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State v. Conway

October 14, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
HENRY LEE CONWAY, A/K/A HENRY WIMBUSH, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 07-02-0194.

The opinion of the court was delivered by: Reisner, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued September 27, 2010

Before Judges Reisner, Sabatino and Alvarez.

Defendant Henry Lee Conway (defendant or Conway) appeals from a June 4, 2007 judgment of conviction for second-degree eluding, N.J.S.A. 2C:29-2b, second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7, and several lower-degree offenses. Conway also appeals from the aggregate sentence of fifteen years subject to the No Early Release Act, N.J.S.A. 2C:43-7.2. Because we conclude that the trial court erred in granting the State's motion to vacate a pre-trial plea agreement, we reverse the conviction, vacate the sentence, and reinstate the plea agreement. We remand this matter to the trial court to sentence defendant in accordance with that agreement.

I.

The charges against defendant arose from the following facts. A Trenton police officer attempted to pull over a car because several of the occupants were not wearing seatbelts. Instead of pulling over, the driver accelerated and fled. During the ensuing police chase, a MAC-11 machine pistol and a .38 caliber revolver were thrown from the car the police were chasing. The car eventually crashed during the chase. Defendant and several other occupants of the vehicle were taken to the hospital. While at the hospital, defendant confessed to a police officer that he had been driving the car. Defendant was indicted on charges of eluding, aggravated assault, and several weapons offenses, plus car theft and related offenses.

On February 7, 2007, shortly before his trial was to commence, defendant entered into a plea agreement. The written plea form, signed by defendant and the prosecutor, did not list any special conditions set by either side. Most relevant to this appeal, the State did not condition the agreement on defendant's co-defendants also entering into plea agreements. The written agreement allowed defendant to plead guilty to eluding, N.J.S.A. 2C:29-2b, and certain persons not to have weapons, N.J.S.A. 2C:39-7, in return for a maximum possible sentence of ten years with a five-year parole bar.

At the plea hearing, defendant attempted to condition his plea on his understanding that since he and his co-defendants were "in this together," they would all be entering into plea agreements. However, defendant did not receive any explicit agreement from the prosecutor that he would be permitted to withdraw his plea if his co-defendants did not plead guilty. The State's only promise at the hearing was that defendant would not be required to testify against the co-defendants if they decided to go to trial. In response to defendant's expressed concern about unanimity with his co-defendants, the trial judge stated generally that defendant could "file a motion" to withdraw his plea if his co-defendants did not plead guilty. The judge did not indicate that such a motion would be granted. At no point during the plea hearing did the prosecuting attorney indicate that the State was conditioning its acceptance of defendant's plea agreement on the co-defendants entering into plea agreements. In fact, such a condition would have been logically inconsistent with the State's promise that defendant would not be required to testify against the co-defendants if they insisted on going to trial.

Defendant then offered as a factual basis his sworn admissions that he was driving the car and eluded the police, and that he had control over a MAC-11 machine gun and a .38 caliber firearm that were on the driver's seat next to him. On the record as we have described it here, the judge accepted the plea agreement.

A month later, when one of the co-defendants opted to go to trial, the State filed a motion to vacate defendant's plea agreement. The prosecutor contended that she understood that the plea deal was conditioned on all defendants pleading guilty, and she expressed concern that if the third defendant went to trial, Conway would testify on that defendant's behalf. However, at the March 7, 2007 motion argument, Conway and his lawyer insisted that defendant did not want to vacate the plea agreement and had no intention of testifying.

On March 8, 2007, over defendant's vigorous objection, the trial judge granted the State's motion. The judge reasoned that the State had relied on its "expectation" that the plea agreement would be vacated if all defendants did not plead guilty. She also reasoned that the State could be prejudiced if, contrary to his representation, defendant decided to testify at the remaining co-defendant's trial and took full responsibility for possession of the guns. She reasoned that defendant would not be prejudiced ...


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