On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 98-04-557.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Reisner and Alvarez.
Defendant Keith T. Mansfield appeals from an order dated July 2, 2008, denying his PCR petition as untimely under Rule 3:22-12(a). We reverse and remand for further proceedings.
Defendant pled guilty on July 10, 2000 to third-degree endangering the welfare of a child. N.J.S.A. 2C:24-4a. He was sentenced to probation on September 15, 2000. He filed his PCR on May 22, 2008.
The petition was based on a March 20, 2008 certification, purportedly from the victim, now an adult, in which she attested that defendant never in fact molested her. Instead, she claimed that her mother fabricated the story of the alleged molestation as part of a custody dispute with her father, defendant's employer. The PCR was denied without oral argument, and the PCR judge issued a very brief letter opinion dated July 2, 2008, noting only that the application was untimely.
On this appeal, defendant contends that he was unfairly denied a hearing on his PCR and he should be permitted to withdraw his plea based on evidence of his actual innocence. The State vigorously opposes the appeal, arguing that defendant did not submit a certification to the PCR judge attesting to his innocence, and that the victim's certification is suspect. The State notes that the purported certification is not in legally proper form; it does not indicate where it was signed; and the signature bears no resemblance to the victim's signature on several statements which she signed in 1997 when she made the original accusation.
Based on our review of the record, the State certainly has a colorable argument. The signatures on the documents do appear to be different. The victim's statement is not in proper form either as an affidavit or a certification. "Knowledge and belief" is not the correct language for a certification; there is no indication as to where the witness signed the document; and the document is not properly notarized. See R. 1:4-4. Nonetheless, we cannot conclude that this application, concerning as it does a claim of innocence, should have been rejected summarily on timeliness grounds, without considering the merits or even giving defense counsel an opportunity to argue the application.
As the Supreme Court recently clarified in State v. Slater, 198 N.J. 145, 157-58 (2009), one of the significant factors to be considered in a motion to withdraw a guilty plea is whether defendant makes a claim of innocence:
[T]rial judges are to consider and balance four factors in evaluating motions to withdraw a guilty plea: (1) whether the defendant has asserted a colorable claim of innocence; (2) the nature and strength of defendant's reasons for withdrawal; (3) the existence of a plea bargain; and (4) whether withdrawal would result in unfair prejudice to the State or unfair advantage to the accused. [Ibid. (emphasis added).]
Moreover, "[a] bare assertion of innocence is insufficient to justify withdrawal of a plea. Defendants must present specific, credible facts and, where possible, point to facts in the record that buttress their claim." Id. at 158. In evaluating the claim of innocence, the court may consider the evidence that was available to the prosecutor at the time the plea was entered. Ibid. And "efforts to withdraw a plea after sentencing must be substantiated by strong, compelling reasons." Id. at 160.
We agree that the application was deficient because defendant did not submit a certification attesting to his innocence and explaining why he nonetheless entered a guilty plea. Moreover, the victim's statement was not in proper form. However, if the court had allowed oral argument, defense counsel might have sought an opportunity to supplement the application to address these issues. In the interests of justice, we ...