May 23, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JEROME DAMON, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 9, 2011
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 believe counsel will address that.
THE COURT: Well, there is no motion before me. So, thank you for that information.
[Defense Counsel]? [DEFENSE COUNSEL]: Your Honor, I also received a copy of the form letter which indicated it was filed in the Clerk's Office pro se by [defendant] asking to be relieved of this plea. Obviously, Judge, this is very awkward for me --
THE COURT: There is no -- It shouldn't be. It was a plea that I took. It was knowing and voluntary. There is no proper motion in front of me. There are other avenues available to [defendant]. He can -- If he chooses to not use you as his attorney, either he or his family can hire someone or he can obtain legal services from one of his colleagues in the state or county facility. There is nothing before me now.
[DEFENSE COUNSEL]: Then I would ask the Court to move sentencing.
THE COURT: But, I'll hear from Mr. Damon.
You have a chance to speak. Please, stand up and raise your right hand.
THE COURT: All right, sir, you have a right to speak to me before I sentence you.
Is there anything you wish to say?
THE DEFENDANT: I would like to know how come I couldn't take back the plea.
THE COURT: Because you haven't filed a proper motion. Because the plea was in front of me. Because there are legal standards by which I have to operate and if those standards were placed in front of me and were correct, then I would consider your application.
However, when I took your plea -- and I believe it was me who took your plea --
[DEFENSE COUNSEL]: It was.
THE COURT: -- on May 30, 2008, it was clear to me from what you said to me that you knowingly and voluntarily entered that plea and you understood what you were doing and there was a good factual basis for that.
Now there is no application in front of me. If there were, I would consider it. But, there isn't.
However, I have a clear recollection that I inquired of you both with regard to your waiving and with regard to your plea at the time and with regard to your obligation to truthfully testify with regard to this incident and the others. And so, that is the reason. That is the reason.
It's not like returning a radio that you didn't like that you bought at Best Buy.
So, before I sentence you, is there anything else you would like to say?
THE DEFENDANT: No. [Emphasis added.]
After defendant filed his appeal with this court, we placed the matter on our excessive sentencing calendar. See R. 2:9-11. At defendant's request, the case was removed from the excessive sentencing calendar and placed on a plenary calendar, after which it was fully briefed by both parties.
The record clearly establishes that defendant filed a motion to withdraw his guilty plea prior to sentencing. Notwithstanding the court's cryptic comments expressing satisfaction that the plea had been freely and voluntarily entered based upon the court's purported recollection of the plea hearing, the record also makes clear that the judge refused to consider defendant's motion to withdraw his plea because the court believed no such motion had been made.
Defendant had a right to have his motion considered and ruled upon by the court. Both attorneys corroborated defendant's assertion to the court that he had indeed filed such a motion. Under the circumstances, the court had an obligation to make appropriate inquiries of the staff in the Criminal Case Management Office, rather than conclusively stating that no motion had been filed and summarily refusing to consider the matter.
In a related context, our Supreme Court recently addressed a trial court's denial of a criminal defendant's request for a brief adjournment to retain counsel for his pre-sentence motion to withdraw two guilty pleas. State v. Hayes, ___ N.J. ___, ___ (2011) (slip op. at 1). The Court held that the trial judge's denial of the defendant's request for an adjournment to seek counsel constituted a mistaken exercise of discretion. Id. at 23--24. "[P]rudence dictated that, at the least, additional inquiry should have been made . . . and a short adjournment granted to allow defendant to be represented by counsel in pressing the motion to withdraw his guilty plea." Id. at 24. Defendant here was entitled to the same prudence.
We therefore remand the matter to the trial court for consideration of defendant's motion to withdraw his guilty plea. We leave to the trial court's discretion the scope and nature of the proceedings, including whether an evidentiary hearing is warranted. Because defendant's motion was filed before sentencing, the motion should be decided based upon the criteria applicable to a pre-sentence motion. See State v. Slater, 198 N.J. 145, 157-58 (2009); R. 3:9-3(e); R. 3:21-1. Of course, the court's decision shall be accompanied by appropriate findings of fact and conclusions of law. See R. 1:7-4(a).
We express no view as to what the outcome of the motion should be. If the motion is denied, defendant's conviction and sentence shall remain in full force and effect. If the motion is granted, the conviction shall be vacated, and the prosecutor may proceed to initiate any appropriate charges against defendant arising out of this incident.
Remanded for further proceedings consistent with this opinion. Jurisdiction is not retained.