On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 01-11-01342.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo and Grall.
We granted the State's motion for leave to appeal from a December 3, 2010 order of the Law Division granting defendant Jean Mary Henriot's application to withdraw his guilty plea and vacate his conviction. We reverse.
Some background is in order. On November 13, 2001, defendant was indicted on several drug charges, the most serious of which was second-degree possession of one ounce or more of marijuana with intent to distribute within 500 feet of a public park. N.J.S.A. 2C:35-7.1. Pursuant to a negotiated plea agreement, on July 22, 2002, defendant pled guilty to third-degree possession of marijuana with intent to distribute, N.J.S.A. 2C:35-5a(1), in exchange for the State's recommendation of probation and dismissal of the remaining counts. At the guilty plea hearing, defendant gave a factual basis for the offense and represented that his plea was entered freely and knowingly. A native of Haiti, who was neither a United States citizen nor a national, defendant also signed a plea form wherein he acknowledged he may be deported by virtue of his guilty plea. In accordance with the plea bargain, on November 8, 2002, defendant was sentenced to three years probation and the remaining counts of the indictment were dismissed.
Defendant never filed a direct appeal. Instead, eight years later, on June 10, 2010, he moved to withdraw his guilty plea, alleging that he was never advised by either counsel or the court that his guilty plea would subject him to deportation and that had he been so advised he would not have pled guilty.*fn1
In support of his motion, defendant cited both Padilla v. Kentucky, 559 U.S. ___, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010) and State v. Nunez-Valdez, 200 N.J. 129 (2009), which, he argued, should be applied retroactively.
Following argument on defendant's applications, the motion judge, applying the four-factor test of State v. Slater, 198 N.J. 145 (2009), granted the requested relief, finding that although defendant failed to show either a colorable claim of innocence or ineffective assistance of counsel, the prejudice to defendant from deportation to Haiti under present conditions warranted withdrawal of his guilty plea and vacatur of his conviction. The court reasoned thus:
[Defendant's] reasons for withdrawal are the severe consequences of being returned to the country of his birth which, at the present time, is plague infested, still in ruins from the earthquake.
[T]he sole basis that he really asserts on this motion to suppress is the prejudice that would be weighed against him if he was not allowed to withdraw. Three out of the four, he has no real claims out there. The issue solely comes down to prejudice and there is no prejudice to the State despite the Prosecutor's arguments to the contrary, the fact that he has completely served his sentence, that it has been completed, in that he's otherwise successfully completed his probation, and I have to weigh that against the severe prejudice that he would -- in balancing each of those considerations, despite the fact that three out of the four go against him, I'm satisfied that the prejudice here is such that he should be allowed to withdraw his guilty plea.
On appeal, the State maintains that the motion judge misapplied the Slater factors by adding an improper consideration, namely prejudice to defendant, and relying exclusively on this reason in vacating defendant's conviction. We agree.
A motion to withdraw a plea of guilty is to be made before sentencing. R. 3:21-1. After sentencing, a defendant must show his or her conviction was "manifestly unjust." Slater. supra, 198 N.J. at 156. In other words, efforts to withdraw a plea after sentencing must be substantiated by strong, compelling reasons. Id. at 160. "In general, the longer the delay in raising a reason for withdrawal, or asserting one's innocence, the greater the level of scrutiny needed to evaluate the claim." Ibid. Of course, in all cases, "the 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 quotation marks and citations omitted). However, where, as here, the plea was entered as part of a plea bargain, defendants have an even heavier burden in seeking to withdraw their guilty plea. Id. at 160; see also State v. Smullen, 118 N.J. 408, 416-17 (1990).
Regardless of when the withdrawal motion is made, the decision rests within the court's sound discretion. State v. Simon, 161 N.J. 416, 444 (1999). Although obviously fact-sensitive, the exercise of this discretion is guided by the evaluation and balancing of four factors: "(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 ...