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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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. ...