September 18, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
GEORGE MARFO, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, 06-06-1165-I and 06-11-01891-A.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued August 20, 2008
Before Judges A. A. Rodríguez and C. L. Miniman.
Defendant George Marfo appeals from his conviction following his guilty plea to two counts of second-degree robbery, N.J.S.A. 2C:15-1a(1) and fourth-degree possession of imitation firearms, N.J.S.A. 2C:39-4e. The trial court imposed a sentence consistent with the plea agreement, i.e., concurrent terms aggregating six-years with a NERA*fn1 parole disqualifier.
More than six months after the sentencing hearing, defendant moved to withdraw his guilty plea. He certified in support of his motion that the plea: (1) was unsupported by sufficient facts or evidence to sustain a conviction; (2) was the product of coercion and duress; and (3) resulted from ineffective assistance of counsel. He also certified:
Following my arrest on September 11, 2005, my family retained the services of Mr. John Carbone, Esq., to represent me in connection with the above charges. When presented with the facts and circumstances surrounding these allegations, Mr. Carbone assured my family that he would secure a disposition on my behalf involving nothing more than a sentence of probation.
Despite these assurances, Mr. Carbone failed to fully investigate the facts and circumstances surrounding this incident, failed to carefully review with me the discovery materials provided by the state and negotiated a plea bargain in which I was required to admit culpable conduct beyond that described by the victims or admitted to by myself. A review of the transcript of the plea proceedings reveals an allocution in which Mr. Carbone simply asked leading questions of me, inserting facts establishing essential elements of two crimes of robbery, not otherwise described or detailed in the discovery.
Mr. Carbone never ordered or obtained a copy of the Grand Jury minutes to determine whether sufficient evidence, establishing the essential elements for these offenses, was ever presented to the Grand Jury which returned this indictment.
The judge denied the motion and issued a written opinion, finding that:
The court is also not convinced that defendant did not understand the nature of the charges and the consequences of the plea. The record clearly shows that defendant had discussed the charges with an experienced criminal law attorney, had the charges explained to him and had enough time to discuss the matter with counsel. Furthermore, defendant acknowledged that his attorney answered all of his questions and clearly stated he was satisfied with the services of his attorney. Defendant also signed the plea agreement forms and was advised by the [c]court that the plea agreement would subject him to a sentence of six years in state prison with the requirement that he serve 85% of that sentence before becoming eligible for parole. He was also advised of the special provision of parole supervision. The foregoing facts show that that defendant understood the nature of the charges and the consequences of the plea.
On appeal, defendant contends:
THE GUILTY PLEA ENTERED BY DEFENDANT WAS CONSTITUTIONALLY INFIRM AND MUST BE VACATED.
A. The Plea Entered To By Defendant Lacked A Sufficient Factual Basis As Per R. 3:9-2.
B. The Guilty Plea Entered Must Be Vacated As It Was Involuntarily Entered and Without Understanding The Nature Of The Charges and The Consequences Of The Plea.
The standard is clear. When a defendant offers to plead guilty a trial court cannot accept the plea unless it addresses the defendant personally and determines, by inquiry, that the plea is made with an understanding of the charge and the consequences of the plea. R. 3:9-2. Moreover, the judge must determine that there is a factual basis for the plea. Ibid.; State v. Barboza, 115 N.J. 415, 420-21 (1989). An appellate challenge to the existence of a factual basis for the plea is not waived by the entry of a guilty plea. State v. Butler, 89 N.J. 220, 224 (1982). Rule 3:21-1 requires a motion to withdraw a guilty plea be made before sentencing but the rule allows the motion to be made after sentencing in order to correct a manifest injustice. R. 3:21-1; State v. Fischer, 38 N.J. 40, 48 (1962); State v. Deutsch, 34 N.J. 190, 198 (1961). Where the plea is part of a knowing and voluntary plea agreement, defendant's "burden of presenting a plausible basis for his request to withdraw his guilty plea is heavier." State v. Huntley, 129 N.J. Super. 13, 18 (App. Div.), certif. denied, 66 N.J. 312 (1974). A voluntary plea should not generally be vacated absent "some plausible showing of a valid defense against the charges." State v. Gonzalez, 254 N.J. Super. 300, 303 (App. Div. 1992).
Here, when judged against that standard, we find no basis to reverse. The trial court found that defendant entered the guilty plea pursuant to an agreement with the state with the knowledge of the nature of the charges and the consequences of pleading guilty. Defendant indicated that he understood the questions posed by the judge and written in the plea form. With respect to the factual basis, we note that defendant accepted the facts contained in his attorney's questions. He did not indicate confusion or disagreement. This is sufficient to establish a factual basis. As the Supreme Court has noted:
[B]ecause different criminal charges and different defendants require courts to act flexibly to achieve constitutional ends, a factual basis, established either through inquiry of others, which a defendant acknowledges, or through direct admission by the defendant, should be examined in light of all surrounding circumstances and in the context of an entire plea colloquy.
[State ex rel. T.M., 166 N.J. 319, 327 (2001).]
Moreover, at the request of defendant, we have reviewed a videotape of the plea hearing. We do not perceive anything about defendant's demeanor that indicates that he was so paralyzed by fear that he was unaware of the consequences of the entry of a guilty plea, the terms of the plea agreement, or that he was unwilling to plead guilty. Thus, we conclude that the factual basis was adequate and supported the plea.
Defendant's claim of ineffective assistance of trial counsel is preserved should defendant file a petition for post- conviction relief.