May 23, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ANTHONY S. COPLIN, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 08-04-0644.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 16, 2011
Before Judges Gilroy and Ashrafi.
On April 16, 2008, a Bergen County Grand Jury charged defendant Anthony Coplin with fourth-degree making false statements for the purpose of procuring a credit card, N.J.S.A. 2C:21-6b (count one); third-degree fraudulent use of a credit card, N.J.S.A. 2C:21-6h (count two); and third-degree exhibiting a false document, N.J.S.A. 2C:21-2.1c (count three). On October 26, 2009, defendant pled guilty to all counts of the indictment. On November 10, 2009, defendant filed a motion to withdraw his plea. On December 21, 2009, the trial court denied the motion without conducting an evidentiary hearing. On January 29, 2010, the court sentenced defendant on counts two and three to concurrent two-year terms of probation, and on count one to a one-year term of probation concurrent with the sentence imposed on counts two and three. The court also imposed all appropriate fines and penalties.
On appeal, defendant argues:
THE TRIAL COURT ERRED IN REFUSING TO GRANT DEFENDANT-APPELLANT'S PRE-SENTENCE MOTION TO WITHDRAW HIS PLEA.
A. DEFENDANT-APPELLANT ASSERTED, AND CONTINUES TO ASSERT, A COLORABLE CLAIM OF INNOCENCE.
B. DEFENDANT-APPELLANT HAD COMPELLING REASONS FOR HIS REQUEST TO WITHDRAW HIS PLEA.
C. DEFENDANT-APPELLANT'S PLEA WAS NOT THE RESULT OF A [NEGOTIATION] WITH THE PROSECUTION.
D. THE STATE WOULD NOT HAVE [BEEN] UNFAIRLY PREJUDICED, NOR WOULD THE DEFENDANT-APPELLANT HAVE BEEN UNFAIRLY ADVANTAGED, HAD THE TRIAL COURT GRANTED THE MOTION TO WITHDRAW THE PLEA.
On February 15, 2008, an unknown male sought to obtain a store credit card from a Best Buy retail store in Paramus. In furtherance, the person proffered a fraudulent Pennsylvania automobile driver's license and a fraudulent VISA credit card identifying himself as Samuel Smith. Upon recognizing the documents as fraudulent, the store representative attempted to stall the man while the store manager telephoned the police. After becoming suspicious of the store representative's actions, the man fled without his original documents. The Paramus Police Department issued an electronic message to other law enforcement agencies requesting their assistance in identifying the suspect from a copy of the photograph contained on the Pennsylvania driver's license. A detective from the Upper Marion Police Department in Pennsylvania contacted the Paramus Police Department and identified the suspect as defendant.
Defendant engaged counsel and pled not guilty to all charges. Prior to
the scheduled trial date of October 26, 2009, defendant gave his
attorney a videotape that purportedly placed defendant in the
Philadelphia City area at the time of the incident. Defense counsel
gave the videotape to the prosecutor with the understanding that if
the prosecutor was satisfied the videotape supported defendant's
alibi, the State would dismiss
the charges. On October 23, 2009, the prosecutor advised defense
counsel that he could not identify the person on the videotape as
defendant and, as such, the State intended to proceed to trial on the
indictment. Defense counsel, however, did not inform defendant of the
prosecutor's advice until the morning of October 26, 2009.
Upon being advised of the State's intention to proceed on the indictment, defendant requested an adjournment until the end of the week to obtain new counsel. The court denied the request. Following the court's ruling on the adjournment request, defense counsel conversed with a witness who defendant anticipated was going to testify to the authenticity of the videotape. According to counsel, the witness told him that she was out of state and would not be available to testify that day.
Upon recognizing that he would not be able to admit the videotape into evidence without the testimony of the witness, defense counsel conversed with defendant and informed the court that defendant intended to plead guilty to all charges. Although the State did not agree to recommend a particular sentence, the court indicated that it would probably sentence defendant to probation with credit for time served. Prior to accepting the plea, the following colloquy took place among the court, defendant and defense counsel.
THE COURT: Did you sign the plea form after you spoke to your attorney?
THE COURT: Is all the information you provided in answering these questions true? [DEFENDANT]: Yes.
THE COURT: Do you understand by signing this plea form you're admitting the truth of these charges against you and are pleading guilty because you are guilty? [DEFENDANT]: Yes.
THE COURT: Once that I accept this guilty plea you are bound by it. You cannot change your mind. Was that explained to you? [DEFENDANT]: Yes.
THE COURT: Do you understand the full consequences of this? [DEFENDANT]: Yes.
THE COURT: Satisfied with Mr.
Carbone as your attorney? [DEFENDANT]: No.
THE COURT: What would you have liked different?
[DEFENDANT]: To better understand.
THE COURT: Better communications? [DEFENDANT]: Yes, a little more communication.
THE COURT: Other than that was there anything in the way he represented you that you can complain about? [DEFENDANT]: No.
THE COURT: Have you understood everything I've said? [DEFENDANT]: Yes, Your Honor.
THE COURT: You still wish to plead guilty at this time? [DEFENDANT]: Yes.
THE COURT: Okay. [Defense counsel], factual basis. [DEFENSE COUNSEL]: Yes, Judge. [Defendant], on February 15, 2008[,] you were in the Borough of Paramus, New Jersey? [DEFENDANT]: Yes. [DEFENSE COUNSEL]: At that time you went into a Best Buy store and presented a fake Pennsylvania driver's license with the name of [Samuel] Smith on it? [DEFENDANT]: Yes. [DEFENSE COUNSEL]: At that time you attempted to fill out a credit card application for Best Buy to purchase items, correct? [DEFENDANT]: Yes. [DEFENSE COUNSEL]: You knew it was illegal to do that? [DEFENDANT]: Yes.
Following the plea, defendant retained new counsel who immediately filed a motion seeking to withdraw the guilty plea.
On the return date of the motion, defendant asserted his innocence, and contended that he had entered his guilty plea involuntarily. Defendant argued that there had been a lack of communication between him and his prior attorney concerning the prosecutor's advice that the State was not going to dismiss the charges, and that the court had told him that it was going to proceed to trial that day notwithstanding the unavailability of his witness. Although the State acknowledged that "there may have been some confusion [between defendant and his prior attorney]," it countered that the miscommunication was not relevant to defendant entering the plea. The court denied the motion without an evidentiary hearing, determining "that there was a knowing, voluntary, intelligent, counseled, execution of the plea[,] the plea form[,] and the plea agreement."
Defendant argues that the trial court erroneously denied his motion seeking to withdraw his guilty plea. Citing State v. Slater, 198 N.J. 145 (2009), defendant contends the court failed to apply the requisite four-prong standard governing motions seeking to withdraw guilty pleas. We agree.
Rule 3:9-2 governs the taking of pleas; in particular, it mandates that a court not accept a guilty plea to a criminal charge without first "determining . . . that there is a factual basis for the plea and that the plea is made voluntarily . . . and with an understanding of the nature of the charge and the consequences of the plea." R. 3:9-2. "The specificity and rigor embodied in Rule 3:9-2 manifest a systemic awareness that a defendant waives significant constitutional rights when pleading guilty, which places an affirmative obligation on a court to reject a plea of guilty when that court is not independently satisfied that the Rule's prerequisites are met." State ex rel. T.M., 166 N.J. 319, 326 (2001).
Rule 3:21-1 governs motions to withdraw guilty pleas. Generally, the motion must be made before sentencing. R. 3:21-1. If timely filed, the motion is "governed by the 'interest of justice' standard in Rule 3:9-3(e)." Slater, supra, 198 N.J. at 158 (quoting R. 3:9-3(e))). However, Rule 3:21-1 provides that the trial court may permit the motion to be made after sentencing. Post-sentencing motions are governed by the more stringent standard--"to correct a manifest injustice." R. 3:21-1; see Slater, supra, 198 N.J. at 158. The burden rests on the defendant to establish why the motion to withdraw his or her guilty plea should be granted. State v. Luckey, 366 N.J. Super. 79, 86 (App. Div. 2004). Moreover, "the trial court has considerable discretion in entertaining such a motion, and our review must recognize the discretion to which the trial court's decision is due." Id. at 87.
In deciding whether to grant or deny a motion to withdraw a guilty plea, whether made before or after sentencing, the trial court applies the same standard of review. Slater, supra, 190 N.J. at 158. That standard contains four factors, which a court must consider and balance: "(1) whether the defendant has asserted a colorable claim of innocence; (2) the nature and strength of 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 158-61; see also State v. Hayes, ___ N.J. ___, ___ (2011) (slip op. at 15-16) (applying the Slater factors).
Here, although the trial court made a determination that defendant's plea had been entered knowingly, intelligently, and voluntarily after consultation with counsel, the court failed to address the motion under the four-prong Slater standard. Applying that standard, we conclude that the trial court erroneously denied the motion and reverse.
The first prong requires the court to determine "whether the defendant
asserted a colorable claim of innocence." Slater, supra, 198 N.J. at
157. "A bare assertion of innocence is insufficient to justify
withdrawal of a plea. Defendants must present specific, credible facts
and, where possible, point to facts in the record that buttress their
claim." Id. at 158. Defendant asserted his innocence throughout the
proceedings until the time of his plea. In furtherance of that
assertion, defendant possessed a videotape which purportedly supported
his alibi that he was not present at the time of the incident. The
mere fact that the prosecutor could not identify defendant on the
videotape does not defeat defendant's alibi defense, particularly if
defendant's witness can identify defendant on the videotape. The issue
is for the factfinder. Additionally, at the time of oral argument,
defense counsel referenced
additional "documentation that may further support [defendant's]
The second prong requires the court to assess "the nature and strength of defendant's reasons for his withdrawal." Id. at 159. "This second factor focuses on the basic fairness of enforcing a guilty plea by asking whether defendant has presented fair and just reasons for withdrawal, and whether those reasons have any force." Ibid. In assessing the second factor, the court "should not approach" defendant's reasons for withdrawal "with skepticism." Id. at 160.
Defendant asserted that until the day of the plea, he believed that the State was going to dismiss the charges because he had presented the prosecutor with a videotape that purportedly verified his alibi. Although the prosecutor had notified defense counsel several days prior that the State intended to proceed to trial, defense counsel failed to inform defendant of that advice until shortly before the plea. After the court denied defendant's request for an adjournment to retain new counsel and denied his request for a short trial adjournment to accommodate his witness who would authenticate the videotape for purpose of introduction at trial, only then did defendant enter the plea. Defendant asserted that as a result of the lack of proper pretrial communication from his attorney and the court's denial of adjournment to accommodate his witness, that he felt pressured to enter the plea. We find defendant's assertions are supported in the record.
The third prong requires the court to consider whether the plea had been entered as part of a plea bargain. Ibid. "Under our case law, defendants have a heavier burden in seeking to withdraw pleas entered as part of a plea bargain." Ibid. Although the third factor should not be given "great weight" under the standard, id. at 161, we determine it weighs in favor of defendant as the plea was an open plea, not a negotiated plea.
Lastly, under the fourth prong, the court should consider "whether
withdrawal [of the plea] would result in unfair prejudice to the State
or unfair advantage to the accused." Id. at 158. "There is no fixed
formula to analyze the degree of unfair prejudice or advantage that
should override withdrawal of a plea. Once again, courts must examine
this factor by looking closely at the particulars of each case." Id.
at 161. We do not discern any disadvantage to the State. At the time
motion, the State did not express any difficulty in preparing for
trial should the motion have been granted. Nor is the State losing the
benefit of a bargain as the plea had been open ended.
In considering the four prongs of Slater, we conclude that they weigh in favor of allowing defendant to withdraw his guilty plea and proceed to trial. Accordingly, we reverse.
Reversed and remanded for trial.