On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 08-12-01056.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lisa and Reisner.
Defendant Walter Taylor appeals from his January 28, 2010 conviction for third-degree attempted theft, N.J.S.A. 2C:20-3a and N.J.S.A. 2C:5-1, contending that the trial court erred in denying his motion to withdraw his guilty plea. He raises the following appellate argument:
THE COURT ERRED IN DENYING DEFENDANT'S MOTION TO WITHDRAW HIS GUILTY PLEA CONTRARY TO PRINCIPLES OF FUNDAMENTAL FAIRNESS. U.S. CONST. AMENDS. V, VI, VIII, AND XIV; N.J. CONST. ART. I, ¶¶ 1, 10.
Finding no merit in that contention, we affirm the conviction. We remand to the trial court for the limited purpose of correcting the judgment of conviction (JOC) to reflect a conviction for attempted theft rather than robbery, and to reflect the correct statutory citations for attempted theft.
Based on an attempted purse-snatching that occurred in August 2008, defendant was indicted for second degree robbery. On August 3, 2009, he pled guilty to third degree attempted theft, pursuant to an agreement providing for a sentence of five years in prison with a two year period of parole ineligibility. During the plea colloquy, defendant initially expressed a desire to change attorneys, and Judge Peim gave defendant a further opportunity to discuss the proposed plea agreement with his assigned Public Defender attorney. After that discussion, defendant accepted the plea agreement and pled guilty to "attempt[ing] to steal something" from the victim.
On or about September 9, 2009, defendant filed a motion to withdraw his guilty plea. In support of the motion, defendant filed a certification, asserting in general terms that he did not commit "a robbery upon [the victim]," and that his attorney coerced him into accepting the plea agreement. In the certification defendant also attested that on the date of the plea hearing, he was "off [his] medication and was in a state of audio and video hallucinations." However, he provided no doctor's report or other evidence to support his claims as to the prescribed medication or his psychiatric condition.
On January 28, 2010, Judge Peim held a plenary hearing, during which defendant testified to the reasons he wished to withdraw the plea. After confirming the truth of the statements in his certification, defendant asserted that he did not commit the crime of which he was accused and that his attorney "did not do anything for me." He testified that the attorney told him that if he went to trial he "would lose" and would "get an extended term."
In a thorough oral opinion, Judge Peim found that defendant's testimony was not credible. He considered that during the plea colloquy, defendant showed no signs whatsoever that he was intimidated by his attorney. To the contrary, "defendant spoke up for himself, showed no reluctance to criticize his lawyer and made clear he didn't want her." Judge Peim found that "if defendant's attorney pressured him and/or did anything improper" defendant would have said so "in open court." Judge Peim therefore did not credit defendant's testimony that his attorney coerced him into accepting the plea agreement.
Judge Peim further found defendant's assertion of innocence to be "merely conclusory statements." He considered that defendant had presented "no medical testimony, no medical records [and] no diagnosis" to support his claim that he was hallucinating at the time of the crime or on the day of the plea hearing. The judge also considered what he observed of defendant's demeanor during that plea hearing, and found that he entered the plea voluntarily and knowingly. Applying the factors set forth in State v. Slater, 198 N.J. 145 (2009), Judge Peim concluded that ...