October 27, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
LOUIS CORRADI, III, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 07-08-1188.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 7, 2009
Before Judges Miniman and Waugh.
Defendant Louis Corradi, III, appeals his conviction on one count of third-degree endangering the welfare of a child in violation of N.J.S.A. 2C:24-4(a). The conviction was based upon a guilty plea that he sought unsuccessfully to withdraw prior to sentencing. Because we determine that the motion to withdraw the guilty plea should have been the subject of an evidentiary hearing, we vacate the order denying defendant's motion to withdraw his plea and remand to the Criminal Part for further proceedings.
Corradi was arrested on June 16, 2006, based on allegations that, at some time between December 21, 2004, and March 21, 2005, he engaged in unlawful sexual activity involving a four- year-old girl. The activity was alleged to have taken place at the home of the victim's family while Corradi was a visitor there.
Middlesex County Indictment No. 06-08-1239, returned August 25, 2006, charged Corradi with first-degree aggravated sexual assault, contrary to N.J.S.A. 2C:14-2(a) (Count 1), and second- degree endangering the welfare of a child, contrary to N.J.S.A. 2C:24-4(b)(4) (Count 2). The indictment was based upon the testimony of the investigating officer, who testified that Corradi had admitted to one instance of sexual assault, and what was apparently a videotape of an interview with the victim, in which she stated that there were multiple instances of sexual contact. The text of the video was not transcribed as part of the transcript of the grand jury's August 18, 2006, session, when the case was first presented to the grand jury, and is not part of the record on appeal.
The matter was presented to a grand jury again on July 26, 2007. We cannot discern from the record why the case was presented a second time, although we note that a reference to the taking of pictures in the second count of the initial indictment is not contained in the superseding indictment and that the second indictment added an additional count. At the July 2007 grand jury session, the assistant prosecutor played something for the grand jury that was described generally as "previously presented testimony." Whether it was the interview with the victim or the recording of the investigator's grand jury testimony from 2006, or both, is not clear from the record.
Middlesex County Indictment No. 07-08-1188, was returned August 2, 2007. It superseded the first indictment and charged Corradi with first-degree aggravated sexual assault, contrary to N.J.S.A. 2C:14-2(a) (Count 1); second-degree sexual assault, contrary to N.J.S.A. 2C:14-2(b) (Count 2); and third-degree endangering the welfare of a child, contrary to N.J.S.A. 2C:24- 4(a) (Count 3).
At some point prior to December 4, 2007, the State made a plea offer under which Corradi would plead guilty to count three of the new indictment and the State would recommend a four-year term of incarceration, to be served concurrently with any term for violation of his federal probation. Corradi accepted the offer and appeared in court on December 4, 2007, with his then attorney. As of that date, Corradi's motion to dismiss for speedy trial violations and his motion to suppress his statement pursuant to Miranda*fn1 had not been heard. Those motions are not part of the record on appeal.
The plea judge went over the terms of the plea and questioned Corradi about his understanding of the plea and the various rights he was giving up by pleading guilty. During the course of that discussion, Corradi's then attorney stated: "My client has said if he is incarcerated he is going to commit suicide, Judge." The plea judge responded by pointing out that Corradi had "only a couple of years to go."
The following exchange took place when the plea judge asked Corradi if he understood that he was giving up his right to a jury trial.
[THE COURT]: And by pleading guilty you're not going to have your jury trial. Do you understand that, sir?
[DEFENDANT]: Yes, your Honor.
[THE COURT]: Is that okay with you?
[DEFENDANT]: In light of the circumstances I have to say yes.
[THE COURT]: Okay. Is anyone forcing you to plead guilty?
[DEFENDANT]: No one is forcing me, your Honor, but I'm just making this decision because of the fact that, with all due respect to the Court, I don't believe I would be able to obtain a fair trial, your Honor.
[THE COURT]: Is anyone threatening you to plead guilty?
[DEFENDANT]: No, your Honor.
Immediately following that exchange, the plea judge asked about the factual basis of the plea and the following exchange took place.
[THE COURT]: You're pleading guilty because you are guilty?
[DEFENDANT]: No, your Honor.
THE COURT: All right, so I am not going to be able to get a factual basis.
[DEFENSE COUNSEL]: All right.
Are you pleading guilty because you're guilty?
THE DEFENDANT: I don't know how to --
[DEFENSE COUNSEL]: There is only one way to answer, yes or no, you're entering a plea. So the answer is yes unless you want to go to trial?
THE DEFENDANT: I am aware that I just fully vacated my attorney, but I am just trying to convey the right point to the Court so the Court understands where I'm coming from.
THE COURT: I know you're reluctantly pleading guilty but the thing is if you go to trial and you're found guilty you are going to get a substantial sentence. This sentence is a very -- I mean, the prosecutor here is very fair. The proofs are pretty, are very strong in terms of the statement given which I haven't ruled on and what the little girl said to the mother, to the father and to the investigator. And it is alleged on at least one occasion, right, at least one occasion that you put your mouth near her female private area and that would have to be for sexual gratification.
[ASSISTANT PROSECUTOR]: Yes.
THE COURT: Sexual gratification, so that is what you have to, in other words, if you did that that is what you have to plead to.
THE DEFENDANT: I'm just, basically I'm taking this plea because it is the lesser of the two evils.
THE COURT: Yeah, but I can't take the plea unless you tell me you're pleading guilty. One of the reasons you're pleading guilty is because you are guilty, that you did do this. And even though I think, you know, when you gave your statement you told the police that you regretted it, that you made a mistake, you made a big mistake and you wouldn't want to do it again but you made a mistake.
[DEFENSE COUNSEL]: Are you pleading guilty because you're guilty?
THE DEFENDANT: I am pleading guilty because I am guilty.
THE COURT: All right, can you get a factual basis?
[DEFENSE COUNSEL]: Yes.
Mr. Corradi, directing your attention to the period between December the 21st of 2004, [and] March 21st of 2005, during that period of time were you, to the best of your knowledge, were you at the home owned by the [victim's family] in South Plainfield, New Jersey? To the best of your recollection, yes?
THE DEFENDANT: With that I have to say no because I don't recall. I honestly don't know.
THE COURT: Wait. Wait. Wait. The question is didn't you visit the [victim's] family?
THE DEFENDANT: This is what I tried to convey to my attorney, your Honor, and I understand his frustration, but please understand that I am frustrated with this as well. During the Christmas holidays I do not leave my residence and I live with my mother. I take care of my mother.
[DEFENSE COUNSEL]: This is between December 21, 2004, and March 21, 2005. Christmas is on December 25th?
THE DEFENDANT: I am aware of that.
[DEFENSE COUNSEL]: Sometime over that four-month period could you have possibly been at the [victim's] residence during that period of time?
THE DEFENDANT: Possibly in early '05.
[DEFENSE COUNSEL]: Okay. Now at sometime you were at the [victim's] residence in '05, did you have an opportunity to come in contact with [the victim]?
THE DEFENDANT: Yes. She lives there.
[DEFENSE COUNSEL]: Okay, did you come in contact with [the victim] at a certain time during that period of time or a certain evening where you touched or kissed at or near her genital organs? I am not saying that you performed cunnilingus. I'm not saying that there was any penetration. That you touched or kissed at or near her genital organs for the factual basis?
THE DEFENDANT: Yes.
[DEFENSE COUNSEL]: All right. Did you do that understanding that it was inappropriate and improper for you to do same?
THE DEFENDANT: Yes.
[DEFENSE COUNSEL]: You understand that by doing that you could, possibly impair or debauch the morals of a child?
THE DEFENDANT: Yes.
[DEFENSE COUNSEL]: That you understood this was in contrary to the laws of the State of New Jersey?
THE DEFENDANT: Yes.
[DEFENSE COUNSEL]: Okay, I have nothing further.
[ASSISTANT PROSECUTOR]: The State's satisfied.
THE COURT: Fine.
Corradi obtained new counsel in February 2008. In April 2008, he filed a motion seeking to withdraw his guilty plea. In the supporting certification, Corradi asserted that he had been intimidated by his prior attorney into pleading guilty.
According to Corradi, the attorney told him that he would withdraw from representing him in the event of a trial, unless Corradi's mother paid the attorney a significantly larger retainer. Corradi filed a certification from his mother with respect to the attorney's requests for funds.
Corradi asserted his innocence several times in his certification. He attached two letters: one to his mother from September 2006, in which he asserted his innocence and suggested that he would end his life rather than go to prison "to be raped, stabbed or worse"; and one from January 2007, shortly after the plea, in which he again asserted his innocence.
The plea judge denied the motion after oral argument on July 2, 2008, without conducting an evidentiary hearing. After setting out some of the procedural history, the judge explained his reasons as follows:
And on June 5th, 2006 [the victim] was interviewed in the Prosecutor's Office by Investigator Candido Arroyo. The victim told Investigator Arroyo that on two occasions the defendant, known as Lou, a friend of the victim's father, went into her room, pulled down her pants, underwear, and put his face on her vagina. During the interview [the victim] was able to demonstrate where the defendant had touched her by using an anatomically correct drawing.
The victim's mother told Investigator Arroyo that her daughter initially disclosed this incident to her in the winter of 2005. Told her that the defendant came into her room, pulled down the covers and her underwear, and put her -- his mouth on her vagina. The mother did not do anything about that at that time.
But then in April 2006, [the victim] told her father about this incident while he was tickling her in the family home. And the incident then was subsequently reported to the South Plainfield Police.
And on June 15th, 2006, investigators interviewed Mr. Louis Corradi at the South Plainfield Police Department after reading him his rights. And he admitted this wrongdoing. Stated that he went into [the victim's] room, pulled her panties to the side and touched her vagina with his mouth.
So the defense argument is that defendant has the right to know the statutory maximum penalties for an offense which is a subject of the guilty plea. And that the correct maximum fine is $15,000. The plea form said $50,000.
Number two, that the -- there was no determination the guilty plea was voluntary.
Number three, that the plea was not entered voluntarily.
That the guilty plea was the subject of speculation, number four.
And number five, that the former attorney... coerced the defendant, fatally tainted the guilty plea proceeding.
That the State argues that defendant's motion should be denied because the plea was entered knowingly, voluntarily, and intelligently.
As to A, that the State contends that defendant is not entitled to withdrawal of the guilty plea due to an error citing the incorrect statutory maximum penalty on the plea form. And cites State v. Johnson, 182 N.J. 232 [(2005),] and State v. McQuaid, 147 N.J. 464 [(1997)]. And that the defendant suffered no prejudice by this -- the erroneous amount of fines cited in the plea form. It's not material.
And, two, the State argues that the Court made a determination at the time of the plea that it was entered voluntarily by the defendant. And cites to the transcript.... And the State admits that the plea was -- given hesitantly, but that there was a factual basis, and the plea was entered freely, understandingly, with assistance and advice of counsel. And that he indicated he was pleading guilty because he was guilty.
C, the State says that the defendant's mental state fails to deem his plea invalid; that the colloquy suggests the opposite; that his decision was well thought out; that he had more -- that he had, of course, a fear of incarceration.
THE COURT: Indeed, the State has no direct knowledge of any coercion by the former attorney.
So we have Rule 3:9-2 as to pleas. A plea must be a voluntary, made voluntarily, no threats or promises.
Rule 3:9-3 as to withdrawals of a plea.
[Rule] 3:21-1, motion to withdraw a plea made before sentencing, which was --occurred here.
And then we have guilty pleas may be --may be -- there has to be a factual basis for the plea. State v. Samuels, 253 N.J. Super. 335, [340 (App. Div. 1991)].
Once a determination is made that the defendant has entered into a knowing and voluntary plea, the terms of the agreement must be meticulously carried out. No absolute right of a defendant to withdraw a guilty plea. Defendant is entitled to fairness, protection of due process. Samuels, [supra, 253 N.J. Super. at 340]. And the "defendant's request to be relieved of the consequence has to be 'weighed against the strong interest of the State in its finality.'" [Ibid. (quoting State v. Taylor, 80 N.J. 353, 362 (1979)).] A plea entered on negotiation has been held to be entitled to a higher degree of finality. State v. Smullen, 118 N.J. 408 [(1990)].
While it is true that a motion to withdraw a plea made before sentencing is entitled to more liberal standard than one made thereafter, State v. Parsons, 341 N.J. Super. 448 [(App. Div. 2001)], but as stated in State v. Huntley, 129 N.J. Super. 13[, 18 (App. Div.) certif. denied, 66 N.J. 312 (1974) (citation omitted)], a defendant will not be allowed to withdraw the plea on a "whimsical change of mind by defendant or the prosecutor." And furthermore, the defendant's failure to "'correctly assess every relevant factor entering into his decision,' this will not automatically render his plea involuntary or unintelligent." State v. Taylor, 80 N.J. 353[, 364 (1979) (quoting Brady v. United States, 377 U.S. 742, 756-57, 90 S.Ct. 1463, 1473, 25 L.Ed. 2d 747, 761 (1970))].
Once a guilty plea has been entered, it may not be withdrawn without leave of the court. And the determination lies with the judge's discretion. State v. Deutsch, 34 N.J. 190[, 197 (1961)]. The defendant bears the burden of persuasion to establish plausible reasons why the plea should be withdrawn. Huntley[, supra, 129 N.J. Super.] at 17. "The Court must weigh the policy considerations which favor finality of judicial procedures against those which dictate that no man be deprived of his liberty except upon conviction after a fair trial or after the entry of a plea of guilty under circumstances showing it was entered truthfully, voluntarily and understandingly." State v. Herman, 47 N.J. 73[, 77-78 (1966) (citing Deutsch, supra, 34 N.J. at 197-98)].
So first, this request was made in a timely fashion prior to sentencing.
Now we must look at the aspect of, number one, was there a factual basis for plea -- for the plea. Two, did defendant enter the plea knowingly, voluntarily and intelligently with a full understanding of the nature of the charge and the consequences of the plea?
So first, a factual basis was obtained, albeit with some resistance from the defendant, which is not an unlikely situation in cases of this nature. When first asked if he was pleading guilty because he was guilty, the defendant answered no. At that point, the Court said it would not be able to obtain a factual basis. After [defense counsel] and the Court clarified the situation to the defendant, the defendant stated he was pleading guilty because he was guilty. And then a factual basis was obtained.
And defendant stated sometime early in 2005 he could have possibly been at the residence of the victim. Defense argues this is speculation as to the exact time period and that should be a basis for vacating the plea. It should not. The time period of the alleged incident was a span of four months from December 21, 2004 through March 21, 2005. Defendant clearly stated he was not at the victim's residence during the Christmas holidays. He was asked at some --whether he was -- sometime he was at the residence in 2005, that he had a -- he said -- he had an opportunity to come in contact with the victim. And he answered yes. When asked during that time period if he touched or kissed the victim near her genital organs and that he knew it was inappropriate and improper, he answered yes. Replied in the affirmative when asked if he knew that by performing those acts he could have possibly impaired or debauched the morals of a child. The responses show he may have been unsure as to whether he was at the victim's residence during the Christmas holidays. They do not show that he did -- did not commit the acts during the early months of 2005, which is the time period.
The transcript indicates clearly that the defendant entered the plea knowingly, voluntarily, intelligently contrary to defense claims. Defendant answered in the affirmative when asked if [his attorney] answered all his questions and whether he was satisfied with his services. When asked if it was okay with him that he was giving up his right to a jury trial, he answered in the affirmative. When asked if anyone was forcing or threatening him to plead guilty, he answered in the negative. The transcript does not reflect that his mental state may have affected his judgment in any way or his ability to intelligently, knowingly and voluntarily plead guilty.
And he signed the plea form and all the other forms for parole supervision for life, additional questions for sexual offenses.
An incorrect fine is not enough to allow a defendant to withdraw his guilty plea in the cases I referred to before. Defendant must demonstrate how the omission of the true amount of fine materially affected his decision to plead guilty. Counterintuitive because he'd be less inclined to accept the plea agreement which has a $50,000 fine [rather] than a $15,000 fine. But he accepted it with the incorrect amount of $50,000 [and] should not be relieved because of that.
So for all those reasons, the motion is denied.
On October 17, 2008, Corradi was sentenced to four years in prison. The required fines and penalties were imposed, as was parole supervision for life. The sentence was consistent with the plea offer. This appeal followed.
A motion to withdraw a guilty plea is committed to the judge's sound discretion. State v. Slater, 198 N.J. 145, 156 (2009); State v. Phillips, 133 N.J. Super. 515, 518 (App. Div. 1975). That discretion should ordinarily be exercised liberally where the motion is made before sentencing. Slater, supra, 198 N.J. at 156 (citations omitted). "In a close case, the 'scales should usually tip in favor of defendant.'" Ibid. (quoting State v. Taylor, 80 N.J. 353, 365 (1979)).
Defendant bears the burden to demonstrate that fairness requires withdrawal of his plea, and he must make that showing upon a balance of competing factors. State v. Russo, 262 N.J. Super. 367, 373 (App. Div. 1993). Although a motion to withdraw a plea after sentencing must be supported by "strong, compelling reasons," "a lesser showing is required for motions raised before sentencing." Slater, supra, 198 N.J. at 160.
The applicable factors are: "(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." Id. at 157-58 (citation omitted). While all factors must be considered and balanced, "[n]o factor is mandatory; if one is missing, that does not automatically disqualify or dictate relief." Id. at 162.
With respect to the first factor, "[a] bare assertion of innocence is insufficient to justify withdrawal of a plea." Id. at 158. Instead, a defendant must "present specific, credible facts and, where possible, point to facts in the record that buttress [his] claim." Ibid. (citations omitted). There must be more than just a "change of heart" to warrant leave to withdraw a guilty plea once entered. Id. at 157.
According to Slater, the second factor, the nature and strength of defendant's reasons for withdrawal, "focuses on the basic fairness of enforcing a guilty plea by asking whether defendant has presented fair and just reasons for withdrawal, and whether those reasons have any force." Id. at 159.
Although we are not to approach the reasons for withdrawal with "skepticism," we "must act with 'great care and realism' because defendants often have little to lose in challenging a guilty plea." Id. at 160 (citing Taylor, supra, 80 N.J. at 365).
With respect to the third Slater factor, whether the plea was entered as the result of a plea bargain, the Court noted that "defendants have a heavier burden in seeking to withdraw pleas entered as part of a plea bargain." Id. at 160. However, the Court did "not suggest" that the third factor "be given great weight in the balancing process." Id. at 161.
As to the fourth factor, unfair prejudice to the State or unfair advantage to the accused, the Court stated that there was "no fixed formula to analyze the degree of unfair prejudice or advantage that should override withdrawal of a plea" and that "courts must examine this factor by looking closely at the particulars of each case." Ibid. The "critical inquiry" is "whether the passage of time has hampered the State's ability to present important evidence." Ibid. The State need not show prejudice "if a defendant fails to offer proof of other factors in support of the withdrawal of a plea." Id. at 162.
We now turn to the facts in the record as they relate to the four Slater factors. With respect to the first factor, Corradi has not consistently maintained his innocence, having given an inculpatory statement to the police following his arrest and a factual basis for the plea, albeit reluctantly.
Nevertheless, he also maintained his innocence prior to the plea, as reflected in the September 2006 letter attached to his certification; during his plea, as reflected in his initial response to the judge; and following the plea, as reflected in the January 2007 letter and his certification. Because no specific date was alleged in the indictment, it would have been difficult for Corradi to supply an alibi or some other specific fact by way of defense. He was apparently a friend of the victim's father and frequented their house, so, whether guilty or innocent, he was not in a position to deny acquaintance with the victim.
With respect to the second factor, the plea transcript reflects Corradi's reluctance to enter the plea, his fear of a lengthy prison term, and the difficulty experienced by the plea judge and his then attorney in developing the factual basis.
Corradi's certification and the letter to his mother reflect his fear of a lengthy prison term, his claim that his then attorney pressured him into taking the plea, and his concern that going to trial would be a financial burden to his mother. In light of Corradi's expressed fear of a lengthy prison sentence, the plea judge's statement that "if you go to trial and you're found guilty you are going to get a substantial sentence" could be considered unduly coercive. However, it could also be viewed as sound advice to a defendant who, having confessed and facing a lengthy sentence, is considering a favorable plea offer.
The plea in this case was part of a plea bargain, which implicates the third factor. It was, as the plea judge correctly pointed out, a favorable plea offer, given Corradi's considerable exposure in the event of conviction for a first- degree offense. However, as the Court noted in Slater, even though the presence of a plea increases a defendant's burden, it is ordinarily not given great weight. Slater, supra, 198 N.J. at 161.
Finally, the State argues that the victim would be prejudiced if the plea were to be withdrawn. There appears to be little doubt that the favorable nature of the plea was based, at least in part, on an understandable desire to spare the young victim the rigors of a trial. Of course, because we do not have the then pending speedy-trial and Miranda motions, we cannot gauge whether there may also have been weaknesses in the State's case that also prompted the favorable plea offer.
Based upon our review of the facts in light of the law, we have concluded that Corradi presented a prima facie case for withdrawal of his plea. Depending upon the truth of Corradi's factual assertions, how one views the judge's comments about the potential for lengthy imprisonment and, more importantly, their effect on Corradi, and the balancing of the Slater factors, the facts in the record could support a determination that this is the type of "close case" in which the "scales" should "tip in favor of defendant." Id. at 156.
Such a decision cannot be made solely on the basis of the papers. As the Supreme Court noted in Slater, "[a trial] court's ruling may rest... on its view of the defendant's demeanor and candor at both the plea proceeding and any later hearing on the withdrawal motion." Id. at 160. While we do not necessarily read Slater as requiring a hearing in every case, we are convinced that Corradi's application to withdraw his plea must be evaluated and decided in the context of an evidentiary hearing.
Consequently, we vacate the order denying Corradi's motion and remand to the Criminal Part for further proceedings consistent with this opinion. For that reason, we do not reach the issue of the sufficiency of the superseding indictment, which can be addressed during the remand proceedings. We do not retain jurisdiction.
Order on appeal vacated and remanded.