April 16, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DOMINIC L. MCGRIFF, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 09-02-0327.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued January 9, 2012
Before Judges Parrillo and Alvarez.
Defendant Dominic McGriff entered a guilty plea on the single count of an Atlantic County indictment charging him with second-degree eluding, N.J.S.A. 2C:29-2(b). He subsequently filed a motion to withdraw the guilty plea. The motion was heard and denied on his October 23, 2009 sentencing date.
Defendant was sentenced, in accord with the plea agreement, to five years imprisonment. Appropriate fines and penalties were also imposed. He now appeals the denial of his motion and his conviction. We affirm.
Two days after the Atlantic County incident, defendant was charged with eluding in Ocean County, this time, on foot. He was eventually convicted of a fourth-degree offense and was sentenced to a nine-month term of imprisonment concurrent to his five-year sentence on the Atlantic County charge.
Defendant established the factual basis for his Atlantic County plea by acknowledging that on December 16, 2008, police signaled him to pull over, he initially stopped, but then fled. He drove for a half-mile at approximately seventy miles per hour, disregarding traffic signals, until he was involved in an accident. He also acknowledged his knowing, voluntary, and intelligent waiver of his right to a jury trial. See R. 3:9-2. Pursuant to the plea agreement, but without explanation, defendant was given an extended sentencing date. Defendant was not indicted on the eluding charge in Ocean County until August 4, 2009, approximately two-and-one-half months before his Atlantic County sentencing date.
Defendant filed a motion to withdraw his guilty plea, asserting his plea was not voluntarily or knowingly made, and that his counsel was ineffective. The Law Division judge denied defendant's motion to withdraw his guilty plea because, among other reasons, defendant's basis for withdrawal did not meet the standard enunciated in State v. Slater, 198 N.J. 145 (2009). Specifically, defendant did not assert a colorable claim of innocence at all, a necessary component of such applications. Id. at 158-59. The judge observed defendant's reasons for withdrawal were the desire "to get everything wrapped up in a nice little package" and "perhaps buyer's remorse as to the sentence because it appears he has [spurned] any offers that we have made to put this off and have sentencing consolidated here . . . ."
The court further observed that defendant's additional basis for withdrawal - that the attorney who represented him during his plea negotiations was ineffective because she did not seek to consolidate the charges - lacked merit as there were no grounds which legally warranted consolidation. The judge explained that joinder for trial purposes would in fact have potentially prejudiced defendant because the crimes were "de facto unrelated, given their separate dates, different locations[,] and the attenuation between the two events . . . ." Furthermore, neither county had any reason to give up prosecution of its charges. Accordingly, since the judge did not agree that counsel had been ineffective, he denied the motion and proceeded to sentence defendant.
During the sentencing hearing, defendant said:
I was trying to make it one conviction prior to going to State Prison with an open conviction, you know what I mean? It limits me to status and the things that I would be entitled to if I had just one sentence. . . . All I was asking for is one conviction, instead of having two convictions, one in Ocean and one in Atlantic County.
On January 15, 2010, defendant was sentenced on the Ocean County matter to a concurrent nine-month term. That sentence will be satisfied long before defendant is eligible for parole on the Atlantic County sentence.
On appeal, defendant asserts the following points of error:
Judge Garofolo committed reversible error in denying Defendant-Appellant's motion to retract his guilty plea Point Two: Judge Garofolo committed reversible error in denying Defendant-Appellant's Claim for Ineffective Assistance of Counsel by failing to address the Ocean County matter and failure to file a Motion to Suppress Evidence Defendant raises the further point, not included in a point heading, that his factual basis established only the statutory elements for third-degree, not second-degree, eluding. He suggests that there must be a high-speed chase, as well as weaving in and out of traffic, and several collisions in order for him to be guilty of second-degree eluding.*fn1 He cites State v. Thomas, 187 N.J. 119, 137 (2006), in support of the argument. That is not a correct reading of that case or characterization of the facts in this case.
Defendant testified that he drove through Pleasantville at seventy miles per hour, disregarding stop signs and red lights after being signaled by police to pull over. His flight ended only because he had an accident. The statute defines eluding as knowingly fleeing or attempting to evade "any police or law enforcement officer after having received any signal from such officer to bring the vehicle . . . to a full stop . . . except that, a person is guilty of a crime of the second degree if the flight or attempt to elude creates a risk of death or injury to any person." N.J.S.A. 2C:29-2(b). Defendant's own sworn statement places his conduct squarely within the statutory definition of the second-degree crime.
Additionally, Thomas merely reiterates a plain reading of the statute. When a defendant flees or attempts to elude law enforcement and as a result creates a palpable risk of death or injury, the necessary elements have been established for a second-degree eluding. Thomas, supra, 187 N.J. at 138. Defendant's plea statement clearly and unequivocally fits the Thomas definition as well.
Defendant's assertion, first made on this appeal and not raised in any point heading, that he was not aware he was entering a plea of guilty to second-degree eluding lacks record support. The plea form explains defendant was pleading guilty to a second-degree crime. The prosecutor in his opening remarks in the plea hearing said: "Judge, this is Dominic McGriff. He's here on Indictment 09-02-0327-A in count one with eluding the police, a crime of the second degree." In his colloquy with defendant, the judge reiterated that the charge was a second-degree offense.
In his first point, defendant also contends that his application met the standards enunciated in Slater and that his motion to withdraw his guilty plea should have been granted. This contention lacks merit.
As the trial judge observed, defendant does not assert his innocence. His reason for the withdrawal of the plea is that, rightly or wrongly, he perceives some beneficial impact on his prison inmate status if he is convicted of one offense instead of two. Accordingly, defendant failed to satisfy the requirements of Slater because he offers neither a colorable claim of innocence nor a substantial reason for withdrawal. See Slater, supra, 198 N.J. at 157-58.
In his second point, defendant further contends that the trial court erred by denying his claim of ineffective assistance of counsel. Defendant initially asserts that counsel was ineffective because no motion to suppress was filed. This contention is so lacking in merit as to not warrant discussion in a written opinion. R. 2:11-3(e)(2).
Lastly, defendant reiterates the argument that plea counsel's failure to either contact the Ocean County Prosecutor's Office or the Ocean County Public Defender's Office to work out some form of consolidation was ineffective assistance of counsel. Without record support, he asserts that at the time the plea was entered in Atlantic County, the discovery materials included the arrest report from Ocean County. The Ocean County charges were not mentioned during the Atlantic County proceedings.
In order to prevail on a claim of ineffective assistance of counsel, defendant must show that his trial counsel was not only deficient, but that such a deficiency prejudiced his defense. See State v. Fritz, 105 N.J. 42, 58 (1987).
Even if counsel had contacted the Ocean County authorities, the outcome would have been the same. Nothing compelled either county to dismiss its charge, and there was no legal basis for joinder. The sentence to be served on the Ocean County indictment will expire long before the sentence on the Atlantic County matter. The sentencing judge who heard defendant's motion offered to consolidate the matters for purpose of sentencing, and defendant rejected this offer.
Having failed to establish any prejudice resulting from his attorney's representation, no ineffective assistance of counsel claim has been established. Accordingly, we conclude that the motion judge correctly denied defendant's application to withdraw his guilty plea.