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State of New Jersey v. Lawrence F. Gebhardt A/K/A Larry

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


August 25, 2011

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
LAWRENCE F. GEBHARDT A/K/A LARRY, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 07-12-2005.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted August 17, 2011

Before Judges J. N. Harris and Fasciale.

Defendant Lawrence Gebhardt appeals from his convictions for two counts of second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a; and two counts of second-degree sexual assault, N.J.S.A. 2C:14-2c(1) and N.J.S.A. 2C:14-2c(4). Defendant committed the underlying crimes against four different victims. Defendant argues that the judge erred by (1) denying his motion to withdraw his guilty plea before sentencing, and (2) imposing an excessive sentence. We disagree and affirm. Pursuant to the plea agreement, defendant pled guilty in exchange for the State's recommendation that he be sentenced to four consecutive five-year prison terms. At the plea hearing on August 18, 2009, the following exchange occurred:

The Court: Now, do you understand, at the time of sentencing, the [S]tate is going to recommend to me that I sentence you on each of these four counts to five years in state prison to run consecutively, which means that I would sentence you to an aggregate term of twenty years in state prison? Do you understand that.

The Defendant: Yes.

The Court: And this is a consecutive sentence. Do you know the difference between consecutive and concurrent?

The Defendant: Yes The Court: All right. But in this particular case, you're requesting and asking that I sentence you to a consecutive term, which means five, plus five, plus five, plus five, which equals twenty in doing the math. Do you understand that?

The Defendant: Yes.

Defendant then admitted to several incidents of sexual assault occurring from August 2006 through September 2007. The judge concluded, "I'm satisfied that . . . defendant is pleading guilty freely and voluntarily, that he understands what he's doing, and he understands the consequences of what he's doing. I'm satisfied with the factual basis, and I will accept the plea."

On June 23, 2010, defendant filed a motion to withdraw his guilty plea and argued that he believed the sentence was to be a flat five years and not an aggregate of twenty years. Applying the factors enunciated in State v. Slater, 198 N.J. 145 (2009), the judge denied the motion.

On appeal, defendant raises the following arguments:

POINT I

JUDGE DEN UYL COMMITTED REVERSIBLE ERROR IN DENYING THE DEFENDANT-APPELLANT'S MOTION TO RETRACT HIS GUILTY PLEA.

POINT II JUDGE DEN UYL COMMITTED REVERSIBLE ERROR IN IMPOSING CONSECUTIVE SENTENCES FOR AN AGGREGATE SENTENCE OF TWENTY (20) YEARS.

In evaluating a motion to withdraw a defendant's guilty plea prior to sentencing, the trial court must consider the following factors: "(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." Slater, supra, 198 N.J. at 157-58 (citing United States v. Jones, 336 F.3d 245, 252 (3d Cir. 2003)). The trial court must balance these factors within the context of the defendant's motion to withdraw a guilty plea. Id. at 162. No factor of the four is mandatory, and relief is not disqualified or dictated based on their presence or absence. Ibid.

"[A] guilty plea is the final relinquishment of the most cherished right -- to be presumed innocent of a crime until a jury of one's peers has determined guilt beyond a reasonable doubt." State v. Smullen, 118 N.J. 408, 414 (1990). The New Jersey Court Rules assure that a guilty plea contains a factual basis, and is given with an understanding of the nature of the charge and the consequences of the plea. State v. Barboza, 115 N.J. 415, 420-21 (1989). Rule 3:9-2 governs the taking of pleas, and provides in relevant part:

The court, in its discretion, may refuse to accept a plea of guilty and shall not accept such a plea without first questioning the defendant personally, under oath or by affirmation, and determining by inquiry of the defendant and others, in the court's discretion, that there is a factual basis for the plea and that the plea is made voluntarily, not as a result of any threats or of any promises or inducements not disclosed on the record, and with an understanding of the nature of the charge and the consequences of the plea.

Such procedural safeguards ensure that courts can be "satisfied from the lips of the defendant that he committed the acts which constitute the crime." Slater, supra, 198 N.J. at 155 (internal quotations omitted).

Despite the finality of the plea process, defendants are entitled to "'fairness and protection of basic rights.'" Ibid. (quoting State v. Taylor, 80 N.J. 353, 365 (1979)). To ensure that the rights of defendants are preserved, the Rules provide a standard applicable to pre-sentencing motions to withdraw a plea. Id. at 156. Motions filed at or before the time of sentencing will be granted in the "interests of justice." R. 3:9-3(e). Rule 3:9-3(e) provides as follows:

If at the time of sentencing the court determines that the interests of justice would not be served by effectuating the agreement reached by the prosecutor and defense counsel . . . the court may vacate the plea or the defendant shall be permitted to withdraw the plea.

Before sentencing, courts are to exercise their discretion liberally to allow plea withdrawals. Slater, supra, 198 N.J. at 156.

While there are procedural safeguards in place to protect the liberty interests of a defendant, the burden still remains with a defendant "'to present some plausible basis for his request [to withdraw a plea], and his good faith in asserting a defense on the merits . . . .'" Smullen, supra, 118 N.J. at 416, (quoting State v. Huntley, 129 N.J. Super. 13, 17 (App. Div.), certif. denied, 66 N.J. 312 (1974)). "That approach logically flows from the entry of a guilty plea because a defendant's representations and the trial court's findings during a plea hearing create a 'formidable barrier' the defendant must overcome in any subsequent proceeding." Slater, supra, 198 N.J. at 156. A "whimsical change of mind" by the defendant is not an adequate basis to set aside a plea. Huntley, supra, 129 N.J. Super. at 18.

The first Slater factor focuses on whether defendant has asserted a colorable claim of innocence. A "core concern underlying motions to withdraw guilty pleas is to correct the injustice of depriving innocent people of their liberty." Slater, supra, 198 N.J. at 158. In weighing such motions, trial courts must consider whether a defendant has asserted his or her innocence of the offenses charged. Ibid. "A bare assertion of innocence is insufficient to justify withdrawal of a plea." Ibid. Defendants asserting claims of innocence must present "specific, credible facts" and, where possible, point to facts in the record in support of that claim. Ibid; see also State v. Phillips, 133 N.J. Super. 515, 519 (App. Div. 1975) (explaining that "a protestation of innocence must be more than a mere assertion of non-guilt" and newly-asserted defenses may invite skepticism if "factually unclothed"). "Courts are not to conduct a mini-trial at this juncture[;]" however, "[t]hey should simply consider whether a defendant's assertion of innocence is more than a blanket, bald statement and rests instead on particular, plausible facts." Slater, supra, 198 N.J. at 159. The longer the defendant delays in asserting a claim of innocence, the greater the level of scrutiny to be employed by the court in weighing the claim. Id. at 160.

Defendant has not established a colorable claim of innocence. Defendant merely states he has "consistently professed his innocence," but that claim is belied by his admissions to the charges against him at his plea hearing. Defendant's "assertion of innocence is [nothing] more than a blanket, bald statement and [does not] rest[] . . . on particular, plausible facts." Id. at 159. Moreover, defendant waited ten months between pleading guilty and moving to vacate the plea.

The second factor focuses on the basic fairness of enforcing a guilty plea. It requires that the court ask whether the defendant has presented "fair and just reasons for withdrawal," and considers the effectiveness of those reasons. Id. at 159. Case law has identified a number of reasons that warrant withdrawal of a plea. Those reasons include: (i) whether "the court and prosecutor misinformed the defendant about a material element of the plea negotiation, which the defendant relied on in entering his plea;" (ii) "the defendant was not informed and, thus, did not understand material terms and relevant consequences of the guilty plea, namely, the direct, penal consequences of the plea;" (iii) the "defendant's reasonable expectations under the plea agreement were not met;" and (iv) "the defendant has not only made a plausible showing of a valid defense against the charges, but also credibly demonstrated why that defense 'was forgotten or missed' at the time of the plea." Id. at 159-60 (internal quotations omitted).

The nature and strength of defendant's reasons for withdrawal are inadequate. Defendant's contention that he believed the sentence would be a five-year term of imprisonment is not supported by the record. At the plea hearing, the judge specifically reviewed with defendant the penal consequences of the plea agreement. Defendant's plea counsel also stated at the plea hearing he understood that the sentence would result in an aggregate twenty years in State prison.

The third factor focuses on the existence of a plea bargain. The defendant bears a higher burden in moving to withdraw a plea of guilty entered pursuant to a plea bargain. Id. at 160-61 (citing Smullen, supra, 118 N.J. at 416-17; Huntley, supra, 129 N.J. Super. at 18). "We recognize that the vast majority of criminal cases are resolved through plea bargains and do not suggest that this factor be given great weight in the balancing process." Slater, supra, 198 N.J. at 161.

The fourth factor focuses on whether withdrawal would result in unfair prejudice to the State or unfair advantage to the accused. "There is no fixed formula to analyze the degree of unfair prejudice or advantage that should override withdrawal of a plea." Ibid. "[C]courts must examine this factor by looking closely at the particulars of each case." Ibid. Slater suggests that examples of facts that demonstrate prejudice include: "the loss of or inability to locate a needed witness, a witness's faded memory on a contested point, or the loss or deterioration of key evidence." Ibid. The trial court must inquire into these factors, as well as others, to determine whether the "passage of time has hampered the State's ability to present important evidence." Ibid. The judge concluded, although we do not necessarily agree, that the State would be prejudiced if he vacated the plea agreement because of the passage of time would impact on the ability of the victims to recount the events.

Next, defendant argues that the judge erred by (1) imposing an excessive sentence, and (2) improperly discounting mitigating factor N.J.S.A. 2C:44-1(b)(7). We disagree.

Our review of a sentence is limited. State v. Roth, 95 N.J. 334, 364 (1984). We must first determine whether the correct sentencing guidelines have been followed. Id. at 365. When a trial court follows the sentencing guidelines, we should not second-guess the sentencing court's decision. State v. Cassady, 198 N.J. 165, 181 (2009); State v. Jabbour, 118 N.J. 1, 5 (1990). Indeed, an appellate court "'does not sit to substitute its judgment for that of the trial court.'" Jabbour, supra, 118 N.J. at 6 (quoting State v. O'Donnell, 117 N.J. 210, 215 (1989)). So long as the trial court properly identifies and balances aggravating and mitigating factors that are supported by competent, credible evidence in the record, we must affirm defendant's sentence. Jabbour, supra, 118 N.J. at 6; O'Donnell, supra, 117 N.J. at 215. We are "expected to assess the aggravating and mitigating factors to determine whether they 'were based upon competent credible evidence in the record.'" State v. Bieniek, 200 N.J. 601, 608 (2010) (quoting Roth, supra, 95 N.J. at 364-65). A sentence will be found improper when it "shock[s] the judicial conscience." Roth, supra, 95 N.J. at 365.

Applying these standards, we discern no reason to disturb the sentence. The trial judge followed the sentencing guidelines, and the record supports the judge's findings of aggravating factors pursuant to N.J.S.A. 2C:44-1a(2), (3), and

(9) substantially outweighing the non-existent mitigating factors.

The judge properly applied the Yarbough*fn1 criteria when he imposed consecutive sentences. At the plea hearing, defendant admitted that the crimes occurred from August 2006 through September 2007 and involved multiple victims at different times. Therefore, the crimes did not occur during the same period or constitute a single continuing act, and defendant properly received consecutive sentences.

Defendant's twenty-year aggregate sentence is not "clearly mistaken," State v. Jarbath, 114 N.J. 394, 401 (1989), and does not "shock the judicial conscience." Roth, supra, 95 N.J. at 365. We have carefully reviewed the record and the arguments presented by counsel and conclude that the remaining issues presented by defendant are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.


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