July 11, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
SHAWN MYERS,*FN1 DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment Nos. 04-04-310, 04-04-313.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: June 24, 2008
Before Judges Cuff and Fuentes.
Following denial of his motion to suppress evidence seized pursuant to a search warrant, defendant Shawn Myers pled guilty to second degree possession of a controlled dangerous substance (CDS) (heroin) with intent to distribute, N.J.S.A. 2C:35-5(a)(1), -5(b)(2); and second degree certain persons not to have weapons, N.J.S.A. 2C:39-7(b). Defendant was sentenced to an eight-year term of imprisonment with a three-year period of parole ineligibility on the possession of CDS offense and a consecutive term of nine years with a five-year period of parole ineligibility on the certain persons charge. The aggregate term is seventeen years with eight years parole ineligibility. The appropriate fines, fees and penalties were also imposed.
On appeal, defendant raises the following arguments:
BECAUSE THE COURT FAILED TO INFORM DEFENDANT WHEN HE ENTERED HIS GUILTY PLEA THAT HE WAS WAIVING HIS RIGHT TO CHALLENGE THE VOLUNTARINESS OF HIS CONFESSION, DEFENDANT DID NOT ENTER THE PLEA KNOWINGLY AND VOLUNTARILY. IN ADDITION, THE TRIAL ATTORNEY'S FAILURE TO PURSUE A MOTION FOR A MIRANDA HEARING CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL.
THE JUDGE ABUSED HIS DISCRETION IN APPLYING A SUBIN SENTENCE TO THE DEFENDANT, WHO HAD A VALID EXCUSE FOR FAILING TO REMAIN IN COURT ON THE RESCHEDULED SENTENCING DATE.
In a pro se supplemental brief, defendant raises the following arguments:
THE COURT BELOW ERRED WHEN IT CONDUCTED THE SUPPRESSION HEARING, WITHOUT REQUIRING TESTIMONY FROM DETECTIVE HILONGOS REGARDING HIS AFFIDAVIT FOR THE SEARCH WARRANT, BUT INSTEAD, RELIED ON HEARSAY OF WHETHER THE POLICE KNOCKED FIRST PRIOR TO ENTRY, WHEREFORE, THE MATTER SHOULD BE REMANDED TO THE LAW DIVISION FOR A FULL SUPPRESSION HEARING.
THE COURT ERRED IN FINDING THAT STATE V. SUBIN WAS AUTOMATIC, IN IMPOSING THE LONGER TERM, WHEN THE CONSEQUENCES WERE NOT FULLY MADE PART OF THE PLEA AGREEMENT, WHEREFORE, THE MATTER SHOULD BE REMANDED FOR IMPOSITION OF THE AGREED-UPON TERM, OR DEFENDANT SHOULD BE PERMITTED TO WITHDRAW HIS GUILTY PLEA AND PROCEED TO TRIAL.
Defendant entered a plea agreement after his motion to suppress evidence obtained from a search warrant was denied. The warrant executed at defendant's house in Elizabeth was one of many executed on June 9, 2003, in Union and Essex counties. The warrant for defendant's residence was a "knock and announce" warrant. Defendant contended that the officers failed to abide by that term.
The police searched the premises and located two handguns and a plastic bag containing approximately twenty bricks of heroin. That night, defendant gave a statement in which he admitted possessing these items. Later, he recanted the statement claiming that his earlier admission was made to protect his family. He claimed that police threatened to arrest his fiancée and stepson and place his infant daughter in "DYFS" custody.
In the course of the evidentiary hearing on the motion to suppress, defendant's attorney started to elicit testimony about the voluntariness of the statement defendant gave on the night of the search. The prosecutor objected that the motion was limited to whether the warrant had been executed properly. The judge agreed and limited the evidentiary hearing. In doing so, he emphasized that defendant could file a motion to suppress to challenge the voluntariness of his statement later in the proceedings.
The judge found that police "knocked and announced" as required by the warrant. In fact, the State produced testimony from a neighbor that he awoke to the sound of police banging on a door and announcing their presence. The neighbor related that he thought police were at his door because the noise was so loud. The judge concluded that police properly executed the search warrant and denied the motion to suppress.
Following denial of this motion and before any further motions could be filed, defendant accepted a plea agreement.
According to the agreement, defendant agreed to plead guilty to second degree possession of CDS with intent to distribute, N.J.S.A. 2C: 35-5(a)(1), -5(b)(2), and second degree certain persons not to have weapons, N.J.S.A. 2C:39-7(b). According to the agreement, the State would recommend a five-year term of imprisonment with a two-year period of parole ineligibility on the CDS charge consecutive to a five-year term of imprisonment with a five-year term of parole ineligibility on the certain persons charge. The plea was also subject to State v. Subin, 222 N.J. Super. 227, 238-39 (App. Div.), certif. denied, 111 N.J. 580 (1988), which permits a sentencing judge to consider a defendant's failure to appear in determining the appropriate sentence. Defendant failed to appear at sentencing. Following his arrest two months later, the judge imposed the aggregate seventeen-year term of imprisonment with an eight-year period of parole ineligibility.
The finding that police executed the warrant in accordance with its terms is wholly supported by the evidence. State v. Locurto, 157 N.J. 463, 470-71 (1999). Furthermore, the issue of probable cause for the search warrant was not before the court. We note, however, that a search warrant based on information obtained from confidential informants that has been corroborated through surveillance may provide sufficient probable cause to allow issuance of a search warrant. State v. Jones, 179 N.J. 377, 393, 396-97 (2004). The record also demonstrates that defendant was not prevented from filing a motion to suppress the voluntariness of his statement; the motion was simply deferred to a later stage in the proceedings.
Defendant urges us to vacate his plea because he was never informed that he was waiving his right to challenge his statement. Alternatively, he argues that his trial attorney was ineffective.
The plea forms*fn2 inquired whether defendant understood that he would surrender certain rights when he pled guilty. Among those rights are a jury trial, the requirement that the State must prove its case beyond a reasonable doubt, and that he has the right to remain silent. Defendant circled "Yes" and signed both forms. The transcript of the plea hearing indicates that other pleas were accepted that day from other persons named in the same indictment. The transcript also indicates that the judge may have addressed several defendants as a group or that defendant was present in the courtroom when others entered guilty pleas. In fact, the judge asked defendant, "Did I tell you your rights with the other men a few minutes ago?"
Defendant responded "Yes." He also stated that he understood those rights. Unfortunately, the transcript provided to us contains only the interchange between the judge and defendant. Nevertheless, at the plea hearing, defendant testified that he understood his rights and no one had forced him to plead guilty.
Prior to imposition of sentence, defendant filed a motion to retract his guilty plea. He testified at that time that he did not have the opportunity to discuss the plea with his family on the day he agreed to plead guilty. He also acknowledged that he was extended-term eligible and he had been offered a favorable plea. He testified that he felt rushed and knew, but did not like, the parole ineligibility term associated with the certain persons weapons offense.
We are satisfied that defendant was fully informed that he surrendered all rights to challenge any investigatory defects or missteps and to advance any defenses when he pled guilty to the two charges. The record fully demonstrates he knew when he pled guilty that the next step was the imposition of sentence. Indeed, defendant makes no reference to the unpursued Miranda*fn3 motion in his motion to retract his guilty plea, thereby suggesting that he knew the conclusive nature of his plea.
We also decline to address defendant's contention that trial counsel provided ineffective assistance of counsel. Such claims are commonly reserved for post-conviction relief proceedings because resolution of these contentions usually requires supplementation of the record. State v. Preciose, 129 N.J. 451, 460-62 (1992). Contrary to defendant's contention, we cannot resolve this issue based on the record before us. We can, however, suggest that based on the entire existing record, it appears that trial counsel was prepared to file another motion to suppress defendant's statement, the judge certainly did not preclude the motion, this motion is usually filed close to trial and often heard immediately before trial or during the trial, and the acceptance of the plea offer rendered the motion unnecessary. Defendant is not precluded, however, from pursuing this contention in the context of a later petition for post-conviction relief.
Defendant had been offered and accepted a very favorable plea in which he would have received an aggregate term of ten years with a seven-year period of parole ineligibility. The judge imposed an aggregate term of seventeen years imprisonment with an eight-year period of parole ineligibility when defendant failed to appear for sentence in April 2005. Defendant does not argue that the judge lacked the authority to impose a term different than the negotiated term. He argues that the judge abused his discretion when he imposed the greater term under the circumstances of this case.
Defendant appeared for the first and second scheduled sentencing dates. On the second date, his application for an adjournment was denied, but he left the courtroom. Defendant advised the court that he did so because his young child had just died and he was emotionally overwrought. The judge acknowledged that the death of the child "would justify perhaps not being around for the entire month of April or even parts of May. But he didn't come in at all, ever, voluntarily."
The judge did not invoke the Subin provision automatically. He expressly stated that the most telling feature of defendant's behavior was his failure to surrender. Under these circumstances, the judge did not abuse his considerable discretion.