pleading guilty. See State v. Herman, 47 N.J. 73, 77 (1966) (defendant's execution of plea form "weighs heavily against a contention that the plea was not entered voluntarily and understandingly"). Without going into detail, the questioning of defendant by the court demonstrates voluntary pleas of guilty were entered. Additionally, because of the unusual procedural history that devolved thereafter, we have the benefit of Wicke's testimony and the judge's findings as to his and defendant's credibility.
The State argues that further support for denying defendant's request to withdraw his plea can be found not only in the circumstances of the armed burglary but in the string of other burglaries for which defendant was originally charged, and, in at least one other instance, pled guilty. It contends, as it did at the time of sentencing, that the proceeds of the car burglary, and indeed the other burglaries, reflect defendant's conscious object to obtain only items of value, and, therefore, we should logically infer that defendant must have viewed the contents of the duffel bag before taking it from the car.
We recognize that the motion judge may not have had the complete discovery as to both indictments, and, therefore, may not have drawn the same conclusions as urged by the State. Nevertheless, the judge did take note that defendant's claim at sentencing that he threw the gun away was significantly different from the version of events he gave to the police. We assume the judge viewed defendant's claim that he lacked knowledge of the bag's contents when he stole it - stated first in his confession, reiterated at his sentencing, but completely absent at the time of his plea allocution - to be quite suspect.
In Smullen, the Court recognized the propriety of considering such extrinsic factors in a similar setting and noted,
In evaluating whether a manifest injustice had occurred in the circumstances of a case like this and the voluntariness of defendant's prior plea in light of a later claim of innocence, a court might well consider (for that limited purpose) the evidence that was available to the prosecutor and to the defendant through our discovery practices at the time the defendant entered the plea of guilt. In some cases the proffered evidence may serve to rebut the assertion of innocence; in others, it may move a court to vacate the plea to the end that justice be done. [Smullen, supra, 118 N.J. at 418].
In the end, "the measure of what constitutes [a] fair and just reason for withdrawal must be reposed in the sound confidence of the [trial] court." Id. at 417. Having reviewed all of the circumstances surrounding defendant's guilty pleas, we find no basis to conclude that the judge mistakenly exercised his discretion by denying defendant's request to withdraw them.