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State v. Carley


March 11, 2010


On Appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 05-11-1605.

Per curiam.


Submitted February 3, 2010

Before Judges Stern and J. N. Harris.

On November 28, 2005, defendant was indicted for first- degree conspiracy to commit murder, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:11-3; first-degree attempted murder, N.J.S.A. 2C:5-1, N.J.S.A. 2C:2-6, and N.J.S.A. 2C:11-3; second-degree burglary, N.J.S.A. 2C:18-2; second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); third-degree possession of a handgun without first having obtained a permit to carry the same, N.J.S.A. 2C:39-5(b); second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1); and fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(4). More than twenty-six months later, on February 15, 2008, defendant negotiated a plea agreement in which he pleaded guilty to only the charges of first-degree conspiracy, second-degree burglary, and second-degree possession of a weapon for an unlawful purpose. In exchange for this plea, the State agreed to recommend a maximum aggregate sentence of ten years incarceration subject to the eighty-five percent period of parole ineligibility mandated by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant also agreed to provide truthful testimony at trial against co-defendant April Russo.*fn1

While under oath, defendant gave the following factual basis to support his plea:

Q: All right. Matt, on August 16, 2005, did you know a person by the name of April Russo?

A: I did.

Q: And you were in a relationship with her, correct?

A: Yes.

Q: She was your girlfriend, right?

A: Something of that sort, yes.

Q: Yes. Okay. Now, did you, and she reach an agreement that her husband, Brian Grogan would ultimately be killed?

A: Yes.

Q: And when I say that, you knew that she wanted that to occur, correct?

A: I had known that she had -- yes, she had said -- talked about it prior to, yes.

Q: Many times, right? Yes?

A: Several instances, yes.

Q: Okay. Now, on -- August 16, 2005, in the wee hours of the morning did you go to the house of Brian Grogan, and April Russo, located . . . in Clifton, New Jersey?

A: I went to their house that night, yes.

Q: Okay. Now you -- you went to the back door of the house, correct?

A: I went through the garage.

Q: Okay. And Ms. Russo met you at the door, correct?

A: Yes.

Q: And when you entered into the residence she gave you a -- gun -- a handgun, correct?

A: It was in a paper bag, that is correct.

Q: A McDonald's bag I believe you said?

A: Dunkin Donuts.

Q: Dunkin Donuts. And you took the gun out of the bag, and you put it in your pocket, correct?

A: I put the -- I put it in my pocket, yes.

Q: Okay. Now, you possessed the weapon with the purpose to use it unlawfully against Brian Grogan, correct?

A: If the opportunity arose, yes.

Q: Okay. Now, when you went into that house, the purpose of going into that house was to effectuate the agreement with Ms. Russo that Brian Grogan be killed, correct?

(Tape 1 ends; Tape 2 begins)

Q: .... the stairs, correct?

A: She did.

Q: And you went behind her, but only got part way up the stairs --

A: No, I was only a couple of steps up.

Q: Okay. And, at this point, Mr. Grogan came out of his bedroom, correct?

A: It was probably 30-45 seconds later he came out of the bedroom.

Q: All right. And it was at this point that you, and he attacked each other, correct?

A: It was a little bit later, yes.

Q: Okay. Now, you attacked him, and he also attacked you, believing that you were an intruder into his home, correct?

A: The -- attacked occurred -- yeah, upstairs. He came out of the closet, and he believed I was --

Q: All right. You had gone --

A: -- an intruder.

Q: -- you had actually gone into the bedroom of the residence, correct?

A: I had heard a bang, followed into the -- the room that he came out of thinking that something had happened to Ms. Russo, and went in there to investigate what happened while both of them were in there, and he came out of the closet. We struggled, and that's when that altercation occurred.

Q: Okay. Now, you hit him several times in the head with the gun, right?

A: Yes, I did.

Q: And I believe you grabbed him around the neck, and -- and squeezed on his neck at some point, too, correct?

A: Yes. Right. Initially in the struggle.

Q: Okay. Now, he got the gun though, right?

A: Yes.

Q: And at some point he ran down the stairs, and you ran down the stairs behind him, right?

A: Yes.

Q: And, at this point, he ran out of the front door, and the police were there, correct?

A: That is correct.

Q: And you, of course, were not expecting the police at all, right?

A: I had no idea that they were going to be there, no.

Q: Okay. Unbeknownst to you Ms. Russo phoned the police, or something like that, right?

A: Apparently, yes.

Q: Now, you ran out the backdoor of the house, correct?

A: Yes.

Q: You abandoned your car in front of the home, correct?

A: That is correct.

Q: And you walked home to Scotch Plains, New Jersey, arriving there sometime later the next day, right?

A: That is correct.

MS. KEAN: I believe that's satisfactory, your Honor. I have the conspiracy, and a substantial step.

Q: Now -- now Mr. Grogan gave you no permission to be in his home, right?

A: Mr. Grogan did not give me permission to be in the home. Ms. -- Mrs. Grogan did.

THE COURT: Okay. Are you satisfied with the factual basis.


Also during this plea allocution hearing, the court directly spoke with defendant about his three pro se motions to suppress evidence, which had yet to be resolved:

THE COURT: Okay. But you realize that by pleading guilty you're waiving your right to have those motions heard.

THE DEFENDANT: We discuss[ed] that the other day, yes, sir.

THE COURT: All right. Thank you. All right. Ms. Kean, are you satisfied that the defendant understands the consequences of this guilty plea?

MS. KEAN: Yes, Your Honor, I - - I am.

THE COURT: Are you satisfied that this plea is being entered into freely, and voluntarily?

MS. KEAN: Yes, Your Honor, I am.

After accepting the guilty plea and concluding that it 1) was the product of the advice given by competent counsel; 2) was freely and voluntarily obtained; and 3) was not the product of threats, the court scheduled defendant's sentencing for June 27, 2008, some four months later.

Prior to the sentencing, however, defendant's new attorney wrote a letter*fn2 to the court requesting permission for defendant to withdraw the guilty plea. The court treated the letter as a motion to withdraw a plea of guilty pursuant to Rule 3:21-1, and permitted oral argument on the merits of the application on August 5, 2008. In so doing, defense counsel stated, "in a nutshell, Mr. Carley has had a lot of time to think about why he, initially, chose to accept the plea and, basically, he changed his mind." Counsel continued by explaining, "Mr. Carley made his decision based on what he was told. He's, since, been given different advice and he wants to change his mind." When pressed by the court as to whether the plea was in fact voluntarily given, defense counsel finessed the answer by hinting that the advice given to defendant about his Fourth Amendment motions was significantly deficient, noting, "he was told certain things about the potential outcome of th[ose] motion[s], specifically, that he had very little chance of succeeding, and therefore, it really wouldn't be worth forcing the state to go through with it, because then they'll just be tougher during the plea negotiation stage."

The court proceeded carefully. Because it did not have a copy of the transcript of the plea allocution hearing, it scheduled a second hearing on defendant's motion, which was conducted on August 13, 2008. After reviewing the transcript, the court indicated its desire to hear testimony from defendant's prior attorney, Ms. Kean, regarding the three pro se motions that defendant had filed while awaiting trial in order to "fully explore what would be the basis for the withdrawal of the [suppression] motion." Defendant objected, claiming surprise, and refused to waive his lawyer-client privilege. N.J.R.E. 504. Neither Ms. Kean nor defendant testified. The court noted that the letter requesting permission to withdraw the guilty plea "doesn't even contain a certification from, from Mr. Carley, indicating that he wanted to, in fact, withdraw his motion - - his guilty plea." But when offered an opportunity to provide the court with "any testimony or anything you want to produce with respect to the motion to withdraw [the guilty plea]," defense counsel stated, "[n]o, simply just to state clearly that my client changed his mind based on different legal advice." Following this argument, the court thoroughly analyzed the factual circumstances together with the then- applicable law, and promptly denied the motion.

Defendant was sentenced three weeks later on September 4, 2008. The court imposed the agreed-upon aggregate sentence of ten years subject to the NERA, as contained in the plea agreement. This appeal followed.

Defendant presses only one issue on appeal, claiming legal error in the Law Division's refusal to allow him to withdraw his guilty plea. We have thoroughly reviewed the arguments presented by both sides and conclude--notwithstanding the refinements to plea withdrawal applications imposed by the later-decided case of State v. Slater, 198 N.J. 145 (2009)--that Judge Philip H. Mizzone, Jr. reached the correct result. We affirm.

After the motion practice and sentencing in this case were completed, the New Jersey Supreme Court considered the standards that a trial court should employ when deciding a motion to withdraw a guilty plea. State v. Slater, supra, 198 N.J. at 155. In Slater, defendant pled guilty to second-degree possession of cocaine with intent to distribute after the trial court denied his motion to suppress. Id. at 151-52. Twelve days after pleading guilty, the defendant filed a pro se motion seeking to withdraw his guilty plea. Id. at 152. The trial court denied the motion, ruling that defendant's change of mind was not a sufficient basis for withdrawing his guilty plea, and then imposed a sentence consistent with the plea agreement. Id. at 153. This court affirmed the trial court's denial of defendant's motion to withdraw his plea, but the Supreme Court reversed.

As the Court noted in Slater, trial courts must analyze four factors when evaluating a motion to withdraw a guilty plea:

We hold 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.

[Id. at 157-58.]

This multi-faceted test applies to motions filed either before or after sentencing, but pre-sentence motions are governed by the more liberal "interest of justice" standard pursuant to Rule 3:9-3(e), while post-sentence motions are subject to a "manifest injustice" standard pursuant to Rule 3:21-1. Id. at 158. Regardless of the timing, "'the burden rests on the defendant, in the first instance, to present some plausible basis for his request, and his good faith in asserting a defense on the merits.'" Id. at 156 (quoting State v. Smullen, 118 N.J. 408, 416 (1990)).

In this matter, defendant's new attorney told the court that defendant wanted to withdraw his guilty plea simply because he changed his mind. Defendant did not submit a certification, and when given an opportunity to present competent evidence at the hearing, declined to testify. Thus, there is not even a suggestion of innocence advanced by the defense, making the motion to withdraw the plea largely ineligible for consideration under Slater. Moreover, defendant's arguments in support of his motion to withdraw the guilty plea stand in stark contrast to his statements under oath at the time he originally pleaded guilty. Here, unlike in Slater, the record lacks any evidence that defendant was coerced into pleading guilty or that he was dissatisfied with his former attorney. All we know is that the present attorney apparently has a difference of opinion with former counsel about the suppression motions. Current defense counsel's conclusory statements about bad legal advice are neither persuasive nor expressly endorsed by defendant. Finally, defendant's mere second thoughts about proceeding to trial are, on this record, capricious and not sufficient to surmount even the lesser threshold of serving "the interests of justice." R. 3:9-3(e).

We appreciate that Judge Mizzone did not have the benefit of the Court's opinion in Slater when he denied defendant's motion. Nevertheless, his determination is amply supported by the record. Moreover, our independent canvass confirms that defendant failed to present "a colorable claim of innocence"; he failed to provide strong reasons for the withdrawal of his guilty plea; and his plea was part of a negotiated agreement. Under these circumstances, the first three Slater factors dramatically favor the State, and thus there is an insufficient basis to permit defendant to withdraw his guilty plea.


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