December 6, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
RONALD BLACKWELL, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 04-02-0237.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 24, 2007
Before Judges Sapp-Peterson and Messano.
Defendant Ronald Blackwell appeals from the judgment of conviction entered 1) after his guilty plea to two counts of sexual assault in the second degree, N.J.S.A. 2C:14-2(c); and 2) after two findings of contempt made by the trial judge during defendant's sentencing. Defendant raises two points for our consideration.
THE DENIAL OF DEFENDANT'S PRE-SENTENCE MOTION TO WITHDRAW HIS GUILTY PLEA WAS AN ABUSE OF THE TRIAL COURT'S DISCRETION.
THE JUDGMENTS OF CONTEMPT MUST BE VACATED BECAUSE THE TRIAL [COURT] FAILED TO FOLLOW THE REQUISITE PROCEDURES.
We have considered these arguments in light of the record and applicable legal standards. We reject defendant's first argument and affirm that portion of the Judgment of Conviction regarding the sexual assaults. However, because the trial judge failed to follow the necessary procedures required by Rule 1:10-1 and -2, we vacate defendant's convictions and the sentences imposed for the two contempts.
Defendant was charged in Atlantic County Indictment 04-02-0237 with six counts of sexual assault in the second degree, N.J.S.A. 2C:14-2(c); two counts of criminal sexual contact in the fourth degree, N.J.S.A. 2C:14-3; endangering the welfare of a child in the third degree, N.J.S.A. 2C:24-4(a); and terroristic threats in the third degree, N.J.S.A. 2C:12-3(a). At the time, defendant was thirty-one years of age, and the victim, the same young woman identified in all counts of the indictment, was alleged to be between the ages of thirteen and sixteen.*fn1 On October 24, 2005, after a jury was selected and as opening statements were about to be made, defendant decided to retract his not guilty plea and to plead guilty to two counts of sexual assault.
The matter was scheduled for sentencing on January 6, 2006. However, in the interim, defendant refused to attend his scheduled evaluation at the Adult Diagnostic and Treatment Center (Avenel), and filed a pro se motion to withdraw his previously-entered guilty pleas and to discharge his attorney.*fn2
After indicating that he wished to proceed pro se and to withdraw his plea, the defendant acknowledged that he had not attended the Avenel evaluation. The judge explained,
[If] [y]ou think I'm going to go through your whole case and all the discovery, I'm not. All I'm going to do is look at a transcript to see if your plea was entered knowingly and voluntarily, that's it. I'm not going to hear your case. You're not going to manipulate the system to get a mini trial out of your motion to vacate a plea. Just so you understand. Okay? So you['re] going to represent yourself?
Defendant indicated that he would undergo the Avenel assessment, but insisted that he wished to represent himself at sentencing.
The judge indicated that he would consider the defendant's request again at the time of sentencing, and that, for the moment, defense counsel would remain in the case.
In his statement of reasons filed with the Judgment of Conviction, and, in large part, his reasons placed on the record at sentencing, the judge explained that defendant's first scheduled evaluation at Avenel was postponed because defendant refused to be transported to the facility. The judge noted that defendant again refused to attend his evaluation after the January 2005 proceedings referenced above and provided further background regarding defendant's attempts to "manipulate" the system.*fn3
We take note of these remarks furnished by the judge because they elucidate what transpired thereafter on March 10, 2006, when defendant appeared for sentencing, and they inform our consideration of the issues raised on appeal. At sentencing, defendant informed the judge he wished to proceed pro se and that he did not want his attorney to speak at all on his behalf. He requested an adjournment because "[he] [had] no discovery."
The judge denied that request and moved on to consider defendant's motion to withdraw his guilty plea. Defendant persisted in requesting a postponement and attempted to re-argue his motions to dismiss the indictment and suppress evidence that the judge had denied in prior proceedings. He claimed to have been "bullied into the plea."
It is obvious from the transcript itself that the judge was justifiably upset at defendant's insistence upon arguing issues already litigated and defendant's persistent interruption of the judge as he spoke. The judge recounted the prior procedural history of the case, noting that he had reluctantly yielded to defendant's complaints regarding his assigned public defender and had appointed a pool attorney to replace prior counsel. He noted defendant's active involvement with counsel during jury selection, "telling [counsel] who he wanted struck" from the panel, and defendant's decision to plead guilty "immediately before opening statements."
Denying defendant's motion to retract his guilty pleas, the judge found, "The transcript will bear out that [the guilty plea] was voluntary . . . and knowingly entered into. The proofs in this case were extremely strong . . . . [T]here is absolutely no basis whatsoever for him to withdraw his guilty plea and his guilty plea will stand . . . ." Defendant indicated he did not wish to have his attorney speak on his behalf as to the sentence and, after again claiming he had no discovery, told the judge he would be appealing the sentence. He claimed, "I got railroaded into the sentence[,]" and argued the sentence recommendation called for by the plea bargain, ten years, was "too much time."
The judge began to impose sentence. He warned defendant, "When I'm reading this, you do not interrupt me, okay?" As the judge recounted the facts surrounding the crimes, and read the victim's impact statement, defendant interrupted, asking, "Do I have to stand here and listen to this?"
We quote extensively from the transcript at this point because these portions form the context for the second point of appeal raised by defendant.
[Judge] Yes, and don't say a word.
[Defendant] You can't stop me from talking. I can say whatever I feel like saying.
[Judge] You can?
[Defendant] Yes, I can. You['re] going to put me in jail, I'm already in jail.
I'm not scared. I'm not scared.
[Defense counsel] He'll add it to your time.
[Defendant] So what?
[Judge] Tell you what we're going to do, you want to be a wiseguy[?]
[Defendant] Yes, I'm going to be a wiseguy. I want justice.
[Judge] I'll tell you how this game is played. You say one more word, I'll hold you in contempt and I'll add to your sentence. Say one more word and I will hold you in contempt of Court, okay, and we'll start every time you open your mouth, it would be an additional six months, okay? So we'll get it up to twenty years. So you do whatever you want, okay? You open your mouth again while I'm talking, it will be another six months.
The judge continued to recite the events leading up to defendant's guilty pleas, when he was again interrupted.
[Defendant] I'm trying to get justice.
[Judge] That's six months.
[Judge] That's six months, okay? That's contempt in the face of the Court. That's an additional six months. We'll go from there.
As the judge continued, the events giving rise to the second contempt citation occurred.
[Prosecutor] For the record [ ]. He gave me the finger, Judge.
[Judge] He gave you the finger?
[Defense counsel] Your Honor, I ask my client be relieved and permitted to return to the holding cell to avoid any further problems with this Court giving him another six months in contempt.
[Judge] That's another additional six months for giving [the prosecutor] the finger. That's another contempt in the face of the Court.
The judge denied defense counsel's request and continued with the sentencing proceedings.
The judge noted defendant's prior record, which included fourteen arrests, nine convictions, and six indictable convictions, including the present case. He noted one prior conviction was for sexual assault in 2001; the victim in that case was the very same victim in the case at hand. The judge observed that defendant had been placed on probation in the past, had violated those probationary sentences, and had been sentenced to State Prison for those violations.
The judge found aggravating factors three, the risk defendant would commit another crime; six, the extent of defendant's prior record and the seriousness of the crime for which he was convicted; and nine, the need to deter defendant from violating the law.*fn4 He found no mitigating factors. Following the plea agreement's sentencing recommendation, the judge imposed concurrent ten year sentences on the two counts of sexual assault, as well as an eighty-five percent parole disqualifier under the No Early Release Act (NERA).*fn5 Because defendant failed to ever attend his Avenel evaluation, the judge invoked the provisions of N.J.S.A. 2C:47-3(f) and (g) and ordered that defendant be ineligible for good time or work credits. Lastly, the judge imposed a six month sentence for each contempt citation, consecutive to each other and consecutive to defendant's sentence on the sexual assaults. This appeal ensued.
Defendant argues the trial judge abused his discretion in denying his motion to retract his guilty plea to the two counts of sexual assault. This contention lacks sufficient merit to warrant further discussion in this opinion. R. 2:11-3(e)(2). We add only these brief comments.
The trial judge is entitled to exercise broad discretion when considering a motion to withdraw a guilty plea. State v. Bellamy, 178 N.J. 127, 135 (2003). "[T]he 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). A defendant must "present some plausible basis for his request, and  good faith in asserting a defense on the merits, so the trial judge is able to determine whether fundamental fairness requires a granting of the motion." State v. Huntley, 129 N.J. Super. 13, 17 (App. Div.), certif. denied, 66 N.J. 312 (1974). Although the judge should exercise his discretion liberally when the motion is made before sentence, as defendant did here, "[l]iberality in exercising discretion does not mean an abdication of all discretion." Ibid.
Every argument presented by defendant as a basis to withdraw his guilty plea was without any merit and bordered on the frivolous. The judge, nevertheless, considered them all before denying the motion. Furthermore, "[i]n considering the motion, the timing of the plea and the fact it was a negotiated disposition, terminating the need for trial, are factors that must be considered." Luckey, supra, 366 N.J. Super. at 87. The judge clearly considered the timing of defendant's request, which followed numerous pretrial motions, all decided contrary to defendant's legal assertions, the start of the trial, and defendant's fully competent, voluntary and knowing plea allocution. We concur with the judge's assessment that the motion to withdraw his plea of guilty was merely defendant's latest and last attempt to forestall his sentence and thwart the appropriate administration of justice. We therefore affirm his conviction and the sentence imposed on the two counts of sexual assault in the second degree.
We reluctantly, however, must reach a different result with respect to the convictions and sentences imposed on the two contempt citations. In doing so, we conclude the behavior of defendant was in fact contumacious and was fully deserving of the judge's action; however, the procedures employed were inadequate, and, hence, the convictions and sentences imposed must be vacated.
Rule 1:10-1 permits a judge to summarily "adjudicate contempt" if it occurs "in the actual presence of the judge, and was actually seen or heard by the judge." However, because the normal due process protections that accompany any sanction resulting in the denial of personal liberty are suspended, the "extraordinary power" of summary contempt, has been limited "by defining both [the] settings for its exercise and procedural safeguards." In re Daniels, 118 N.J. 51, 62, cert. denied, 498 U.S. 951, 111 S.Ct. 371, 112 L.Ed. 2d 333 (1990). The nature of the contumacious conduct must have "the capacity to undermine the court's authority and to interfere with or obstruct the orderly administration of justice . . . ." Id. at 61. A summary contempt order may be entered only if "immediate adjudication is necessary to permit the proceeding to continue in an orderly and proper manner[.]" R. 1:10-1(d).
The first contempt citation was issued, in the judge's words, for defendant's continued "talking and interrupting [of] the [c]court." As recounted above in detail, defendant's conduct clearly "besp[oke] of scorn or disdain for [the] court [and] its authority." In re Daniels, supra, 118 N.J. at 69 (quoting In re DeMarco, 224 N.J. Super. 105, 116 (App. Div. 1988) (citing In re Callan, 122 N.J. Super. 479, 494 (Ch. Div. 1973), rev'd on other grounds, 66 N.J. 401 (1975)). It is also apparent from the record that defendant's repeated interruptions did not cease despite the judge's warning. Therefore, the judge's decision to immediately cite defendant and adjudicate the contempt was necessary and reasonable. Amoresano v. Laufgas, 171 N.J. 532, 553 (2002).
However, Rule 1:10-1(e) imposes a procedural requirement that is of significance and which was not met in this case. In every summary adjudication of contempt, the judge must "afford the alleged contemnor an immediate opportunity to respond." Ibid. "Once the court has determined that it should exercise the contempt power, it should immediately inform the party that it considers the act contemptuous and afford the party an opportunity to retreat or explain the circumstances, and thus avoid, perhaps, any need for adjudication." In re Daniels, supra, 118 N.J. at 67; see also Amoresano, supra, 171 N.J. at 555 (holding that in the usual Rule 1:10-1 proceeding, after charging the contempt, the judge must "provide [defendant] with an immediate opportunity to respond, and then adjudicate the matter without interruption").
It is clear that defendant was never given an opportunity to respond to the judge's contempt citation. The transcript of the sentencing indicates that the judge never again addressed defendant after finding him in contempt, nor did defendant ever speak again during the proceedings. Moreover, the judge denied defense counsel's request to immediately remove defendant from the courtroom before he provoked any more contempt citations. We assume from this request that counsel was hopeful that he could restore defendant to better behavior and prepare an appropriate, apologetic response to the court. Since defendant was not afforded the opportunity to respond to the judge, we must reverse the first conviction of contempt and vacate the sentence imposed.
We now turn to the second instance of contempt which the judge indicated was for "giving a finger to the Prosecutor." It is clear from the transcript that the judge did not see the offending conduct which occurred as he read from his statement of reasons for imposing sentence. The factual support for any finding of contumacious behavior, therefore, relied entirely upon the prosecutor's statement of what had occurred. Therefore, the summary procedures outlined in Rule 1:10-1 simply did not apply because the conduct was not "actually seen . . . by the judge." R. 1:10-1(b).
The appropriate procedure would have been for the judge to issue an "order for arrest or an order to show cause specifying the acts or omissions alleged to have been contumacious." R. 1:10-2. In such a proceeding, "the alleged contemnor [would] be permitted to cross-examine the State's witnesses and otherwise put on a defense before the judge who actually adjudicates the matter." Amoresano, supra, 171 N.J. at 556-57. Although the alleged contumacious behavior - giving the finger to the prosecutor - occurred in open court and in the presence of the judge, its proof was dependent upon the testimony of a witness who should have been, at the least, subjected to the cross-examination of defense counsel. We therefore must reverse the second contempt conviction and vacate the sentence imposed.
That portion of the judgment convicting defendant of two charges of contempt and the sentences imposed thereon is vacated. The judgment is otherwise affirmed. The matter is remanded to the trial judge for the entry of an appropriately amended Judgment of Conviction. We do not retain jurisdiction.
Affirmed in part; reversed in part and remanded.