October 30, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JOHN A. TAYLOR, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 06-01-0130 and 06-01-0131.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: September 24, 2008
Before Judges Parrillo and Lihotz.
John A. Taylor appeals from an order denying his motion to withdraw a guilty plea entered in connection with a plea agreement, and to reduce his sentence. We affirm.
An Essex County Grand Jury returned Indictment No. 06-01-0130 charging defendant with four counts of first-degree aggravated sexual assault, N.J.S.A. 2c:14-2(a)(1); two counts of second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a); and four counts of second-degree sexual assault, N.J.S.A. 2C:14-2(b), in connection with the sexual assault of a seven-year old victim. Also, a grand jury returned Indictment No. 06-01-0131 charging defendant with second-degree sexual assault, N.J.S.A. 2C:14-2(b); and second-degree endangering the welfare of a second minor victim, N.J.S.A. 2C:24-4(a).
Prior to trial, defendant assented to the terms of a plea agreement. In exchange for defendant's plea to one count of second-degree sexual assault (count three) and one count of second-degree endangering the welfare of a child (count eight), as set forth in Indictment No. 06-01-0130, the State would dismiss all remaining charges in that indictment and dismiss the second indictment. The recommended term of incarceration was two concurrent ten-year terms.
In a detailed colloquy with defendant, the trial judge sought a factual basis for entry of the plea, confirmed defendant's knowledge and understanding of the details and consequences of a guilty plea, was assured that defendant was fully aided by counsel, and entered his plea voluntarily. The court sentenced defendant to two concurrent ten-year terms of incarceration, subject to the 85% period of parole ineligibility, pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and dismissed the remaining counts of Indictment No. 06-01-0130, and the entirety of Indictment No. 06-01-0131. Applicable fines and penalties were imposed, as well as a restraint against contact with the victims.
Prior to sentencing defendant, accompanied by different counsel, moved to vacate his plea or alternatively to modify the sentence recommended in the plea agreement. The court denied defendant's applications. The trial judge entered an amended Judgment of Conviction imposing a sex offender sentence, pursuant to N.J.S.A. 2C:47-3(b), and recommended defendant serve his ten-year sentence at the Adult Diagnostic Treatment Center (ADTC).
On appeal defendant presents the following issues for our consideration.
POINT I THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S MOTION, WHICH WAS MADE PRIOR TO SENTENCING, TO WITHDRAW HIS GUILTY PLEA.
POINT II THE DEFENDANT'S SENTENCE IS EXCESSIVE.
Defendant believes his plea should be vacated because "there was a lack of communication between himself and his attorney, when he was here to take his plea in fact his attorney had told him . . . that he had no chance at trial." Defendant maintains the State could not prove a first-degree offense, but only a second-degree offense.
"A guilty plea may be accepted as part of a plea bargain when the court is assured that the defendant enters into the plea knowingly, intelligently and voluntarily." State v. Johnson, 182 N.J. 232, 236 (2005) (citing R. 3:9-2). "For a plea to be knowing, intelligent and voluntary, the defendant must understand the nature of the charge and the consequences of the plea." Ibid.
A trial court's "denial of a defendant's request to withdraw his guilty plea will be reversed on appeal only if there was an abuse of discretion which renders the lower court's decision clearly erroneous." State v. Simon, 161 N.J. 416, 444 (1999); State v. Smullen, 118 N.J. 408, 416 (1990). Although a motion to withdraw a plea before sentencing should be liberally granted, State v. Deutsch, 34 N.J. 190, 198 (1961), where the plea is part of a plea agreement, the defendant's "'burden of presenting a plausible basis for his request to withdraw . . . is heavier.'" Smullen, supra, 118 N.J. at 416 (quoting State v. Huntley, 129 N.J. Super. 13, 18 (App. Div.), certif. denied, 66 N.J. 312 (1974)).
"[I]t is clear that 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. Any other approach would automatically require a trial judge to grant such motions, and strip him of any discretion in the matter. Liberality in exercising discretion does not mean an abdication of all discretion." [State v. Luckey, 366 N.J. Super. 79, 86-87 (App. Div. 2004) (quoting Huntley, supra, 129 N.J. Super. at 17.)]
Once the defendant validly enters into the plea agreement voluntarily and knowingly, he "will not be permitted to withdraw his plea of guilty simply because of a 'whimsical change of mind' or a 'belated assertion of innocence.'" State v. Bilse, 244 N.J. Super. 20, 29 (Law Div. 1990) (quoting Huntley, supra, 129 N.J. Super. at 18); State v. Chung, 210 N.J. Super. 427, 431 (App Div. 1986); State v. Rodriquez, 179 N.J. Super. 129, 136 (App. Div. 1981). 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).
"To vacate the plea, [a] defendant must show not only that he was misinformed of the terms of the agreement or that the sentence violated his reasonable expectations, but also that he is prejudiced by enforcement of the agreement." State v. Howard, 110 N.J. 113, 123 (1988). Moreover, a defendant's subsequent claim to be relieved of the consequences of his guilty plea must be weighed against the possibility of prejudice to and the strong interests of the State in its finality. State v. DiFrisco, 137 N.J. 434, 456 (1994); State v. Taylor, 80 N.J. 353, 362 (1979); Deutsch, supra, 34 N.J. at 198, 201 & 204; Luckey, supra, 366 N.J. Super. at 87.
In rejecting defendant's request, Judge Raven reviewed the inquiry conducted prior to entry of defendant's plea. Specifically, he noted defendant did not merely respond affirmatively to questions posed to establish the factual basis supporting his plea, but specifically and concisely articulated a description of events in which he engaged, for his sexual arousal or gratification. Thereafter, the court repeated what defendant stated and defendant confirmed that the court's recitation was accurate.
The court also reviewed all consequences of the plea including: the term of incarceration mandated by NERA; Megan's Law requirements, N.J.S.A. 2C:7-1 to -19; community supervision for life, N.J.S.A. 2C:43-6.4; the necessity to submit to a physical and psychological examination at the ADTC and possible confinement to the ADTC for a program of specialized treatment; and applicable fines, penalties and assessments. Judge Ravin then stated: "You understand that I'm more likely to believe what you have told me today that shows that you are guilty rather than some later statement by you tending to show that you are not guilty" to which defendant responded affirmatively.
Finally, the court reviewed defendant's waiver of each of his constitutional rights associated with a trial and noted defendant completed, initialed, and signed a Plea Agreement Form. The judge inquired as to the voluntariness of defendant's decision to enter his plea and asked counsel if any information exists that militates against voluntariness.
Defendant does not now suggest he was "misinformed about the underlying law or potential penal consequences related to his plea," State v. McQuaid, 147 N.J. 464, 490 (1997) or that "the procedural safeguards that must attend such a plea were not observed," State ex rel. T.M., 166 N.J. 319, 337 (2001). Further, defendant offers no evidence that he was not guilty of the second-degree offense to which he pled. Defendant fails to explain his assertion that he was pressured to plead, especially in light of his repeated statements made under oath to the contrary.
Judge Ravin's patient and thorough questioning reveals defendant voluntarily, knowingly, and intelligently entered into the plea agreement, understood the magnitude of the charges and the potential sentence if found guilty, as well as the benefits of the plea. We find no error in the procedure employed. We additionally determine Judge Ravin properly exercised his discretion in denying defendant's motion to vacate his guilty plea. Accordingly, the order shall not be disturbed.
We also reject defendant's challenge that his sentence was unduly punitive. In our review of a criminal sentence resulting from a plea agreement, we must review whether the sentence imposed upon the defendant comports with the sentencing guidelines, review whether the findings of aggravating and mitigating factors are supported by competent credible evidence in the record, and determine whether application of the guidelines in light of the facts of the case makes the sentence so unreasonable as to shock the judicial conscience. State v. Roth, 95 N.J. 334, 364-65 (1984); see also State v. Sainz, 107 N.J. 283, 292 (1987) (applying same standards to sentences entered as part of a plea agreement).
Here, the trial court identified the range for the second-degree offenses, found no mitigating factors, and enumerated three aggravating factors, that is, the risk of recidivism, N.J.S.A. 2C:44-1(a)(3); defendant's prior criminal record, N.J.S.A. 2C:44-1(a)(6); and the need for deterrence, N.J.S.A. 2C:44-1(a)(9). We are satisfied from our review of the record that Judge Ravin's findings regarding aggravating and mitigating factors were supported by competent and credible evidence in the record, he did not incorrectly apply the sentencing guidelines enunciated in the Code of Criminal Justice, his statement of reasons for the imposition of sentence was adequately articulated, and the sentence imposed was not manifestly excessive or unduly punitive and does not constitute a mistaken exercise of discretion. State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Ghertler, 114 N.J. 383, 393 (1989); State v. Dunbar, 108 N.J. 80, 97 (1987); Roth, supra, 95 N.J. at 363-65.
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