June 3, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT.
ISAIAH SANTIAGO A/K/A WILSON ACEVEDO, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment Nos. 08-07-2314 and 08-12-3634.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 12, 2010
Before Judges Payne and Fasciale.
Defendant Isaiah Santiago a/k/a Wilson Acevedo appeals from a judgment of conviction for robbery and a certain persons not to have weapons offense. He argues that his motion to withdraw his plea at sentencing should have been granted. The trial judge properly applied State v. Slater, 198 N.J. 145 (2009), and sentenced defendant in accordance with the negotiated plea agreement. We affirm.
On July 28, 2008, defendant was indicted and charged with second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b (Count One); and second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7b (Count Two). On December 1, 2008, defendant was indicted and charged with first-degree robbery, N.J.S.A. 2C:15-1a (Count One); second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 (Count Two); third-degree aggravated assault, N.J.S.A. 2C:12-1b(2) (Count Three); and two counts of unlawful possession of a weapon, fourth-degree and third-degree respectively, N.J.S.A. 2C:39-5d and 2C:39-4d (Counts Four and Five).
At approximately 1:00 a.m., Officers Rodriguez and Smith responded to a call about a suspicious man. Upon arrival they saw a man, later identified as defendant, sitting in front of a residence "swaying" and "rocking back and forth." They approached him to see if he was okay, but defendant just looked at them. Defendant smelled of alcohol, had "glassy" eyes, made "gurgling sounds," and was swaying back and forth. The police asked him multiple times to take his hands out of his pockets, but he did not respond. Since the lighting was "pretty dark," they helped defendant into the light of their van for safety reasons and to make sure defendant knew who they were. Defendant was not in custody at this point. In the light, defendant gave them a "smirk" and said "I have a gun."
Following denial of his motion to suppress and Miranda*fn1 challenge, defendant pled guilty to the second-degree certain persons charge and the amended second-degree robbery charge. In accordance with the plea agreement, various charges in both indictments would be dismissed following imposition of sentence. The judge told defendant "only if you are guilty should you take the deal. . . ." Defendant admitted using force against the victim while in the course of taking money and a cell phone from him. He admitted using brass knuckles and causing a cut on the head of the victim. He also admitted having a gun and said he knew he was not permitted to possess a gun based on his prior record. The judge found that his plea was entered "freely, knowingly, and voluntarily."
For the first time at sentencing, about six weeks later, defendant sought to withdraw his plea. Defendant argued that he did not know the details of his case because he received his copy of discovery two days after his plea. Applying the four Slater factors, the sentencing judge denied his request and followed the recommendations in the negotiated plea.
On appeal, defendant raises the following arguments:
POINT I THE COURT ERRED IN DENYING DEFENDANT'S MOTION TO WITHDRAW HIS GUILTY PLEA BECAUSE IT WAS NOT MADE KNOWINGLY AND INTELLIGENTLY. IN ADDITION, DEFENSE COUNSEL'S FAILURE TO ZEALOUSLY PURSUE THE RETRAXIT MOTION COSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL.
A. The Guilty Plea Should Be Vacated Because It Was Not Entered Knowingly, Intelligently and Voluntarily
B. The Guilty Plea Should Be Vacated Because It Was The Product Of Ineffective Assistance Of Counsel In evaluating a motion to withdraw a defendant's guilty plea prior to sentencing, the trial court must consider the following factors: "(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." Slater, supra, 198 N.J. at 157-58 (2009). The trial court must balance these factors within the context of the defendant's motion to withdraw a guilty plea. Id. at 162. No factor of the four is mandatory, and relief is not disqualified or dictated based on their presence or absence. Ibid.
"[A] guilty plea is the final relinquishment of the most cherished right--to be presumed innocent of a crime until a jury of one's peers has determined guilt beyond a reasonable doubt." State v. Smullen, 118 N.J. 408, 414 (1990). The New Jersey Court Rules assure that a guilty plea contains a factual basis, and is given with an understanding of the nature of the charge and the consequences of the plea. State v. Barboza, 115 N.J. 415, 420-21 (1989). Rule 3:9-2 governs the taking of pleas, and provides in relevant part:
The court, in its discretion, may refuse to accept a plea of guilty and shall not accept such a plea without first questioning the defendant personally, under oath or by affirmation, and determining by inquiry of the defendant and others, in the court's discretion, that there is a factual basis for the plea and that the plea is made voluntarily, not as a result of any threats or of any promises or inducements not disclosed on the record, and with an understanding of the nature of the charge and the consequences of the plea.
Such procedural safeguards ensure that courts can be "satisfied from the lips of the defendant that he committed the acts which constitute the crime." Slater, supra, 198 N.J. at 156.
Despite the finality of the plea process, defendants are entitled to "'fairness and protection of basic rights.'" Id. at 155 (quoting State v. Taylor, 80 N.J. 353, 365 (1979)). To ensure that the rights of defendants are preserved, the Rules provide a standard applicable to pre-sentencing motions to withdraw a plea. Id. at 156. Motions filed at or before the time of sentencing will be granted in the "interests of justice." R. 3:9-3(e). The rule provides as follows:
If at the time of sentencing the court determines that the interests of justice would not be served by effectuating the agreement reached by the prosecutor and defense counsel . . . the court may vacate the plea or the defendant shall be permitted to withdraw the plea.
Before sentencing, courts are to exercise their discretion liberally to allow plea withdrawals. Slater, supra, 198 N.J. at 156.
While there are procedural safeguards in place to protect the liberty interests of a defendant, the burden still remains with a defendant "'to present some plausible basis for his request [to withdraw a plea], and his good faith in asserting a defense on the merits. . . .'" Smullen, supra, 118 N.J. at 416, (quoting State v. Huntley, 129 N.J. Super. 13, 17 (App. Div.) certif. denied, 66 N.J. 312 (1974)). "That approach logically flows from the entry of a guilty plea because a defendant's representations and the trial court's findings during a plea hearing create a 'formidable barrier' the defendant must overcome in any subsequent proceeding." Slater, supra, 198 N.J. at 156. A "whimsical change of mind" by the defendant is not an adequate basis to set aside a plea. Huntley, supra, 129 N.J. Super. at 18.
The first factor focuses on whether defendant has asserted a colorable claim of innocence. A "core concern underlying motions to withdraw guilty pleas is to correct the injustice of depriving innocent people of their liberty." Slater, supra, 198 N.J. at 158. In weighting such motions, trial courts must consider whether a defendant has asserted his or her innocence of the offenses charged. Ibid. "A bare assertion of innocence in insufficient to justify withdrawal of a plea." Ibid. Defendants asserting claims of innocence must present "specific, credible facts" and, where possible, point to facts in the record in support of that claim. Ibid; see also State v. Phillips, 133 N.J. Super. 515, 519 (App. Div. 1975) (explaining that "a protestation of innocence must be more than a mere assertion of [non-guilt]" and newly asserted defenses may invite skepticism if "factually unclothed"). "Courts are not to conduct a mini-trial at this juncture;" however, "[t]hey should simply consider whether a defendant's assertion of innocence is more than a blanket, bald statement and rests instead on particular, plausible facts." Slater, supra, 198 N.J. at 159. The longer the defendant delays in asserting a claim of innocence, the greater the level of scrutiny to be employed by the court in weighing the claim. Id. at 160.
The second factor focuses on the basic fairness of enforcing a guilty plea. It requires that the court ask whether the defendant has presented "fair and just reasons for withdrawal," and considers the effectiveness of those reasons. Id. at 159. Case law has identified a number of reasons that warrant withdrawal of a plea. Among those reasons are: (i) whether "the court and prosecutor misinformed the defendant about a material element of the plea negotiation, which the defendant relied on in entering his plea," (ii) "the defendant was not informed and, thus, did not understand material terms and relevant consequences of the guilty plea, namely, the direct, penal consequences of the plea;" (iii) the "defendant's reasonable expectations under the plea agreement were not met;" and (iv) "the defendant has not only made a plausible showing of a valid defense against the charges, but also credibly demonstrated why that defense 'was forgotten or missed' at the time of the plea." Id. at 159-60 (internal quotations omitted).
The third factor focuses on the existence of a plea bargain. The defendant bears a higher burden in moving to withdraw a plea of guilty entered pursuant to a plea bargain. Slater, supra, 198 N.J. at 160-61; Smullen, supra, 118 N.J. at 416-17; Huntley, supra, 129 N.J. Super. at 18. "We recognize that the vast majority of criminal cases are resolved through plea bargains and do not suggest that this factor be given great weight in the balancing process." Slater, supra, 198 N.J. at 161.
The fourth factor focuses on whether withdrawal would result in unfair prejudice to the State or unfair advantage to the accused. "There is no fixed formula to analyze the degree of unfair prejudice or advantage that should override withdrawal of a plea." Ibid. "[C]courts must examine this factor by looking closely at the particulars of each case." Ibid. Some examples of facts that demonstrate prejudice are listed by Slater to include: "the loss of or inability to locate a needed witness, a witness's faded memory on a contested point, or the loss or deterioration of key evidence." Ibid. The trial court must inquire into these factors, as well as others, to determine whether the "passage of time has hampered the State's ability to present important evidence." Ibid.
Defendant argues he did not knowingly plead guilty because he did not obtain his copy of discovery until two days later. On the day he pled guilty, the court conducted hearings on defendant's motion to suppress and his Miranda challenge. His lawyer had the discovery before the hearing and discussed it in full with defendant. The record reveals that all the issues were thoroughly reviewed between defendant and his lawyer before the plea. At the time of the plea, defendant never advised his lawyer that he did not review the discovery. At the motion to suppress and Miranda challenge, defendant heard the testimony and his lawyer had the opportunity to cross-examine. His lawyer had the discovery at the time he cross-examined the testifying officer. At sentencing his attorney said, "I had more than a full review of the discovery and discussed it in full with him in terms of . . . knowing what his version of the offense versus the discovery was. . . ."
Defendant makes a claim of innocence but does not support it in any meaningful way. His claim of intoxication was thoroughly reviewed by the court before he entered his plea. As stated, discovery was reviewed and discussed. Regarding the robbery charge, defendant points to a portion of the statement by the victim that states "at first" the victim could not recognize him. Defendant's lawyer "explained to him how it's not consistent with the rest of the victim's version and the other weight of the evidence in the case." Defendant does not specify any other facts appearing in the discovery that would support his claim of innocence. Regarding the certain persons charge, defendant at the scene blurted out that he had a gun.
Defendant does not claim that he was misinformed about any material element of the plea negotiation, that he did not understand the terms of the agreement, or that his expectations under the plea agreement were not met. He knew that he was facing substantial exposure on the charges, especially since the sentences could run consecutively rather than, as the negotiated plea agreement contemplated, concurrently. He was facing life in prison but received an aggregate term of six years in custody with five years of parole ineligibility.
Regarding the claim of ineffective assistance of counsel, that argument is best reserved for presentation in a petition for post conviction relief. State v. Preciose, 129 N.J. 451, 459-60 (1992).