December 30, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JOHN MUNIZ, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 04-01-0039.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 16, 2011 - Decided Before Judges Fuentes and Koblitz.
Defendant John Muniz appeals from the October 12, 2010 order denying his application to withdraw his guilty plea entered on April 5, 2004, due to his severe mental illness. We affirm, holding that the motion judge did not abuse his discretion in determining that the denial of defendant's motion to withdraw his guilty plea did not constitute a manifest injustice.
In January 2003, a Middlesex County Grand Jury charged defendant John Muniz and co-defendant Elizabeth Muniz with four counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a (counts one, two, three and four); four counts of third-degree aggravated sexual contact, N.J.S.A. 2C:14-3a (counts five, six, seven and eight); and three counts of second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a (counts nine, ten and eleven). Defendant pled guilty to count nine of the indictment. The charge arose out of allegations that between March 1, 2003, and June 30, 2003, while he and his wife, the co-defendant, were baby-sitting a fourteen-year-old girl, he touched the girl's buttocks to sexually gratify himself. He was sentenced to three years in prison, and was ordered to comply with the provisions of Megan's Law upon his release and submit the required DNA samples, and to be subject to community supervision for life. Defendant was also ordered to pay $1000 in restitution to the victim's mother, as well as the mandatory fees.
Before entering his guilty plea in 2004, defendant's attorney stated on the record that he and defendant had discussed the consequences and terms of the plea in detail, he answered defendant's questions, and that they had gone over the forms for approximately fifty minutes. Defendant acknowledged that his attorney explained to him in detail the rights he would be relinquishing as a result of his guilty plea and the consequences of the plea itself.
Judge Frederick P. DeVesa, P.J.Cr.,*fn1 then explained to defendant that he would have a conviction on his record and that he could be sentenced to a maximum prison term of three years. Judge DeVesa informed defendant that his earliest release on parole would be after nine months in prison if the maximum sentence under the plea agreement was imposed. Judge DeVesa also indicated that the agreement would bar defendant from having any contact with the victim and that he would be responsible for paying her therapy expenses. Defendant responded that he understood all of these consequences.
Judge DeVesa informed defendant that he would be ordering a
psychological report from the Department of Corrections before
defendant's sentencing due to the sexual nature of the charges. He
told defendant that if the report indicated that defendant was
"repetitive and compulsive," he could be sentenced to imprisonment in
the Adult Diagnostic Treatment Center (ADTC), which he explained was
"a prison for sex offenders." N.J.S.A.
2C:47-1. He further explained that if imprisoned in the ADTC,
defendant would be subject to different parole guidelines and he could
potentially serve a longer term before becoming eligible for parole.
The judge then informed defendant of his obligations to submit a DNA
sample, to comply with the provisions of Megan's Law,*fn2
to pay the mandatory fines and penalties, and to submit to
community supervision for life. Defendant said that he understood all
of these consequences.
Judge DeVesa then proceeded to question defendant. During this exchange, defendant said that he received no additional promises, he was not under the influence of any drug or substance that would impair his judgment or understanding, no one was coercing him to plead guilty and he was pleading guilty freely and voluntarily because he was guilty of the crime and the plea was in his best interest.
Defendant's attorney then asked defendant about the factual basis for the charges. Defendant said that he touched the victim while baby-sitting for her. When first asked why he touched her buttocks, defendant said "I'm not sure." Defense counsel then said, "[n]ow I'm going to ask the question again. Why did you touch her on the behind?" Defendant then answered, "[t]o sexually gratify me." Defendant stated that the victim was fourteen years old and he understood that he had assumed a legal duty to care for her in his role as babysitter. He also admitted that touching her on the buttocks was wrong.
Judge DeVesa accepted defendant's guilty plea, indicating he was satisfied that defendant was "pleading guilty freely and voluntarily; that he underst[ood] the consequences of his plea and that no undisclosed promises or threats had been made to cause him to plead guilty[,] [a]nd . . . there [was] an adequate factual basis for the plea of guilty."
On May 12, 2004, defendant was evaluated by Mark Frank, Ph.D., to determine whether or not defendant should be incarcerated in the ADTC. Defendant was found to have "an estimated Weschler Adult Intelligence Scale-Revised Full Scale I.Q. placing him within the 'Mentally Deficient' classification of intellectual functioning. Both the pattern of his scores and clinical impression suggest higher potential, perhaps in the 'Borderline' range." Defendant's drawings were "childlike and regressed," but were not "reflective of serious underlying psychopathology of a psychotic nature. Nor were they clearly indicative of neurological impairment." During the evaluation, defendant denied feelings of sexual attraction toward the victim or any other juvenile. In his report, Dr. Frank noted that "[a]lthough [defendant] pled guilty to touching the victim's buttocks, during the present examination he denied culpability." He further observed that defendant's offense was not part of "a repetitive, compulsive pattern of criminal sexual behavior," but rather his "offense conduct is probably best understood within the broader context of his chronic emotional disturbance. [Defendant] has a long history of depression and Schizoaffective Disorder. He has experienced hallucinations and delusions and his judgment can be impaired." Dr. Frank then recommended continued psychiatric treatment for defendant.
The pre-sentence report (PSR) details defendant's mental health history. As of March 2000, defendant was rendered disabled and unable to work as a result of a long-term psychiatric illness, for which he had been hospitalized on at least three occasions for periods ranging from one to four weeks.
The PSR also states that defendant "denies culpability in the instant offense, stating he pled so his wife would not have to go to jail. He also believes the victim's mother may have played a role in orchestrating the charges against him."
After counsel and Judge DeVesa were given these reports, the judge sentenced defendant to three years in prison. Over six years later, on July 19, 2010, after he had completed his custodial term and had been released from prison, defendant, represented by new counsel, filed a motion pursuant to Rule 3:21-1 to withdraw his guilty plea. This motion was supported by defendant's certification alleging that he was mentally ill at the time of his plea, he neither understood nor voluntarily entered into the plea agreement and he was innocent of the charges against him. Defendant also certified that at the time of the guilty plea he was "on a variety of psychotropic medications including but not limited to anti-psychotic medication (Zyprexa), anti-depression medication and/or anxiety medication(s): (Paxil), (Celexa)[,] (Ambien), (Effexor) and (Diazepam)."
At the motion hearing, defense counsel argued that defendant's prior attorney did not adequately explain the plea agreement to defendant given defendant's mental disability and did not acknowledge the severity of defendant's mental illness. Defense counsel also argued that defendant told his prior attorney that he was innocent and accused prior defense counsel of whispering in defendant's ear during the plea hearing to tell him what to say, after which defendant "repeated  verbatim what [counsel] had asked him to say at that point." Counsel further asserted that defendant's plea was a "manifest injustice" and the five-year time limitation was inapplicable because this was not an application for post-conviction relief (PCR) under Rule 3:22-1.
Judge DeVesa noted that, given the delayed filing of the request to withdraw his plea, defendant would have to show either that his sentence was illegal or that a manifest injustice would result from a denial of his application to withdraw his plea. The judge found that defendant had not asserted a colorable claim of innocence, just "that he was suffering from an impaired mental state and medication that did not allow him to freely and voluntarily enter into a plea of guilty." Judge DeVesa then noted that defendant confirmed at the time of his plea that he was not "under the influence of any medication or anything that would cause him not to be able to be freely and voluntarily and knowingly plead guilty." The judge further remarked that the plea agreement "allowed [defendant] to escape what could have been up to [twenty] years in prison for a first degree crime to serve a term of imprisonment of three years." He further explained that "[d]efendant was sentenced to the minimum term of imprisonment for the crime that he pled guilty to." The judge denied defendant's motion and concluded that "it would be extremely unfair for the [court] to now allow this Defendant to withdraw his guilty plea and require the State to prosecute him so many years later when memories have faded and witnesses may not even be available."
On appeal, defendant raises the following issue:
THE DEFENDANT'S PLEA MUST BE WITHDRAWN TO CORRECT A MANIFEST INJUSTICE Defendant argues that he must be allowed to withdraw his plea because he suffered from a severe mental illness at the time it was entered.
Appellate courts review a trial court's decision on a motion to vacate a guilty plea under an abuse of discretion standard and should reverse only if its decision was "clearly erroneous." State v. Mustaro, 411 N.J. Super. 91, 99 (App. Div. 2009). "A denial of a motion to vacate a plea is 'clearly erroneous' if the evidence presented on the motion, considered in light of the controlling legal standards, warrants a grant of that relief." Id. at 100.
Pursuant to Rule 3:21-1, a motion to withdraw a guilty plea after sentencing will be permitted only "to correct a manifest injustice." In State v. Slater, 198 N.J. 145 (2009), the Court identified four factors to be weighed when considering a motion to withdraw a plea: "(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. Although these factors apply to motions brought after sentence has been imposed, "the weighing and balancing process will differ depending on when a motion is filed." Id. at 158.
Defendant argues that he presented a colorable claim of innocence because he denied the allegations when first questioned by police, at the time of his Avenel interview and to the preparer of the pre-sentence report. Additionally, he contends that his initial uncertainty during the plea in response to defense counsel's question as to why he touched the victim indicates that he denied wrongdoing. Defendant asserts that he answered the question by saying that he did so for sexual gratification only because his lawyer whispered in his ear how to respond.
We agree with Judge DeVesa that these arguments do not present a colorable claim of innocence. To justify the withdrawal of a guilty plea, a defendant must assert "specific, credible facts and, where possible, point to facts in the record that buttress [his] claim." Id. at 158. Our experience has shown that, in crimes involving the sexual assault of children, it is not unusual for defendants to experience difficulty admitting their guilt, even when they wish to accept a guilty plea.
When first questioned by police, defendant said that "he never touched or did anything to [the victim] to hurt her . . . [and] that he never had sexual intercourse with [her]." Defendant indicated at the guilty plea hearing that he knew he was wrong to touch her the way he did. These statements are not inconsistent with his admission of guilt, as he did not admit hurting the victim or having sexual intercourse with her.
Although defendant's statements reflected in the presentence report and ADTC report indicate that he denies culpability and pled guilty only to protect his wife, those statements are not specific and directly conflict with what he told Judge DeVesa at his plea hearing. Contrary to defendant's contention, they do not suffice to present a colorable claim of innocence. "A bare assertion of innocence is insufficient to justify withdrawal of a plea." Id. at 158.
With regard to the second Slater factor, defendant's reasons for seeking to withdraw his plea, defendant maintains that his attorney during the plea and sentence hearings was ineffective. If defendant's lawyer mistakenly failed to notice the severity of his mental illness, or failed to advise the judge of defendant's inability to enter a voluntary plea, defendant should have brought a timely claim for ineffective assistance of counsel in a petition for post-conviction relief.
Defendant further argues that he should be permitted to withdraw his plea because he was "too mentally ill to object in any substantial way." "A defendant whose mental condition is such that he is unable to comprehend his position, to consult intelligently with counsel and plan his defense . . . precludes [his] acceptance of a guilty plea." State v. Norton, 167 N.J. Super. 229, 231 (App. Div. 1979) (citations omitted).
Defendant certified that he was on several medications to treat his mental illnesses at the time he entered his plea. These prescribed medications should have enhanced, rather than inhibited, his ability to comprehend the questions asked. Moreover, the issue of defendant's competency to enter the plea was never raised, even though both defense counsel and Judge DeVesa were aware of defendant's mental illness by the time he was sentenced. Yet defense counsel never suggested to Judge DeVesa that a competency hearing precede acceptance of defendant's plea. See id. at 232.
Judge DeVesa presided over both the plea and sentencing hearings. He was, therefore, in a particularly good position to asses the merits of defendant's motion and to decide whether or not defendant understood the terms and the consequences of the plea agreement. At the plea hearing, the judge specifically asked defendant if he was taking any medications that would prevent him from understanding the terms and consequences of the plea or from entering into it voluntarily. Defendant unequivocally answered that he was not. The judge's subsequent conclusion at the motion hearing that defendant was capable of understanding the plea and voluntarily pled guilty is fully supportable on the record before us.
The fact that defendant was mentally ill does not in itself demonstrate that he was incompetent to enter a guilty plea. See State v. Spivey, 65 N.J. 21, 39 (1974); State v. Cecil, 260 N.J. Super. 475, 485 (App. Div. 1992). In these circumstances, defendant has failed to show that he lacked competence to tender a plea of guilty. See id. at 232.
"Timing matters as to the strength of the reasons proffered in favor of withdrawal. As the standards in Rules 3:9-3(e) and 3:21-1 suggest, efforts to withdraw a plea after sentencing must be substantiated by strong, compelling reasons." Slater, supra, 198 N.J. at 160. Notably, defendant provides no reasons as to why he did not assert a lack of understanding the plea agreement prior to sentencing or why he waited until six years after he entered the plea to raise this claim. Factor two, therefore, does not favor defendant's motion to withdraw his plea.
As to the third Slater factor, defendant's plea was entered pursuant to a favorable plea bargain. His burden in seeking to withdraw the plea is thus heavier than if he entered an open plea. See State v. Smullen, 118 N.J. 408, 416 (1990); State v. Huntley, 129 N.J. Super. 13, 18 (App. Div. 1974) (stating that "when a voluntary and knowing plea bargain has been entered into simultaneously with the guilty plea, defendant's burden of presenting a plausible basis for his request to withdraw his guilty plea is heavier."). Defendant was originally charged with an eleven count indictment, including four counts of first-degree aggravated sexual assault. He was sentenced to only three years in jail on one count of second-degree child endangerment as a result of his guilty plea. His wife was accepted into the pre-trial intervention program after defendant pled guilty. Accordingly, factor three does not weigh in defendant's favor.
As to the fourth Slater factor, whether the withdrawal of defendant's plea would unfairly prejudice the State or unfairly advantage defendant, the State did not present evidence that it would be prejudiced by defendant's plea withdrawal. Rather, it asserts only that "[s]even years have passed since [defendant's plea] and the memories of all of the parties and witnesses have most likely faded." However, as defendant did not present proof of the other Slater factors, the State need not present evidence of prejudice. Slater, supra, 198 N.J. at 162 ("The State is not required to show prejudice if a defendant fails to offer proof of other factors in support of the withdrawal of a plea.").
Given that defendant has not presented a colorable claim of innocence or set forth compelling reasons for withdrawing his guilty plea, Judge DeVesa did not abuse his discretion by denying defendant's motion. Although defendant suffered from mental illness at the time of his guilty plea, no manifest injustice has occurred. The evidence supports Judge DeVesa's determination that defendant understood the nature of his guilty plea. A mentally ill but competent defendant is not precluded from working out a plea bargain with the State.