On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 08-05-01799-A.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lisa and Reisner.
Defendant, Jerome Damon, appeals from his July 18, 2008 judgment of conviction, sentencing him to six years imprisonment with an 85% parole disqualifier and three years parole supervision pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, for second-degree aggravated assault, N.J.S.A. 2C:12-1b(1).*fn1 Defendant's sole argument is that the trial court erred in denying his motion to withdraw his guilty plea prior to sentencing. For the reasons that follow, we remand for further proceedings.
Acting with others, defendant, who was then a juvenile, engaged in assaultive conduct on January 26, 2008, which included the firing of shots from handguns by defendant and one of the other perpetrators at two individuals. Both individuals were struck by the gunfire. One was shot in the shoulder, and the other was grazed in the leg. Both victims survived.
Juvenile complaints were issued against defendant, charging him with the attempted murder of one of the victims, together with related offenses. On the morning of May 30, 2008, while represented by counsel, defendant voluntarily waived jurisdiction in the Family Part and agreed that his case would be transferred to the Law Division, Criminal Part, in which he would be dealt with as an adult. The Family Court judge issued an order to that effect. As part of the transfer agreement, a plea agreement was negotiated, plea forms were completed and signed, and the matter was presented to a Law Division judge that afternoon.
At the plea proceeding, defendant acknowledged his waiver of the right to indictment by grand jury, and an accusation was presented to the court, which charged defendant with a single count of second-degree aggravated assault against one of the victims. Defendant acknowledged signing the plea agreement and that he understood the rights he was waiving. He pled guilty to the charge and provided a factual basis to support his plea.
Prior to sentencing, however, defendant filed a pro se motion to withdraw his guilty plea. In his notice of motion, defendant certified that the factual basis he provided was false and that he gave it "at the behest and under the pressure and compulsion of [his] attorney." He asserted his innocence in conclusory terms, and claimed his attorney pressured him into pleading guilty notwithstanding his steadfast declaration to his attorney that he was innocent. He further certified that he was not supplied with discovery and other materials.
The motion was dated July 7, 2008 and was stamped "FILED" by the Camden County Criminal Division on July 10, 2008. Defendant's sentencing was scheduled for July 18, 2008. Defendant included in his motion a further certification that, in addition to filing his motion with the court, he was serving copies on the prosecutor and his attorney.
When the matter came before the court for sentencing, both counsel advised the court that they had received copies of a letter from defendant indicating that he wished to withdraw his guilty plea because he believed he was coerced into entering it. The judge declared that no motion had been filed and he would not consider any request to withdraw the plea for that reason. Presumably, although defendant's motion had been filed eight days earlier with the Criminal Division, it had not been placed in defendant's file, or, perhaps, the judge inadvertently failed to see it in the file.
Whatever the case may be, we set forth the complete colloquy pertaining to defendant's motion:
[PROSECUTOR]: I did receive a copy of a letter from the defendant indicating that he felt he had been coerced into pleading and I ...