On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 08-08-2557.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lihotz and St. John.
Defendant Derell Pritchett appeals from the December 16, 2010 order denying his motion to withdraw his guilty plea, filed prior to sentencing. Alternatively, defendant challenges his sentence as excessive.
Defendant was charged, in the death of Jeannine Darby, with murder, N.J.S.A. 2C:11-3a(1) and (2) (count one); two counts of fourth-degree unlawful possession of a weapon, for unlawful purposes, N.J.S.A. 2C:39-5d (counts two and four); and third-degree possession of a weapon, a knife, for unlawful purposes, N.J.S.A. 2C:39-4d (count three). He pled guilty to the lesser included offense of aggravated manslaughter, N.J.S.A. 2C:11-4, in exchange for the State's recommendation of an eighteen-year term of imprisonment, subject to the parole ineligibility requirements of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and the dismissal of the remaining counts of the indictment.
Prior to sentencing, defendant fired his appointed counsel, hired private counsel, and moved to vacate the previously entered guilty plea. Defendant argued his conduct was a result of passion/provocation and not intentional. The trial judge considered the application, denied the motion, and sentenced defendant to eighteen years in prison, subject to NERA.
On appeal, defendant maintains:
THE COURT ABUSED ITS DISCRETION BY FAILING TO PERMIT THE PRE-SENTENCE WITHDRAWAL OF THE GUILTY PLEA.
THE COURT'S SENTENCE FAILED TO CONSIDER NUMEROUS MITIGATING FACTORS APPLICABLE TO THIS OFFENSE RESULTING IN EXCESSIVE SENTENCING.
Following our review, we agree the trial judge misapplied his discretion in denying defendant's motion to withdraw his plea. We reverse the December 16, 2010 order, vacate the guilty plea, and remand this matter for trial.
The charges in the indictment were based on a deadly altercation, which occurred on September 13, 2007. At that time, defendant was a sixteen-year-old high school junior, living with his elderly father, Philbert Thomas. At seventy-three years old, Thomas suffered from dementia and Alzheimer's disease. Darby had a sexual relationship with Thomas and often stayed in his home.
Defendant's confession and documents attached to his motion revealed he experienced repeated instances of abuse by and conflict with Darby since she moved into the residence. Defendant and Thomas independently reported Darby abused crack cocaine, which she regularly used in the home. Further, she invited other addicts to the residence where they: got high; monopolized the television to watch pornographic movies; "[ate] all the food," emptying the refrigerator and freezer; and generally took over the premises. Darby reportedly hit Thomas and stole money and items from defendant and Thomas, including defendant's cell phone, clothing, and money to obtain drugs. Darby also repeatedly threatened defendant, suggesting he "would get hurt" and she had "brothers" who would "murder" him. In response, defendant slept with a stick next to his bed for protection.
Defendant's and Thomas' statements to police described the altercation on the day Darby was killed. Defendant was on his way to school and realized he did not have his cell phone. He returned home, but, after searching, could not locate the phone and suspected Darby had taken it. Defendant became angry and confronted Thomas, who was in bed along with Darby. Defendant demanded Thomas get Darby to leave. During the argument, defendant broke a nightlight and when Thomas got angry, defendant said, "do something about it." The argument continued to escalate. Thomas asked defendant what was his problem. Defendant responded, "Do you want to know what my problem is?" When Thomas did not react, defendant again asked this question. As defendant was speaking, he raised the stick he had retrieved from his bedroom and began hitting Darby on the head. He struck her three times before the stick broke. Darby began "getting up, out of the bed. . . . [Defendant] went to the living room. . . . And then there was a serious [sic] -- several blows to the head that [defendant] exchanged with her."*fn1 He admits he grabbed a knife from the kitchen, returned to the bedroom and stabbed Darby five times in the face, head, and back. Defendant left the residence. Thomas removed the knife from Darby's back and called the police. Darby died as a result of the injuries inflicted by defendant. Defendant surrendered to the police, was taken into custody, and issued a recorded confession.
On the date scheduled for jury selection, a plea agreement was reached. We recite the colloquy which took place:
THE COURT: If you're found guilty --Mr. Pritchett, I want you to concentrate, because what I'm about to say affects the rest of your life. Do you understand?
THE DEFENDANT: (No verbal response given)
THE COURT: Do you understand?
THE COURT: If you're found guilty of these charges, you face life in prison. The estimate for calculating parole eligibility of life in prison is 75 years and you have to serve at least 85 percent of that before you become eligible for parole, and I think that works out to about 62 years and 6 months. . . .
THE COURT: How old are you now?
THE COURT: So that means you'd be about 80 years old when you're eligible for parole, do you understand?
THE COURT: Now, the State I'm told has a confession, your audio statement, that would be played before the jury because Judge Vazquez has already decided that it . . . can be heard [by] the jury. Do you understand that?
THE DEFENDANT: I understand.
THE COURT: And they're going to hear that this woman was beaten to death and stabbed to death. Now, I haven't heard the tape, the audio-recording. You have, correct?
THE DEFENDANT: (No verbal response given)
THE COURT: You have, haven't you?
THE COURT: You've heard it, haven't you?
THE COURT: Were you not in court when they played it?
THE COURT: So did you hear it? THE DEFENDANT: Yes, I did.
THE COURT: And you know they're going to hear the medical examiner say that she was murdered, right?
THE COURT: Now, I'm told right now that the State is offering to recommend 18 years in prison
THE COURT: Do you understand that?
THE COURT: So you'd probably be about 29 years old, maybe 30, 31, I haven't calculated it exactly, but based on you being 18 and having two years in it'd be in that range, do you understand that?
THE DEFENDANT: I understand.
THE COURT: Instead of 80. Now I don't know what your defense is, and you don't have to tell me, as a matter of fact . . . I don't want you to say anything, but I want you to think about the difference between coming out at 30 or 31 and coming out at 80 or 81, it's a 50-year difference. Now, I'm a lot older than you and I can tell you that I lived the years between 30 and almost 70 and they're good years, ...