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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...