March 31, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ROBERT FRAZIER, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 05-05-01101.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 22, 2008
Before Judges Sabatino and Alvarez.
Defendant, Robert Frazier, appeals the denial of his motion to withdraw a guilty plea prior to sentence. After consideration of his claims, for the reasons set forth below, we affirm.
Defendant was indicted in Essex County for second-degree conspiracy to possess cocaine with intent to distribute, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:35-5(b)(2)*fn1 (count one); third-degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1) (count two); second-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5(b)(2) (count three); third-degree possession with intent to distribute a controlled dangerous substance within 1000 feet of school property, N.J.S.A. 2C:35-7 (count four); and second-degree possession with intent to distribute a controlled dangerous substance within 500 feet of a public facility, N.J.S.A. 2C:35-7.1 (count five). He was also charged with the disorderly persons offense of possession of drug paraphernalia, N.J.S.A. 2C:36-2. In accord with the terms of the plea, defendant was sentenced on the third-degree drug possession count to a three-year term of probation and appropriate fines and penalties.
The charges result from the search of defendant's Newark apartment on December 23, 2004, when officers from the Gang Investigation Unit executed a search warrant. The State alleges that upon entry, the officers observed defendant and a female in a front bedroom. A bag of crack cocaine, weighing approximately 46.29 grams, was tossed out of a window in the apartment and was subsequently recovered by the investigating officers.
Defendant contends on appeal:
THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S MOTION TO WITHDRAW HIS GUILTY PLEA BEFORE SENTENC[ING].
DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL DURING THE NEGOTIATION AND ALLOCUTION OF HIS GUILTY PLEA.
Prior to defendant's entry of a guilty plea, his trial attorney filed a notice of motion to compel the state to disclose the identity of the confidential informant who provided the information which resulted in the issuance of the search warrant. The trial attorney also filed a motion to suppress. Defendant faced a potential three years' parole ineligibility. See N.J.S.A. 2C:35-7. Whether because of the pendency of the motions, or for some other reason, the state offered defendant a three-year term of probation in exchange for a guilty plea to mere third-degree drug possession. This plea offer was highly favorable, not just because the charges included a school zone possession with intent to distribute count, but because of defendant's prior criminal history. Because he was sentenced for five separate burglaries in one proceeding on August 6, 1982, and was placed on probation in 2001 for possession of cocaine if convicted of the charges, he was eligible for a discretionary extended term as a persistent offender pursuant to N.J.S.A. 2C:44-3(a).
During the comprehensive plea colloquy, defendant testified that he wanted to plead guilty, and had read and understood the plea form. The judge asked him on several occasions if he knew the crime to which he was pleading guilty was a third-degree drug possession charge, and asked defendant repeatedly if he understood the consequences of the entry of a guilty plea to that offense. Defendant consistently answered "yes" to these questions. Defendant said he was satisfied with the assistance of his attorney and that no one was forcing him to plead guilty. As to his factual basis, defendant testified:
[Defense counsel:] And at that time and place you were in possession of [forty-eight] grams of cocaine, correct?
[Defense counsel:] You have to answer in words.
[Defendant:] I said yes.
[Defense counsel:] And you possessed that cocaine in a plastic zip lock bag in your apartment, correct?
[Defendant:] Yes, I guess so.
[Defense counsel:] You have to answer in words.
[Defense counsel:] And you knew it was cocaine - - withdrawn. You knew where it was and could exercise control over it, correct?
Defendant also admitted that his co-defendant "had nothing to do" with the possession of cocaine. Pursuant to the terms of the plea agreement, defendant was released from the county jail on his own recognizance the same day he pled guilty. He had previously been unable to post bail.
When defendant returned to court to be sentenced on October 14, 2005, he told the judge he wanted to withdraw his guilty plea, essentially making an oral application for relief. He also said he intended to retain private counsel to represent him. Defendant's attorney then asked the court to explain to defendant his discretionary extended term exposure, pursuant to N.J.S.A. 2C:44-3(a), should the judge grant his motion and he be convicted at trial. No mention was made of the requirement that he be sentenced to three years of mandatory parole ineligibility were he to be convicted, because of the school zone count, N.J.S.A. 2C:35-7. Defendant's comments during that proceeding are noteworthy:
Your Honor, I would like to say on the record that it was presumed that I was Dred Scott. Well, Your Honor, I am not Dred Scott even though I might believe in the 14th Amendment. You know, I'm - - I'm a - - a sajued (phonetic) citizen - - a sovereign sajued citizen of these United States. And throughout these proceedings, my rights have been grossly violated. I would like directly to show I reserve the right to exercise the right of allocution, that is to be tried on the facts as well as the law. And under the law, there must be an injured party sworn under oath. I ask you, Your Honor, who and where is this injured party?
Defendant requested a postponement so he could retain new counsel. The judge carried the matter for one month so defendant would have sufficient time in which to do so.
During the ensuing month, defendant filed two pro se notices of motion captioned "notice of defendant's motion for dismissal of indictment for failure to prosecute," and "notice of defendant's motion for replacement of counsel." In support of his application for dismissal of the charges based on delay in the prosecution, defendant proffered his age, some personal history and the following statement: "please dismiss [the charges] for lack of prosecuti[on]." In support of his application for "replacement of counsel," defendant complained that his attorney did not file for a bail reduction, had not sought dismissal of the charges, and did not interview a neighbor across the hall from his apartment whom he claimed could corroborate his "innocence." Defendant also complained that his attorney filed a motion to suppress, as he explained, "I never asked [counsel] to file a motion to suppress evidence. I am not guilty so [therefore] there is no need because there never was any evidence to begin with." Defendant's application made no mention of the motion to compel disclosure of the confidential informant.
On November 18, 2005, the rescheduled motion date, defendant explained to the judge that he was unable to retain private counsel, and he renewed his previous application to withdraw his guilty plea. He insisted that he had demanded a trial since he was taken into custody on December 23, 2004, and that instead of honoring his request, his attorney kept threatening him, and bringing him plea offers. Defendant asserted that he had entered a guilty plea for the sole purpose of being released from jail and not because he was guilty. He claimed to have lost his job and apartment because of the guilty plea, and that he had not been involved with the law in almost thirty years. He also claimed that he thought he was pleading guilty to the disorderly persons possession of paraphernalia offense, and not to the third-degree possession of cocaine. Defendant added that he entered a guilty plea because he was under "threat [of] arrest and coercion." As the prosecutor pointed out during the hearing, pursuant to the Brimage Guidelines*fn2, defendant's initial offer should have been three years' imprisonment with twelve months of parole ineligibility or a "four [year term] with [eighteen months' parole ineligibility]." See Attorney General Law Enforcement Directive 2004-2, Revised Attorney General Guidelines for Negotiating Cases Under N.J.S.A. 2C:35-12, at 68 (Brimage Guidelines 2).
After listening to defendant, the trial court declined to grant defendant's motions to withdraw his guilty plea, dismiss the indictment or remove his attorney. In making his findings of fact, the judge read from the transcript of the plea colloquy including defendant's many admissions of guilt, his understanding of the offense to which he was pleading guilty, and the other statements he made indicating a knowing, intelligent and voluntary waiver of the right to trial. The judge briefly addressed defendant's pro se motions, concluding none had any merit. When the judge asked defendant if he had any comment on the sentence, defendant asked if he could file a notice of appeal. Defendant also disputed his criminal history, but declined to say anything on the subject other than that he thought he had only been convicted of one burglary in 1982, not five burglaries.
Guilty pleas may not be withdrawn except upon "'leave granted in the exercise of the trial judge's discretion.'" State v. Smullen, 118 N.J. 408, 416 (1990) (quoting State v. Huntley, 129 N.J. Super. 13, 16 (App. Div.), certif. denied, 66 N.J. 312 (1974)). The burden rests on defendant to establish some justification for the withdrawal of the plea. Ibid. (citing Huntley, supra, 129 N.J. Super. at 17). Guilty pleas which are entered as a result of a plea negotiation are entitled to a higher degree of finality. Ibid. (citing Huntley, supra, 129 N.J. Super. at 17). The standard for "what constitutes fair and just reason for withdrawal must be reposed in the sound confidence of the court." Id. at 417. More must be shown than a change of heart. Belated protestations of innocence alone will not satisfy defendant's burden. The question of what constitutes a legitimate reason for withdrawal is, in fact, left to the sound discretion of the trial court. State v. Simon, 161 N.J. 416, 444 (1999) (citing Smullen, supra, 118 N.J. at 416).
We concur with the trial court that defendant, even when his application is viewed under the more liberal standard of review for withdrawal of a guilty plea prior to sentence, established no grounds whatsoever for withdrawal. See State v. Parsons, 341 N.J. Super. 448, 457 (App. Div. 2001). Defendant offers nothing on appeal to substantiate any asserted coercion or confusion on his part which warrants vacating the guilty plea. The application is entirely without merit.
The standard of review as to claims of ineffective assistance of counsel is as set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984). Defendant must first show that defense counsel's performance was indeed deficient. Id. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693. Defendant must also establish that but for counsel's unprofessional errors, the outcome "of the proceeding would have been different." Id. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698. These principles have been adopted by State v. Fritz, 105 N.J. 42, 58 (1987). The right to effective assistance of counsel applies to plea negotiations as well. As we have previously stated, "plea bargaining is a critical stage of the criminal proceeding at which the right of representation attaches." State v. Taccetta (Taccetta II), 351 N.J. Super. 196, 200 (App. Div.), certif. denied, 174 N.J. 544 (2002).
In this case, defendant alleges that his attorney coerced him into pleading guilty but he proffers nothing in support of the argument. For example, defendant provides no exculpatory affidavit from the neighbor across the hall. Typically claims of ineffective assistance of counsel are addressed by way of post-conviction relief (PCR) because often matters outside the record are necessary to a fair resolution of the claim. This record, however, is so completely void of even claimed instances of unprofessional errors that we will address the issue on direct appeal.
We find that no prima facie case of ineffective assistance of counsel has been established by defendant such as would warrant an evidentiary hearing. See State v. Marshall (Marshall III), 148 N.J. 89, 158, cert. denied, 522 U.S. 850, 118 S.Ct. 140, 139 L.Ed. 2d 88 (1997); State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Trial counsel obtained a very favorable outcome for defendant - - probation - - as opposed to imprisonment. There has been no error identified, or specific error suggested by anything presented either in defendant's pro se filings or this appeal. The claim of ineffective assistance is therefore also denied.