On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 07-04-571.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: December 16, 2009
Before Judges Axelrad and Sapp-Peterson.
Following an indictment charging him with murder and three weapons offenses, defendant Carlos Myrie pled guilty to the amended charge of first-degree aggravated manslaughter, N.J.S.A. 2C:11-4a, pursuant to a negotiated plea, which also provided that the State would seek a twenty-year custodial term and defendant would argue for a seventeen-year term, both subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and the other charges would be dismissed. Prior to sentencing, defendant filed a motion to withdraw his guilty plea on the basis that his plea was not voluntary but was the result of coercion by his trial counsel and his mother. The court denied the motion. In accordance with the negotiated plea, at sentencing the court heard argument regarding the term, then imposed a twenty-year sentence subject to NERA and dismissed the remaining counts of the indictment.
Defendant appeals, arguing: (1) the trial court abused its discretion in failing to conduct an evidentiary hearing and in denying defendant's motion to vacate his guilty plea and (2) if not for the deficient assistance of defendant's former counsel, which consisted of failure to investigate witnesses and failure to inform defendant of inaccuracies in the witness statements, he would not have pled guilty. Based on our review of the record and applicable law, we affirm, save for defendant's second point asserting ineffective assistance of trial counsel, which we preserve for future application by defendant for post-conviction relief (PCR).
At defendant's arraignment in June 2007 for the murder of Ronald Dixon, the State's offer was for defendant to plead to an amended count of aggravated manslaughter in exchange for a twenty-five year prison term subject to NERA, which defendant subsequently rejected and proposed a counter-offer that was rejected by the State. On November 5, 2007, a pre-trial hearing was held and trial was scheduled for February l9, 2008. In late January 2008 the State reduced its offer to a twenty-year prison term subject to NERA, which defendant again rejected.
Defendant was brought back to the courthouse on February 5, 2008 for a pre-trial conference. Defendant's mother, Serita Broady, met with him in the presence of his attorney, Adrienne Edward. His mother was extremely emotional and upset. Defendant informed Edward of his desire to plead guilty and executed a plea form setting forth the aforementioned agreement. During the colloquy on that date, defendant responded in the affirmative when asked by Edward if on the subject date he recklessly used a firearm against Dixon during an altercation, resulting in Dixon's death from a gun shot wound.
In addition to providing a factual basis for the guilty plea, defendant, who was twenty-two, acknowledged, in part, that he was not under the influence of alcohol or drugs, he understood the charge against him, his attorney reviewed the plea form with him before he signed it and he understood all the questions, and he waived identified rights by pleading guilty. Defendant also unconditionally stated that he was satisfied with the services of his trial attorney. The following colloquy also took place between the court and defendant regarding defendant's potential exposure if convicted and the voluntariness of his plea, including specific reference to defendant's conversation with his mother:
[Court]: You understand that if you went to trial in this matter you could be found not guilty, but if you were found guilty you would face up to 30 years in state prison on this offense. And you were originally charged with -- first-degree murder, which this charge was amended to. And if you were found guilty of that charge, you would face up to life in prison. You understand all that?
[Court]: Other than what has been discussed with regard to your recommended sentence, has anyone promised you anything else to get you to plead guilty?
[Court]: Is your plea then entirely voluntarily, of ...