December 10, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
RICKY DAVIS, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 03-06-2228.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 17, 2007
Before Judges Lisa and Simonelli.
Defendant Ricky Davis appeals from the November 30, 2004, order denying his motion to withdraw his guilty plea. He also appeals his sentence. On this appeal, defendant raises the following arguments:
THE COURT BELOW ERRED IN DENYING THE DEFENDANT'S MOTION, WHICH WAS MADE PRIOR TO SENTENCING, TO WITHDRAW HIS GUILTY PLEA. POINT TWO THE SENTENCE IMPOSED WAS EXCESSIVE AND NOT IN CONFORMANCE WITH THE CODE OF CRIMINAL JUSTICE.
On December 3, 2002, defendant threatened three women with a box cutter. He struck two of the women, cut the third with the box cutter and forced her to participate in cunnilingus. On June 18, 2003, a grand jury indicted defendant for the following offenses: first degree aggravated sexual assault while armed with a weapon, contrary to N.J.S.A. 2C:14-2a(4) (count one); second degree aggravated assault, contrary to N.J.S.A. 2C:12-1b(1) (counts two, seven, eleven); third degree criminal restraint, contrary to N.J.S.A. 2C:13-2 (count three); fourth degree unlawful possession of a weapon, contrary to N.J.S.A. 2C:39-5d (counts four, eight, twelve); third degree possession of a weapon for unlawful purposes, contrary to N.J.S.A. 2C:39-4d (counts five, nine, thirteen); and third degree terroristic threats, contrary to N.J.S.A. 2C:12-3a (counts six, ten, fourteen).
On January 6, 2004, Frank J. Dyer, Ph.D., evaluated defendant. In a report, dated January 14, 2004, Dr. Dyer opined that defendant's: "reading comprehension is only at grade 2.2"; "intellectual functioning was found to lie within the borderline retarded range"; reading scores and word recognition skills "strongly indicates a severe learning disability"; and "severe learning disability primarily affecting his reading comprehension is also consistent with mild neurological impairment." Dr. Dyer did not opine that defendant was unable to understand the nature of a plea bargain or the consequences of entering a guilty plea.
Defendant entered a negotiated retraxit plea of guilty to counts one and eleven.*fn1 In exchange for defendant's guilty plea, the State agreed to a sentence not to exceed twenty-two years, subject to the provisions of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and Megan's Law, N.J.S.A. 2C:7-1 to -19, and to dismiss the remaining counts.
On February 27, 2004, defendant, then represented by counsel, appeared at a plea hearing before Judge F. Michael Giles. Defendant's attorney did not raise any issue regarding defendant's inability to voluntarily, knowingly and intelligently enter the guilty plea. During the plea hearing, Judge Giles reviewed the Plea Form. Defendant acknowledged he could be incarcerated for twenty years on count one and a maximum of ten years on count eleven; reviewed the form with his attorney, who helped him answer the twenty-four questions on the form; circled the answers; and signed page three. Defendant also stated he understood by pleading guilty he was giving up his right to a trial, and he responded affirmatively when asked if he voluntarily gave up his rights.
Judge Giles also reviewed the Supplemental Plea Form for NERA Cases. Defendant acknowledged he discussed the form with his attorney and she explained the following to him: he would have to serve at least eighty-five percent of his sentence before being eligible for parole; would have to serve a mandatory five years of parole supervision; his parole could be revoked if he violated and he could be returned to prison to serve all or any portion of the remaining period of parole supervision even if he completed his jail term. Defendant signed the form.
Judge Giles also reviewed the Supplemental Plea Form for Sexual Offenses. Defendant answered, "Yes," to Question 2, which asked:
Do you understand if the examination reveals that your conduct is characterized by a pattern of repetitive and compulsive behavior, the judge may sentence you to confinement at the Adult Diagnostic and Treatment Center for a program of specialized treatment for your mental condition?
Defendant also answered, "Yes," to Question 4.c., which asked:
Do you understand if you are sentenced to the Adult Diagnostic and Treatment Center . . . .
c. that you could spend more time in treatment than you would spend if sentenced to state prison?
In addition, defendant acknowledged that he understood what the judge meant when he said that defendant might be required to go to the ADTC in Avenel to determine if his conduct is repetitive or compulsive. The judge also questioned defendant as follows:
THE COURT: Well, just in case you don't, repetitive means that you may be inclined -- after the doctor examines you and speaks to you, you may be inclined to commit sexual offenses again. Compulsive means that you may have some kind of psychological psychiatric problem which causes you to commit sexual offenses. The doctor will make that determination. If the doctor makes that determination that you are either repetitive or compulsive, I'll have to sentence you -- sentence you to an institution, where they will treat you for those kind of problems. If the doctor says no, he is not a repetitive or compulsive offender, he's not had any offenses like this in his background before, then you'll be sentenced to State prison, and that's where you'll serve your sentence. Do you understand?
THE DEFENDANT: Yes, sir.
THE COURT: Now, the form also tells you that you could challenge the findings made by the doctor and the medical professionals. And it tells you about if you are sentenced to a treatment facility what your parole guidelines are. All right?
Now, you've had -- you -- you reviewed that form with your lawyer, is that right?
THE DEFENDANT: Yes, sir.
THE COURT: And that -- is that your signature on the bottom of that page?
THE DEFENDANT: Yes, sir.
THE COURT: Do you have any questions about that?
THE DEFENDANT: No, sir.
Judge Giles also reviewed the Additional Questions for Certain Sexual Offenses. Defendant acknowledged he had to register under Megan's Law, discussed Megan's Law requirements with his attorney, and had no questions about the requirements.
The judge also reviewed the Additional Questions For Certain Sexual Offenses and confirmed with defendant that he had to register with certain public agencies. With respect to this form, the judge engaged in this colloquy with defendant:
THE COURT: You went over all of that on -- the forms pertaining to certain sexual offenses with your [public defender].
DEFENDANT: Yes, sir.
THE COURT: In fact, you went in the jury room and did that; is that correct?
DEFENDANT: Yes, sir.
THE COURT: Do you have any questions about any of that?
DEFENDANT: No, sir.
On that form, defendant answered, "Yes" to Question 7, which asked:
Do you understand that if you are convicted of a sexually violent offense, such as aggravated sexual assault, sexual assault, aggravated criminal sexual contact, kidnapping under 2C:13-1c(2)(b), criminal sexual contact, felony murder if the underlying crime is sexual assault, an attempt to commit any of these offenses, or any offense for which the court makes a specific finding on the record that, based on the circumstances of the case, the offense should be considered a sexually violent offense, you may upon completion of your term of incarceration, be civilly committed to another facility if the court finds, after a hearing, that you are in need of involuntary civil commitment?
Defendant further acknowledged that he was not taking any medication or anything that would affect his ability to understand what he was doing, was satisfied with the advice and representation of his attorney, and entered his plea voluntarily.
The following colloquy took place regarding defendant's ability to read and understand what was read to him:
THE COURT: You're 20? How far did you go in school?
THE DEFENDANT: The 11th grade.
THE COURT: You went to the 11th grade. Do you - - do you have any problem reading?
THE DEFENDANT: No, sir.
THE COURT: You do not. You were able to read everything that your attorney asked you to read about this case?
[DEFENSE COUNSEL]: Judge, just for the record, I- - I verbally asked him all the questions, and he verbally gave me an answer.
THE COURT: I see.
[DEFENSE COUNSEL]: I did not ask him to read the forms.
THE COURT: All right. But you do read?
THE DEFENDANT: Yes, sir.
[DEFENSE COUNSEL]: There - - THE COURT: You do read.
[DEFENSE COUNSEL]: There are some issues as to learning disabilities and -- and -- that's why I -- I -- I verbally read everything to him, Your Honor.
THE COURT: Did you understand everything that your attorney read to you?
THE DEFENDANT: Yes, sir.
THE COURT: You did. Have you understood everything I've said to you so far?
THE DEFENDANT: Yeah. Yes, sir.
After this colloquy, defendant answered all questions Judge Giles or his attorney asked him that established the factual basis of his guilty plea, the essential elements of the crimes to which he pled guilty, and his admission of guilt.
On September 24, 2004, defendant filed a motion to withdraw his guilty plea on the ground that "upon learning of certain consequences he was previously misinformed about, specifically that he could be civilly committed after completing his period of incarceration." He argued:
Another significant issue in this case, was whether the defendant's plea was knowing and voluntary. In this regard, the Court must consider the defendant's youthful age (20) and his diminished mental disability (severe learning disability with mild neurological impairment).
In considering the "totality of the circumstances," the Court must determine whether Mr. Davis fully understood all of the ramification [sic] of his plea, including the No Early Release Act, Megan's Law and Civil Commitment.
Neither defendant nor Dr. Dyer submitted a Certification supporting any of defendant's arguments. Rather, defendant's counsel submitted a Certification admitting that she explained to defendant the possibility of a future civil commitment following his incarceration. She speculated that "Due to his severe learning disability, I would not be surprised if Mr. Davis did not comprehend the possibility of a civil commitment following his incarceration."
Judge Giles heard defendant's motion on November 30, 2004. Defendant's counsel stated that, in addition to defendant's argument that he was misinformed about civil commitment, defendant claimed he was forced or pressured into pleading guilty by people in the jail who knew one of the victims and attacked him and broke his jaw when they discovered he was trying to withdraw his plea.
Defendant addressed Judge Giles during the motion and did not state that he was misinformed about civil commitment or did not fully understand all of the consequences of his guilty plea. The judge denied the motion, concluding in relevant part:
Now, that evaluation and the report by Dr. Dyer in conjunction with my responsibility to consider the standards set out in case law do not suggest to me that the doctor found anything or any problem that this defendant has with regard to entering a knowing and voluntary plea and I find that in conjunction with my review of the transcript.
I find absolutely no indication given the colloquy that was conducted with the defendant in conjunction with his plea of February 27th that suggest that he did not know what he was doing, did not understand the nature of the charges, did not understand the penal consequences of the plea.
We discussed, as has been suggested by counsel, a rather extensive -- plea papers with the defendant. The defendant reviewed all of the plea papers, the LR-27 and the attached documents.
And I should add that I also in conjunction with this application not only considered the plea form -- and perhaps we'll mark that as D-2. And we'll mark the State's recommendation for disposition as S-1.
I reviewed those documents just to insure that there is no indication on -- in any of those documents that there was something left unsaid.
There was no indication for me at the time I was taking the plea that the defendant in terms of his demeanor, the manner in which he addressed the Court was in any way puzzled, confused about what he was doing.
Defendant was provided with the three page additional questions for certain sexual offenses. Pertained to registration, address verification, notification, community supervision for life, internet posting, statewide sex assault, nurse examiner program penalty and civil commitment.
And in spite of the defendant's assertion that he did not recall that there was a discussion with him, I find that the transcript and, indeed, the report on the indicated form indicates that that question certainly was presented to the defendant.
An answer was indicated. Defendant's signature appears right below that question or that information because that is the last -- the seventh question on the form.
All in all there is nothing [to] suggest to me that the defendant did not voluntarily make the admissions that he made to me on February 27th of this year.
His discussion of those events was detailed. His recall of the circumstances in certain parts of the events was excellent. He was specific and not vague.
The evaluation, D-1, does not suggest that any neurological impairment -- which the doctor characterized as mild -- or learning disability affected the defendant's allocution, his understanding of the proceedings at the time he made the allocution.
In fact, the doctor established that the defendant had a clear understanding of this case, the charges that he faced.
He had a clear understanding of the consequences in terms of the recommendations by the State with regard to the plea offer and he even had some opinions which he expressed to the evaluator about that.
Judge Giles sentenced defendant to twenty years imprisonment with an eighty-five percent period of parole ineligibility on count one, and a concurrent eight years imprisonment with an eighty-five percent period of parole ineligibility on count eleven, concurrent with any sentence imposed for violating probation. The judge also imposed community supervision for life, the appropriate assessments and penalties, and ordered DNA testing. The judge sua sponte ordered defendant to serve his sentence at the Youth Correctional Facility.
Defendant appealed. On September 22, 2005, we entered an order remanding for reconsideration of defendant's sentence pursuant to State v. Natale, 184 N.J. 458 (2005). After the resentencing hearing on December 7, 2005, Judge Giles imposed the same sentence on defendant.
Defendant contends Judge Giles should have granted his motion to withdraw his guilty plea, because his "youthful age, coupled with his borderline retarded intellectual capacity and a reading comprehension capacity at only a second grade level, rendered the within plea as not having met the requirements that a guilty plea must be made 'voluntarily, knowingly, and intelligently.'" State v. Howard, 110 N.J. 113, 122 (1988). We disagree.
A trial court's "denial of a defendant's request to withdraw his guilty plea will be reversed" only if "there was an abuse of discretion which renders the lower court's decision clearly erroneous." State v. Simon, 161 N.J. 416, 444 (1999); State v. Smullen, 118 N.J. 408, 416 (1990). It is against this standard that we review defendant's contention.
Although a motion to withdraw a plea before sentence should be liberally granted, State v. Deutsch, 34 N.J. 190, 198 (1961), where the plea is part of a plea agreement, the defendant's "'burden of presenting a plausible basis for his request to withdraw . . . is heavier.'" Smullen, supra, 118 N.J. at 416 (quoting State v. Huntley, 129 N.J. Super. 13, 18 (App. Div.), certif. denied, 66 N.J. 312 (1974)). A voluntary plea should not generally be vacated absent "some plausible showing of a valid defense against the charges." State v. Gonzalez, 254 N.J. Super. 300, 303 (App. Div. 1992).
Once the defendant validly enters into the plea agreement voluntarily and knowingly, he will not be permitted to withdraw it simply because he changed his mind. State v. Chung, 210 N.J. Super. 427, 431 (App Div. 1986); State v. Rodriquez, 179 N.J. Super. 129, 136 (App. Div. 1981). "To vacate the plea, defendant must show not only that he was misinformed of the terms of the agreement or that the sentence violated his reasonable expectations, but also that he is prejudiced by enforcement of the agreement." Howard, supra, 110 N.J. at 123. Moreover, a defendant's subsequent claim to be relieved of the consequences of his guilty plea must be weighed against the strong interests of the State in its finality. State v. DiFrisco, 137 N.J. 434, 456 (1994); State v. Taylor, 80 N.J. 353, 362 (1979).
Here, there is no evidence that defendant did not voluntarily, knowingly and intelligently enter his guilty plea or that his intellectual and reading level capacity prevented him from fully understanding the nature of the plea bargain or the consequences of his plea. Defendant was represented by counsel at the time of the plea, and counsel discussed with him the terms of the plea agreement and consequences of the plea, including the possibility of civil commitment. See State v. Bellamy, 178 N.J. 127, 139 (2003) ("The failure of either the court or defense counsel to inform defendant that a possible consequence of a plea to a predicate offense under the [Sexually Violent Predator] Act is future confinement for an indefinite period deprives that defendant of information needed to make a knowing and voluntary plea. R. 3:9-2.")
Counsel also read the plea forms to defendant, including the Supplemental Plea Form for Sexual Offenses, which discusses civil commitment. Defendant acknowledged that he understood what counsel read to him and he signed the forms. 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"). In addition, Judge Giles's questioning clearly demonstrates that defendant voluntarily, knowingly and intelligently entered a guilty plea and understood he could be civilly committed.
Having reviewed all of the circumstances surrounding defendant's guilty plea, we find no basis to conclude that Judge Giles mistakenly exercised his discretion by denying defendant's motion to withdraw.
Finally, we consider defendant's argument regarding his sentence. Defendant argues that the judge abused his discretion by imposing the maximum allowable sentence of twenty years on count one. We disagree.
A trial judge's "decision to impose a sentence in accordance with a plea agreement should be given great respect."
State v. S.C., 289 N.J. Super. 61, 71 (App. Div.), certif. denied, 145 N.J. 373 (1996). Where a defendant receives the exact sentence he bargained for, a presumption of reasonableness attaches to that sentence and we should not upset it absent a finding of a clear abuse of judicial discretion. State v. Tango, 287 N.J. Super. 416, 422 (App. Div.), certif. denied, 144 N.J. 585 (1996). A sentence that adheres to the plea agreement and the sentencing guidelines will not be disturbed unless it is "clearly unreasonable so as to shock the judicial conscience." State v. Roth, 95 N.J. 334, 365 (1984); State v. Sainz, 107 N.J. 283, 292 (1987).
Here, there was no abuse of discretion. Defendant agreed to a sentence not to exceed twenty-two years. The judge sentenced him to twenty years. There also is substantial credible evidence in the record supporting the judge's findings of two aggravating factors, namely the "gravity and seriousness of harm," N.J.S.A. 2C:44-1a(2), and the need for deterrence, N.J.S.A. 2C:44-1a(9). The judge also properly found only one mitigating factor, namely, "defendant's conduct was the result of circumstances unlikely to recur." N.J.S.A. 2C:44-1b(8). These findings are supported by credible evidence. State v. Dalziel, 182 N.J. 494, 505 (2005) (citing Roth, 95 N.J. at 356-64).
In addition, the sentence is not unreasonable as to shock the judicial conscience. The ordinary term of imprisonment for first degree aggravated sexual assault while armed with a weapon is ten to twenty years, N.J.S.A. 2C:43-6a(1), and is subject to NERA, N.J.S.A. 2C:43-7.2a. With the NERA parole disqualifier, defendant must serve a minimum of seventeen years before being eligible for parole. Considering this real-time consequence in perspective, it falls within the range for first degree aggravated sexual assault while armed of ten to twenty years.
We are satisfied from our review of the record that the judge's findings regarding aggravating and mitigating factors were supported by competent and credible evidence in the record, he did not incorrectly apply the sentencing guidelines enunciated in the Code of Criminal Justice, his statement of reasons for the imposition of sentence were adequately articulated, and the sentence imposed was not manifestly excessive or unduly punitive and does not constitute a mistaken exercise of discretion. State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Ghertler, 114 N.J. 383, 393 (1989); State v. Dunbar, 108 N.J. 80, 97 (1987); Roth, supra, 95 N.J. at 334, 363-65.