July 20, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 04-04-0801.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 4, 2011
Before Judges Sabatino and Alvarez.
Defendant appeals the denial of his application to withdraw a guilty plea. For the reasons that follow, we affirm.
On November 14, 2006, in Mercer County, defendant J.M. entered a guilty plea to charges of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a), and second-degree sexual assault, N.J.S.A. 2C:14-2(c). In accord with the plea agreement, defendant received a sentence of twelve years imprisonment on the first-degree charge and ten years subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2(a), concurrent on the second-degree crime. The victim was his step-daughter, N.D., whom defendant sexually assaulted from age eleven to age sixteen. In April 2004, simultaneous to the issuance of the Mercer County indictment, defendant was indicted in Ocean County for one count of first-degree aggravated sexual assault and one count of second-degree child endangering, N.J.S.A. 2C:24-4(a). At some unspecified time defendant fled the jurisdiction to Florida and was not apprehended until nearly two years later.
The Ocean County indictment was intended to be consolidated with the Mercer County matter, Rule 3:15-1(a), but was overlooked when the Mercer County plea agreement was negotiated. As a result, defendant had begun serving his Mercer County sentence when the Ocean County authorities realized the single incident indictment was still pending.
As a result, defendant's attorney filed a motion to dismiss the indictment based on mandatory joinder, Rule 3:15-1(b), which was heard and denied on November 14, 2007. That same day, defendant entered a guilty plea to first-degree aggravated sexual assault, and was sentenced to twelve years concurrent to the Mercer County sentence.
In order to make the sentence the day-for-day equivalent of the Mercer County sentence, as counsel agreed that both matters should have been resolved simultaneously, defendant was given the additional benefit of 1336 days of "credit" - including time he had already served on the Mercer County sentence. After the court reviewed the terms of the plea with defendant, and his satisfaction with the services rendered by his attorney, defendant and his attorney engaged in the following colloquy:
Q. [B]etween the dates of June 1, 1997, and January 1, 1998, you were in the Township of Lakewood?
A. Yes, I was.
Q. And at that time did you commit an act of sexual penetration, that is sexual intercourse, on an individual identified as [N.D.]?
A. Yes, I do.
Q. Who was less than 13 years old at the time?
A. Yes, I do.
Q. You know that that constitutes a crime of aggravated sexual assault in the first degree?
A. I do.
Q. How [d]o you plead to that charge?
On April 18, 2008, before defendant was sentenced pursuant to the agreement, now-retired Judge Villano, who was not the judge who accepted the guilty plea, denied defendant's application to withdraw his guilty plea. Defendant's asserted basis for the application was the fact that, in 1996, a similar allegation of wrongdoing had been made against him and was subsequently withdrawn.*fn1
In addition to the victim's formal statement, defendant confessed. The confession, taken by the Mercer County authorities, was not provided and we cannot glean from the record if it touched upon the Ocean County allegations.
During the course of defendant's motion hearing, he made statements under oath. In those statements, defendant "explained" the reasons he was seeking to withdraw his guilty plea were that "the crime didn't exist," and that he wanted to "confront the witness." He in fact said:
THE DEFENDANT: Exactly. Exactly, because the location they have to give me, it's five years, six years later, a street, something to go on. If something, clothing, something --
THE COURT: You're going too fast, I'm not getting what you're saying.
THE DEFENDANT: I would like to have some DNA, clothing, witness that was there, present at the time, whatever the street is, the address, something to go by because the crime never did take place.
THE COURT: Okay, I understand your position. You want to have a trial.
THE DEFENDANT: Yeah.
Defendant cooperated with the first mandatory Adult Diagnostic & Treatment Center interview related to the Mercer County charges, N.J.S.A. 2C:47-1, but refused to cooperate in the second interview required for the Ocean County offense, telling the interviewer he was withdrawing his guilty plea.
When the application was heard, the controlling case on the subject
was State v. Huntley, 129 N.J. Super. 13 (App. Div.), certif. denied,
66 N.J. 312 (1974), on which the court relied. In the course of her
analysis, Judge Villano discussed the fact that when defendant entered
his guilty plea, he did so fully understanding its terms, expressing
satisfaction with his attorney, and establishing the requisite factual
basis. As Judge Villano put it, there had to be more to the
than defendant's anticipation the State would have difficulty proving
its case because of the passage of time:
Now, the basis for the request is not simply I want a trial. I want to confront the witness. And it's interesting to note that his remarks are there's been a long time here, I don't think there are proofs, I want to confront the witness. I don't know if that means he thinks the proofs have dissolved or she has less resolve to come forward, I'm not sure. But, in any event, it seems that the basis for the request is simply he now wants to go to trial.
At the close of the motion, defendant made an additional statement:
THE DEFENDANT: Your Honor, I was reserving the reasons, the facts of the proof for the trial. I didn't provide it to the prosecutor.
THE COURT: Well, unfortunately, that might have been a bad tactic on your part.
So I've made my ruling. I'm just going to exit so that we can remove the prisoners out, I'll sign the waiver, I'll sign your transport order. Thank you.
When defendant was later sentenced on July 18, 2008, he again said:
[DEFENDANT]: So you will not allow me to approach the witness because if that was the case --
THE COURT: I will not allow you to have the time to confront the witness, that is correct. They had a right to be here today, the victims, but they did not appear.
I have denied you the right to have a trial, yes, that's true.
[DEFENDANT]: But that date when it was in April, okay, you said that was a smart move not telling them what was my evidence was for the trial.
THE COURT: Well, you said as part of your argument on your motion to vacate was that you refused to disclose --
[DEFENDANT]: Exactly because it wouldn't make any sense.
We note in passing that defendant misunderstood the court's comment regarding his decision to withhold information. He thought she endorsed his purported decision not to share his "evidence [for the trial]" with the State when in fact she stated to the contrary, that the decision not to do so may "have been a bad tactic."
In addition to defense counsel's brief in support of this appeal, defendant has filed a thirty-eight-page handwritten brief. The brief's dominant theme is the ineffectiveness of trial counsel.
Because they bear on our decision, we mention certain other allegations. His brief asserts without record support: (1) that the victim is no longer available to testify against him, and that his attorney either knew that fact or did not discuss it with him prior to the entry of his guilty plea, (2) that N.D.'s older sister's similar but ultimately recanted charges would have been effective as a basis for attacking N.D.'s credibility (this although the charges were withdrawn in 1996 and the conduct as to N.D. is alleged to have commenced in 1997), (3) that N.D.'s claim that defendant impregnated her seven times, resulting in seven abortions, was incredible, (4) that after the recanted charges, defendant would never have been left alone with N.D., thereby affording him an additional basis for attacking her credibility, and (5) that there was no reason defendant would have driven one hour from Princeton to Lakewood to engage in sexual relations with the child in 1997. Although the brief ends with certification language found in Rule 1:4-4(b), we have only an unsigned copy.
When the application was made, State v. Slater, 198 N.J. 145 (2009), had not been decided. This matter was pending on appeal when the Court's opinion in Slater was issued. In some instances, a remand would be appropriate for the court to re-examine the application in light of the Slater standard. In this case, given the nature of the charges, and the motion court's analysis under Huntley, we have a sufficient record that such a remand is not necessary.
As required by Slater, supra, 198 N.J. at 155, we preliminarily look to whether the entry of the guilty plea complied with the dictates of Rule 3:9-2, and find that it does.
Defendant, while under oath, established his knowing, intelligent, and voluntary waiver of his right to a trial. He also established, albeit in a minimal fashion, the factual basis for the plea. Although more detail would have been preferable, via open-ended questions posed to defendant by the judge and not the attorney, as Rule 3:9-2 requires, the record ultimately reflects defendant's admission of guilt.
Slater balances competing interests; namely, the need of finality for the State and for victims against the need for fairness and the protection of basic rights for criminal defendants. Id. at 155. Pre-sentence, a motion to withdraw a guilty plea is reviewed employing a more liberal standard, the interests of justice. R. 3:9-3(e); Slater, supra, 198 N.J. at 156. Nonetheless, pleas are vacated in an exercise of the court's discretion, and the burden rests upon defendant to present some plausible basis for the request and establish his or her good faith in asserting a defense on the merits. Slater, supra, 198 N.J. at 156. This "formidable barrier" to withdrawal is necessary because an application to withdraw a guilty plea goes to the very heart of defendant's representations, made under oath, and a court's findings thereon. Ibid.
The critical questions in making this determination include: "(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 157-58. In our view, defendant's application fails under the Slater analysis.
As an initial matter, we observe that defendant's claim of "innocence" is not an actual assertion to that effect. Rather, defendant used words such as "the crime didn't exist," complained that the State did not provide him with an address or some other concrete proof of the nature or place of the offense in Ocean County, stated he believed the victim would not be available to testify, and contended that N.D.'s older sister's recantation would provide him with a basis for attacking the victim's credibility. These are not the type of specific, credible facts which support the necessary claim of innocence. See id. at 158. The same evidence was available when the plea was entered and remains unrefuted to this day; namely, defendant's confession, and the victim's testimony. Other than defendant's new carefully worded phrases, which are not equal to an assertion of innocence, only proof of guilt remains.
Defendant's reasons for withdrawal do not have particular merit. Some examples suggested by Slater include: confusion about a material element of the agreement, such as concurrency, direct penal consequences such as NERA, or that a plausible and valid defense was credibly demonstrated and forgotten or missed. See id. at 159-60. Other than the desire for a trial, defendant has no clear reason for withdrawal, much less a meritorious and substantial reason for withdrawal. Nothing defendant has said to date, orally or in writing, constitutes such a "meritorious and substantial" reason for withdrawal.
The plea, obviously, was entered into in exchange for a recommended sentence. This factor has no impact on our analysis.
That unfair prejudice to the State and an unfair advantage to the accused would result is clear. When the indictment issued in 2004, based on our approximation of the end date of the charged conduct, N.D. was twenty years old. She is now approximately twenty-seven years old. Her present whereabouts might not be known to the State. The passage of time may have negated the State's ability to prosecute. Although no trial had been scheduled when the plea was entered, there certainly are problems if defendant at this late stage were permitted to withdraw. In our view, the prejudice to the State would be substantial.
The burden of justifying the relief falls squarely on defendant. Id. at 156. In this case, that burden has not been shouldered. From the first time defendant said he wanted to withdraw his guilty plea, he based the request on a willingness to gamble on the State's lack of proofs, due to the passage of time, his desire to confront the witness, or the witness's unavailability, rather than an assertion of actual innocence. This simply is not sufficient. Accordingly, we affirm the decision denying his request to withdraw his guilty plea.
Regarding defendant's claims of ineffective assistance of counsel, they are best reserved for decision by way of post-conviction relief. See, e.g., State v. Lewis, 389 N.J. Super. 409, 416 (App. Div.), certif. denied, 190 N.J. 393 (2007). Accordingly, we will not reach those issues.