February 17, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DARION FIELDS A/K/A WEINER FIELDS, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment Nos. 01-02-0475 and 01-04-0760.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: January 31, 2011
Before Judges C.L. Miniman and LeWinn.
Defendant Darion Fields appeals from the denial of his petition for post-conviction relief (PCR) in connection with his convictions on March 4, 2003, for first-degree armed robbery and first-degree aggravated manslaughter, a negotiated reduced charge from the murder charged in the indictment. The first offense was committed on October 2, 2000, and the second offense was committed on October 7, 2000. We affirm.
Because the issue on this appeal relates exclusively to the plea bargain, the facts of the case are not relevant to the issues before us and are not recited here. Defendant executed a plea agreement that indicated the aggregate statutory maximum for aggravated manslaughter and armed robbery was fifty years. Multiple counts in both indictments were to be dismissed. The prosecutor agreed to recommend twelve years on the aggravated manslaughter and ten concurrent years on the armed robbery subject to the provisions of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
The plea agreement did not calculate any credits for the time defendant had been in jail prior to his guilty plea. However, there was a Supplemental Plea Form for NERA cases. On that form, defendant stated that he understood that, because of his plea to first-degree aggravated manslaughter and first-degree armed robbery, he would be required to serve eighty-five percent of the sentences imposed before he would be eligible for parole. He also stated that he understood "that by pleading guilty to these charges, the minimum mandatory period of parole ineligibility is 10 years and 2 months." The State further agreed that it would recommend that defendant be treated as a second-degree offender for sentencing purposes.
During his plea allocution, the State agreed to recommend a sentence of twelve years on the aggravated-manslaughter charge subject to NERA with a dismissal of the balance of the indictment regarding the offenses on October 7, 2000. The State also recommended that defendant be sentenced one degree lower for the armed-robbery and recommended ten years subject to NERA. The balance of the charges relating to the October 2, 2000, crimes were to be dismissed.
Defendant testified during his plea allocution that he understood that the sentence on the aggravated-manslaughter charge would be twelve years and that he would be ineligible for parole for ten years, two months, and thirteen days. On the armed-robbery charge defendant agreed that he understood the sentence would be ten years with a parole ineligibility period of eight years, six months, and two days to be served concurrently with the longer sentence. Defendant stated he also understood he was being sentenced at the highest end on the range of sentences for the armed-robbery and toward the lower end for the aggravated manslaughter. Finally, both sentences were to run concurrently to a sentence defendant was already serving from a charge in Essex County.
The judge advised defendant that the NERA plea form was slightly incorrect in that it did not reflect the additional thirteen days of parole ineligibility on the aggravated-manslaughter charge. Additionally, each sentence was to carry five years of parole supervision to be completed concurrently. Defendant had no questions of the judge or his attorney respecting the plea or the sentence to be recommended by the prosecutor.
Defendant was sentenced on May 29, 2003. The judge found aggravating factors three, six, and nine and one mitigating factor, remorse. With respect to both offenses, the judge sentenced defendant in accordance with the plea agreement. The judge summarized:
Again, concurrent . . . sentence on both, and the 85 percent on the 12 year[s] will be ten years, two months, 13 days served. On the armed robbery it will be eight years, six months, two days served concurrent. Credit for 935 days.
Defendant stated he understood the sentence.
A judgment of conviction was entered on May 29, 2003, on the aggravated-manslaughter conviction,*fn1 which stated that the sentence was "TWELVE YEARS WITH TEN YEARS, TWO MONTHS AND
THIRTEEN DAYS PAROLE INELIGIBILITY 85% RULE APPLIES; GRAVES ACT APPLIES; 5 YEARS ADDITIONAL PAROLE SUPERVISION CONCURRENT WITH IND. #760-04-01 AND CONCURRENT WITH ESSEX COUNTY SENTENCE." At the bottom of the form, the judge indicated that "[d]efendant is to receive credit for time spent in custody (R. 3:21-8)" for eighteen days between October 19 and November 5, 2000. The judgment of conviction also indicated that "[d]efendant is to receive gap[-]time credit for time spent in custody (N.J.S.A. 2C:44-5b(2))" of 935 days from November 6, 2000 to May 29, 2003.
The judgment of conviction for the first-degree armed robbery entered on May 29, 2003, reflected the same credits for time spent in custody. Defendant did not file a direct appeal from either judgment of conviction.
On October 25, 2004, defendant filed a pro se PCR petition. He asserted the following in paragraph (f)(2) to support his application:
(A) My sentence is illegal because I was not provided my "gap[-]time" jail credits; therefore, my sentence should be corrected.
(B) Even if my sentence is not illegal, I still want to pursue [PCR] because I accepted the present plea-agreement with the understanding that I would receive all of my "gap[-]time" jail credits. Had I known that I would not receive my credits, I would not have accepted the plea agreement; thus, I request a trial.
Counsel was assigned and, in reviewing defendant's file, the deputy public defender concluded that "this is not a PCR but rather is a Motion to Correct an Illegal Sentence." Defendant's PCR petition was apparently dismissed, and the motion to correct an illegal sentence proceeded. Defendant filed a notice of motion to reinstate his PCR petition on or about August 28, 2006. He provided an amended petition in which he contended:
(f)(2)(C) The [NERA] portion of my sentence was illegal because I was not afforded the mandatory NERA hearing before the sentence was imposed. Since the State Supreme Court has subsequently determined that said hearings are unlawful, my mandatory minimum must be reduced from eighty-five percent of my maximum term to no more than fifty percent of the same.
(f)(2)(D) The NERA portion of my sentence is illegal (i.e. an Apprendi*fn2 violation) because neither the Act nor the elements used by the court for the imposition of the Act were charged in the indictment.
As so amended, on January 11, 2007, the sentencing judge denied PCR, noting that the legal issues raised by defendant "were more properly suited for a motion to correct an illegal sentence." The judge addressed each of the issues raised by defendant and denied defendant's "Pro Se Motion to Correct an Illegal Sentence" as lacking in merit. Defendant appealed on February 21, 2007.
We reversed and remanded because counsel was not assigned to assist defendant in his PCR petition. State v. Fields, No. A-3615-06 (App. Div. Aug. 27, 2008) (slip op. at 1, 4-5). We did so for two reasons:
First, we conclude that petitioner's application was a PCR petition, not just a motion to correct an illegal sentence. Read broadly, the petition seeks the withdrawal of the guilty plea based on an alleged mis-communication regarding gap[-]time credits. Such relief, along with an application to correct an illegal sentence can be raised by PCR petition. R. 33:22-2(c). Second, in New Jersey, the right to counsel on a first PCR petition is mandatory. R. 3:22-6(a). The judge must refer the matter for representation even if, on its face, the petition appears to lack merit. [Id. at 4 (citations omitted).]
Counsel was subsequently assigned.
Defendant's assigned counsel presented the judge with defendant's Face Sheet Report from South Woods State Prison, which states defendant's total term as follows:
MAX 14Y 6M 26D Actual Max 07/23/2013
MIN 10Y 2M 13D MIN Expire 07/23/2013 Counsel pointed out that the judgment of conviction noted that defendant should receive 935 days of credit for time spent in custody. He urged that "[t]he Face Sheet Report does not adequately reflect the 935 days credit as shown on the [j]udgment of [c]onviction." He argued:
Applying 935 days to [July 23, 2013,] should result in a release date 2 years[,] 6 months[,] and 22 days earlier, or January 1, 2011. Accordingly, although entitled to receive 935 days' [sic] credit, the defendant is not being credited with same and will ultimately be held beyond the time he agreed to in his plea agreement.
The judge heard argument on the PCR petition on July 13, 2009. In responding to defendant's argument, the State pointed out that he was sentenced on November 3, 2000, in another county to a term of eleven years subject to NERA. That sentence was imposed eighteen days after defendant was arrested on the October 7, 2000, murder charge, and he received eighteen days of straight jail-time credit for that period of time.
However, the prosecutor urged that defendant was not entitled to straight jail-time credit for the period of time he spent serving the Essex County sentence until sentence was imposed on his plea to aggravated manslaughter and armed robbery. As a result, defendant was only entitled to gap-time credit for the period of time he spent in jail from November 3, 2000, until May 29, 2003.
The prosecutor pointed out that the Face Sheet of the PreSentence Investigation (PSI) Report, to which defendant had no objection at the time of sentencing, showed eighteen days in the straight jail-time credit category and 935 in the gap-time category. She argued that it was disingenuous of defendant to contend that he did not realize he was not getting the full 935 days off the end of his sentence when he knew he had to serve the NERA mandatory minimum.
Defendant responded by arguing that the transcript of sentencing reflected that the judge stated only that he was entitled to a credit for 935 days. He pointed out that, when the judge made that statement, the prosecutor did not make any effort to correct, modify, or clarify the language used by the judge. Defendant urged that he was told he was getting 935 days credit. The judge reserved decision on PCR.
On July 28, 2009, the judge entered an order denying PCR for the reasons contained in his written opinion of that date. The judge explained that defendant pled guilty to the Essex County offense in May 2000, five months prior to these offenses. Defendant failed to appear for his Essex County sentencing date, and a warrant was issued for his arrest. Before that was executed, petitioner was arrested on this homicide charge on October 19, 2000, and then was arrested on the armed-robbery charge on November 1, 2000. Thereafter, defendant was sentenced in Essex County on November 3, 2000, to eleven years in prison subject to NERA. The judge then addressed the gap-time issue.
The judge found that defendant was entitled to gap time, but "gap[ ]time could not be used to reduce a period of parole ineligibility imposed under NERA." This was so because "the legislative purpose of NERA . . . is paramount," citing Meyer v. New Jersey State Parole Board, 345 N.J. Super. 424, 430 (App. Div. 2001), certif. denied, 171 N.J. 339 (2002). Although he recognized that courts have the discretion to reduce the maximum term in order to reduce the base term under NERA, he found no occasion to do so here in light of the aggravating factors pertaining to defendant.
He further determined that defendant was receiving the gap-time credit to which he was entitled and pointed out that neither defendant nor his attorney raised any issue concerning the amount of time being awarded as straight jail-time credit as opposed to gap-time credit. He found that defendant was receiving credit for gap time at the end of his sentence and that the plea did not contain any language indicating that the 935 days were to be applied retroactively to defendant's first sentence. As a result, the judge denied PCR. This appeal followed.
Defendant raises the following issue for our consideration:
POINT I - THE MATTER SHOULD BE REMANDED FOR AN EVIDENTIARY HEARING CONCERNING [W]HAT DEFENDANT WAS TOLD BY HIS TRIAL COUNSEL OR ANYONE ELSE AS TO WHAT PAROLE DATE HE SHOULD EXPECT IF HE WERE TO PLEAD GUILTY.
Defendant points out that the PCR judge did not address defendant's claim that it was "his understanding as part of the plea agreement that he 'would receive all of my "gap[-]time" jail credits' and if he had know otherwise he would not have accepted the plea agreement."
It is well settled that the entry of a guilty plea made in reasonable reliance on the advice or presentation of an attorney where it can be demonstrated that the advice is erroneous and demonstrates incompetence is not voluntary. [McMann v. Richardson, 397 U.S. 759, 90 S. Ct. 1441, 25 L. Ed. 2d 763 (1970)]. It has, also, long been held that a defendant may withdraw his guilty plea where he has entered it as a result of a misunderstanding with respect to the penal consequences. [See State v. Brown, 71 N.J. 578 (1976); State v. Nichols, 71 N.J. 358 (1976)].
Defendant also contends "that he was misadvised of the consequences of going to trial and that mis-advice is what motivated his decision." He urges that the truth of this proposition can only be established by taking his testimony, subjecting him to cross-examination, and perhaps taking the testimony of his plea counsel. Otherwise, he urges that "it is not possible to conclude that defendant was not motivated to plead by the misrepresentations of his trial counsel or someone else."
These arguments stretch the record insupportably. Defendant never asserted this in his verified petition or supplemen- tal verified petition. He merely claimed that he accepted the plea with the understanding that he would receive all of his gap-time credits.
There is no question that the South Woods State Prison Face Sheet Report correctly states the date on which defendant's minimum NERA sentence expires, July 23, 2013. The information contained as to the maximum duration of his sentence (fourteen years, six months, twenty-six days) is obviously incorrect as he was only sentenced to twelve years. Thus, the maximum duration should have been eleven years, eleven months, and twelve days after subtracting his eighteen days of straight jail-time credit. However, the actual maximum date is correct, because the gap time cannot affect the NERA sentence. Meyer, supra, 345 N.J. Super. at 430.
Although defendant acknowledged that he understood he had to serve ten years, two months, and thirteen days as his NERA minimum sentence, the prosecutor and the judge should have explained the application of 935 days gap-time credit to him to elicit his understanding that he would not in fact receive a significant portion of those 935 days because they exceeded the fifteen percent of the sentence (about 657 days) above the NERA minimum.
We have no doubt that defendant could well have been confused about the credits that he would receive. This was exacerbated at sentencing when the judge recited the NERA minimum terms for both offenses and then immediately said, "Credit for 935 days." He then asked if defendant understood the sentence, and defendant said yes. This allocution clearly could have led defendant to believe that he was getting 935 days of credit against his aggregate sentence, not about 657 days.
That, however, is not the end of the inquiry. Defendant was required to submit evidence respecting the four primary factors courts are required to consider in allowing the withdrawal of a plea. State v. Slater, 198 N.J. 145, 158-61 (2009). Those factors are: "(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 (citation omitted).
In considering an application to withdraw a plea, the court must consider the application "in light of the competing interests of the State and the defendant." Id. at 155. The State's strong interest in the finality of pleas "'is in having criminal wrongdoers account and in the finality of that accounting.'" Ibid. (quoting State v. Taylor, 80 N.J. 353, 365 (1979)). Victims of an offense also have an interest in the finality of criminal proceedings. Ibid. Of course, "defendants are entitled to 'fairness and protection of basic rights.'" Ibid. (citation omitted). In order to withdraw a guilty plea after sentencing, the defendant must demonstrate that a "'manifest injustice'" will occur if he or she is not permitted to withdraw his or her plea. Id. at 156 (quoting R. 3:21-1). The issue is committed to the sound discretion of the court. Ibid. The burden rests upon the defendant to overcome the "'formidable barrier'" created by the trial court's findings during a plea hearing. Ibid. (citations omitted). "A 'whimsical change of mind' . . . is not an adequate basis to set aside a plea." Id. at 157 (citations omitted).
The PCR judge failed to address the Slater factors, which ordinarily would require a remand. But an exercise of our original jurisdiction pursuant to Rule 2:10-5 is more appropriate. Here, the facts are in the record, and the issue is whether defendant was entitled to an evidentiary hearing. Thus, we determine whether those facts would have been sufficient to allow defendant to withdraw his plea. In doing so, we credit defendant's claim that he was misinformed respecting the penal consequences of his plea.
Turning to the first Slater inquiry, defendant here has not asserted even a colorable claim of innocence. He was required to assert "specific, credible facts and, where possible, point to facts in the record that buttress [his] claim." Slater, supra, 198 N.J. at 158 (citations omitted). Defendant's utter silence respecting his innocence does not support withdrawal of his plea.
As to the second Slater factor, the State argues that defendant's reason for withdrawing his plea is not sufficient to justify that relief. We recognize that "judges must act with 'great care and realism' because defendants often have little to lose in challenging a guilty plea." Id. at 160 (quoting Taylor, supra, 80 N.J. at 365). Nonetheless, a misunderstanding as to the penal consequence of a plea is a sufficient reason to withdraw it. Brown, supra, 71 N.J. at 582; Nichols, supra, 71 N.J. at 361. Thus, we are satisfied that defendant has articulated sufficient reasons to withdraw his plea.
As to the third Slater factor, defendant's plea was pursuant to a plea bargain. His burden in seeking to withdraw the plea is thus heavier than if he entered an open plea. State v. Smullen, 118 N.J. 408, 416 (1990). Defendant got the benefit of a very favorable plea bargain. This is so because if he went to trial he was facing a thirty-year term on first-degree murder, N.J.S.A. 2C:11-3b, and a twenty-year term for first-degree armed robbery, N.J.S.A. 2C:43-6a(1). Thus, the third Slater factor weighs slightly against withdrawal of defendant's plea, despite his disappointed expectations with respect to the application of gap-time credits.
The fourth Slater factor requires the court to consider whether the State would be prejudiced if defendant's plea were vacated at this time. It is more than ten years since the offenses were committed. The potential loss of witnesses, the erosion of evidence, and the erosion of memory strongly suggest that prejudice would be visited on the State. But we have only a potential as the State did not show actual prejudice. This factor too weighs slightly against withdrawal of the plea.
Without a colorable claim of innocence, defendant's reason for withdrawing his plea in the face of a negotiated plea and the passage of over ten years since the dates of the crimes is not sufficiently weighty on balance to allow withdrawal of his plea. This is so because he was never entitled under the gap-time credit statute, N.J.S.A. 2C: 44-5b(2), and Meyer, supra, 345 N.J. Super. at 430, to serve less than the NERA minimum sentence imposed, and he acknowledged in the plea form and at his plea allocution that he understood that he would have to serve that minimum, despite his silent misunderstanding to the contrary. Without having made out at least a prima facie claim under Slater, defendant was not entitled to an evidentiary hearing as he was not prejudiced by any ineffectiveness of his counsel in misadvising him of the application of gap-time credit.
Affirmed in part and remanded in part for correction of the judgment to reflect that defendant was convicted of aggravated manslaughter.