On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 06-09-00905-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 7, 2009
Before Judges Axelrad and Parrillo.
Following a twenty-one count indictment, defendant Antwan O. Brown pled guilty to two counts of first-degree robbery, N.J.S.A. 2C:15-1, and one count of criminal attempt, N.J.S.A. 2C:5-1. On the scheduled date of sentencing, without benefit of a formal motion, defendant sought to withdraw his guilty plea. The court denied the oral request and sentenced defendant to an aggregate ten-year term with an 85% parole bar, which was a lesser sentence than bargained for. He now appeals, arguing ineffective assistance of counsel, error in the denial of his withdrawal request, and excessiveness of sentence. Save for the former, which we preserve for post-conviction review, we reject these contentions as meritless, Rule 2:11-3(e)(2), and affirm.
Facing an aggregate forty-year sentence, thirty-four years of which he was ineligible for parole, defendant, as noted, pled guilty to two counts of robbery and one count of criminal attempt. In exchange for the guilty plea, the State agreed to dismiss the remaining eighteen counts, including nine counts charging weapons offenses, N.J.S.A. 2C:39-4(a); N.J.S.A. 2C:39-5(b); N.J.S.A. 2C:39-4(d); three counts of aggravated assault with a firearm, N.J.S.A. 2c:12-1(b)(4); and three counts of employing a juvenile in the commission of a crime, N.J.S.A. 2C:24-9. The State also agreed to recommend two concurrent ten-year prison terms followed by a consecutive five-year prison term. At the guilty plea hearing, defendant admitted, under oath, as he did in his confession to police after apprehension, that on three separate occasions at various locations, he participated in schemes involving calling for Chinese food and then robbing the deliveryman who came.
In addition to providing a factual basis for the guilty plea, defendant acknowledged that he read and understood the charges against him, that he consulted with his attorney, who explained the charges and their details to him, that he was satisfied with defense counsel's services, that he read and signed the plea form, and that he was entering the guilty plea freely and knowingly. At the time, the judge specifically advised defendant that he would have to serve 85% of his sentence, but that his attorney could argue in favor of the five-year term running concurrently, instead of consecutively, as the State recommended.
Less than two months later, at the sentencing hearing, defendant, for the first time, and without benefit of a formal motion, informed the court that he wished to retract his guilty plea because he changed his mind and now believed the ten-year term was too long. Reacting to the verbal request, the court then advised that it was not going to consider defendant's pending New York charges of attempted robbery and murder, and that it intended to run the five-year term concurrent. In response, defendant stated he would "take the 10 years." After defense counsel argued in favor of mitigation of penalty, and defendant exercised his right of allocution, the judge found that aggravating factors three and nine, N.J.S.A. 2C:44-1(a)(3) and (9), outweighed any mitigating circumstances, and sentenced defendant to an aggregate ten years in State prison, of which 85% was ineligible for parole.
On appeal, defendant first contends defense counsel was unconstitutionally ineffective at time of both guilty plea and sentencing. As to the former, he claims that counsel failed to provide him with discovery, discuss or file any pre-trial motions, explore defendant's trial option, or complete a supplemental NERA form. As to the latter, defendant claims counsel failed to argue any mitigating factors, object to the "over-valuing" of aggravating factors, and argue for a less excessive sentence. These claims, reliant as they are on matters dehors the record, are more suitable for resolution in a post-conviction relief petition, and, therefore, we decline to address them here on direct appeal. See State v. Preciose, 129 N.J. 451 (1992); State v. Dixon, 125 N.J. 223 (1991); State v. Walker, 80 N.J. 187 (1979); State v. Sparano, 249 N.J. Super. 411, 419 (App. Div. 1991) ("Generally, a claim of ineffective assistance of counsel cannot be raised on direct appeal."). Suffice it to say, however, that at least with respect to that portion of his ineffective assistance of counsel claim involving the supplemental NERA form, the record does disclose that at the time of entering his plea, defendant was well aware of the NERA sentence since the judge informed him of it twice at the plea hearing and told defendant exactly how many years he would need to serve before being eligible for parole. Armed with this information, defendant stated he understood the sentence he faced and still chose to plead guilty to the charges.
Defendant next argues the court erred in denying his motion to withdraw his guilty plea. In the first place, it appears defendant abandoned this request when, during allocution, he acknowledged his guilt as well as the consequences and then indicated his acceptance of the court's reduced term. But, even assuming defendant did not retract his withdrawal request, we are fully satisfied the court properly proceeded with sentencing.
A motion to withdraw a plea of guilty before sentencing is committed to the sound discretion of the trial judge. State v. Deutsch, 34 N.J. 190, 197 (1961); State v. Phillips, 133 N.J. Super. 515, 518 (App. Div. 1975). Although this discretion should ordinarily be construed liberally where the motion is made before sentencing, Deutsch, supra, 34 N.J. at 198, such "liberality . . . is dependent upon a showing that the relief is required by fairness" and the burden is on the defendant to make that showing upon a balancing of competing factors, State v. Russo, 262 N.J. Super. 367, 372-73 (App. Div. 1993), including the apparent guilt or innocence of the defendant, State v. Smullen, 118 N.J. 408, 417 (1990); Deutsch, supra, 34 N.J. at 198; State v. Fisher, 132 N.J. Super. 313, 316 (App. Div. 1974), and the State's interest in finality. Russo, supra, 262 N.J. Super. at 372-73.
Moreover, "'defendant's burden of presenting a plausible basis for his request to withdraw his guilty plea is heavier' when the plea is entered pursuant to a plea bargain." State v. Smullen, 118 N.J. 408, 416 (1990) (quoting State v. Huntley, 129 N.J. Super. 13, 18 (App. Div.), certif. denied, 66 N.J. 312 (1974)). A whimsical change of mind or even a belated assertion of innocence will simply not suffice. Huntley, supra, 129 N.J. Super. at 18. Rather, in order to vacate a negotiated plea bargain, "the defendant must show that he or she was 'misinformed about a material element of a plea negotiation' or that his or her 'reasonable expectations, grounded in the terms of the plea agreement' were not fulfilled, and that he or she 'is prejudiced by enforcement of the agreement.'" State v. Luckey, 366 N.J. Super. 79, 88 (App. Div. 2004) (quoting State v. Howard, 110 N.J. 113, 122-23 (1988)); see also R. 3:21-1. Here, defendant has presented no plausible basis -- much less fair and just reason -- for his withdrawal request. In fact, defendant never stated any reasons for retracting his plea other than his expressed displeasure with having to serve ten years. Yet ...