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State of New Jersey v. Michael Hayes

March 31, 2011

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
MICHAEL HAYES, DEFENDANT-APPELLANT.



On certification to the Superior Court, Appellate Division.

The opinion of the court was delivered by: Justice Rivera-soto

SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

State v. Michael Hayes

(A-13)

Argued February 28, 2011

Decided March 31, 2011

RIVERA-SOTO, J., writing for a unanimous Court.

In this appeal, the Court evaluates the denial of defendant's request for an adjournment of sentencing so that he could obtain conflict-free counsel to represent him in making a motion to withdraw his two guilty pleas.

In one indictment, defendant Michael Hayes was charged with first-degree robbery and resisting arrest. He was captured on surveillance cameras entering and exiting the public restroom where he robbed a casino patron, and the patron later identified Hayes as his assailant. Retained counsel represented Hayes on that indictment. A public defender represented Hayes on charges returned in a second, separate indictment for weapon possession offenses and eluding police. Hayes's lawyers jointly negotiated a written plea agreement with the State. Hayes was to plead guilty to the robbery and eluding charges. In exchange, the State would recommend a thirteen-year prison term subject to the No Early Release Act (NERA) on the robbery charge; a concurrent term of five years on the eluding charge; and dismissal of all remaining counts of both indictments.

Hayes was represented by both attorneys at his plea hearing. After a comprehensive examination under oath by the trial court, he pled guilty to the robbery and eluding charges. The court confirmed that Hayes reviewed the plea agreement with his attorneys, read and understood it, and voluntarily signed it. Hayes confirmed that he understood he could be sentenced to up to thirteen years subject to NERA, which would require him to serve 85 percent of the sentence before being eligible for parole. Hayes assured the court that no additional promises and no threats had been made to induce him to plead guilty. After Hayes provided a sworn factual basis for his guilty pleas, the court advised him of his right to a jury trial and other rights that, by pleading guilty, he would be waiving. Hayes assured the court he understood his rights and was voluntarily waiving them, he was satisfied by the representation of his attorneys, and he had no questions. Throughout his examination, Hayes never wavered; never advised the court that his guilty pleas were not knowingly and voluntarily entered or that he was dissatisfied with the consequences of the plea; and, despite several opportunities to do so, never claimed he was innocent of the charges. The court continued Hayes's release on bail but cautioned that he must remain "arrest-free" until the sentencing date to remain free on bail. Before sentencing, Hayes was arrested on new charges and his bail was revoked.

Hayes first informed the court of his desire to withdraw his pleas at the sentencing hearing, two months after the plea hearing. His retained counsel explained that two separate lawyers were contacted about making a plea withdrawal motion; one had a conflict of interest, while the other could not attend that day's proceedings due to a scheduling conflict. Hayes's retained lawyer also stated that he believed he could not ethically represent Hayes in the application because he assumed, based on Hayes's claims of ineffective assistance of counsel during the plea proceedings, that he would be a witness in the motion. He requested a two-week adjournment of sentencing so that new counsel could file the necessary motion to withdraw. The court heard from Hayes, who asserted that he "never wanted this plea from the beginning," wanted to go to trial, and felt compelled to plead guilty in fear that his bail would be revoked before sentencing. The court stated that at the time of the plea, it was satisfied that a valid plea was entered; and that it heard nothing from Hayes other than "the pleader's form of buyer's remorse." The court denied the application and proceeded with sentencing under the terms of the negotiated plea agreement. After the court heard from the attorneys about sentencing, the court asked whether Hayes wished to be heard on the sentence. Hayes returned to the denial of his uncounseled oral application to withdraw his guilty pleas, asserting that he was forced to enter his pleas and wanted to go to trial. The court observed that although Hayes "wasn't an enthusiastic pleader," it was satisfied at the time of the plea that Hayes was competent and understood his rights; and that there was a factual basis for the pleas. The court sentenced Hayes in accordance with the plea agreement.

The Appellate Division addressed the factors relevant to the withdrawal of a guilty plea set forth in State v. Slater, 198 N.J. 145 (2009), concluded that the trial court properly denied Hayes's motion, and affirmed his convictions and sentence. The Court granted Hayes's petition for certification. 203 N.J. 440 (2010).

HELD: Under the circumstances, a short adjournment should have been granted to permit Hayes to obtain conflict-free counsel to advance his application to withdraw his guilty pleas. Because Hayes was required to proceed without counsel, a fair and informed judgment of whether he should have been allowed to withdraw his pleas cannot be reached. The case is remanded to the trial court for a properly counseled Slater hearing, to be conducted under the "interests of justice" pre-sentencing burden of proof codified in Rule 3:9-3(e).

1. Under Slater, four factors must be balanced in evaluating motions to withdraw a guilty plea: (1) whether defendant asserted a colorable claim of innocence; (2) the nature and strength of the 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 defendant. A pre-sentence motion is governed by the "interest of justice" standard of Rule 3:9-3(e), while a post-sentence motion is subject to the "manifest injustice" burden of proof of Rule 3:21-1. Without the constitutional guarantee of the assistance of counsel in presenting the motion, Slater's mandate would be meaningless. As this Court has explained, "a convicted defendant may not be imprisoned unless counsel was available to him at every critical point following the initiation of adversary judicial criminal proceedings." (pp. 15-18)

2. By denying Hayes an adjournment to obtain counsel to prosecute a motion to withdraw his guilty pleas, the trial court effectively required that Hayes himself present his motion. A decision whether to grant an adjournment is subject to an abuse of discretion standard. In reviewing whether a reasonable delay to permit a defendant to retain counsel of his choice is warranted, the court must conduct a fact-sensitive inquiry and strike a balance between all competing interests. For an appellate court to reverse the denial of such a request, the denial must have been clearly unreasonable under the circumstances, and it must have caused a manifest denial of justice to the party complaining. (pp. 18-23)

3. The Court reluctantly concludes that the denial of Hayes's request for an adjournment was a misuse of discretion. The trial court's reaction may have been understandable under the circumstances, including the clarity and scope of the plea colloquy and the unexplained delay in notifying the court about Hayes's wish to withdraw his plea. However, the denial of Hayes's adjournment request was prejudicial to his rights. In light of the representations about the efforts made to obtain a new attorney, the court should have granted a short adjournment to allow Hayes to be represented by counsel on his motion to withdraw his pleas. Instead, he was required to proceed without counsel contrary to the fundamental constitutional notions of fairness that must guide criminal proceedings. (pp. 23-25)

4. The record on appeal discloses no meaningful analysis of the denial of Hayes's withdrawal motion. The only references to that denial are the trial court's conclusions that, at the time the guilty pleas were accepted, Hayes was competent, understood his rights, gave a factual basis for his pleas, and entered into a negotiated plea. On the record presented, the Court cannot know whether Hayes might have been able to satisfy the Slater standards with the help of a lawyer. The only meaningful remedy here is to remand this case to the trial court for a fulsome plea withdrawal hearing at which Hayes is to be represented by unencumbered counsel. Because Hayes sought to have his motion to withdraw determined before sentence was imposed, his application must be gauged under the lesser "interests of justice" burden of proof set forth for pre-sentence plea withdrawal motions under Rule 3:9-3(e). (pp. 25-27)

The judgment of the Appellate Division is REVERSED andthe matter is REMANDED to the Law Division for further proceedings consistent with the Court's opinion.

CHIEF JUSTICE RABNER; JUSTICES LONG, LaVECCHIA, ALBIN, and HOENS; and JUDGE STERN (temporarily assigned) join in JUSTICE RIVERA-SOTO's opinion.

Argued February 28, 2011

JUSTICE RIVERA-SOTO delivered the opinion of the Court. This appeal requires that we evaluate the denial of a request for an adjournment to obtain conflict-free counsel in the context of a motion to withdraw two guilty pleas. Defendant Michael Hayes, having pled guilty to charges arising out of two separate indictments pursuant to a written plea agreement, sought additional time to advance a request to withdraw his guilty pleas before sentencing; he represented to the trial court that he had sought to secure the services of two separate lawyers for that application, one of whom could not represent defendant due to a conflict of interest, and the other who agreed to represent defendant but who could not attend that day's proceedings due to a scheduling conflict. A privately retained lawyer -- who, to that point, had represented defendant on one of the two indictments -- explained to the trial court that he too could not represent defendant in the application because he assumed, based on defendant's claims of ineffective assistance of counsel arising out of the plea proceedings, that he would be a witness in defendant's motion to withdraw his guilty pleas. Although at that moment defendant effectively was without counsel, and without conducting an inquiry into defendant's claims, the trial court denied the requested adjournment, denied defendant's application to withdraw his guilty pleas, and sentenced defendant in accordance with his plea agreement.

Last minute motions to withdraw guilty pleas present often contradictory concerns, the motivations for which are difficult to discern: some may be tactical maneuvers that bear no relation to the initial propriety of the plea, but instead arise from fear of the consequences of one's acts, buyer's remorse, a realization of certain and perhaps lengthy imprisonment, or other, like sources, while others may be grounded on solid, proper bases. For that reason, the task confronting a trial court when determining a motion to withdraw a guilty plea is neither simple nor easy. To aid in that admittedly difficult process, we reaffirm the principles set forth in State v. Slater, 198 N.J. 145 (2009), that govern the factors relevant to motions to withdraw guilty pleas and underscore the different burdens of proof that apply based on whether the motion is made pre- or post-sentencing. That said, those jurisprudential notions presuppose that, in advancing an application to withdraw a guilty plea, a defendant has received the basic protection constitutionally required for all who stand accused of a crime: the benefit of counsel. Here, because defendant was required to proceed on his oral application to withdraw his guilty pleas without the benefit of counsel, a fair and informed judgment of whether he should have been allowed to withdraw his guilty pleas cannot be reached. Therefore, this case must be remanded to the trial court for a properly counseled Slater hearing, to be conducted under the "interests of justice" pre-sentencing burden of proof codified in Rule 3:9-3(e), and not under the "manifest injustice" post-sentencing burden of proof set forth in Rule 3:21-1.

I.

On April 30, 2007, a patron at an Atlantic City casino cashed out nearly eight thousand dollars in chips. While in a public bathroom shortly thereafter, defendant used his hand to simulate a gun, poked his finger into the patron's back, and demanded the patron's money or defendant would "blow his brains out[.]" Defendant and the patron struggled, but defendant was able to take the money from the patron and flee. Defendant was pursued by Officer Syndor of the Atlantic City Police Department, and eventually was arrested. Defendant's entry to and exit from the bathroom were captured by the casino's surveillance cameras, and the patron later positively identified defendant as his assailant and robber. On July 5, 2007, the Atlantic County grand jury returned an indictment charging defendant with first-degree robbery, in violation of N.J.S.A. 2C:15-1, and fourth-degree resisting arrest, in violation of N.J.S.A. 2C:29-2(a)(3). Defendant was represented by retained counsel in respect of that indictment.

Less than two weeks after that indictment was returned and while released on bail for those charges, defendant was driving in Egg Harbor Township when a police officer flagged him down. Instead of complying, defendant fled, resulting in a car chase that at times exceeded 100 miles per hour. When he finally stopped, defendant had a firearm in his possession; based on his prior criminal record, defendant was disqualified from possessing any firearm. As a result of those events, the Atlantic County grand jury returned another, separate indictment, this one charging defendant with second-degree certain persons not to have weapons, in violation of N.J.S.A. 2C:39-7, third-degree eluding, in violation of N.J.S.A. 2C:29-2(b), and third-degree unlawful possession of a weapon, in violation of N.J.S.A. 2C:39-5(b). On the charges returned in this indictment, defendant was represented by the Office of the Public Defender.

Defendant's two lawyers -- his retained counsel and his public defender -- jointly negotiated a plea agreement with the State that disposed of both indictments. Under that agreement, defendant was to plead guilty to the first-degree robbery charge from the first indictment and the third-degree eluding charge from the second indictment. In exchange, the State would recommend a thirteen-year prison term subject to the mandatory parole disqualifier and parole supervision requirements of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on the first-degree robbery charge; a concurrent term of five years on the third-degree eluding charge; and dismissal of all remaining counts of both indictments.*fn1

On March 7, 2008, and again represented by both his retained counsel and his public defender, defendant -- after a comprehensive examination under oath by the trial court -- entered guilty pleas pursuant to the negotiated plea agreement. After ascertaining that defendant did not have "any physical or any other problem which affect[ed defendant's] ability to understand what's going on here today" and that defendant was not "presently under the influence of any drugs or medication or anything at all[,]" the trial court reviewed the written plea agreement form with defendant. Confirming that defendant had read, initialed and signed the written plea agreement form in several places, the trial court engaged defendant in a detailed colloquy, confirming first that defendant had reviewed the plea agreement form with both his retained counsel, in respect of the robbery charge, and his public defender, on the eluding charge. Addressing the contents of the plea agreement form, the trial court ascertained from defendant that he understood the plea agreement form; that defendant had answered correctly all of the questions on the plea agreement form; and that defendant had signed the plea agreement form voluntarily. Turning to the terms of his plea agreement, the trial court had defendant confirm that he understood that the maximum sentence he could receive under the plea agreement was a term of imprisonment of thirteen years, subject to the provisions of NERA; that, pursuant to NERA, defendant would "have to do 85 percent of the sentence imposed before [defendant would be] eligible for parole[;]" that, under NERA, he would be subject to a period of "parole for five years once release[d;]" that ...


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