March 8, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
HAKEEM SHAQUI ROBERSON, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 07-10-0923.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued December 14, 2011
Before Judges Fuentes, Graves and Koblitz.
Defendant Hakeem Shaqui Roberson appeals from the June 3, 2009 order denying his application made prior to sentencing to withdraw his previously entered guilty plea. Defendant argues that he did not provide a sufficient factual basis for certain crimes to which he pled guilty, and satisfied the criteria under State v. Slater, 198 N.J. 145 (2009), to withdraw his plea. After reviewing the record in light of the contentions advanced on appeal, we reverse on sentencing issues conceded by the State and otherwise affirm.
In Union County Indictment No. 07-10-0923, defendant and eighteen other people were charged with various crimes in a forty-five count indictment. Defendant was charged with twenty-five of the forty-five counts. On July 30, 2008, defendant pled guilty to certain counts in the indictment pursuant to a plea agreement. Defendant initially agreed to plead guilty to the following counts: (1) first-degree racketeering, contrary to N.J.S.A. 2C:41-2(c) (count one); (2) second-degree conspiracy to distribute "cocaine and/or heroin," N.J.S.A. 2C:5-2(a) and N.J.S.A. 2C:35-5(a)(1) and (b)(2) (count three); (3) second-degree conspiracy to commit aggravated assault, N.J.S.A. 2C:5-2(a) and N.J.S.A. 2C:12-1(b)(1) (count five); (4) second-degree possession of a community gun, N.J.S.A. 2C:39-4(a)(2) (count fifteen); (5) second-degree employing a juvenile in a drug distribution scheme, N.J.S.A. 2C:35-6 (count seventeen); (6) second-degree attempted aggravated assault against Carmen Dominguez and/or Jose Martinez and/or Calvin Wise and/or Hassan Ward on March 11, 2007, N.J.S.A. 2C:12-1(b)(1) (count nineteen); (7) second-degree attempted aggravated assault against Donald Blakney and/or Harry Caver on March 30, 2007, N.J.S.A. 2C:12-1(b)(1) (count twenty); (8) second-degree attempted aggravated assault against Ronald Fleming, Raheem Young and/or Michael Foster on April 11, 2007, N.J.S.A. 2C:12-1(b)(1)(count twenty-one); and (9) third-degree distribution of heroin, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3) (count twenty-four).
In exchange for his guilty plea to these crimes, the State agreed to dismiss the remaining sixteen counts against defendant. The State further agreed to recommend an aggregate sentence of eighteen years with a nine-year parole disqualifier.
During the plea hearing, the State and defendant agreed to amend the plea agreement. The State agreed to dismiss count fifteen and, in exchange, defendant agreed to plead guilty to count fourteen, second-degree possession of a .357 Lawman MK III Revolver and/or a .38 caliber Smith and Wesson Revolver and/or a .38 Rossi Revolver and/or a Mossberg 12 gauge Rifle and/or an SKS 762 x 39 Assault Firearm, and/or a Remington Airmaster 77 BB Gun, with purpose to use the firearm(s) unlawfully against the person or property of another, N.J.S.A. 2C:39-4(a)(1).
Defendant set forth a lengthy factual basis for his guilty pleas. That factual basis was, in part, prompted by conversations recorded by the State. Throughout the hearing, defendant acknowledged their accuracy and used these conversations to refresh his memory as to what had occurred on certain dates.
Defendant indicated the following information. Between February 20 and the end of April 2007, he directed a group called the "Clinton Avenue Posse" in Plainfield, N.J. The group used the stop sign as a symbol, and defendant wore a chain with a "Clinton Av." pendant.
Defendant admitted to obtaining heroin and cocaine and selling the drugs to members of the Clinton Avenue Posse for resale to others. Those individuals included Rashid "Banks" Franco, Amir "Lick 'em Low" Madison, Kelso "Kel" Moseley and Pernell White. Defendant purchased heroin from Jason Greer. On a few separate occasions, Franco accompanied defendant to pick up drugs from Greer.
Defendant stated that he cumulatively distributed more than one-half ounce of drugs. He claimed, however, that he was more "like a wholesaler." He said people would come get drugs from him and then "do their own things[.]"
Defendant admitted to his involvement "in essentially guiding [the] rivalry with Sixth Street Posse or other individuals who would compete with [him] or threaten [his] group[.]" As part of that guidance, he devised plans to "threaten or even attempt to do violence to other individuals to protect [his] group[.]"
Defendant also took measures to protect himself and other members of his group from police apprehension. The Clinton Avenue Posse had a police scanner, and defendant's associates warned him if the police or members of rival groups, such as the Sixth Street Posse, were nearby.
Defendant admitted to possessing numerous guns, one of which was a .38 caliber Rossi firearm shared by defendant and other members of his group, including Franco, Madison, and Pernell White. He acknowledged the gun's purpose was to protect both the members of his group and their drugs. Furthermore, he admitted to planning shootings and telling other individuals in his group about plans to carry out beatings and shootings of rivals. Defendant stated that "[a]ll the shootings come [sic] from me and Pernell White." He also related the involvement of many other associates in his illegal drug business.
Defendant's female associates included: Waaliah Carter, Naisha Byrd, Sharlene Jackson, Danyelle "Danni" Jones, and Tayeesha "Freak" Heyward. Each woman knew of defendant's involvement in selling drugs. Jones delivered drugs for defendant in exchange for money. Byrd and Carter provided vehicles for defendant's use. Heyward allowed defendant to store marijuana and heroin at her apartment and brought heroin from her apartment to defendant on one occasion. In addition, all of these women assumed a protective function, warning defendant when either police or rival group members were nearby.
Defendant's male associates included: Franco, Madison, White, Mosley, Najee McCoy and two of defendant's brothers, Hameen and Hisham Muhammed. These individuals protected one another. They provided intelligence regarding both police and rival group presence, physical support, and transportation or other logistical support to facilitate transactions in illegal drugs. Defendant also admitted to using a juvenile to assist with his drug distribution.
Some of the specific factual details provided by defendant are as follows: Mosley, Madison and McCoy purchased drugs from defendant; when defendant traveled to Miami, he asked Mosley to manage his drug distribution business; on one occasion, Hisham*fn1 transported McCoy to meet with defendant to complete a drug transaction; Franco regularly used a police scanner to monitor law enforcement activity and, on March 28, 2007, was recorded voicing his desire to purchase heroin from defendant; Hisham also monitored the police scanner on at least one occasion; and Hameen sometimes delivered drugs to buyers and collected money on defendant's behalf. Defendant further stated that, at times, he had two separate phones. One was used exclusively for receiving calls from drug buyers.
Defendant's testimony also revealed an incident when Madison was in possession of drugs and called defendant to express his concern about being stopped by police. Defendant instructed Madison to hide the drugs and wait at someone's apartment until he and White made arrangements to have him picked up.
Defendant further acknowledged an occasion when he, Madison and Franco went to assault Dem Quan Royal, a member of the Sixth Street Posse. Royal, however, ran away and dropped his phone, which defendant then gave to Hisham.
On March 10, 2007, defendant's brother Hisham was shot. The following day, defendant drove with White to Plainfield, intending to find and inflict serious bodily injury*fn2 on the individual responsible for his brother's shooting. Defendant exited the vehicle and fired shots in the direction of Hassan Ward, who he believed was involved in the previous day's shooting. White served as "lookout."
Defendant admitted that he tried to assault Tyrese Fleming, a member of the Sixth Street Posse, on numerous occasions. A recorded conversation revealed that, on March 28, 2007, defendant spoke with Franco, who said he was going to "join [defendant] in getting Tyrese."
On March 30, 2007, defendant, armed with a handgun, sought out Donald Blakney and Harry Caver with the intent to inflict serious bodily injury. However, defendant did not accomplish his plan.
On April 9, 2007, defendant went to assault Preston McCloud, another member of Sixth Street Posse, but was deterred by the presence of police officers. Defendant admitted that he and his associates went to assault McCloud many times, but were never successful in carrying out their objective.
On April 11, 2007, while armed with sticks and bats, defendant and Franco decided to assault Ronald "Ace" Fleming, a member of Sixth Street Posse, with the intent to cause him serious bodily injury.
Six weeks after entering his guilty plea, defendant filed a motion to withdraw his plea. The judge held a plenary hearing. One of defendant's attorneys testified that defendant always said "he was not involved in any violence and that he was not involved in any shootings . . . or anything related to any guns." He testified that defendant told him he took the plea because "he felt that he was kind of forced into" it.
In his testimony, defendant asserted that he had defenses to some of the crimes to which he pled guilty. He said that he was not present during one shooting. He said that the victim of another attempted shooting gave a description of someone that did not match defendant's description. As to the other attempted aggravated assault charged, defendant said he was supposed to fight with the victim, but when he arrived he noticed the other men had guns, so it did not happen.
The State provided numerous exhibits to dispute defendant's claims of innocence, including a 362-page affidavit relating numerous recorded phone calls between defendant and other members of the Clinton Avenue Posse.
The judge issued a lengthy written opinion denying defendant's motion to withdraw his guilty plea. After setting forth the four-prong test of Slater, supra, 198 N.J. at 157-58, the judge found defendant did not satisfy the requisite elements.
On June 3, 2009, after the denial of his motion to withdraw his plea, defendant was sentenced as follows: eighteen years with a nine-year parole disqualifier on count one; seven years on count three; eight years in prison subject to the eighty-five percent period of parole ineligibility specified in the No Early Release Act (NERA) on count five, N.J.S.A. 2C:43-7.2; nine years with a three-year parole disqualifier on count fourteen; fourteen years with a seventy-eight month parole disqualifier on count seventeen; eight years subject to NERA on counts nineteen, twenty, and twenty-one; and seven years with a forty-two month parole disqualifier on count twenty-four. All counts were to run concurrent with each other and with the sentence defendant was already serving.
On appeal, defendant raises the following issues:
DEFENDANT'S FOURTEENTH AMENDMENT RIGHT TO DUE PROCESS OF LAW WAS VIOLATED WHEN THE TRIAL COURT ACCEPTED HIS GUILTY PLEA, EVEN THOUGH HE ASSERTED HIS INNOCENCE TO SOME CHARGES AND FAILED TO SET FORTH A FACTUAL BASIS FOR VARIOUS COUNTS IN THE INDICTMENT, INCLUDING THOSE CHARGING HIM WITH RACKETEERING AND AGGRAVATED ASSAULT.
A. FIRST DEGREE RACKETEERING
B. ATTEMPTED AGGRAVATED ASSAULT & CONSPIRACY TO COMMIT AGGRAVATED ASSAULT
C. CONSPIRACY TO DISTRIBUTE MORE THAN ONE-HALF OUNCE OF "COCAINE AND/OR HEROIN"
D. POSSESSION OF A FIREARM WITH INTENT TO USE IT UNLAWFULLY
E. CONCLUSION POINT II
THE NINE-YEAR SENTENCE WITH A THREE-YEAR PAROLE DISQUALIFIER ON COUNT FOURTEEN VIOLATED THE TERMS OF THE PLEA AGREEMENT. (Not raised below)
THE $2,000 DEDR*fn3 PENALTY PRESUMABLY IMPOSED ON COUNT TWENTY-FOUR IS ILLEGAL.
The State concedes that defendant is correct in his arguments in Points II and III of his brief and therefore a remand for resentencing is required. During his plea, when the parties amended the plea agreement to reflect a dismissal of count fifteen and a guilty plea to count fourteen, the State agreed to a sentence recommendation of seven years with a three-year parole disqualifier. The judge, however, sentenced defendant to a concurrent term of nine years with a three-year parole disqualifier. The judge also erred in imposing a DEDR penalty in the amount of $2000 for count twenty-four, despite the fact that the statute only calls for a $1000 penalty for a crime of the third degree, N.J.S.A. 2C:35-15(a)(1)(c). We therefore remand for resentencing to correct these two errors.
As to Point I, we affirm the denial of defendant's motion to withdraw his guilty plea substantially for the reasons expressed by the judge in his thorough written opinion of June 3, 2009. We offer the following comments.
Defendant argues that he could not be guilty of both conspiracy to commit aggravated assault (count five) and three counts of attempted aggravated assault (counts nineteen, twenty and twenty-one), as the conspiracy should merge into the attempted aggravated assault counts. See State v. Connell, 208 N.J. Super. 688, 693-95 (App. Div. 1986). The State maintains, and we agree, that merger is not appropriate in these circumstances because defendant admitted to conspiring with members of his group to assault victims other than those he admitted to targeting in counts nineteen, twenty, and twenty-one.
As a factual basis to count nineteen, defendant admitted to firing gunshots at Hassan Ward on March 11, 2007. As to count twenty, the defendant's admissions in conjunction with the intercepted calls indicate that he and his associates fired at Donald Blakney or Harry Caver on March 30 with the intent to cause serious bodily injury. Defendant also admitted, as a factual basis to count twenty-one, that he and Franco sought to inflict serious bodily harm on Ronald Fleming while armed with sticks and bats on April 11, 2007.
In addition to those targeted victims, defendant admitted to planning the assault of other rivals. He admitted going with Franco to assault Royal, Tyrese Fleming and McCloud, all members of the Sixth Street Posse. These admissions, bolstered by the intercepted phone calls, provide a sufficient factual basis for the guilty plea to conspiracy set forth in count five.
The judge also reviewed the factual basis for defendant's plea to first-degree racketeering. N.J.S.A. 2C:41-2(c). Defendant admitted that he was the leader of the Clinton Avenue Posse, a group which consisted of individuals who sold illegal drugs. Although he characterized himself as merely a "wholesaler" with no control over the drugs' resale, he in fact admitted to engaging in violent criminal activity using firearms to protect his business enterprise from the Sixth Street Posse. Defendant also admitted to shielding Amir Madison, a member of his group, from apprehension by the police. Other members of the Clinton Avenue Posse assisted defendant in drug distribution and in a warning system set up to alert him to the presence of law enforcement and rival group members. We agree with the judge that defendant's admissions satisfy the elements of first- degree racketeering as established by the Court in State v. Ball, 141 N.J. 142 (1995), cert. denied, 516 U.S. 1075, 116 S. Ct. 779, 133 L. Ed. 2d 731 (1996).
Defendant also clearly related a factual basis for the distribution of over one-half ounce of cocaine or heroin (count three). N.J.S.A. 2C:35-5(c) states that the amount of drugs distributed to different people on different dates may be aggregated to determine the grade of the offense. Defendant specifically admitted under oath that he had cumulatively distributed over one-half ounce of drugs.
Defendant further argues that he did not provide a factual basis for the charge of possession of a gun with the intention of using it unlawfully (count fourteen) because he had the gun for self-defense. He admitted at the plea hearing, however, that he owned the .38 Rossi with the intention of using it against persons or property to protect his drug business. Thus, defendant gave an adequate factual basis for this charge as well.
Defendant argues in his conclusion that the judge did not properly consider his motion to withdraw his plea under applicable law. In general, a criminal defendant's motion to withdraw a guilty plea is left to the sound discretion of the trial court. State v. Deutsch, 34 N.J. 190, 197 (1961). If the motion is made before or at the time of sentencing, the court should grant the motion if it is in the "interests of justice." R. 3:9-3(e).
In 2009, the Court explained the standard to use in evaluating a motion to withdraw a guilty plea in State v. Slater, supra, 198 N.J. 145. The Slater Court set forth a four factor test: "(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. "[T]he burden rests on the defendant, in the first instance, to present some plausible basis for his request, and his good faith in asserting a defense on the merits." Id. at 156 (internal quotations and citations omitted).
In evaluating a motion to withdraw, courts should consider first whether the defendant has asserted his innocence. Id. at 158. However, "a protestation of innocence must be more than a mere assertion of nonguilt." State v. Phillips, 133 N.J. Super. 515, 519 (App. Div. 1975). Instead, "[d]efendants must present specific, credible facts and, where possible, point to facts in the record that buttress their claim." Slater, supra, 198 N.J. at 158 (emphasis added) (citations omitted).
Courts may look to numerous things to evaluate a claim of innocence in this context, including: evidence that was available to the prosecutor and to the defendant through our discovery practices at the time the defendant entered the plea of guilt. In some cases, the proffered evidence may serve to rebut the assertion of innocence; in others, it may move a court to vacate the plea to the end that justice be done. [Id. at 158-59 (quoting State v. Smullen, 118 N.J. 408, 418 (1990)).]
The motion judge first considered the time it took defendant to assert a claim of innocence. He found, and there is no dispute, that defendant first raised his claim of innocence to the court six weeks after entering his plea. Furthermore, the judge observed that defendant's claims of innocence were not made under oath and reviewed the information obtained through the State's wiretap to find them "factually unclothed." The judge further opined that the timing of defendant's motion suggested the reality of prison was probably setting in. The judge ultimately found the statements defendant made under oath during the plea to be credible, while discrediting those made thereafter.
As the Supreme Court noted recently in State v. NunezValdez, 200 N.J. 129, 141 (2009), "[a] reviewing court is required to affirm the findings of the trial court if they could reasonably have been reached on sufficient credible evidence in the record." The Court added, "[a]n appellate court 'should give deference to those findings of the trial judge which are substantially influenced by his opportunity to hear and see the witnesses and to have the feel of the case, which a reviewing court cannot enjoy.'" Ibid. (quoting State v. Elders, 192 N.J. 224, 244 (2007) (quoting State v. Johnson, 42 N.J. 146, 161 (1964))).
The judge properly reviewed the State's evidence, including wire-tapped conversations between defendant and other members of his criminal organization, to discredit his claims of innocence. Thus, the record amply supports his findings as to the first Slater factor.
The second Slater factor requires a court considering a motion to withdraw to determine whether any of the following reasons for withdrawal is present:
(1) the court and prosecutor misinformed the defendant about a material element of the plea negotiation, which the defendant relied on in entering his plea; (2) 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; (3) defendant's reasonable expectations under the plea agreement were not met; and (4) 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. [Slater, supra, 198 N.J. at 159-60 (internal quotation marks and citations omitted).]
The judge made the following findings: (1) defendant repeatedly acknowledged that he understood the terms of the negotiated plea during the hearing; (2) defendant did not assert any defenses until the hearing on his application to withdraw his guilty plea; and (3) defendant presented an adequate factual basis to demonstrate the existence of a criminal enterprise and a pattern of racketeering activity.
During his plea, defendant responded affirmatively numerous times when asked whether he understood the terms of his guilty pleas, including the nature of the crimes and their penal consequences. Whether defendant's reasonable expectations under the plea were not met is inapplicable because he sought to withdraw his plea prior to sentencing. Lastly, defendant did not demonstrate a valid defense to the charges, nor did he attempt to explain why any defense was forgotten or missed.
Although courts can and should look to the presence of a plea bargain in evaluating a motion to withdraw under the third Slater factor, see, e.g., Smullen, supra, 118 N.J. at 416-17, this factor should not "be given great weight in the balancing process." Slater, supra, 198 N.J. at 161. Defendant clearly entered into this plea as part of a plea bargain with the State. In exchange for his plea, the State agreed to dismiss the remaining counts and to recommend a sentence less than the maximum. The judge further expressed his inclination to impose a custodial sentence concurrent to the sentence that defendant was already serving, thereby further reducing his time in custody.
In showing prejudice under the final Slater factor, the State may present facts such as "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 critical inquiry," however, "is whether the passage of time has hampered the State's ability to present important evidence." Ibid. Notably, the court need not reach this final factor "if a defendant fails to offer proof of other factors in support of the withdrawal of a plea." Id. at 162.
In reliance also on the Slater Court's statement that "[e]xtensive pre-trial preparation for a complex racketeering case, halted by a plea, might counsel against a plea withdrawal [,]" id. at 161, the judge properly denied defendant's application to withdraw his plea after considering all applicable factors and determining that defendant provided a factual basis for each conviction.
Affirmed in part and reversed in part. We remand for resentencing and do not retain jurisdiction.