April 1, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ANDREA STAFFORD, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 06-07-920.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 25, 2009
Before Judges Lihotz and Messano.
Defendant Andrea Stafford appeals from the judgment of conviction that followed the denial of her motion to withdraw her previously-entered guilty plea. She contends that the judge should have granted her motion "in the interests of justice," and because the State would not have been prejudiced. We do not reach the merits of defendant's contentions. Instead, we remand the matter for further proceedings in light of the Supreme Court's recent decision in State v. Slater, ___ N.J. ___ (2009) (slip op.).
Defendant was indicted by the Passaic County grand jury and charged with third-degree aggravated assault of a law enforcement officer, N.J.S.A. 2C:12-1b(5)(a), and third-degree resisting arrest, N.J.S.A. 2C:29-2a(3). By the time defendant pled guilty to a single count of fourth-degree aggravated assault pursuant to a plea bargain, on December 6, 2006, the matter had been the subject of numerous "status conferences."*fn1
Represented by counsel and under oath, after some preliminary questions, the following colloquy occurred between the judge and defendant:
Judge: You understand by pleading guilty, however, you have given up all those rights?
Defendant: (No verbal response).
Judge: In other words, the only thing that's going to happen is . . . you're going to be sentenced by the Court at another date?
Defendant: Okay. Yes.
Judge: You also understand that you're going to have a criminal record once you . . . plead guilty and you're sentenced?
Defendant: A criminal record?
Judge: Yes. You're pleading guilty to a crime, a fourth degree crime. Do you understand that?
Judge: Well, it's a crime. What you['re] pleading guilty to, what you're going to tell the Court, you're going to say is that you in fact did commit a crime on a certain date. Is that correct?
Defendant: (No verbal response).
Judge: Do you understand what I'm saying?
Defendant: (No verbal response).
Defense counsel took over the questioning with little success, culminating with defendant finally responding, "I don't know," when asked if she wished to plead guilty.
The judge declared a recess, the length of which is not disclosed by the record. However, when the proceedings resumed, defendant was asked a series of leading questions by her attorney, all of which elicited a single word, "yes," in response. In sum, defendant acknowledged striking a police officer at the Passaic Municipal Court with her purse.
When the judge resumed the questioning, he asked defendant if she was on "any drug or alcohol or medication that could affect or impair [her] judgment?" She responded negatively, causing her sister, Charlotte Stafford, who was apparently in the audience, to address the judge. She told him that defendant was a nurse, that at the time of the crime, "she wasn't aware because she had had a nervous breakdown," that defendant had been hospitalized, and that she was indeed on medication as a result. Defendant's sister continued, "She's under [a] doctor's care and she's on Social Security right now because she has had a nervous breakdown."
Defense counsel advised the judge that he was aware of defendant's medical condition but, in his belief, it did not "affect her judgment . . . to the extent where she doesn't understand what's going on today." Defendant affirmed to the judge that she understood what was happening, and the balance of the proceedings was uneventful.
Defendant had no prior criminal record and the plea bargain contemplated a non-custodial probationary sentence. As the parties left the courtroom, the judge ordered a "short form PSI," and sentence was set for one month later. In the interim, defendant retained different counsel and, on June 4, she moved to withdraw her guilty plea and apply "out of time" for the Pre-trial Intervention Program (PTI). Defendant's motions were heard on July 20, 2007.
In support of her motion, defendant furnished an affidavit in which she claimed that she never discussed the charges with her counsel until the day she pled guilty. She affirmed she was a nurse, and that a criminal conviction "would be devastating to [her] career." She claimed that on the day of her guilty plea, she "had no idea what [she] was being asked to plead guilty to, the consequences of the plea and the fact that as a result of the plea [she] would have a criminal record." Defendant restated her mental health history, and claimed she was taking Risperdol, Lexapro, and Tryleptol, "strong psychotropic medications[,]" on the day she pled guilty.
Defendant's sister Charlotte, and another sister, Keisha Stafford, who was also in court at the time of the guilty plea, also supplied affidavits. In sum, they reiterated defendant's account of her fragile mental state, the medications she was taking at the time, and defense counsel's failure to advise defendant of the potential consequences of a criminal conviction on her nursing license. In addition, both referenced medical records that had already been forwarded to the judge, presumably in anticipation of defendant's sentence. These records, which dated from March 2006 demonstrated defendant's significant mental health problems, including a prior hospitalization. Additionally, defendant furnished a January 3, 2007 application for her involuntary psychiatric commitment executed by her mother, Gladys Stafford.*fn2
At oral argument, defendant argued she should be permitted to withdraw her guilty plea based upon her mental state leading up to, and at the time of, the plea, and her lawyer's failure to explain the potential collateral consequences of her conviction. She further contended that the State was not prejudiced in any way. Additionally, defendant argued that she was an appropriate PTI candidate, and her prior attorney never applied for her admission to the program. She sought permission to apply, out of time, if the judge allowed her to withdraw her guilty plea.*fn3
The judge concluded, however, that "defendant knew at all time[s] the consequences of her plea, and that [it] would involve loss of her employment." He added, "That's why we had so many status conferences, and that's what my notes reflect." The judge then reviewed the transcript of the plea proceedings, concluding he was "convinced that  defendant was fully aware of the penal consequences of her plea." The judge noted defendant was "cogent, cohesive, and clear" during the plea proceedings, and he concluded there was no "manifest injustice either at the time of the plea or at the present to warrant a retraction of the plea." He denied defendant's motion to withdraw her plea, did not address her motion to belatedly apply to PTI, and sentenced her in accordance with the plea bargain.*fn4
Before us, defendant argues that the judge applied the wrong standard in denying her motion. She notes that since her motion was made prior to sentencing, she need not have demonstrated "a manifest injustice" would result if sentence was imposed. We agree that to the extent the judge employed this standard, it was improper.
Rule 3:21-1 provides that a motion to withdraw a guilty plea must be made before sentencing, "but the court may permit it to be made thereafter to correct a manifest injustice." A motion made before sentencing "is entitled to a more liberal standard than one made thereafter." Pressler, Current N.J. Court Rules, comment 3 on R. 3:21-1 (2009) (collecting cases); and see Slater, supra, ___ N.J. at ___ (slip op. 10) (noting "post-sentencing motions must meet a higher standard of 'manifest injustice' to succeed") (citing R. 3:21-1).
We need not explore in detail whether the judge's reference to the lack of any "manifest injustice" was fatal to his decision, or whether, in light of all the circumstances and despite his reference to this standard, defendant's motion was nonetheless properly denied. Instead, we believe the wiser course would be to remand the matter for the judge to reconsider defendant's motion in light of the Supreme Court's recent enunciation of the "four factors" that must be considered by the court whenever a defendant moves to set aside a previously-entered guilty plea. Id. at ___ (slip op. 13). These include whether defendant has "asserted a colorable claim of innocence," "the nature and strength of defendant's reasons for withdrawal," "was the plea entered as part of a plea bargain," and whether withdrawal would "result in unfair prejudice to the State or unfair advantage to" defendant. Id. at ___ (slip op. 13-18).
In the exercise of his sound discretion, the judge will consider defendant's request in light of the Court's recent guidance, and we further leave to his discretion whether the motion record should be supplemented, and if so, how. We also direct the judge to consider and decide defendant's motion to permit the late filing of her application to the PTI program. In doing so, we take no position on the merits of defendant's request.
Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.