June 21, 2012
STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
JEAN MARY HENRIOT, DEFENDANT-RESPONDENT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 29, 2012 -
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 the accused." Slater, supra, 198 N.J. at 157-58. Of course, the weighing process differs depending on when the motion is filed. Id. at 158.
Applying these standards to the facts of this case, the motion judge correctly found that defendant never asserted a claim of innocence, colorable or otherwise, and that defendant's guilty plea was entered as part of a plea bargain, and in exchange for a probationary sentence and dismissal of a more serious charge. We part company with the motion court, however, over the application of Slater's second factor, namely the nature and strength of defendant's reasons for withdrawal, to which the judge gave dispositive weight.
This factor "focuses on the basic fairness of enforcing a guilty plea by asking whether defendant has presented fair and just reasons for withdrawal, and whether those reasons have any force." Slater, supra, 198 N.J. at 159. One such reason is that 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. See State v. Johnson, 182 N.J. 232, 241 (2005) (permitting plea withdrawal where defendant was unaware of period of extended parole ineligibility under No Early Release Act (NERA), N.J.S.A. 2C:43-7.2).
On this score, defendant claims his attorney never advised him that he would be deported as a consequence of the guilty plea, and cites the recent Padilla decision, wherein the United States Supreme Court held that defense counsel have an affirmative duty to inform criminal defendants of potential immigration ramifications of a guilty plea. 559 U.S. at ___, 130 S. Ct. at 1486, 176 L. Ed. 2d at 299. However, the New Jersey Supreme Court held that the Padilla rule was not to be applied retroactively. State v. Gaitan, 209 N.J. 339, 373 (2012). There, the Court held that PCR petitioners who entered guilty pleas prior to Padilla's issuance cannot establish an ineffective assistance of counsel claim thereon. Id. at 373-74. Instead, those applications must be decided under State v. Nunez-Valdez, 200 N.J. 129 (2009), which requires a petitioner to show he was affirmatively misled by counsel about potential immigration consequences. Id. at 374.
Here, as noted, defendant's guilty plea was entered eight years before the Padilla decision and therefore, as the motion court correctly noted, defendant did not establish a viable ineffective assistance of counsel claim because counsel acted well within the prevailing professional norms in place at time of entry of the guilty plea. Moreover, counsel never affirmatively misinformed defendant about the potential consequences of his guilty plea. On the contrary, defendant was on notice that deportation was a distinct possibility. Defendant represented at the plea hearing that he was not a United States citizen and he answered affirmatively to question 17 on the plea form, which asks "[d]o you understand that if you are not a United States citizen or national, you may be deported by virtue of your plea of guilty." In this respect, the motion court expressly found that defendant was informed of the possibility of deportation, and this factual finding is entitled to deference. See Nunez-Valdez, supra, 200 N.J. at 141.
Furthermore, as the plea transcript reveals, defendant was aware of the terms of the plea agreement and entered the plea knowingly and voluntarily.
Under these circumstances, we are satisfied that defendant has failed to provide a "fair and just," much less sufficiently strong, reason to support his request for withdrawal. Finding otherwise, the motion court deemed "prejudice from being deported" the dispositive, if not exclusive, factor. Yet, no where does Slater recognize such a consideration as entering into the balancing and analytical process, much less worthy of the substantial weight lent it by the court. We emphasize that defendant was fully aware of the deportation possibility, and the fact that eight years later the reality has set in amounts to neither a valid reason for withdrawal of his guilty plea nor a manifest injustice.
Because defendant has failed to offer proof of these three factors in support of the withdrawal of his guilty plea, the State need not show prejudice. Slater, supra, 198 N.J. at 162. However, as to this fourth factor, which focuses on "whether the passage of time has hampered the State's ability to present important evidence[,]" id. at 161, we simply note that more than nine years have passed since the crime was committed and the State obviously has a substantial interest in the finality of this matter. See State v. DiFrisco, 137 N.J. 434, 456 (1994), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 113 L. Ed. 2d 873 (1996); Smullen, supra, 118 N.J. at 416. In this respect, we discern no sound basis for the motion judge's contrary view that the State suffered no prejudice because it "got out of it what [it] wanted[,] . . . [its] pound of flesh."
In sum, considering and balancing all the Slater factors in assessing defendant's request for relief, we conclude the court abused its discretion in allowing the guilty plea withdrawal as defendant's conviction was not manifestly unjust.
Reversed and remanded for reinstatement of the judgment of conviction.