April 23, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ADONTI T. CRONE, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment Nos. 04-01-0438, 04-01-0086, 03-11-4150 and 03-10-3639.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 8, 2008
Before Judges Skillman and Yannotti.
Defendant Adonti T. Crone was charged with various offenses under four indictments issued by grand jurors in Camden County. On March 22, 2004, defendant entered a plea to four counts in the indictments but later moved to withdraw the plea. The motion was denied and defendant was sentenced in accordance with the plea agreement to an aggregate ten-year term of incarceration, with a two-year period of parole ineligibility. Defendant appeals from the judgment of conviction entered on October 22, 2004. We affirm.
Defendant was charged under Indictment No. 03-10-3639 with receiving stolen property, N.J.S.A. 2C:20-7 (count one); unlawful possession of a weapon, N.J.S.A. 2C:39-5d (count two); possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a(1) (count three); and possession of CDS with intent to distribute, N.J.S.A. 2C:35-5a(1) and 5b(3) (count four).
Defendant additionally was charged under Indictment No. 03-11-4150 with possession of CDS, N.J.S.A. 2C:35-10a(1) (count one); possession of CDS with intent to distribute, N.J.S.A. 2C:35-5a(1) and 5b(3) (count two); distribution of CDS, N.J.S.A. 2C:35-5a(1) and 5b(3) (count three); possession of CDS with intent to distribute within 500 feet of public housing, N.J.S.A. 2C:35-7.1 (count four); and criminal contempt, N.J.S.A. 2C:29-9 (count five).
Defendant also was charged under Indictment No. 04-01-0086 with possession of CDS, N.J.S.A. 2C:35-10a(1) (count one); possession of CDS with intent to distribute, N.J.S.A. 2C:35- 5a(1) and 5b(3) (count two); possession of CDS with intent to distribute within 500 feet of public housing, N.J.S.A. 2C:35-7.1 (count three); conspiracy to possess CDS with intent to distribute, N.J.S.A. 2C:5-2, N.J.S.A. 2C:35-5a(1) and 5b(3) (count four); and criminal contempt, N.J.S.A. 2C:29-9 (count five).
In addition, defendant was charged under Indictment No. 04-01-0438 with possession of CDS, N.J.S.A. 2C:35-10a(1) (count one); possession of CDS with intent to distribute, N.J.S.A. 2C:35-5a(1) and 5b(2) (count two); possession of CDS with intent to distribute within 500 feet of public housing, N.J.S.A. 2C:35-7.1 (count three); resisting arrest, N.J.S.A. 2C:29-2a (count four); and conspiracy to possess CDS with intent to distribute, N.J.S.A. 2C:5-2, N.J.S.A. 2C:35-5a(1) and 5b(3) (count five).
On March 22, 2004, defendant pled guilty to receiving stolen property (count one, Indictment No. 03-10-3639); possession of CDS with intent to distribute (count three, Indictment No. 03-11-4150); conspiracy to possess cocaine with intent to distribute (count four, Indictment No. 04-01-0086); and possession of CDS with intent to distribute (count two, Indictment No. 04-01-0438). The State agreed to recommend an aggregate ten-year term of imprisonment with a two-year period of parole ineligibility.
At the plea hearing, defendant said that he had discussed the case with his attorney. The judge explained the terms of the plea and defendant stated that he understood them. Defendant also stated that he understood that by pleading guilty to the charges, he was admitting that the charges were true. In addition, defendant asserted that he was satisfied with the advice of his attorney, he was pleading guilty voluntarily and of his own free will, and no one had threatened him or forced him to plead guilty. The judge asked whether defendant was "under the influence of medication or anything else . . . that would interfere with [his] judgment?" Defendant replied, "[n]o."
Defendant then provided the court with a factual basis for his pleas to the four charges. The judge asked whether defendant had any questions for the court, the prosecutor, or his attorney. He said that he did not. Defendant also stated that he understood that if his pleas were accepted by the court, he would have a criminal record for the offenses. Defendant plead guilty to the charges and stated that he understood "everything."
The court asked defense counsel about a sentencing date. Counsel asserted that defendant had been shot in the stomach following his last court appearance. Counsel stated that defendant's wound was "still open with a bandage." He asked that sentencing be put off for two months to see "if [defendant] gets stitched back up." The judge scheduled the sentencing date for June 4, 2004. Defendant did not appear on that date. He was thereafter arrested on a fugitive warrant.
Sentencing took place October 22, 2004. At that proceeding, defendant moved to withdraw his plea. The judge stated on the record that there was "no basis at all to permit" defendant to withdraw his plea. The judge observed that the: plea was entered before me back a number of months ago and there was an extensive questioning of [defendant] regarding the voluntariness of his plea, his understanding of the terms and the conditions, and I was satisfied then and I'm satisfied now that [the] plea was made freely and voluntarily without any threat, force, coercion, or any other improper influence.
Defendant conceded that he entered his plea freely and voluntarily but said that at the time, he had just been released from the hospital from his gun shot wound and he "was under a lot of medication." Defendant asserted that his attorney did not explain to him that he would receive a ten-year sentence. Defendant said that he would not have entered the plea if he knew that it would be a ten-year sentence.
The following colloquy ensued between the court and defendant:
THE COURT: Well, I explained it to you. I'm sure he explained it to you as well. I'm sure that --
DEFENDANT: He -- he didn't.
THE COURT: - I'm sure -- and, [defendant], you correct me if I'm wrong, but there's a three page plea form with a lot of questions on it. And all that information is in there and [defense counsel] went over that with you. In fact, I asked you that and you said yes. Am I wrong about that?
DEFENDANT: Well, I didn't -- I didn't really know what I was saying, I was under all that --
THE COURT: Excuse me, sir. That's okay.
DEFENDANT: -- medicine and --
THE COURT: For the moment. Just for the moment. Am I correct, [defense counsel]?
DEFENDSE COUNSEL: You're correct, Your Honor.
THE COURT: All right. And then I questioned you at length and spelled out all the details of this plea, and you said you understood them. And that you wished to plead guilty, and you did.
DEFENDANT: I don't --
THE COURT: So now we're here for sentencing, sir. Is there anything you want to say about sentencing?
DEFENDANT: Yes, I would like --
THE COURT: Go ahead.
DEFENDANT: -- I want to know if I could take the -- plea back because I was under -- in -- in the influence of all that medication --
THE COURT: Uh-huh.
DEFENDANT: -- and I would never have took [sic] it if it was a ten year sentence. I wasn't -- my mind -- when we was [sic] in the room, he seen [sic] that he wasn't -- I wasn't even really talking. When I was in here I couldn't even stand up -
THE COURT: Uh-huh.
DEFENDANT: -- because I just got out of the hospital for my gun shot wound so I just want to know if I could get this date postponed until I could get the chance to talk to my mom and -- my mother and she can call . . . Greg Singleton back and so I could get this done [and] over with.
THE COURT: All right. Well, when you were here and you entered your guilty pleas, one of the many questions that I asked you was the following: Are you under the influence of medication or anything else that would interfere with your judgment and you said no. All right.
On this appeal, defendant raises the following contentions for our consideration:
POINT I: THE COURT ERRED IN DENYING DEFENDANT'S REQUEST TO WITHDRAW HIS GUILTY PLEA.
POINT II: INSUFFICIENT REASONS WERE GIVEN FOR IMPOSING CONSECUTIVE SENTENCES.
Having thoroughly reviewed the record, we are convinced that appellant's arguments are entirely without merit.
A guilty plea that has been "'voluntarily entered may not be withdrawn except pursuant to 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)). When a defendant asserts his innocence and seeks to withdraw his plea before sentencing, the courts should "'generally exercise their discretion liberally to enable withdrawal of the plea and a trial on the merits.'" Ibid. (quoting State v. Deutsch, 34 N.J. 190, 198 (1961)). However, "'the burden rests on defendant, in the first instance, to present some plausible basis for his request, and his good faith in asserting a defense on the merits, so the trial judge is able to determine whether fundamental fairness requires a granting of the motion.'" Ibid. (quoting Huntley, supra, 129 N.J. Super. at 17).
In addition, the burden upon the defendant to justify withdrawal of a plea is heavier when a plea is entered pursuant to an agreement. Ibid. (citing Huntley, supra, 129 N.J. Super. at 18). In those circumstances, the defendant must show that he was misinformed about a material term of the agreement or that his reasonable expectations arising from the terms of the agreement have not been fulfilled, and he is prejudiced by its enforcement. State v. Luckey, 366 N.J. Super. 79, 88 (App. Div. 2004) (citing State v. Howard, 110 N.J. 113, 122-23 (1988)).
In this matter, defendant did not assert a plausible basis for the withdrawal of his plea. When he moved to withdraw the plea, defendant stated that at the time he entered the plea, he was under medication that impaired his ability to enter the plea knowingly and voluntarily. The judge rejected this assertion. The record provides ample support for the judge's decision.
We note initially that aside from defendant's assertion, there was no evidence whatsoever that defendant had been under the influence of any particular medication at the time he entered his plea, or that the medication would have impaired his mental capabilities to such an extent that he would not have been able to enter the plea knowingly or voluntarily. At the plea hearing, the judge asked defendant whether he was on any medication and he replied that he was not. Moreover, defendant was represented by counsel at the time and counsel did not assert that defendant was on medication or that he was unable to enter the plea knowingly or voluntarily.
Defendant also argues that he had not been fully informed concerning the terms of the plea. In the trial court, defendant asserted that he had not been aware that he would be receiving an aggregate ten-year base term. It is well-established that a defendant should be permitted to withdraw a plea if he does not fully understand all of its material terms and the relevant consequences. Smullen, supra, 118 N.J. at 417. However, the record does not support defendant's contention that he was not fully informed about and did not fully understand the terms of his plea agreement, specifically the provision that permitted imposition of a base ten-year term of incarceration.
The plea agreement form plainly indicates that defendant could receive an aggregate ten-year term of incarceration, with a two-year period of parole ineligibility. At the plea hearing, defendant admitted that he signed the plea agreement form. Furthermore, the judge explained the terms of the plea and defendant stated that he understood these terms. Defendant stated that defense counsel had explained the terms of the plea to him. Defendant also said that he was satisfied with the services provided by defense counsel. Therefore, the record supports the judge's finding that defendant knowingly and voluntarily entered the plea.
Defendant additionally argues that the judge failed to provide sufficient reasons for ordering that the five-year term on count three of Indictment No. 03-11-4150 be served consecutively to the other sentences. Defendant argues that, as a result, the sentences should be served concurrently or the matter remanded for re-sentencing. We disagree.
In this matter, the judgments of conviction and the judge's written statement of reasons make clear that he intended to impose consecutive sentences. A remand for re-sentencing is not warranted when, as in this case, "the facts and circumstances leave little doubt as to the propriety of the sentence[s] imposed[,]" and the sentence has not been shown to be "'clearly mistaken.'" State v. Jang, 359 N.J. Super. 85, 97-98 (App. Div.), certif. denied, 177 N.J. 492 (2003) (quoting State v. Kromphold, 162 N.J. 345, 355 (2000)).
We are convinced that the record "leave[s] little doubt" that consecutive sentences were appropriate in this matter. Ibid. Indeed, we are satisfied that the imposition of consecutive sentences was warranted, upon consideration of the factors enumerated in State v. Yarbough, 100 N.J. 627, 643-44 (1985), cert. denied, 475 U.S. 1014, 106 S.Ct. 1193, 89 L.Ed. 2d 308 (1986).*fn1
The record shows that the offenses for which defendant was sentenced occurred at different times in the period from June 10, 2003 and September 4, 2003. One offense involved the receipt of stolen property, the other three offense were for the sale of illegal drugs. The objectives of the offenses were predominantly independent of each other. In addition, the offenses were not committed so close in time and place that they constituted a single period of aberrant behavior. Moreover, "there can be no free crimes in a system for which the punishment shall fit the crime." Id. at 643.
Therefore, we are convinced that defendant's sentences are not manifestly excessive or unduly punitive, are not an abuse of the judge's sentencing discretion, and do not shock the judicial conscience. State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Roth, 95 N.J. 334, 363-65 (1984).