March 2, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
LEROY MUNROE, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 05-09-1360.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: February 9, 2011 - Decided:
Before Judges Axelrad and R. B. Coleman.
Following an indictment charging him with murder and four weapons offenses, defendant Leroy Munroe pled guilty to the amended charge of first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a)(1), pursuant to a negotiated plea. The plea further provided the State would seek a custodial sentence of no more than twenty years, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and the other charges would be dismissed.
Prior to sentencing, defendant retained new counsel and moved to withdraw his guilty plea. He argued he had a valid defense to the charge against him, namely, self-defense, and his former attorney misled him as to the maximum sentence he would receive, promising he would receive a term no greater than ten years.
The court denied the motion. In accordance with the negotiated plea, at sentencing the court heard argument regarding the term, then imposed a seventeen-year sentence subject to NERA and dismissed the remaining counts of the indictment.
Defendant appeals, challenging the trial court's denial of his motion and further challenging the sentence imposed as "improperly determined, excessive, [and] unduly punitive." We affirm.
Hudson County Indictment No. 05-09-1360, filed on September 27, 2005, charged defendant with one count of first-degree murder, N.J.S.A. 2:11-3(a)(1) and (2) (count one); two counts of second-degree unlawful possession of a weapon (handgun), N.J.S.A. 2C:39-5b (counts two and four); and two counts of second-degree possession of the same weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (counts three and five).
On March 1, 2007, defendant initialed and signed a plea form, reflecting, in part, that he would be pleading guilty to the amended charge of first-degree aggravated manslaughter, which carried a thirty-year statutory maximum term, and under question five (b) he acknowledged he could be sentenced to serve the maximum time in confinement. Question thirteen further provided the prosecutor was "[f]ree to speak up to 20 yrs. NJSP w/85% parole ineligibility."
On the same date, he entered his plea on the record. The prosecutor first noted the amended charge and that the State would recommend the sentence set forth in the plea agreement, with which defense counsel concurred. Defendant, then twenty- one years of age, expressly acknowledged he heard and understood the plea agreement placed on the record, signed and understood the plea form, had sufficient time to review the questions and answers with his attorney, and was satisfied with the representation of his attorney. Defendant further acknowledged he was waiving identified rights by pleading guilty and was voluntarily doing so. In response to questions by defense counsel, the following factual basis was placed on the record by defendant:
Q [DEFENSE COUNSEL]: Leroy, on May
13th of 2005 in the City of Jersey City and particularly at Delaware and Duncan Avenue[s] did you have an altercation with a gentleman by the name of Christian Natal (phonetic)?
A [DEFENDANT]: Yes.
Q And as a result of that altercation -- and when I say altercation I mean a verbal dispute. Did you guys have a bit of a verbal discussion, a verbal disagreement --
Q -- on that day? And -- and at some point on this day following the verbal altercation did you fire a handgun?
Q And as a result of firing that handgun did you shoot Christian Natal?
Q And later on was Christian pronounced dead by the EMS people?
Q And you knew that he was pronounced dead. Is that correct?
Q And when you discharged the weapon were you in close proximity to Christian?
Q. And did you fire the weapon in his direction?
Q [PROSECUTOR]: I think that's -- you agree it's circumstances manifesting --
[DEFENSE COUNSEL]: Absolutely. Judge, I mean I would stipulate that it's circumstances manifesting extreme indifference to human life. It was close range. He did discharge --
[THE COURT]: Firing a handgun at someone. Okay.
[PROSECUTOR]: The State is satisfied.
The judge then asked defendant if he still wanted to plead guilty and whether he was actually guilty. Defendant responded in the affirmative to both questions. The judge accepted the plea, expressly finding he was satisfied defendant "pled guilty freely and voluntarily, understood what he was doing, waived his rights, [and] understood the sentence that could be imposed pursuant to the plea agreement."
Prior to sentencing, defendant sought to retract his guilty plea, stating: (1) when he shot the victim he was acting in self-defense and (2) his former attorney had promised he would not be sentenced to a term greater than ten years. The court read into the record defendant's plea allocution contained in the transcript. After defendant was sworn in, the following colloquy occurred:
EXAMINATION BY THE COURT:
Q And how far away from -- from the defendant were you when he had the knife?
[THE COURT]: Excuse me?
[PROSECUTOR]: From the victim.
BY THE COURT:
Q From the victim?
A Well, we was talking when he came out -
- talking. He was real close, real close. I wasn't trying to -- anything. He came at me -- talking to him.
Q Let me ask you this. You had the gun on you?
A We was in between cars at the time.
Q You were in between cars.
A Yes. I -- talking --
Q He had a knife in his hand?
Q Okay. Where did your gun come from?
A He pulled out.
Q Where did your gun come from?
A Excuse me?
Q Where did the gun come from?
A My pocket.
Q So you -- rather than run away, move away, do anything else you pull out a gun and shot?
A We was in -- we was in between the cars. I tried to pull out to let him know like to back up and --
[DEFENSE COUNSEL]: Judge, excuse me, Your Honor. Your Honor is getting onto a point that I've discussed with Mr. Munroe and that is those circumstances that come into play that would allow an individual --affirmative defense of self-defense, one of those elements is that the individual must retreat to a point where he can retreat no longer. And he is entitled to exercise reasonable force -- in defense of his own person.
THE COURT: Right, I think what I was getting at during the questioning was that you didn't try to back up, you went right into the aggressive mode.
THE DEFENDANT: There's nowhere I could go. We were in between --
[PROSECUTOR]: Judge, just -- this is completely different than what the State's witnesses say.
BY THE COURT:
Q But you're between cars. Why couldn't you back up?
A If I'm standing right here and he's standing right there, it's just like this, I'm standing --
Q Was your back to the wall?
Q -- back to the wall?
A I -- onto the car. My back was on the car.
Q Well --
A I'm like this --
Q You're -- you can't go to the right or you can't go to the left?
A -- a knife --
Q Well, what -- what you have is circumstances where reasonable jurors could believe that you should have backed up, you should have walked away, you should have run away and you didn't. So the likelihood, the likelihood of you winning on a self-defense was next to nothing. And its -- it's an imperfect self-defense. You have no right to use deadly force unless you cannot possibly get away.
A -- not intending on killing him.
Q Now --
A It wasn't intentional.
Q Well, that's -- that's why it's an ag[gravated] man[slaughter] and not murder. The State took all that into consideration when they offered you the plea. And if you -- if you withdrew your plea and the State's witnesses came in more than likely it would be a totally different version than your version. And --
A Their version is the same thing.
Q -- even with your version you had the obligation to move away from the altercation rather than use deadly force. And you didn't do that. Now it may have been from the heat of the moment that you did it and that's why the State went to ag[gravated] man[slaughter] instead of murder.
The following colloquy ensued with regard to sentencing:
[THE COURT]: And again the State during their plea bargaining didn't even go to the maximum range, they came down to the maximum you could be sentenced to is 20 years. Now your attorney -- previous attorney at least  told you all this, right?
A Yeah. She was telling me it was --that's why -- most likely --
A She said the ten that's what -- the minimum.
[THE PROSECUTOR]: She was going to ask for the ten.
THE COURT: Oh.
[DEFENSE COUNSEL]: She was going to ask for ten, Judge.
THE COURT: She was going to ask for it.
[DEFENSE COUNSEL]: As I am, Judge.
THE DEFENDANT: That's what I'm thinking I'm getting.
THE COURT: Right.
THE DEFENDANT: She's telling me I'm getting a ten, that's what I'm thinking.
BY THE COURT:
Q So she said you're absolutely getting a ten, but I didn't say that. On the record we said that the State was going to be able to ask for 20, you could ask for anything else. The State was going to be asking for 20. That was your bargain.
A I understand. I' thinking -- when you were saying that I'm thinking you were saying the most you could get -- the higher -- the maximum on these charges is 20.
Q Yeah. No. The maximum you could get.
A That's what I'm saying. What you saying is --
Q Okay. The transcript is very clear. Think about -- listen to this.
(Defense counsel confers with defendant)
The court denied defendant's motion, finding "absolutely no basis" for withdrawal of the plea. The court explained it was "very clear on the record" defendant knew what the offer was and had been advised his defense was an imperfect self-defense. Defense counsel then requested defendant be sentenced to a ten-year term, the bottom of the range. See N.J.S.A. 2C:11-4c (stating the ordinary term of imprisonment for first-degree manslaughter is "between 10 and 30 years"). The victim's mother and his brother also spoke. The State requested a twenty-year term subject to NERA pursuant to the negotiated plea. The court sentenced defendant to a seventeen-year term subject to NERA. Defendant appealed.
On appeal, defendant contends he established that fundamental fairness required the granting of his motion to retract his plea as he had a plausible basis for his request and asserted a defense on the merits in good faith. See State v. Huntley, 129 N.J. Super. 13, 16-17 (App. Div.), certif. denied, 66 N.J. 312 (1974). Defendant further contends he satisfies the requisite criteria under State v. Slater, 198 N.J. 145, 157-58 (2009), decided during the pendency of his appeal. Based on our review of the record and applicable law, we are not persuaded by defendant's arguments. A motion to withdraw a guilty plea is committed to the sound discretion of the trial judge. Slater, supra, 198 N.J. at 156.
"[P]resentence motions to withdraw a plea are governed by the 'interest of justice' standard in Rule 3:9-3(e) . . . ." Id. at 158. Although this discretion should ordinarily be construed liberally where the motion is made before sentencing, State v. Smullen, 118 N.J. 408, 416 (1990); State v. Deutsch, 34 N.J. 190, 198 (1961), such liberality does not mean an abdication of all discretion, Huntley, supra, 129 N.J. at 17. Moreover, the burden is on the defendant to set forth a plausible basis for his request and his good faith for asserting a defense on the merits, weighed against the longstanding principle of recognizing the State's interest in the finality of pleas. Smullen, supra, 118 N.J. at 416.
As the first step in considering a motion to vacate, the trial court must determine whether the defendant entered the plea voluntarily, knowingly, and based on a sufficiency of acknowledged facts. Slater, supra, 198 N.J. at 155. In Slater, our Supreme Court directed courts to consider and balance the following four factors in evaluating motions to withdraw a guilty plea: "(1) whether the defendant has asserted a colorable claim of innocence; (2) the nature and strength of [the] 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.
Although the standard for withdrawal of a plea prior to sentencing is more liberal than the standard for withdrawal of the plea after sentencing, Smullen, supra, 118 N.J. at 417, in both instances the issue is addressed to the sound discretion of the trial court. Although not having had the benefit of the Slater decision, we are satisfied the court considered the appropriate factors, performed the proper analysis, and exercised reasonable discretion in denying defendant's motion to vacate his plea.
The record is clear that defendant's guilty plea was freely, intelligently and voluntarily entered, with advice of counsel and supported by a factual basis satisfying the elements of the offense, all in full compliance with the mandates of Rule 3:9-2 and Slater. As to the first Slater prong, namely, whether defendant asserted a colorable claim of innocence, defendant unequivocally acknowledged at the plea hearing that he was "actually guilty," consistent with his acknowledgment on the plea form. Defendant also had a full opportunity at the plea hearing to state any facts he believed were relevant to the issue of self-defense or to ask questions about that defense, which he did not. When defendant first raised the affirmative defense of self-defense at sentencing, the court properly questioned the validity of that defense considering the disparity of weapons, namely, defendant's possession of a gun in contrast with the victim's possession of a mere knife.
Moreover, as represented by the State, there was evidence defendant first demanded the victim get out of the car and then began the verbal altercation. There was also purportedly eyewitness rebuttal testimony that the men were not in between parked cars and defendant would have been able to retreat. Accordingly, there was a sufficient basis in the record for the court to determine that the proffered evidence served to rebut the affirmative defense and create an imperfect defense of self- defense.
As to the second factor, the nature and strength of defendant's reasons for withdrawal, as aforestated, defendant did not make a plausible showing of a valid defense. Moreover, his argument that he was misled by his former attorney to believe he would receive only a ten-year sentence has no basis in light of the negotiated plea contained in the plea forms and plea colloquy. Apparently, defendant deluded himself into believing he would receive the ten-year sentence his attorney would argue for, but that does not translate into misinformation.
As to the third factor, this was a negotiated plea to an amended charge, which capped the sentence at twenty years, the mid-point of the range, and entailed dismissal of other charges. As to the fourth factor, we are satisfied that extreme prejudice to the State would result should defendant's guilty plea be vacated at this juncture. The offense was committed five and one-half years ago, he pled guilty almost four years ago, and the retraxit hearing took place three and one-half years ago.
The passage of time often results in the erosion of evidence and the erasure of memory. Witnesses may no longer be available and the State's case may be significantly weakened as a result. Defendant asserts an alternative argument on appeal that his sentence was excessive. Defendant does not dispute the court's findings as to aggravating factors three, six, and nine.*fn1 He contends, instead, the judge should have found mitigating factor four (substantial grounds tending to excuse or justify defendant's conduct, though failing to establish a defense), N.J.S.A. 2C:44-1(b)(4), because the altercation resulted from hostility between him and the victim, who he believed had set up, though not participated in, a robbery against him a few days before. He also contends the same facts support a finding for mitigating factor eight (the defense was the result of circumstances unlikely to recur), N.J.S.A. 2C:44-1(b)(8). Our review of the trial judge's sentencing decision is quite limited. State v. Gardner, 113 N.J. 510, 516 (1989). A trial judge is given "wide discretion" to impose a sentence, provided it is within the statutory framework, and the reviewing court must give that decision "great deference." State v. Dalziel, 182 N.J. 494, 500-01 (2005). Although our review of a sentence must be "careful and vigorous," State v. Kirk, 145 N.J. 159, 175 (l996), we may not substitute our judgment for that of the sentencing judge. State v. Bienek, 200 N.J. 601, 608-09 (2010); State v. Cassady, 198 N.J. 165, 180 (2009). We are "bound to affirm a sentence, even if [we] would have arrived at a different result, as long as the trial court properly identifies and balances aggravating and mitigating factors that are supported by competent credible evidence in the record." State v. O'Donnell, 117 N.J. 210, 215 (1989).
The standard of review we utilize is not whether we would have imposed a different sentence, but rather "whether, on the basis of the evidence, no reasonable sentencing court could have imposed the sentence under review." State v. Ghertler, 114 N.J. 383, 388 (l989). In our review, we must make sure the statutory sentencing guidelines have been met, applied aggravating and mitigating factors were based upon "competent credible evidence in the record," and the sentence is not "clearly unreasonable so as to shock the judicial conscience." State v. Roth, 95 N.J. 334, 364-65 (1984). See also Bienek, supra, 200 N.J. at 612 ("Because the sentencing court adhered to the sentencing principles set forth in the Code and defined in our case law, its discretion should be immune from second-guessing.").
We are not satisfied the judge mistakenly exercised his broad discretion in failing to find any mitigating factors, nor that he imposed a sentence that shocks the judicial conscience. Even if the judge arguably could have found mitigating factor four, we do not discern a misapplication of sentencing principles or an inappropriate exercise of discretion in the sentence imposed. Defendant received the benefit of a negotiated plea to an amended offense and was sentenced to three years less than the State requested, and thirteen years less than the maximum sentence he faced. As the sentence is based on competent, credible evidence in the record and is within the guidelines, we perceive of no legal basis to second-guess it. Lastly, defendant argues the court should have considered the real time consequences before it imposed sentence in view of the NERA component of his sentence. The Court has recently held that "the impact of the 85% period of parole ineligibility on the time defendant would spend in custody [is] not [a] statutory mitigating factor and thus [does] not need to be addressed by [the judge] in sentencing." Bienek, supra, 200 N.J. at 610 n.1.