January 7, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MICHAEL HAYES, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 07-07-1563.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 28, 2009
Before Judges Axelrad and Sapp-Peterson.
After being indicted for first-degree robbery, N.J.S.A. 2C:15-1, and fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a)(3), defendant, in a separate and unrelated indictment, was charged with third-degree eluding, N.J.S.A. 2C:29-2(b), third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b), and second-degree possession of a weapon by a convicted person N.J.S.A. 2C:39-7. As part of a negotiated plea, defendant pled guilty to the first-degree robbery and third-degree eluding charges in the two indictments. In exchange for the guilty pleas to these two offenses, the State agreed to recommend a thirteen-year sentence on the robbery charge with an eighty-five percent No Early Release Act (NERA) period of parole eligibility, along with a five-year period of parole ineligibility and a five-year concurrent custodial sentence on the eluding offense, and the dismissal of the remaining charges contained in the two indictments, together with appropriate fines and penalties.
When defendant appeared for sentencing nearly three months later, his attorney advised the court that he had been contacted by defendant's family, who requested that he make an application to withdraw defendant's guilty plea, which defense counsel believed he ethically could not do, given the likelihood that he would be a witness in any plea withdrawal proceedings. He also advised the court that two different attorneys had reached out to him, one a week earlier and another within two days of the scheduled sentencing. The first attorney told him that a conflict of interest prevented him from filing the plea withdrawal motion, while the second attorney indicated that he wanted to make a request for an adjournment of the sentencing on behalf of defendant but was unavailable to appear in court at that time due to a scheduling conflict. Additionally, defense counsel advised the court that defendant had expressed what counsel characterized as "extreme displeasure with going forward to sentencing today." Defense counsel then requested a two-week adjournment of the sentencing in order to permit defendant's new attorney to appear.
Defendant personally addressed the court and said that he never wanted to plead guilty and had in fact previously announced to the court his desire to go to trial. He explained that his attorney advised him that if he did not "take this deal . . . that [the court] was going to lock [him] up and revoke [his] bail and that's why [he] took the deal." He shared with the court the fact that his wife had just given birth to their child and he was the sole source of support for the two of them. He also reported to the court that on "the day I signed the deal, I hired an attorney right after that, Mr. Leonard, to take the plea back." The State opposed the adjournment request.
The court denied the adjournment request, finding that defendant's objections were nothing "other than a change of mind, the pleader's form of buyer's remorse." The court concluded that defendant pled guilty to the charges knowingly and voluntarily with a full understanding of the consequences of his plea, and proceeded to sentence him in accordance with the plea agreement. The present appeal followed.
Appellant raises the following points for our consideration:
ENTRY OF COERCED PLEA AGREEMENT BY DEFENDANT WITH INADEQUATE LEGAL COUNSELING AND UNDERSTANDING REQUIRES VACATION OF THE PLEA WHERE IT WAS NOT KNOWINGLY AND VOLUNTARILY MADE.
UNDER THE RECENT SUPREME COURT DECISION, STATE V.  SLATER, [198 N.J. 145] (2009)[,] INTERESTS OF JUSTICE AND REQUISITE ANALYSIS REQUIRE VACATION OF PLEA.
In addition to the brief filed on his behalf, defendant filed a supplemental letter brief in which he raised the additional point:
DEFENDANT WAS DENIED FEDERAL AND STATE CONSTITUTIONAL PROTECTIONS BY COUNSEL PERMITTING DEFENDANT TO PLEA[D] GUILTY TO THE ELEMENTS OF FIRST[-]DEGREE ROBBERY AS OPPOSED TO THE ELEMENTS OF SECOND[-]DEGREE ROBBERY[,] THEREBY RENDERING INEFFECTIVE ASSISTANCE OF COUNSEL.
DEFENDANT IS ENTITLED TO WITHDRAW HIS GUILTY PLEA PURSUANT TO [RULE] 3:21 AND [RULE] 3:9-2.
In State v. Slater, the Court held "that trial 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." 189 N.J. 145, 157-58 (2009) (citing United States v. Jones, 336 F.3d 245, 252 (3d Cir. 2002)), where the court outlined factors for judges to consider in plea withdrawal motions filed in federal courts under Fed. R. Crim. P. 32(e).
Reviewing the record here under the above standard, we are persuaded the trial court properly denied defendant's motion to vacate his guilty plea. While defendant expressed that he wanted to go to trial and was coerced into pleading guilty, he at no time raised a colorable claim related to the merits of the underlying charges against him. The evidence the State intended to proffer at defendant's trial on the robbery charge was summarized by the State at sentencing:
[H]e's seen on video going into and coming out of the bathroom. He's identified there. He's positively identified by his victim. He feigned the presence of a firearm during that robbery so it's a first[-]degree robbery and as Your Honor is aware from a review of the defendant's record, he is what I would characterize as extremely discretionary term eligible -- discretionary extended term eligible, which would subject him to life in prison just on the robbery case alone.
Next, in expressing his reasons for seeking to withdraw his plea, defendant explained that he never wanted to plead guilty but only did so because his attorney advised him that the court intended to revoke his bail, which caused him to become "hysterical," "wasn't even in the right capacity. Like, I was high, maybe made false judgments[.]" The record, however, does not reflect defendant's characterization of his mental state. As the trial court noted before sentencing, all of the statements made to the court at the time defendant entered his guilty pleas were conveyed under oath. In addition, before accepting the guilty pleas, the record discloses that the trial court engaged in a colloquy with defendant to ensure that defendant was pleading guilty voluntarily, fully aware of his right to a jury trial, the consequences of his guilty plea and the maximum sentence the State would recommend.
Moreover, the guilty pleas entered here were part of a negotiated plea agreement. Where a defendant's guilty pleas are part of a negotiated plea agreement that a defendant has entered knowingly and voluntarily, the pleas are presumed to possess a higher degree of finality. State v. Means, 191 N.J. 610, 619 (2007). Further, under such circumstances, a defendant's "burden of presenting a plausible basis for his request to withdraw his guilty plea is heavier." State v. Huntley, 129 N.J. Super. 13, 18 (App. Div.), certif. denied, 66 N.J. 312 (1974).
The significance of the existence of a negotiated plea agreement has not been altered by our Court's recent decision in Slater, supra, 198 N.J. at 158. The Court identifies "the existence of a plea bargain" as a factor that must guide trial courts in evaluating a plea withdrawal motion. Ibid. Had defendant proceeded to trial rather than pleading guilty, at the very least, he faced a maximum twenty-year sentence on the first-degree robbery sentence. The State contended he was eligible to be sentenced to a discretionary extended term. As such, defendant potentially faced a life sentence on the robbery charge alone. Given the evidence the State intended to proffer against defendant and the likelihood of conviction, exposure to a much lengthier sentence was more probable than not.
Finally, because the record fails to reflect a colorable claim of innocence or evidence that the plea was entered unknowingly, involuntarily and without a full understanding of the consequences of the guilty pleas, and due to the existence of the negotiated plea agreement, it was not necessary for the court to consider the fourth Slater factor, prejudice to both the State and the defendant, if withdrawal was or was not permitted. Id. at 162.
Defendant's supplemental claim alleges that his trial counsel engaged in ineffective assistance of counsel evidenced by certain inconsistencies in the pre-trial discovery that, if pursued, may have resulted in a charge of second-degree rather than first-degree robbery. He also contends that a taped statement given by the alleged victim existed but defense counsel never secured a copy of that statement. Because these contentions may not be resolved through consideration of the record, they are more appropriate for consideration by petition for post-conviction relief. State v. Preciose, 129 N.J. 451, 462 (1991).
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