January 11, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
SALEEM ALLEN, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, 03-05-0968-I, 03-06-1062-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 11, 2007
Before Judges Skillman and Winkelstein.
Defendant, Saleem Allen, appeals from judgments of convictions arising out of two indictments. Under indictment 03-05-0968, he pleaded guilty to first-degree carjacking, N.J.S.A. 2C:15-2 (count eight) and third-degree possession of a CDS with the intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7 (count three). Under indictment 03-06-1062, defendant pleaded guilty to third-degree possession of a controlled dangerous substance (CDS) with the intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7 (count seven). On appeal, defendant argues that the denial of his presentence motion to withdraw his guilty plea was an abuse of the trial court's discretion. We disagree with defendant's arguments and consequently affirm his judgments of conviction.
Hudson County Indictment No. 03-05-0968 charged defendant with the following offenses: possession of a CDS, N.J.S.A. 2C:35-10a(1) (count one); possession of a CDS with the intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3) (count two); possession of a CDS with the intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7 (count three); possession of a CDS with the intent to distribute within 500 feet of public property, N.J.S.A. 2C:35-7.1 (count four); resisting arrest, N.J.S.A. 2C:29-2a (count five); aggravated assault against two police officers, N.J.S.A. 2C:12-1b(5)(a) (counts six and seven); and carjacking, N.J.S.A. 2C:15-2 (count eight). Indictment No. 03-06-1062 charged defendant as follows: possession of a CDS, N.J.S.A. 2C:35-10a(1) (counts one and five); possession of a CDS with the intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:5b(3) (counts two and six); possession of a CDS with the intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7 (counts three and seven); possession of a CDS with the intent to distribute within 500 feet of public property, N.J.S.A. 2C:35-7.1 (counts four and eight); and contempt, by failing to obey a judicial order, N.J.S.A. 2C:29-9 (count nine).
At a status conference on November 17, 2003, the State recommended a ten-year prison term with an eighty-five percent period of parole ineligibility in return for a guilty plea on the first-degree carjacking offense, with dismissal of the remaining charges. Defendant did not accept the offer. After the judge informed defendant about the serious offenses with which he had been charged, the judge established December 18, 2003 as a plea cut-off date.
No plea agreement was reached, and trial began on April 21, 2004, before Judge Kracov. The court gave the jury preliminary instructions and the attorneys made their opening statements. The next day, before the jury was brought into the courtroom, the judge again advised defendant of the charges against him and that he would be facing a substantial term in state prison if he was convicted. The judge encouraged defendant to consider pleading guilty.
After defendant consulted with his attorney, at defense counsel's request, the court explained the first-degree carjacking charge to defendant. The court then told defendant: "If you want to take the plea, fine. If not, we're going to go to trial. But you can't do one or the other (sic). You can't do both. So do you want to take the plea? Is that what you want to do?" Defendant agreed to plead guilty. After additional colloquy among the court and counsel, it was agreed that defendant would plead guilty to the carjacking charge and to two drug charges. The State would be entitled to ask for consecutive sentences.
The jury was then brought into the courtroom and the court instructed it that there would be a delay, and the judge asked the jury to return in approximately one-half hour. After the jury left the courtroom, the parties discussed the details of the plea agreement. After placing defendant under oath, the court explained to defendant that the agreement would require him to plead guilty to the first-degree carjacking charge under one indictment, to possession of a CDS with intent to distribute within 1000 feet of a school charge under the same indictment, and to another possession of a CDS with intent to distribute within 1000 feet of a school charge on the second indictment. The court explained that the carjacking conviction carried a maximum sentence of thirty years, and for each of the distribution charges, defendant could receive a five-year prison term. Defendant indicated that he understood and wanted to plead guilty. The prosecutor explained that she would be requesting consecutive sentences and defendant was subject to an eighty-five percent period of parole ineligibility for the first-degree offense.
The judge then took a factual basis from defendant for each of the charges to which he had agreed to plead guilty. The judge explained to defendant that if he, the judge, accepted the guilty plea, defendant could not later change his mind. The judge also discussed the plea agreement form with defendant. The form stated that defendant's total exposure for the three charges to which he had agreed to plead guilty was forty years, and that he was facing a mandatory period of parole ineligibility. Defendant acknowledged that he understood the plea agreement; he had talked it over with his grandmother and his attorney before he signed the form; and he signed the form voluntarily.
The court then again questioned defendant, in explicit detail, about whether he understood the plea agreement. The judge explained to him that after the judge dismissed the jurors, defendant would be sentenced on the three charges.
Again, the court explained to defendant that he could not change his mind later. The judge said: "I'm trying to make this clear to you, so you can't tell me later on you didn't want to do this. Is everything clear in your mind?" Defendant answered, "Yes." The judge then said that he would accept the plea and excused the jury.
On November 17, 2004, defendant appeared in court, before Judge Charles, on a motion to retract his guilty plea. The court adjourned the motion. On February 24, 2005, the court encouraged defendant to withdraw his motion, telling him the potential consequences of having the case go to trial. Because defendant claimed he was not competent at the time he entered his guilty plea, the court also explained the potential consequences of a determination of incompetency, informing defendant that he could be confined indefinitely at a psychiatric hospital. No decision on the motion was made at that proceeding.
The parties reconvened on March 16, 2005, at which time Judge Charles heard argument on the motion. He did not, however, decide the issue. Instead, a testimonial hearing was scheduled for June 13, 2005, before Judge Theemling.
At that hearing, defendant presented the testimony of Dr. Jonathan Mack, whom the parties stipulated was an expert in forensic psychology and neuropsychology. Dr. Mack had evaluated defendant to determine whether his guilty plea was "given in a knowing, intelligent and voluntary manner." He performed a clinical interview of defendant and administered a battery of tests over two days. Dr. Mack concluded that defendant had a full scale I.Q. of seventy-three, placing him in the fourth percentile when compared with other individuals his age. He found that defendant was "borderline, possibly, . . . mildly mentally retarded." The doctor testified as follows:
Well you know, I think the fact that he is borderline mentally retarded to mildly mentally retarded, and certainly mildly mentally retarded in terms of his language skills, no question about that. This is a guy who, in terms of . . . his auditory comprehension, when this [is] assessed in its pure form or as pure as possible, he was in the impaired range for two different types of auditory comprehension. . . . So this is a gentleman who has marked impairments in the context of no evidence of malingering, with auditory comprehension and ability to understand what is being said. . . . [He]'s markedly impaired in terms of his ability to comprehend language. He's marked[ly] impaired in terms of his [a]bility to comprehend what he reads.
The doctor's opinion was that defendant was not capable of knowingly and intelligently waiving his right to trial.
The hearing continued on July 7, 2005, at which time the State presented the testimony of Vinobha Gooriah, a doctor from the Ann Klein Forensic Center whom the parties stipulated was an expert in psychiatry. Dr. Gooriah examined defendant over a thirty-day period that defendant spent in the Ann Klein Forensic Center. Dr. Gooriah and his team interviewed defendant on three occasions, and defendant was also attended to by other members of the staff on a regular basis. In conducting the evaluations, the doctor had the opportunity to review witnesses' statements, police reports, defendant's juvenile record, Dr. Mack's report, and defendant's criminal history. When asked to provide his opinion as to defendant's competency, Dr. Gooriah replied:
Following my evaluations . . . and the details listed in my report I came to a conclusion within a reasonable degree of medical certainty that Mr. Saleem Allen possessed adequate mental capacity to proceed to trial, that he did not have a mental illness that could possibly interfere with his ability to proceed with his case.
Q: And is it also your opinion that he was competent at the time of the plea on April 22nd 2004?
A: That's correct. It is also my opinion within a reasonable degree of medical certainty that he was competent at the time he made the plea agreement.
The court examined Dr. Gooriah as follows:
Q: Doctor, does the defendant have the ability at this time or at the time of your evaluation I should say, to understand the nature and extent of the charges pending in this court against him?
A: Yes, at the time of my evaluation he had a perfect understanding of the nature of the charges against him.
Q: And does he understand the nature and purpose of the court proceeding?
A: Yes, . . . he did understand the nature of the court proceedings.
Q: Does he understand his own position in these court proceedings as the defendant or someone who is accused with, with these charges and committing these crimes?
A: He did understand his situation in a court of criminal justice, charged with a criminal offense.
Q: And he understood what the charges were against him?
A: He did understand the charges against him.
Q: Did he understand the severity of the charges against him? By severity I mean the consequences of what could happen if he were convicted of these charges.
A: He did understand. He did understand very well the court proceedings, that if you were found guilty he would serve a sentence. He didn't know what sentence he would get, but he did know that if he were found guilty he would serve a sentence. If he was found innocent he would be released.
Q: And did he understand the role of his attorney . . . with regard to a trial?
A: He understood that his lawyer will do his utmost to try to prove that he's innocent.
Q: And what about the role of the prosecutor?
A: He did understand that the role of the prosecutor was to try to find him guilty by looking at the charges and the evidence that police have gathered against him.
Q: And what about the role of the judge and the Court?
A: He did understand that the judge will make a decision of guilt or innocence. And if he is found guilty he might be imprisoned or released if he's found innocent.
Following the hearing, the judge accepted the opinion of Dr. Gooriah rather than that of Dr. Mack. The judge made the following findings:
I find that Dr. Gooriah's testimony is extremely credible, whereas, I find that Dr. Mack relied upon testing, did not review any of the police reports or observe any of other people's observations of what the defendant allegedly did and how he was able to function and do what he was alleged to have done.
I, therefore, find that Dr. Gooriah's testimony and conclusions are extremely credible and I find that his statement that if in fact, by clinical analysis, you do not observe the need for testing, it basically shows you that the testing is subordinate [to] the clinical observations and only can be used as a tool if in fact the clinical observations indicate that there is a need.
The doctor did testify that the defendant had the adequate capacity to participate in his trial, that he understood what he was doing, was able to participate in his defense, clearly understood what a plea bargain was, the consequences of his act. He understood the court proceedings, the roles of the parties in a court proceeding, and was at the time, based on his observations of the police reports and his observations of the activities of the patient for a 30-day period of time, adequately able to say that the patient knew the nature and consequences of his act when he did them at the time of the incidents involved.
On July 26, 2005, the judge entered an order denying defendant's motion to withdraw his guilty plea.
Judge Theemling sentenced defendant on August 10, 2005. Under indictment 03-05-0968, the court imposed a ten-year prison term on the first-degree carjacking offense, with an eighty-five percent period of parole ineligibility. Under that same indictment, he imposed an eight-year extended term for the third-degree possession of a CDS with intent to distribute conviction, with forty-eight months of parole ineligibility, consecutive to the carjacking conviction. Under indictment 03-06-1062, the court imposed a concurrent extended eight-year term on the possession with intent to distribute conviction, with forty-eight months of parole ineligibility.
Based on this factual and procedural history, we address defendant's argument that he did not knowingly or voluntarily enter his guilty plea. "A guilty plea may be accepted as part of a plea bargain when the court is assured that the defendant enters into the plea knowingly, intelligently and voluntarily." State v. Johnson, 182 N.J. 232, 236 (2005) (citing R. 3:9-2). When a defendant seeks to withdraw his guilty plea before sentencing, that application is entitled to a more liberal standard than a motion to withdraw a plea after sentencing. State v. Parsons, 341 N.J. Super. 448, 457 (App. Div. 2001). After a defendant enters a guilty plea, a claim to be relieved of the consequences of the plea "'must be weighed against the strong interests of the State in its finality.'" State v. Rodriguez, 179 N.J. Super. 129, 135 (App. Div. 1981) (quoting State v. Taylor, 80 N.J. 353, 362 (1979)). When a plea is entered pursuant to a plea agreement, a defendant has a heavy burden to withdraw the guilty plea. Id. at 136.
Here, defendant claims that his decision to plead guilty was made after he was coerced to do so by the trial court. Defendant relies on the several occasions that the trial judges told him about the charges against him and the sentencing consequences of those charges, encouraging him to consider pleading guilty. Defendant further contends that the judges' coercion, along with defendant's limited mental capacity, prevented him from comprehending both the charges against him and the consequences of those charges. We disagree.
The trial judges thoroughly explained to defendant the charges against him and the consequences of those charges should he be convicted. The judges' explanations did not rise to the level of coercion, as defendant asserts. Indeed, at the time defendant entered his guilty plea, the trial judge who took his plea meticulously questioned defendant as to his understanding of the plea and his right to continue with the trial. Defendant could have received up to thirty years for the first-degree carjacking offense, with consecutive sentences imposed for the CDS offenses. We do not find that the trial judges overstepped their bounds in explaining to defendant the consequences of proceeding to trial.
We also conclude that the evidence at the competency hearing supported the judge's conclusion that defendant's plea was entered knowingly and voluntarily. The judge was entitled to rely on the opinion of Dr. Gooriah over that of Dr. Mack. Dr. Gooriah had multiple opportunities to examine defendant, who had been institutionalized for a thirty-day period. In addition, Dr. Gooriah reviewed various records and reports that Dr. Mack did not. The record contained substantial credible evidence to support the trial judge's finding that defendant knowingly and voluntarily entered into the plea agreement. State v. Locurto, 157 N.J. 463, 470-71 (1999). The judge's decision to deny defendant's motion to withdraw the guilty plea was not an abuse of discretion. See State v. Bellamy, 178 N.J. 127, 135 (2003) (trial judge has considerable discretion in deciding motion to withdraw guilty plea).
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