December 27, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
KEVIN O. BRUNEY, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 04-09-1420.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 28, 2007
Before Judges Sapp-Peterson and Messano.
Defendant Kevin O. Bruney appeals from the judgment of conviction and sentence that followed his pleas of guilty to two counts of robbery in the first degree, N.J.S.A. 2C:15-1. He raises the following points for our consideration:
POINT I BECAUSE THE COURT FAILED TO INFORM DEFENDANT THAT HIS GUILTY PLEAS WOULD CONSTITUTE A WAIVER OF HIS RIGHT TO PURSUE HIS PRETRIAL MOTION TO SUPPRESS HIS STATEMENTS, DEFENDANT DID NOT ENTER HIS PLEAS KNOWINGLY AND VOLUNTARILY; CONSEQUENTLY, THE COURT'S DENIAL OF DEFENDANT'S MOTION TO WITHDRAW HIS PLEAS DENIED HIM DUE PROCESS AND MUST BE REVERSED.
POINT II THE TWELVE YEAR SENTENCE WITH [EIGHTY-FIVE PERCENT] PAROLE INELIGIBILITY FOR DEFENDANT'S FIRST ADULT OFFENSES IS EXCESSIVE AND SHOULD BE REDUCED TO TEN YEARS.
We have considered these contentions in light of the record and applicable legal standards. We affirm.
Defendant was indicted by the Middlesex County grand jury and charged with: three counts of robbery in the first degree, N.J.S.A. 2C:15-1; three counts of aggravated assault in the fourth degree, N.J.S.A. 2C:12-1(b)(4); three counts of possession of a weapon for an unlawful purpose in the second degree, N.J.S.A. 2C:39-4(a); two counts of unlawful possession of a weapon in the third degree, N.J.S.A. 2C:39-5(b); and one count of employing a juvenile to commit a crime in the first degree, N.J.S.A. 2C:24-9(a). All the crimes charged had at their factual core three armed robberies that defendant was alleged to have committed--two on August 13, 2004, and a third on August 14, 2004, all in South River.
Defendant filed pretrial motions 1) to suppress his statement given to the police upon his arrest; and 2) to sever certain counts in the indictment from others.*fn1 On January 28, 2005, however, defendant, with counsel present, indicated that he now wished to enter guilty pleas to two of the armed robberies pursuant to a plea bargain struck with the State. Judge James F. Mulvihill asked if defendant wished to "withdraw [his] motion to sever and also [his] Miranda motion."*fn2 Defense counsel responded, "[W]e will withdraw those two motions."
Pursuant to the plea agreement, the State was to recommend that concurrent sentences be imposed upon the two charges, that the maximum sentence not exceed fifteen years, and that the remaining counts of the indictment be dismissed. Defense counsel acknowledged that those were the terms of the plea bargain and further acknowledged that the No Early Release Act (NERA)*fn3 would apply and defendant would not be eligible for parole for approximately twelve years and nine months.
During the ensuing colloquy with Judge Mulvihill, defendant acknowledged his signature on the plea forms, his understanding of the terms of the plea agreement, that he was waiving his rights to a trial by jury, that he was entering his guilty plea without any threat or coercion, and that he was in fact guilty of the charges. Thereafter, under oath, defendant admitted committing two of the robberies while armed with a BB gun and provided a factual basis to support a guilty finding as to both charges.
Prior to his sentence date, and now represented by a different attorney, defendant moved to withdraw his pleas. In a short letter brief supporting the motion, successor defense counsel argued that defendant's Miranda motion was "viable inasmuch as the State . . . acknowledged that  defendant initially choose (sic) to remain silent and refused to waive his right to remain silent." Counsel further argued that "[o]nly a testimonial hearing could determine if [defendant's] rights were violated or honored," and that "[a]bsent the admissions, very little evidence tied [defendant] to the crimes." Defendant argued that "absent any acknowledgment that  [he] was knowingly[,] voluntarily or intelligently waiving his right to proceed on the crucial Miranda [motion]," his guilty pleas should be set aside.
The State opposed the motion and the judge considered oral argument on June 17, 2005, the date previously set for defendant's sentencing. In his oral opinion, Judge Mulvihill reviewed the transcript of the plea proceedings and concluded 1) that defendant understood the terms of the plea agreement; 2) that defendant acknowledged completing and understanding the plea forms and that he was satisfied with his attorney's representation; 3) that defendant fully understood the rights he was waiving as a result of the decision to plead guilty; and 4) that defendant acknowledged that he was not forced or threatened into pleading guilty.
Judge Mulvihill then considered whether defendant had presented a good faith, plausible basis for withdrawing his guilty plea. The judge noted "[d]efendant was very responsive, and he knew that his motions were withdrawn by his attorney before the plea." He denied the motion.
Defense counsel continued the argument, claiming "[defendant] should have been questioned," by the judge or defense counsel at the time specifically about the withdrawal of the pending motions. He contended that "[defense counsel] can't withdraw the motion. It's not [defense counsel's] motion."
The judge noted that the motion was scheduled to be heard on the day defendant pled guilty; the prosecutor acknowledged that the State's witnesses were present at the time to testify at the hearing on the motion. Judge Mulvihill noted, "[Defendant] knew that." Recognizing that he had not questioned defendant specifically about the withdrawal of the motions, the judge nevertheless concluded, "[defendant] heard me indicate to his attorney that they were withdrawing the motion[.]" He reiterated his ruling denying defendant's motion to withdraw his guilty pleas.
Defense counsel then requested that the judge impose the minimum prison term, ten years with an eighty-five percent parole disqualifier. Judge Mulvihill noted that defendant's prior juvenile record was extensive and included three assault adjudications and numerous violations of probation. Although defendant was only twenty years old at the time of the offenses, the judge observed that in one of the robberies, defendant had "struck the victim in the face with the butt of a gun." The judge found aggravating factors three, six, and nine, N.J.S.A. 2C:44-1(a)(3), (6), and (9), and mitigating factor ten, N.J.S.A. 2C:44-1(b)(10). He sentenced defendant to concurrent sentences of twelve years imprisonment with the required period of parole ineligibility, and imposed the appropriate financial penalties. This appeal followed.
Defendant reiterates before us the arguments he raised at oral argument on his motion to withdraw his guilty pleas. He submits that "because he was not clearly advised that he was waiving his right to challenge a constitutional violation and proceed with his motion to suppress his statements to the police," "his guilty pleas [are] constitutionally infirm and [this] mandates reversal of the trial court's denial of his motion to withdraw his plea." Defendant cites no authority for this specific proposition.
Rule 3:9-2 provides in relevant part,
The court . . . shall 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.
"[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). When a defendant moves prior to sentencing to withdraw a guilty plea, our courts have generally exercised their discretion liberally to permit withdrawal. State v. Smullen, 118 N.J. 408, 416 (1990) (citing State v. Deutsch, 34 N.J. 190, 198 (1961)). However, "[l]iberality in exercising discretion does not mean an abdication of all discretion." Smullen, supra, 118 N.J. at 416 (quoting Huntley, supra, 129 N.J.Super. at 17). We will reverse a decision to deny a motion to withdraw a previously entered guilty plea only if the trial court has mistakenly exercised its discretion. "[T]he measure of what constitutes fair and just reason for withdrawal must be reposed in the sound confidence of the court." Smullen, supra, 118 N.J. at 417.
Defendant concedes the adequacy of the factual basis he gave for the entry of his guilty pleas; his sole challenge revolves around whether they were voluntarily entered or not. In order to assure that indeed any guilty plea is voluntarily given, the Rule specifically provides that the judge may satisfy himself that indeed such is the case through "inquiry of the defendant and others." There can be no question that in this case the judge did exactly that by asking defense counsel if the previously filed motions were withdrawn, and by otherwise having counsel acknowledge the terms of the plea bargain, before accepting the pleas.
Our courts have long-recognized that a criminal defendant must be advised that he is waiving certain rights by pleading guilty because "[s]uch a plea is in itself considered a conviction, and several federal constitutional rights are waived when the plea is entered, e.g., the privilege against self-incrimination, the right to trial by jury, the right of confrontation." State v. Raymond, 113 N.J. Super. 222, 226 (App. Div. 1971) (citing Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 1712, 23 L.Ed. 2d 274, 279 (1969)). We have found no precedent, nor has defendant drawn our attention to any, that stands for the proposition that the judge must additionally advise the defendant of all possible legal challenges he may bring to the proceedings or to the State's evidence and be satisfied defendant has waived same, before accepting an otherwise voluntarily offered guilty plea.
Judge Mulvihill explained the essential rights set forth in Boykin to defendant who acknowledged his understanding of them and his intention to waive those rights. Moreover, the plea form that defendant acknowledged was completed with his attorney's assistance, that was explained to him "in detail," and that he signed, clearly advised defendant he was waiving these constitutional rights. In particular, defendant acknowledged that by pleading guilty, he was "giving up . . .
[t]he right to confront the witnesses against [him]." This is particularly significant given the judge's finding that defendant was fully aware that the State's witnesses were present and prepared to testify against him at the hearing on his motion to suppress scheduled that very day. Given all these factors, we are not convinced that defendant failed to comprehend that he was waiving his right to challenge the admissibility of his statement, or, more importantly, that he intended otherwise.
Lastly, there is nothing in the record to support the conclusion that defendant actually thought that despite pleading guilty, he was preserving his challenge to the admissibility of his statement to the police. He did not object or otherwise express confusion at his attorney's representation that the motions were being withdrawn. At no time during the proceedings did he explicitly or implicitly refer to the possibility that his motion to suppress was preserved. See State v. Robinson, 224 N.J. Super. 495, 499 (App. Div. 1989) (finding failure to preserve appeal in the absence of any discussion of the subject at the time of the plea); and see State v. Kaye, 176 N.J. Super. 484, 489 (App. Div. 1980) (right to challenge pretrial conduct of the State was waived "[s]ince defendant knowingly and intentionally pleaded guilty in open court with the assistance of counsel"), certif. denied, 87 N.J. 316 (1981).
In sum, we are convinced that defendant knowingly and voluntarily entered his pleas of guilty to the two charges of robbery in the first degree. We find no reason to reverse Judge Mulvihill's denial of his motion to withdraw those pleas.
Defendant next argues that the judge "abused his discretion" in sentencing him to concurrent twelve year sentences, and requests that "his sentence for this[,] his first adult offenses[,] should be reduced to ten years with [eighty-five] percent parole ineligibility." He argues the sentence imposed was excessive because in addition to finding defendant was amenable to probation, N.J.S.A. 2C:44-1(b)(10), the judge should have also found mitigating factors two and seven--that defendant did not contemplate his conduct would cause serious harm and that he had led a law-abiding life for a substantial period of time before these offenses. N.J.S.A. 2C:44-1(b)(2) and (7).
We begin by noting that "[a]ppellate courts are extremely deferential in their review of a trial court's exercise of sentencing discretion." State v. Pillot, 115 N.J. 558, 564 (1989). A sentence imposed in conformance with the plea agreement is presumptively reasonable. Id. at 566. When the judge has followed the sentencing guidelines, and his findings of aggravating and mitigating factors are supported by the record, we will only reverse if the sentence "shock[s] the judicial conscience" in light of the particular facts of the case. State v. Roth, 95 N.J. 334, 364-65 (1984).
Here, defendant could have received an even greater sentence in accordance with the plea agreement. The judge's finding that aggravating factors three, six, and nine existed is amply supported by the fact that defendant had amassed a substantial juvenile record involving crimes of violence and had repeatedly violated his probation. Two years after reaching adulthood, he committed two separate first degree crimes of violence.
Contrary to defendant's assertions, the record did not support the finding of additional mitigating factors. Defendant's first adjudication of delinquency occurred in 2000; thereafter, his record of other adjudications and violations of probation continued virtually unabated throughout 2001. We do not view such a history to be reflective of a relatively longstanding, law-abiding life.
Nor does the record support the conclusion that defendant did not contemplate his conduct would cause or threaten serious harm. He pled guilty to two separate first degree robberies and acknowledged threatening the use of a BB gun during the course of both. In one instance, defendant admitted striking the victim in the face during the robbery. We find no merit in this contention.
In short, defendant received a sentence that was significantly less than what he bargained for. The judge appropriately imposed a sentence in accordance with the statutory aggravating and mitigating factors. We find no mistaken exercise of his sentencing discretion.