February 15, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ANTOINE DENNIS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment Nos. 06-02-0220 and 06-05-0973.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 20, 2011 - Decided Before Judges Simonelli and Fasciale.
Defendant Antoine Dennis appeals from his conviction for aggravated manslaughter, N.J.S.A. 2C:11-4a. He contends that the judge erred by denying his motion to withdraw his guilty plea, trial counsel was ineffective, and his sentence was excessive. We affirm.
Defendant and his brother were allegedly robbed by the victim. Approximately four or five hours later, defendant went home, obtained a gun, and searched for the victim. Defendant then located the victim, fired the gun at him, and killed him.
On April 20, 2007, defendant pled guilty in this Hudson County case and expected to receive a sentence of eighteen years in state prison subject to an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant expected his Hudson County sentence to run concurrent to murder charges he was facing in Monmouth County.
On April 14, 2008, defendant filed a pro se motion to withdraw his guilty plea. Defendant claimed he was not guilty and that he did not adequately understand the NERA consequences. On June 4, 2008, defendant's counsel explained to the judge that defendant filed his pro se motion to ensure that the sentence in Hudson County would run concurrent to the pending Monmouth County case. Defendant withdrew his motion after the judge stated that he would follow the negotiated plea and impose the Hudson County sentence concurrent to the Monmouth County sentence.
On July 22, 2008, defendant appeared for sentencing in Hudson County and renewed his motion to withdraw the guilty plea. At sentencing, the following exchange took place:
Defense counsel: [Defendant] has alerted me that he wishes to re-file his motion to retract the plea with regard to the aggravated manslaughter, correct? Defendant: Yes.
The Court: On what basis?
Defense counsel: Your Honor, that's what I'm unclear about. I don't believe there is a basis [to renew defendant's motion to withdraw his plea]. I've shared that with [defendant]. He nevertheless wants me to make the request and put it on the record.
Defense counsel: [Defendant] wishes me to renew the motion [to withdraw the plea] right now, correct?
The Court: But there's nothing else that you can add other than a change in position again[?]
Defendant: Yes, Your Honor. That's correct, I have nothing.
The sentencing judge denied the motion and stated that there was no plausible basis to grant it. The judge then sentenced defendant to eighteen years in state prison subject to NERA, concurrent to the Monmouth County sentence.*fn1
On appeal, defendant raises the following points:
THE TRIAL JUDGE MISAPPLIED THE LAW IN DENYING ANTOINE DENNIS' MOTION TO WITHDRAW HIS GUILTY PLEA TO AGGRAVATED MANSLAUGHTER POINT II
TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE BY ADVISING ANTOINE DENNIS NOT TO PURSUE THE MOTION TO RETRACT PLEA AND BY NOT EXPLAINING THAT MONMOUTH COUNTY AS THE FINAL SENTENCING COURT COULD DISREGARD THE PLEA AGREEMENT IN HUDSON COUNTY AND SENTENCE ANTOINE TO A CONSECUTIVE TERM OF INCARCERATION (NOT RAISED BELOW)
THE TRIAL JUDGE IMPOSED AN EXCESSIVE SENTENCE BY SENTENCING ANTOINE DENNIS TO 18 YEARS IN STATE PRISON CONDITIONED UPON A PAROLE DISQUALIFIER OF 85%, OR 15 YEARS, 3 MONTHS AND 19 DAYS (NOT RAISED BELOW)
Regarding the claim of ineffective assistance of counsel in Point II, that argument is best reserved for presentation in a petition for post-conviction relief. State v. Preciose, 129 N.J. 451, 459-60 (1992). We turn our attention to Points I and III to determine whether the judge erred by denying defendant's motion to withdraw the plea, and whether the sentence was excessive.
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." State v. Slater, 198 N.J. 145, 157-58 (2009) (citing United States v. Jones, 336 F.3d 245, 252 (3d Cir. 2003)). 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 unavailable or dictated based on their presence or absence. Ibid.
The first three Slater factors weigh against defendant. First, defendant argues he is not guilty, but "[a] bare assertion of innocence is insufficient to justify withdrawal of a plea." Id. at 158. Second, defendant admitted that he sought to change his plea based on "nothing" other than a change in position. Third, a plea agreement existed and thus defendant bore a higher burden in moving to withdraw his guilty plea. Id. at 160-61 (citing State v. Smullen, 118 N.J. 408, 416-17 (1990); State v. Huntley, 129 N.J. Super. 13, 18 (App. Div.), certif. denied, 66 N.J. 312 (1974)).
The fourth Slater factor focuses on whether withdrawal would result in unfair prejudice to the State or unfair advantage to the accused. Two and one-half years had passed between the killing of the victim and defendant's renewed motion to withdraw his plea, and the State contends that it would have been prejudiced if the judge granted the motion because witnesses' memories would have faded. Without specific evidence of prejudice, the State's position is unpersuasive. However, the absence of the fourth Slater factor is of no assistance to defendant. Id. at 162.
Although at sentencing defense counsel asked the judge to follow the plea agreement, defendant now argues for the first time that his sentence is excessive because the judge failed to consider the impact his custodial term would have on his two-year old child. We disagree.
Our review of a sentence is limited. State v. Roth, 95 N.J. 334,364 (1984). We must first determine whether the correct sentencing guidelines have been followed. Id. at 365. When a trial court follows the sentencing guidelines, we should not second-guess the sentencing court's decision. State v. Cassady, 198 N.J. 165, 181 (2009); State v. Jabbour, 118 N.J. 1, 5 (1990). Indeed, an appellate court "'does not sit to substitute its judgment for that of the trial court.'" Jabbour, supra, 118 N.J. at 6 (quoting State v. O'Donnell, 117 N.J. 210, 215 (1989)). So long as the trial court properly identifies and balances aggravating and mitigating factors that are supported by competent, credible evidence in the record, we must affirm defendant's sentence. Jabbour, supra, 118 N.J. at 6; O'Donnell, supra, 117 N.J. at 215. We are "expected to assess the aggravating and mitigating factors to determine whether they 'were based upon competent credible evidence in the record.'" State v. Bieniek, 200 N.J. 601, 608 (2010) (quoting Roth, supra, 95 N.J. at 364-65).
Applying these standards, we discern no reason to disturb the sentence. The trial judge followed the sentencing guidelines and the record supports the judge's findings of aggravating factors N.J.S.A. 2C:44-1a(3), (6) and (9). After the judge stated that "there was some provocation here," and that defendant showed remorse, the judge concluded that the aggravating factors substantially outweighed the only two applicable mitigating factors.
We see no merit to defendant's argument that the judge failed to consider the impact his custodial term would have on his child. Defendant did not show that he was the custodial parent of his child or that his imprisonment would otherwise entail excessive hardship to the child. N.J.S.A. 2C:44-1b(11); State v. Mirakaj, 268 N.J. Super. 48, 51 (App. Div. 1993).
Defendant faced up to thirty years in state prison for his conviction of aggravated manslaughter. The judge followed the plea agreement and sentenced defendant to eighteen years subject to NERA. The sentence is not "clearly mistaken," State v. Jarbath, 114 N.J. 394, 401 (1989), and does not "shock the judicial conscience." Roth, supra, 95 N.J. at 365.