June 17, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ANDRE LANE, A/K/A ANDRE D. LANE, MARCUS COOK, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 06-08-0822.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 3, 2010
Before Judges Kestin and Newman.
On August 8, 2006, a Mercer County Grand Jury returned Indictment No. 06-08-0822 charging defendant, Andre Lane, with possession of a controlled dangerous substance, third degree, N.J.S.A. 2C:35-10a(1); and N.J.S.A. 2C:2-6 (counts one and six); possession of a controlled dangerous substance with intent to distribute, second degree, N.J.S.A. 2C:35-5a(1); and N.J.S.A. 2C:35-5b(7) (counts two and seven); possession of a controlled dangerous substance with intent to distribute on or near a school property, third degree, N.J.S.A. 2C:35-7; N.J.S.A. 2C:35-5a(1); and N.J.S.A. 2C:35-5b(7) (counts three and eight); distribution of a controlled dangerous substance, second degree, N.J.S.A. 2C:35-5a(1), and N.J.S.A. 2C:35-5b(7) (counts four and nine); distribution of a controlled dangerous substance on or near a school property, third degree, N.J.S.A. 2C:35-7; N.J.S.A. 2C:35-5a(1); and N.J.S.A. 2C:35-5b(7) (counts five and ten); possession of a controlled dangerous substance, third degree, N.J.S.A. 2C:35-10a(1) (count eleven); possession of a controlled dangerous substance with intent to distribute, first degree, N.J.S.A. 2C:35-5a(1); and N.J.S.A. 2C:35-5b(6) (count twelve); and possession of a controlled dangerous substance with intent to distribute on or near a school property, third degree, N.J.S.A. 2C:35-7; N.J.S.A. 2C:35-5a(1); and N.J.S.A. 2C:35-5b(6) (count thirteen).
On March 19, 2007, defendant pled guilty to count twelve, first-degree possession of phencyclidine (PCP) in excess of ten grams with the intent to distribute; and count three, third-degree possession of PCP with intent to distribute on or near a school property. As part of the plea, the State agreed to recommend a sentence of ten years flat on count twelve, a first-degree crime, and a six-year term with a twenty-seven month period of parole ineligibility on count three, distribution of PCP in a school zone, to be served concurrently with each other and with the sentence defendant was then serving for a violation of probation. All remaining charges were to be dismissed upon sentencing.
On April 27, 2007, defendant appeared for sentencing. Prior to imposing sentence, the court denied defendant's motion to withdraw his guilty plea. The court merged defendant's school-zone conviction and sentenced defendant, pursuant to the plea agreement, to an aggregate term of ten years with a twenty-seven month period of parole ineligibility, to be served concurrently with the sentence defendant was then serving for a violation of probation. The usual fines and penalties were imposed.
Defendant appeals from the court's denial of his motion to withdraw his guilty plea. He also contends in his pro se memorandum of law that he was denied the effective assistance of counsel and was coerced into pleading guilty. We are persuaded that the matter must be remanded for a plenary hearing on the application to withdraw his guilty plea, along with the alleged ineffective assistance of counsel in the nature of a post-conviction relief (PCR) petition. That petition should be expeditiously filed. Because there are overlapping issues, the trial court may deem it appropriate to combine the proceedings.
The relevant facts may be summarized as follows. Defendant was arrested on January 26, 2006, for possession of a bottle of PCP. A police surveillance team observed defendant selling two PCP-dipped cigarettes to two individuals, who were subsequently arrested and charged. At the time of his plea, defendant acknowledged under oath that the bottle contained PCP. Defendant was aware that it was illegal to possess PCP and he did not contest the laboratory results verifying that the drug was PCP. Defendant admitted that he possessed the PCP with the intent to distribute it. Defendant indicated that the bottle was clear, about the size of a Listerine bottle, and was half full. He described how he would distribute the PCP, stating that he would dip cigarettes in the bottle and distribute it that way. Defendant did not dispute that the bottle contained ten grams or more of PCP.
Defendant indicated that buyers had given him cigarettes, that he dipped the cigarettes in the bottle to distribute them, and that he had provided the dipped cigarettes that had been confiscated from the two arrested buyers. Defendant agreed that the events involving the cigarettes occurred within 1,000 feet of the Gregory Elementary School on Rutherford Avenue in Trenton.
In his pre-sentence report, defendant maintained that he was innocent and requested leave to withdraw his guilty plea. Defendant explained that the almost $3,000 that he had at the time of his arrest was for the purchase of a used vehicle for his girlfriend's daughter. Defendant denied any knowledge of a bottle of PCP found by the police in the vicinity of his arrest. Defendant stated at his sentencing that he said what he did at the plea proceeding because "that's the only way I could get the plea."
In denying his motion, the trial court reiterated what it had informed defendant at the time of the plea, that it "would be virtually impossible for you to take the plea back once you were placed under oath and gave the factual basis and I accepted the plea and that is what happened, sir." The court also mentioned that defendant claimed he wanted his attorney to file a motion to suppress and that defendant felt his attorney's advice was not in his best interest. The trial judge acknowledged that the claims against his counsel's assistance could be pursued, but it would not affect his plea.
Defendant argues in a single point on appeal:
IN VIEW OF THE RELUCTANT ENTRY OF DEFENDANT'S GUILTY PLEA, ON THE BASIS OF INACCURATE ADVICE ABOUT THE MAXIMUM POSSIBLE SENTENCE, AND HIS ASSERTION OF INNOCENCE PRIOR TO SENTENCING, DEFENDANT'S MOTION TO WITHDRAW HIS GUILTY PLEA SHOULD HAVE BEEN GRANTED. U.S. CONST., AMEND. XIV; N.J. CONST. (1947), ART. I, PAR.1.
Defendant argues that he "reluctantly" entered a guilty plea only after receiving inaccurate and misleading advice from the judge and defense counsel concerning his maximum sentence exposure after conviction at a trial. Defendant was advised that if convicted of the first-degree offense and sentenced to a mandatory extended term, he would face a sentence between twenty years and life imprisonment. The court indicated that "if the life sentence were to be imposed and there would be a parole ineligibility period, I think it would have to be at least thirty-three-and-one-third." That advice was incorrect and the State agrees. The maximum period of parole ineligibility is twenty-five years. Defendant asserts that this miscalculation of the applicable period of parole ineligibility was the deciding factor in his accepting the State's plea offer and, therefore, along with his protestation of innocence and counsel's misadvice, his plea withdrawal should have been granted.
On the other hand, the State asserts that the difference between thirty-three-and-one-third years and twenty-five years of parole ineligibility on a life sentence was not a material factor in defendant's decision to plead guilty. We express no opinion on this issue, but regard this as a reason why a remand is necessary to flush out whether the plea was voluntary, knowingly, and intelligently entered. See State v. Johnson, 182 N.J. 232 (2005).
Furthermore, in addressing the plea withdrawal, the court will evaluate the merits of the application under the criteria set forth in State v. Slater, 198 N.J. 145 (2009), considering weighing 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." Id. at 157-58.
Because defendant brought his application to withdraw his guilty plea to the attention of the trial court before, albeit, on the brink of sentencing, the standard of the "interest of justice" is applicable, rather than the "manifest injustice" test. Id. at 158; see Rule 3:9-3(e); Rule 3:21-1.
Remanded for further proceedings consistent with this opinion. Jurisdiction is not retained.
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