July 5, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
WELDON D. MATHEWS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 09-06-1390.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 22, 2011
Before Judges Reisner and LeWinn.
Defendant Weldon D. Mathews appeals from his conviction for second-degree possession of a controlled dangerous substance (CDS) with intent to distribute, N.J.S.A. 2C:35-5a(1), and from the sentence imposed on that conviction: nine and one-half years in prison with fifty-seven months of parole ineligibility.
On this appeal, defendant challenges the search that led to the discovery of the drugs; contends that he should have been permitted to withdraw his subsequent guilty plea; and argues that his sentence is excessive. He presents the following points of appeal:
POINT I: THE DEFENDANT'S RIGHT TO BE FREE FROM UNREASONABLE SEARCH[ES] AND SEIZURES AS GUARANTEED BY THE FOURTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ART. I, ¶ 7 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED AS A RESULT OF A SEARCH AND SEIZURE BASED ON AN INVALID CONSENT.
POINT II: THE DEFENDANT'S MOTION TO WITHDRAW HIS GUILTY PLEA SHOULD HAVE BEEN GRANTED. POINT III: THE SENTENCE IS EXCESSIVE.
A. The Trial Court Improperly Balanced The Aggravating And Mitigating Circumstances.
B. The Court Made Findings Of Fact To Enhance The Sentence.
Finding no merit in these arguments, we affirm.
I. At the October 30, 2009 hearing on the motion to suppress, the State presented testimony from State Trooper David L. Meyrick, III. According to Meyrick, on February 27, 2009, he received information from a confidential informant that defendant, Jennifer Schillace, and a third individual were engaging in drug sales and manufacturing at a specific address in Newtonville. Meyrick checked several police databases and discovered that the house at that address was occupied by Jennifer Schillace and her sister Denise.
That afternoon, Meyrick and "three other detectives" arrived at the address named by the informant and found defendant and two other persons sitting in a vehicle outside the house. After defendant identified himself, Meyrick saw Jennifer and Denise Schillace coming out of the house, accompanied by Denise's minor daughter. Meyrick and Detective McGovern explained to the Schillace sisters that they had received information that "there was traffic, high vehicular as well as pedestrian contacts, people that were coming and leaving the residence at different times of the night, and the time frame was usually short periods of time."
After Meyrick confirmed with the sisters that they owned the house, Jennifer invited the detectives "to come in the house to talk" with her. Once inside the house, Meyrick and Detective McGovern asked the sisters for consent to search the premises, and presented them with the standard Consent to Search form. At that point, Jennifer asked the detectives to go back outside while she discussed their request privately with Denise. Meyrick and McGovern left the house, and a few minutes later, Jennifer came back out and told Meyrick that he had her permission to search her bedroom. Thereafter, Denise signed the Consent to Search form.
Although Jennifer did not sign the form, she was present and actively assisted the detectives with the search for CDS and manufacturing equipment. She directed the detectives to a black safe located under a night table. She told them it belonged to defendant and that he had the key. She also pointed out a dresser, inside which the detectives found CDS manufacturing equipment containing what appeared to be drug residue. On the basis of Jennifer's statements and the materials they found in the bedroom, the detectives arrested defendant. When they searched his person incident to the arrest, they found crack cocaine, heroin, and a key to the safe.
Based on information from the informant and Jennifer, Meyrick believed that the safe contained drugs. Instead of trying to open the safe at the scene, Meyrick decided to bring the safe back to the State Police station and apply for a search warrant to open it. He explained that he did this for several reasons: defendant denied any knowledge about the safe and denied that the key was for the safe; it was cold outside and Meyrick did not want to keep the occupants standing outside in the cold while the detectives called for a warrant; and "due to manpower issues" he did not want to leave "two uniformed troopers" guarding the house while he made the warrant application.
In addition to arresting defendant and taking the safe with them, the detectives brought Jennifer to the station. In a recorded interview, she confirmed that she had voluntarily consented to the search of her bedroom. She also told them in considerable detail about defendant's drug manufacturing and selling operation. Meyrick explained that he seized the safe on a Friday afternoon, after 5:00 p.m., and did not apply for and obtain a search warrant for the safe until the following Tuesday. He stated he believed that Monday was a State holiday. He also testified that there was no real urgency in obtaining the warrant.
In an oral opinion placed on the record on November 19, 2009, Judge Michael Donio denied defendant's motion to suppress. While noting some discrepancies between Meyrick's testimony and the search warrant affidavit, the judge concluded that those discrepancies were not material and did not affect Meyrick's credibility. According to Meyrick's affidavit in support of the warrant application, Jennifer told Meyrick that defendant was paying her $200 a month to allow him to conduct his drug manufacturing and selling operations at her house.*fn1 However, the judge found that $200 payment did not create a "true landlord/tenant relationship" and it did not vitiate Jennifer's right to give the police consent to search her bedroom. He found that the police had a good faith basis to believe that Jennifer and Denise had authority to admit the police into Jennifer's bedroom and that the consent form "was sufficiently broad to include all rooms" in the house.
The judge found that the police properly seized the safe based on the information from the informant and from Jennifer. The judge further found no basis to invalidate the search based on the four-day delay in obtaining a warrant. Defendant denied ownership of the safe, which contained illegal drugs, and the judge found that the delay was not unreasonable. In particular, the delay was not prejudicial to defendant's ownership rights, as compared, for example, to the seizure of a car that he might need for transportation.
In summary, the judge found that "the consent [to search] was freely and voluntarily given based on the signature and based on the testimony of the officer." He found that the scope of the search was consistent with the consent given, "[a]nd that a proper warrant was then issued for opening of the lockbox." He also found that the troopers had "at a minimum reasonable suspicion and at a maximum very, very high probable cause to determine that that lockbox contained illegal drugs."
On this appeal, defendant contends that the police "had already commenced" a search of Jennifer's bedroom before asking for her consent. However, that contention is inconsistent with Meyrick's testimony, which the judge found credible. According to Meyrick, Jennifer invited the police to come into the house and to enter her bedroom. When she asked for more time to consider their request to search the premises, the police left the house and did not re-enter until Jennifer gave them verbal permission to search and Denise signed a consent form. Not only did Jennifer consent to the search, she also assisted in the search.
Defendant's reliance on State v. Speid, 255 N.J. Super. 398 (Law Div. 1992), is misplaced. There is no evidence in this case of the kind of abusive police behavior that justified granting the suppression motion in Speid. Further, the sisters clearly knew they had the right to withhold consent, because the police left the house to give the sisters a chance to privately discuss whether to allow the search. See State v. Johnson, 68 N.J. 349, 354 (1975).
In reviewing the trial judge's decision on the suppression motion, we must defer to the judge's factual findings so long as they are supported by sufficient credible evidence. See State v. Domicz, 188 N.J. 285, 309 (2006). There is no basis in this record to disturb the trial judge's finding that the Schillace sisters voluntarily consented to the search. We affirm the judge's decision denying the motion to suppress.
II. We likewise find no merit in defendant's argument concerning the motion to withdraw his guilty plea. After the judge placed his opinion on the record denying defendant's suppression motion, the attorneys discussed the possibility of a plea bargain and defense counsel stated that his client needed to "[c]ome to grips" with the State's offer. In defendant's presence, the prosecutor explained that the State was offering ten years in prison with a fifty-seven-month parole bar. He also explained that, as a repeat drug offender, defendant faced a mandatory extended term if convicted, and therefore was facing a possible aggregate sentence of twenty-five years with twelve and one-half years of parole ineligibility.
After the State lowered its offer to nine and one-half years with a fifty-seven-month parole bar and agreed to dismiss all other charges, defendant agreed to plead guilty to one count of second-degree drug distribution. The plea agreement was placed on the record on December 4, 2009. At the plea hearing, defendant agreed that he had "gone over the period of parole ineligibility under the Brimage Guidelines with [his] lawyer." Under oath, he admitted that on February 27, 2009, he possessed a half ounce or more of cocaine with intent to distribute it.
Prior to sentencing, defendant filed a pro se motion to withdraw his guilty plea. The motion was supported by a certification in which he attested that his attorney had not provided him with the "grand jury minutes" to review, prior to advising him to plead guilty. Defendant did not assert that he was innocent of the charges, and did not explain how reviewing the grand jury transcript could have influenced his decision whether to plead guilty. Instead, he simply made a bald assertion that his attorney had rendered ineffective assistance. When asked to address the court on the withdrawal motion, defendant stated only that, "I never received my grand jury minutes." After considering the amount of prison time defendant could have gotten if convicted after trial, and the favorable plea offer his attorney obtained for him, the judge denied the application to withdraw the guilty plea.
Defendant now contends that he "did not have adequate information about his case so that he could make a rational and reasoned decision" whether to accept the plea offer. But defendant did not satisfy the criteria set forth in State v. Slater, 198 N.J. 145, 157-58 (2009), for withdrawing a guilty plea. He did not present a colorable claim of innocence. Nor did he explain how viewing the grand jury minutes could have influenced his decision whether to accept the plea offer. His appellate argument is without sufficient merit to warrant further discussion here. R. 2:11-3(e)(2).
III. Finally, we address defendant's challenge to his sentence. In imposing sentence, the judge considered that defendant had "five felony convictions" as well as "a lengthy juvenile record." He also noted that defendant was eligible for an extended term. The judge found that aggravating factors three (risk of reoffense), six (prior record), and nine (need for deterrence) applied. See N.J.S.A. 2C:44-1a(3), (6), (9). He found no mitigating factors. Finding that "defendant got the benefit of a very lenient plea agreement," the judge sentenced him in accordance with the agreement, to nine and one-half years with fifty-seven months parole ineligibility.
Our review of the sentence is limited, State v. Bieniek, 200 N.J. 601, 607-08 (2010); State v. Roth, 95 N.J. 334, 363-65 (1984). There is no dispute that defendant was eligible for imposition of a mandatory extended term, which would have exposed him to up to twenty years in prison for a second-degree offense. Instead, the judge imposed a sentence just below the top of the sentencing range for a second-degree offense. We find no abuse of discretion or other error in the sentence, which was consistent with the plea agreement. Defendant's sentencing arguments are without sufficient merit to warrant further discussion. R. 2:11-3(e)(2).