July 24, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DAVID CONNOLLY, A/K/A DAVID CASTRO, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 89-09-3928, 89-09-3929, 89-09-3930 and Accusation No. 90-11-2336.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted July 17, 2012
Before Judges Sabatino and Kennedy.
Defendant David Connolly, who was convicted of various offenses in 1990 pursuant to a negotiated comprehensive plea agreement, appeals the trial court's April 19, 2010 written decision denying his motion to withdraw his guilty plea and proceed to trial. We affirm that decision rejecting defendant's extremely belated application.
The pertinent background is as follows. In 1989 and 1990 defendant was charged with numerous indictable and other offenses in Essex County. With the assistance of his defense counsel, defendant negotiated a global plea agreement in which he pled guilty to several of the charged offenses while others were dismissed.
More specifically, defendant pled guilty on November 26, 1990 to count one of Indictment No. 89-09-3928 charging him with third-degree criminal attempt, N.J.S.A. 2C:5-1; count one of Indictment No. 89-09-3930 charging him with third-degree burglary, N.J.S.A. 2C:18-2, count two of that same indictment charging him with fourth-degree attempted theft, N.J.S.A. 2C:20-3, count three of that indictment charging him with fourth-degree criminal mischief, N.J.S.A. 2C:17-3; count one of Accusation No. 90-11-2336 charging him with fourth-degree aggravated assault, N.J.S.A. 2C:12-1, and count two of that accusation charging him with third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5.
As part of the plea agreement, the State agreed to dismiss numerous other pending charges against defendant, including Indictment No. 89-09-3929, which had charged him with third-degree criminal attempt, N.J.S.A. 2C:5-1; Accusation No. 90-11-2335, which had charged him with fourth-degree assault, N.J.S.A. 2C:12-1, and third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5; count three of Accusation No. 90-11-2336, which had charged him with third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4; and Newark Municipal Court Complaint No. W-617613.
At the November 1990 plea proceeding, defendant offered a factual basis as to each of the offenses for which he pled guilty. For Indictment No. 89-09-3928, defendant admitted that on July 16, 1989, he pulled down the metal gate of a Newark restaurant with an intent to steal items inside. For Indictment No. 89-09-3930, defendant admitted that on July 16, 1989, he broke the window of a parked car in Newark and opened the car's door with the intent of stealing the car's radio. For Accusation No. 90-11-2336, defendant admitted that on June 3, 1990, he had an argument with another individual and pointed a handgun at him, without having a permit to carry that gun. The trial judge at the time accepted defendant's plea, after verifying through customary inquiries that defendant understood what he was doing in admitting his guilt, that he was doing so voluntarily, and that he had ample time to review the plea agreement with his attorney.
Pursuant to the negotiated terms of the plea, the State agreed to recommend an overall custodial term of five years, with a two-year period of parole ineligibility. In January 1991, defendant was sentenced in accordance with the plea agreement to a five-year custodial term on Indictment No. 89-09-3928, a concurrent five-year term on count one of Indictment No. 89-09-3930; concurrent eighteen-month terms on counts two and three of Indictment No. 89-09-3930; a concurrent eighteen month term on count one of Accusation No. 90-11-2336; and a concurrent five-year term on count two of Accusation No. 90-11-2336. Defendant has since completed those sentences. At the time he filed his brief on this appeal, he was then in federal custody on an unrelated matter.
Defendant filed no direct appeal of his convictions and sentence. Instead, he took no action until nearly twenty years after his sentencing, when in January 2010 he filed a pro se motion to withdraw his guilty plea. He also requested that the court vacate the judgment of conviction on Indictment No. 89-09- 3929, which, as the State conceded, had been inadvertently entered contrary to the terms of the plea agreement.
After considering defendant's motion and the opposition papers filed by the State, the trial court agreed to vacate the judgment of conviction in Indictment No. 89-09-3929 but otherwise denied relief to defendant. This appeal followed.
Through his assigned counsel on the present appeal, defendant argues:
THE TRIAL COURT ERRED IN DENYING MR. CONNOLLY'S MOTION TO WITHDRAW HIS GUILTY PLEA.
MR. CONNOLLY WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL BECAUSE TRIAL COUNSEL FAILED TO OBTAIN AND REVIEW DISCOVERY PRIOR TO ENTERING INTO PLEA NEGOTIATIONS.
In addition, in a pro se supplemental brief, defendant raises these further points:
SUPPLEMENTAL POINT I
THE COURT ERRED BY RELIEVING THE STATE OF ITS BURDEN OF PROOF REGARDING THE COST OF THE RADIO, AND ACCEPTING DEFENDANT'S PLEA OF GUILTY PREMISED ON THE INEFFECTIVENESS OF COUNSEL.
SUPPLEMENTAL POINT II
THE COURT ERRED BY FAILING TO REVIEW AND PROVIDE APPELLANT WITH THE BRADY MATERIAL SOUGHT BY APPELLANT UNDER THE RULES OF PRACTICE.
SUPPLEMENTAL POINT III
THE PLEAS ENTERED BY APPELLANT WERE NOT VOLUNTARY OR KNOWING SINCE THE STATE WITHHELD BRADY MATERIAL WHICH DEPRIVED APPELLANT OF MAKING AN INFORMED CHOICE TO ACCEPT A PLEA OR STAND TRIAL, WHICH WAS ALSO THE RESULT OF THE INEFFECTIVE ASSISTANCE OF COUNSEL.
SUPPLEMENTAL POINT IV
THE APPELLANT HAS MET HIS BURDEN OF PRESENTING A PLAUS[I]BLE BASIS UNDER THE STANDARDS OF MANIFEST INJUSTICE TO WITHDRAW HIS GUILTY PLEA(S).
SUPPLEMENTAL POINT V
THE APPELLANT PRESENTED A PLAUSIBLE BASIS TO REMAND ACCUSATION NUMBER 90-11-2336-A TO THE TRIAL COURT FOR FURTHER PROCEEDINGS BASED ON A DEFECTIVE WARRANT AND THE [STATE] WITHHOLDING BRADY MATERIAL RELATED TO THIS PARTICULAR COMPLAINT.
Having carefully considered these arguments, we affirm the trial court's denial of defendant's motion to withdraw his 1990 guilty plea, substantially for the sound reasons set forth in Judge Michael L. Ravin's April 19, 2010 letter opinion. As Judge Ravin correctly noted, defendant has not met the substantial factors necessary to withdraw a guilty plea post-sentencing, particularly a colorable claim of innocence and the lack of unfair prejudice to the State. See State v. Slater, 198 N.J. 145, 157-58 (2009); see also State v. Munroe, ___ N.J. ____, ___ (2012) (slip op. at 18-23) (applying the Slater factors). As Judge Ravin aptly noted, "this case is nearly twenty years old and the burden on the State of retrying [the charges] would be dramatic." The plea colloquy amply established defendant's guilt of the crimes in question.
There is also no indication of merit in defendant's claim that he was denied the effective assistance of plea counsel because of an alleged failure to obtain and review discovery before entering into the plea negotiations. Indeed, defendant's plea counsel negotiated a favorable agreement that substantially lessened defendant's exposure to consecutive prison terms under the various indictments and accusations. There has been no constitutional deprivation of defendant's rights. See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984) (requiring a demonstration of deficient performance by counsel and actual prejudice to the accused); see also Missouri v. Frye, 566 U.S. ___, ___, 132 S. Ct. 1399, 1409-11, 182 L. Ed. 2d 379, 392-94 (2012) (applying the Strickland two-part test in the context of plea negotiations); Lafler v. Cooper, 566 U.S. ___, ___, 132 S. Ct. 1376, 1384-88, 182 L. Ed. 2d 398, 406-11 (2012) (same). Defendant's assertions regarding the value of the car radio, which was stipulated by his plea counsel to be $200 or more, are red herrings that do not warrant vacatur of a guilty plea more than two decades later.
The balance of defendant's arguments likewise are unavailing, and lack sufficient merit to warrant discussion in this written opinion. R. 2:11-3(e)(2).
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