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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...