On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 09-02-0580.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: October 26, 2011 -
Before Judges Axelrad and Ostrer.
Defendant Amir Kreps appeals from denial of his presentence motion to withdraw his guilty plea and, alternatively, challenges his sentence as excessive.
On February 25, 2009, an Essex County Grand Jury returned Indictment Number 09-02-0580, charging defendant and his co-defendant, Jason O'Neil, with second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and 2C:15-1 (count one); three counts of first-degree robbery, N.J.S.A. 2C:15-1 (counts two, six and ten); three counts of fourth-degree aggravated assault, N.J.S.A. 2C:12-1b(4) (counts three, seven, and eleven); three counts of third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b (counts four, eight and twelve); and three counts of second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (counts five, nine, and thirteen). Defendant alone was charged with two counts of third-degree aggravated criminal sexual contact, N.J.S.A. 2C:14-3(a) (counts fourteen and fifteen).
Following an unsuccessful suppression motion, defendant appeared before Judge Stephen J. Bernstein on April 13, 2009, and pursuant to a negotiated plea agreement, pled guilty to three counts of first-degree robbery (counts two, six and ten) and one count of aggravated criminal sexual contact (count fifteen). In exchange, the State recommended a custodial term of thirteen years subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, Megan's Law supervision, and parole supervision for life upon defendant's release. The prosecutor noted that the plea agreement was more generous than the State's offer that morning of a fifteen-year custodial term subject to NERA. The State also expressed a willingness to dismiss the remaining counts of the indictment and a separate indictment stemming from this case charging defendant with being a certain person not to possess a firearm, N.J.S.A. 2C:39-7b.
The plea was finalized after defendant expressed some concerns about the sentence and the judge informed him that his co-defendant pled guilty to armed robbery and implicated him, advised him of his potential exposure if convicted of all the charges, and a recess was taken for defendant to have further discussions with his attorney. Defendant acknowledged he had the opportunity to review the plea forms with his attorney and signed and initialed the pages, and he understood the charges to which he was pleading guilty and all aspects of his sentence, including the ramifications of NERA, Megan's Law, and parole supervision for life. Defendant further acknowledged his waiver of rights and his knowing and voluntary entry of the guilty plea. Defendant represented he had ample time to discuss the matter with his attorney, who answered all of his questions, and he had no other questions for his attorney or the court regarding the charges.
Defendant then provided a factual allocution, admitting that on the day in question he committed a theft upon M.B. by taking her cell phone and pocketbook containing her ID card, Social Security card and her bank checks, a theft upon Martrel Gilchrist by taking his cell phone, and a theft upon Chad Hopkins by taking his sneakers and wallet containing seventy dollars, all while armed with a handgun, which he pointed at the victims, placing each in fear of immediate bodily injury. Defendant further testified that in the course of the robbery of M.B., he touched her breasts. In a colloquy with the court, defendant expressly represented he was entering the plea of his own free will because of the fact that he was guilty of the charges. The court accepted defendant's guilty plea as being "knowing, intelligent, understanding, voluntary, as well as counseled." The court scheduled sentencing for July 10, 2009, and revoked bail.
Prior to sentencing, defendant sought to vacate his plea, stating in an unsworn letter dated June 24, 2009, that he "was not informed nor fully understood the basis of the sentence imposed" because his attorney had urged him to sign the plea in a rushed manner and he was informed that if he did not sign it the sentence would be more and his bail would be revoked pending trial. The July 10, 2009 sentencing was postponed. Eventually, defendant's request to withdraw his plea came before Judge Sherry Hutchins-Henderson on April 21, 2010. Prior to the hearing, defendant's new counsel submitted a letter memorandum dated March 26, 2010 in support of defendant's request to withdraw his plea. Though recognizing that defendant provided a factual basis for the specific charges and the judge conducted a thorough inquiry into such bases, defendant's counsel argued that defendant did not understand the plea agreement because he was faced with many robbery and weapons charges and was not sure as to the exact offenses to which he pled guilty. He also argued defendant pled guilty only because he was made to understand that he would face a lengthy time in prison if he failed to comply and his attorney continued to advise him that pleading guilty would be beneficial to him.
At oral argument, defense counsel argued that defendant "felt pressured[,] [h]e didn't understand[,] [h]is lawyer didn't explain it properly to him[,] [a]nd he didn't understand and appreciate the implications of what he was doing." When the court asked defense counsel about the first Slater*fn1 factor of a "colorable claim of innocence," counsel spoke with defendant and, for the first time, represented that defendant had an alibi witness, his aunt, who would testify that he was not present at the scene of the crime charged.
The judge denied defendant's motion, recognizing that although the standard for vacating a guilty plea pre-sentence is more lenient than post-conviction, defendant had not met the "interest of justice" standard of Rule 3:9-3(e) or the four factors enumerated in State v. Slater to justify withdrawal of his plea. 198 N.J. at 157-58 (directing the courts to consider and balance the following four factors in evaluating motions to withdraw a guilty plea: "(1) whether the defendant has asserted a colorable claim of innocence; (2) the nature and strength of [the] 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").
As to the first prong, Judge Hutchins-Henderson found defendant failed to present any colorable claim of innocence, noting the strength of defendant's vague belated claim of an alleged alibi witness, his aunt, was undermined by his failure to assert any claim of innocence in submissions to the court in support of the motion to vacate. Moreover, the State apparently had a strong case against defendant based on his co-defendant's statement and his willingness ...