On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment Nos. 08-10-1974 and 08-12-2136.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 7, 2012
Before Judges Reisner and Hayden.
Defendant Dwayne C. McMillan appeals from a June 24, 2010 judgment of conviction, arising from his guilty plea to third- degree school zone drug distribution, N.J.S.A. 2C:35-7, and third-degree theft from the person, N.J.S.A. 2C:20-2d(2)(d). He was sentenced to a term of seven years in prison with a forty-two month parole bar for the drug conviction, and a concurrent four-year term for the theft. His appeal centers on a June 15, 2010 order denying his motion to withdraw his guilty plea. We affirm the conviction. We remand to correct the judgments of conviction.
This case arises from two separate incidents. On June 19, 2008, defendant was caught with several dozen individual vials of cocaine, and was charged with possession with intent to distribute cocaine in a school zone and other related third-degree drug offenses. In the second incident, on July 19, 2008, defendant was apprehended while shoplifting groceries from a supermarket, and he resisted arrest; as a result, he was charged with second-degree robbery, third-degree assault on a police officer, third-degree resisting arrest, and third-degree terroristic threats.
At a hearing on January 5, 2009, defense counsel and the prosecutor discussed the possibility of a plea agreement under which defendant would be permitted to plead guilty to one count of third-degree school zone drug distribution; the robbery would be downgraded to theft from the person, and the assorted crimes of violence with which he was charged would be dismissed; and defendant would be permitted to apply for admission to the Drug Court. The prosecutor, however, indicated that she needed to check with the prosecutor's Drug Court liaison, to be sure that was acceptable to her office.
Instead of having defendant apply to the Drug Court first to determine his actual eligibility, the parties appeared at a second hearing on January 13, 2009, at which defendant pled guilty to theft from the person and school zone drug distribution, and the case was scheduled for a February 29, 2010 hearing before the Drug Court judge.
The written plea form, which defendant signed on January 13, committed the prosecutor to recommend "9 years NJSP w/ 54 months parole disqualifier or Drug Court." Under "any other representations made" to defendant, the form specified: "[Defense] attorney promises to argue for a lesser sentence if [defendant] is not given drug court. The State will cap at 8 years if [defendant] does not get drug court." In other words, if defendant was admitted to Drug Court, the State wanted him to have a greater exposure to prison time if he flunked out, presumably as an incentive to defendant to persevere with the program. If his Drug Court application was rejected, the State was amenable to a lesser prison term.
A February 10, 2009 pre-sentence report, prepared by Probation, indicated the following information. Defendant was thirty-eight years old. He had a heart condition, for which he was awaiting implantation of a pacemaker, and he was a heroin addict. According to the pre-sentence report, he had never participated in a drug treatment program. The pre-sentence report stated: "It appears that support of a three year old heroin habit is the prime motive for [defendant's involvement] in the present pending cases." The report recommended his admission to drug court: "By all accounts the defendant appears to be a candidate for the drug court program. The undersigned agrees with his enrollment therefore."
Pursuant to the plea agreement, defendant applied to the Drug Court program. However, he was rejected, apparently as the result of opposition by the prosecutor's office. A Drug Court Legal Eligibility Form, dated February 18, 2009, recited that his application was rejected for "Violence history" and noted that a juvenile adjudication for first-degree robbery made defendant "per se ineligible." The form also noted that defendant had four prior school zone drug convictions.*fn1
The record does not reflect that defendant filed an appeal from his rejection from the Drug Court program. However, he filed a motion to withdraw his plea agreement, claiming that his attorney misinformed him by promising him that he would be accepted into Drug Court. At a testimonial hearing on June 3, 2010, at which new counsel represented defendant, he testified that his former attorney, Dwight Miller, Esq., told him that he would only be rejected from Drug Court if he told the evaluator that he did not use drugs. However, Miller testified that, while he had no recollection of the specific advice he gave defendant, he would never guarantee a client admission to Drug Court or tell a client that he would definitely be accepted as long as he admitted to using drugs.
The motion judge (before whom defendant had earlier pled guilty) issued a written opinion on June 15, 2010, rejecting defendant's application to withdraw the plea. Considering the four factors set forth in State v. Slater, 198 N.J. 145, 157-58 (2009)*fn2 , the judge first found that defendant failed to present a colorable claim of innocence. Id. at 158. In fact, defendant presented no claim of innocence. Second, the judge rejected defendant's claim that he pled guilty based on a promise that he would qualify for Drug Court. The judge credited Miller's testimony that he would not have promised defendant admission to the program. The judge also recalled communicating to defendant at the plea hearing that he might not be accepted into the program. Considering the third factor, the judge found that the guilty plea arose from a plea bargain that was very favorable ...