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State of New Jersey v. Barrington Mcdonald

July 23, 2012

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
BARRINGTON MCDONALD, DEFENDANT-APPELLANT.



On certification to the Superior Court, Appellate Division.

SYLLABUS BY THE COURT

SYLLABUS (This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

The opinion of the court was delivered by: Justice Patterson

State v. Barrington McDonald

(A-118-10) (067022)

Argued March 1, 2012 -- Decided July 23, 2012

PATTERSON, J., writing for a majority of the Court.

In this appeal, the Court determines whether defendant's pre-sentence motion to withdraw his guilty plea was properly denied.

At 2:18 a.m., on January 14, 2007, defendant Barrington McDonald struck and seriously injured a pedestrian while driving under the influence of alcohol. Defendant's New Jersey license had been suspended in 1994, and was never restored. The accident occurred near Our Lady Star of the Sea Regional School (the School), a parochial elementary school. The School, along with the parish church, is part of a property owned by Our Lady Star of the Sea Church. Defendant was indicted for second-degree assault by auto in a school zone, N.J.S.A. 2C:12-1(c)(3)(a), and was issued summonses for driving while intoxicated (DWI), driving with a suspended license, and various other charges. On May 21, 2007, while represented by counsel, defendant agreed to plead guilty to second-degree assault by auto in a school zone, DWI, and driving with a suspended license. At the plea hearing, defendant advised the court that he wished to plead guilty to the three charges. Asked whether he was guilty of driving a vehicle recklessly while intoxicated "and also within a thousand feet of school property and caused serious bodily injury to Robert Fields," defendant answered "[y]es, I am." The prosecutor followed up: "And, sir, you don't dispute it was within a thousand feet of Our Lady Star of the Sea School, where the accident occurred?" Respondent replied, "I didn't see it, but I might have missed it, okay." The trial judge accepted defendant's plea. Thereafter, defendant retained new counsel, who obtained continuances to investigate whether the accident had occurred outside of the 1,000-foot school zone; and the State produced a map as evidence that the accident had occurred within that zone.

Prior to sentencing, defendant filed a motion to withdraw his guilty plea. He claimed that his former attorney dismissed his concerns about the 1,000-foot school zone, that when he pled guilty, he had not known the exact distance between the accident site and the School, and that his plea was not entered into knowingly or with an adequate factual basis. The trial court denied defendant's motion, finding that the plea was grounded on an adequate factual basis, and that it was made knowingly, intelligently and voluntarily. The trial court sentenced defendant to a three-year prison term for assault by auto in a school zone, to a consecutive ninety-day prison term for DWI, and to a consecutive sixty-day prison term for driving while suspended. Defendant appealed. The Appellate Division permitted defendant to supplement the record with evidence that a 1,000-foot radius around the accident site included part of the complex owned and operated by the church, but excluded the School itself and its parking lot. Defendant thus contended that he did not violate N.J.S.A. 2C:12-1(c)(3)(a). Applying State v. Slater, 198 N.J. 145 (2009), the Appellate Division affirmed the trial court's denial of defendant's motion to withdraw his guilty plea. The panel held that defendant had not established a colorable claim of innocence, that defendant had not identified a compelling reason to withdraw his plea, and that a sufficient factual basis for the plea had been provided to the trial court. However, the panel merged the DWI conviction into the second-degree assault by auto conviction, and ordered a limited remand for consideration of whether defendant should be able to withdraw his guilty plea to driving with a suspended license. The Court granted certification. 207 N.J. 64 (2011).

HELD: Balancing the Slater factors, the interests of justice do not warrant an order permitting defendant to withdraw his guilty plea to assault by auto in a school zone. Defendant cannot present a colorable claim that he did not commit that offense and has not provided a credible excuse for his failure to assert his defense prior to his plea.

1. Slater established four factors to consider and balance when determining motions to withdraw a guilty plea: (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. Pre-sentence motions to withdraw a plea, such as the one in this case, are governed by Rule 3:9-3(e)'s interests of justice standard. The first Slater factor focuses on the merits of defendant's defense. The Court must determine whether defendant has presented facts supporting his assertion that he did not violate N.J.S.A. 2C:12-1(c)(3)(a). The statute provides that assault by auto is a second-degree crime "when serious bodily injury results" from defendant's DWI "on any school property used for school purposes which is owned by or leased to any elementary or secondary school or school board, or within 1,000 feet of such school property." In construing the terms "school property" and "school purposes," the Court's objective is to determine and effectuate the Legislature's intent. The Court first looks to the statute's plain language to determine its meaning. If the plain language is ambiguous, then the Court examines secondary sources such as legislative history. (pp. 12-17)

2. Consistent with the statute's objective to ensure student safety, the plain language of N.J.S.A. 2C:12-1(c)(3)(a) does not limit "school property" to public schools or to property owned or leased by any specific category of educational institution. Here, the parish church that owns the property and operates the school is an elementary education entity within the meaning of the statute. The School constitutes "school property." There is more than one plausible interpretation with regard to whether all or only a portion of the land at issue should be considered "school property used for school purposes"; therefore, the Court may refer to legislative history. N.J.S.A. 2C:35-7, a statute with similar language, provides for more severe penalties for illegal drug offenses committed within 1,000 feet of "school property used for school purposes." In its Official Commentary to N.J.S.A. 2C:35-7, the Legislature instructed that the 1,000-foot radius of "school property" extends "from the outermost boundary of the school grounds or campus, and not from the perimeter of the school building itself." That broad legislative definition applies with equal force to N.J.S.A. 2C:12-1(c)(3)(a) and furthers the Legislature's goal of protecting students at all stages of the school day. The 1,000-foot radius for purposes of N.J.S.A. 2C:12-1(c)(3)(a) began on the border of the property on which the School is found, not at the school building itself. Therefore, defendant cannot assert a colorable claim of innocence based on the location of his accident. Because N.J.S.A. 2C:12-1(c)(3)(a) applies at all times of the day and night, the time of defendant's accident also does not give rise to a defense. The first Slater factor thus weighs against the withdrawal of defendant's guilty plea. (pp. 17-23)

3. Turning to the second Slater factor, defendant has not provided a credible excuse for his failure to assert his defense prior to the guilty plea, when he was fully aware that he was charged with violating N.J.S.A. 2C:12-1(c)(3)(a) and of the identity of the school and of the location of his accident. The third Slater factor is not significant because it applies to the vast majority of criminal cases. The fourth Slater factor weighs in favor of withdrawal because there has been no showing that withdrawal of the plea would cause prejudice or unfair advantage. (pp. 23-25)

4. Despite the dissent's contention, there is no factual issue for a jury to decide. The Legislature has instructed that the 1,000-foot radius extends from the outermost boundary of the school grounds, and it is undisputed that the accident took place within 1,000 feet of a portion of the property on which the School is located. This distinguishes this case from State v. Munroe, ___ N.J. ___ (2012), in which the defendant demonstrated a colorable claim of innocence within the meaning of Slater. Here, in the absence of a colorable claim of innocence or a credible explanation for defendant's failure to assert his defense before his guilty plea, the balancing of the Slater factors supports the decision below. (pp. 25-27)

5. Regarding defendant's remaining contentions with respect to his guilty plea, the trial court established an adequate factual basis for recklessness as an element of assault by auto and for driving while suspended. In addition, the two errors addressed by the Appellate Division did not make defendant's entire plea defective or require that it be vacated. Appellate courts routinely merge convictions on appeal following a guilty plea that is the result of a plea bargain, without vacating the plea. The merger of defendant's DWI into the assault by auto conviction was to defendant's benefit. Moreover, the remand was properly limited to the driving while suspended offense and did not affect defendant's other convictions. Finally, the record is inadequate to evaluate defendant's ineffective assistance of counsel claim. It should be determined in a post-conviction relief proceeding. (pp. 27-34)

The judgment of the Appellate Division is AFFIRMED.

JUSTICE ALBIN, DISSENTING, joined by JUDGE WEFING (temporarily assigned), expresses the view that it was for a jury to decide whether the entire church complex qualified as "school property used for school purposes" and that defendant presented a colorable claim that his accident did not occur within the school zone.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA and HOENS join in JUSTICE PATTERSON's opinion.

JUSTICE ALBIN filed a separate, dissenting opinion in which JUDGE WEFING joins.

Argued March 1, 2012 --

JUSTICE PATTERSON delivered the opinion of the Court.

The Court considers defendant Barrington McDonald's appeal from the trial court's denial of his motion to vacate his plea of guilty to three offenses arising from an automobile accident. Defendant, driving under the influence of alcohol, struck and seriously injured a pedestrian. He was indicted for second-degree assault by automobile while driving in a school zone, N.J.S.A. 2C:12-1(c)(3)(a) (assault by auto in a school zone), and was issued summonses for several motor vehicle offenses.

Several months after the accident, defendant entered into a plea agreement with the State. The plea agreement called for defendant to plead guilty to second-degree assault by auto in a school zone, N.J.S.A. 2C:12-1(c)(3)(a), driving while intoxicated (DWI), N.J.S.A. 39:4-50, and driving with a suspended license, N.J.S.A. 39:3-40. The prosecutor agreed to recommend a single, three-year sentence for all three offenses. The same day, defendant pled guilty to the three offenses, and the trial court found that he had knowingly, intelligently and voluntarily waived his right to a jury trial.

Prior to sentencing, defendant moved to withdraw his guilty plea, claiming that he had not entered into his plea agreement knowingly, intelligently or voluntarily. He challenged the State's contention that his motor vehicle accident occurred within 1,000 feet of school property, as required by N.J.S.A. 2C:12-1(c)(3)(a). The trial court denied the motion, and sentenced defendant to a term of imprisonment, a license suspension and fines for the three offenses.

Defendant appealed, contending that the trial court should have permitted him to withdraw his guilty plea. Defendant claimed that he did not violate N.J.S.A. 2C:12-1(c)(3)(a), arguing that the parochial school at issue was not "school property" for purposes of N.J.S.A. 2C:12-1(c)(3)(a), that his accident did not occur within 1,000 feet of "school property used for school purposes" within the meaning of the statute, and that the statute should not apply to an accident that occurred in the middle of the night, when no children were present. Defendant also challenged his guilty plea and sentence on various other grounds. An Appellate Division panel affirmed defendant's conviction and sentence for the school-zone offense, merged defendant's DWI conviction into his conviction for assault by auto in a school zone, remanded for a determination of whether defendant should be permitted to withdraw his guilty plea on the offense of driving with a suspended license, and corrected minor sentencing errors. We granted defendant's petition for certification.

Applying the analysis of State v. Slater, 198 N.J. 145 (2009), we hold that defendant has not demonstrated a colorable claim of innocence. Because his accident occurred within 1,000 feet of a school property used for school purposes that meets the standard of N.J.S.A. 2C:12-1(c)(3)(a), and because the statute clearly applies at all times of the day and night, defendant cannot present a colorable claim that he did not commit the offense of assault by auto in a school zone.

Defendant similarly fails to satisfy the second prong of the Slater test, because he makes no showing that his defense to the assault by auto in a school zone offense could not have been asserted prior to his guilty plea, and cannot demonstrate a meritorious basis for his attempt to revoke his plea. The third Slater factor --- the existence of a plea bargain --- weighs against defendant's motion to withdraw his plea, since that plea was the product of a negotiated plea agreement between defendant and the State. Application of the fourth Slater factor, the prospect of unfair prejudice to the State and unfair advantage to the accused, supports the motion to withdraw.

Balancing these factors in accordance with Slater, we hold that the interests of justice do not warrant an order permitting defendant to withdraw his guilty plea, and that the trial court properly denied defendant's motion to withdraw. We further reject defendant's additional contentions with respect to the validity of his guilty plea and the sentence imposed by the trial court, and we decline to consider defendant's assertion of ineffective assistance of counsel on the record before us. We therefore affirm.

I.

Defendant's accident took place at 2:18 a.m. on January 14, 2007, on Pacific Avenue in Atlantic City. Defendant was traveling eastbound when his vehicle struck a pedestrian, Robert Fields, who was walking from the Tropicana Casino's employee entrance to its front entrance. According to defendant, Fields walked halfway across the street and then backed up from the center of the road into defendant's lane. The impact, recorded by casino security cameras, launched Fields eighty-nine feet to the sidewalk of the westbound side of Pacific Avenue. The police investigation concluded that defendant was traveling in excess of the twenty-five mile-per-hour speed limit at the moment of impact. Defendant's blood alcohol concentration was recorded at .19% shortly after the accident. The police determined that defendant's New Jersey license had been suspended in 1994, and was never restored. Because defendant's North Carolina license had expired more than a year before the accident, he had no valid driver's license when his vehicle struck Fields. He was arrested at the scene. Fields was taken to a local hospital, where he was found to have sustained multiple fractures and head trauma, requiring a week-long hospitalization.

The accident occurred near Our Lady Star of the Sea Regional School (the School), a parochial elementary school operated by the parish of Our Lady Star of the Sea Church in Atlantic City. The School, along with the parish church, is part of a property owned by Our Lady Star of the Sea Church. The entire facility is designated in Atlantic City municipal maps as Block 274, Lot 43. The record reflects no lease agreement between the School and the church governing the School's use of the church-owned land and facilities.

II.

Following his arrest, defendant was indicted for second-degree assault by auto in a school zone, N.J.S.A. 2C:12-1(c)(3)(a). He was also issued summonses for DWI, N.J.S.A. 39:4-50, driving with a suspended license, N.J.S.A. 39:3-40, DWI in a school zone, N.J.S.A. 39:4-50(g)(1), reckless driving, N.J.S.A. 39:4-96, careless driving due to speed, N.J.S.A. 39:4-97, and unlicensed driving, N.J.S.A. 39:3-10.

Defendant, represented by counsel, advised the trial court at a May 7, 2007 bail hearing that he sought bail so that he could discuss the case with a different attorney. Notwithstanding that statement, while he was still represented by his original counsel, defendant entered into a plea agreement with the prosecutor on May 21, 2007. The plea agreement provided that defendant would plead guilty to second-degree assault by auto in a school zone, DWI and driving with a suspended license. It also provided that he would be sentenced as if he had pled to a third-degree offense, and that the State's recommended sentence would be a three-year term in state prison.

The plea agreement was presented to the trial court at a hearing held the same day. Defendant advised the trial court that he wished to plead guilty to the assault by auto in a school zone, DWI and suspended license charges. Asked whether he was guilty of driving a vehicle recklessly while intoxicated "and also within a thousand feet of school property and caused serious bodily injury to Robert Fields," defendant answered "[y]es, I am." The prosecutor followed up with an additional colloquy on the school zone issue:

PROSECUTOR: And, sir, you don't dispute it was within a thousand feet of Our Lady Star of the Sea School, where the accident occurred?

DEFENDANT: I didn't see it, but I might have missed it, okay.

The trial judge then commented that he was "satisfied the defendant has knowingly, intelligently and voluntarily waived his right to a trial by jury," and stated that based on defendant's testimony, "he is guilty, his pleas are accepted." Released on his own recognizance pending sentencing, defendant retained new counsel, who sought and obtained a one-week continuance of his sentencing.

On July 27, 2007, defense counsel raised for the first time the possibility that defendant would attempt to withdraw his guilty plea. Between that hearing and the next hearing before the trial court on August 10, 2007, the State produced a map as evidence that defendant's accident had occurred within 1,000 feet of school property. Defendant obtained two more continuances to investigate his claim that his accident had occurred outside of the 1,000-foot school zone for purposes of N.J.S.A. 2C:12-1(c)(3)(a).

On October 19, 2007, pursuant to Rule 3:21-1, defendant filed his motion to withdraw his guilty plea. He contended that prior to his plea, his former attorney had dismissed his concerns about the need for further investigation and discovery regarding the parameters of the 1,000-foot zone around the School. Defendant claimed that when he pled guilty to the school-zone offense, he had not known the exact distance between the site of his accident and the School, and that his plea was not entered into knowingly or with an adequate factual basis.

The trial court denied defendant's motion to withdraw his guilty plea, holding that the plea was grounded on an adequate factual basis, that it was made knowingly, intelligently and voluntarily, and that defendant exhibited "buyer's remorse." The trial court also rejected defendant's contention that at the time of his guilty plea, he had not been advised of the potential penalties for his DWI and driving with a suspended license offenses. The trial court sentenced defendant to a three-year term of imprisonment, with a one-year license suspension, for the assault by auto in a school zone charge. For the DWI conviction, the trial court imposed a ninety-day prison term, consecutive to the three-year term, and for the driving while suspended conviction, it sentenced defendant to an additional consecutive sixty days in prison. The court imposed fines and other penalties for the motor vehicle offenses.

Defendant appealed. He initially sought a remand to supplement the record with information regarding the nature and dimensions of the school zone for purposes of N.J.S.A. 2C:12-1(c)(3)(a). Consulting with an expert, defendant's new counsel produced a new map of the relevant section of Atlantic City. Defense counsel certified to the Appellate Division panel that a 1,000-foot radius around the site at which defendant's vehicle struck the pedestrian --- the middle of the block on Pacific Avenue between Iowa Avenue and Brighton Avenue --- included part of the rectory and front garden area of the complex owned and operated by the church, but excluded the School itself, its parking lot and the remainder of the property. Defendant thus contended that his offense was committed within 1,000 feet of part of the parish-owned property on which the school sits, but not within 1,000 feet of the school building itself, and argued that he did not therefore violate N.J.S.A. 2C:12-1(c)(3)(a). The Appellate Division panel declined to remand the case but permitted defendant to supplement the record in his appellate papers.

Applying this Court's analysis in Slater, supra, 198 N.J. at 158-62, the Appellate Division panel affirmed the trial court's denial of defendant's motion to withdraw his guilty plea. Relying upon legislative history and case law with respect to N.J.S.A. 2C:35-7, which governs controlled dangerous substance (CDS) offenses in school zones, the Appellate Division panel held that defendant had not established a colorable claim of innocence. The panel concluded that defendant had not identified a compelling reason to withdraw his plea, and that a sufficient factual basis for the plea had been provided to the trial court. However, the panel merged the DWI conviction into the second-degree assault by auto conviction, and ordered a limited remand for consideration of whether defendant should be able to withdraw his guilty plea to driving with a suspended license.

We granted defendant's petition for certification. State v. McDonald, 207 N.J. 64 (2011).

III.

Defendant urges the Court to vacate his guilty plea on the ground that he did not enter into it knowingly, and that it lacked a factual foundation. Defendant contends that the distance between the site of his accident and the School gives rise to a colorable claim of innocence under Slater with respect to the most ...


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