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State of New Jersey v. Jerry Herbert A/K/A Sean Moore

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


August 28, 2012

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JERRY HERBERT A/K/A SEAN MOORE, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 09-01-0076.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted: July 3, 2012

Before Judges Cuff and Fuentes.

Defendant Jerry Herbert pled guilty to two counts of third degree possession of a controlled dangerous substance (CDS) (cocaine and heroin) with intent to distribute, N.J.S.A. 2C:35- 5a(1). Following denial of defendant's motion to withdraw his guilty plea, the judge sentenced defendant to concurrent five-year terms of imprisonment with a two-year period of parole ineligibility. The sentence was to run concurrent to any violation of parole. The appropriate fees, fines, penalties, assessments, and driver's license suspension were also imposed.

Defendant entered his guilty plea and waived indictment on January 14, 2009, the day his accusation was filed. Defendant asserted he was in the courtroom at some point before the luncheon recess. The transcript reveals his case and his bail had been discussed "inside," presumably in chambers. Defendant left the courtroom to return after lunch. Other matters were heard.

Prior to the recess, the trial judge followed a procedure in which several defendants present in the courtroom identified themselves. The judge read the group their rights, including their right to file a suppression motion. The defendants who were in the courtroom when the judge informed them of their right to file a suppression motion were Adam Johnson, Kenneth Dawkins, Jonathan Storm, Michael Garner, Robert Pope, Aaron Williamson, and Matthew Laird. The judge did not advise them that a guilty plea constituted a waiver of their rights to confront their accusers.

When defendant returned in the afternoon, the judge asked him if he had been present prior to lunch. Defendant replied that he had. The judge asked whether defendant had been told the penalties he faced. Defendant said that he had. The judge verified defendant had signed the waiver of indictment and trial by jury. However, the judge never asked defendant whether he realized that he was waiving his right to file a suppression motion. Nor did the judge address whether defendant was waiving his right to have counsel review the discovery prior to entering the plea. The judge did not ask whether defense counsel had read the discovery.

The plea form reveals defendant was to receive an aggregate five-year sentence subject to a two-year period of parole ineligibility to run concurrent with any violation of parole. If defendant was arrested on a new charge prior to sentencing or failed to appear at sentencing, his two drug counts would run consecutive to one another but still be concurrent with the violation of parole. The State agreed to bail in the amount of $10,000. The judge was informed that defendant would be able to post such a bail.

Defendant provided a factual basis for one drug offense and a partial factual basis for the other. He stated that, on November 1, 2008, he was in a car in Elizabeth. He had cocaine in his trunk that he planned to distribute. He also admitted to having had heroin on the same date at the same location, but he never stated that he had an intent to distribute it.

The court then suggested that, despite the plea agreement calling for a $10,000 bail, the State might want a higher bail. After a discussion with counsel, the State and defendant agreed to a $20,000 bail.

On June 22, 2009, defendant, now represented by a different attorney, moved to withdraw his guilty plea. In his motion, defendant alleged one of his primary concerns at the time of the plea was to negotiate a reduced bail. Counsel noted that defendant had not reviewed any discovery prior to entering his guilty plea at a predisposition conference. Defendant also had not been advised of any defenses or pre-trial motions available to him, such as the right to file a suppression motion. Defendant alleged he pled guilty to have his bail reduced so that he could see his newborn child prior to going to state prison.

Defendant sought to withdraw his guilty plea so that he could file a suppression motion. Defense counsel, having reviewed the discovery, informed defendant he had grounds to pursue a suppression motion because the officers searched his vehicle without probable cause. Defendant's former attorney had not reviewed the discovery prior to the plea. As a result, defendant maintained that he had not entered a knowing and voluntary guilty plea. Counsel also indicated that defendant maintained his innocence.

The State's response to the plea-withdrawal motion provided additional facts on which defendant could support a motion. The State asserted that an informant had advised an officer that two black males had been selling drugs out of a car owned by defendant. Three officers responded to the location and saw defendant and Jamal Thompson inside the car. Officer Lawrence Smith told defendant that he believed there were drugs in the trunk and asked for permission to search the trunk. When defendant denied consent, Smith opened the trunk, finding the cocaine and heroin.

In denying the motion to withdraw the guilty plea, the motion judge noted defendant had been informed of his right to file a suppression motion, and that such right would be waived by the entry of a guilty plea. The judge cited the transcript of the morning group session. He acknowledged that defendant was not mentioned in the transcript, but noted defendant later acknowledged his presence in the courtroom before lunch, and that he had been informed of his rights. The motion judge then analyzed the plea-withdrawal request pursuant to State v. Slater, 198 N.J. 145 (2009), and denied defendant's application.

On appeal, defendant raises the following arguments:

POINT I

THE COURT ERRED IN DENYING MR. HERBERT'S MOTION TO WITHDRAW HIS GUILTY PLEA BECAUSE:

(1) THE PLEA WAS NOT KNOWING AND VOLUNTARY, AS MR. HERBERT DID NOT KNOW HE HAD THE RIGHT TO FILE A SUPPRESSION MOTION AND HE WAS NOT IN A POSITION TO KNOW THAT SUCH A MOTION WAS LIKELY TO SUCCEED; (2) HE DID NOT RECEIVE THE BENEFIT OF HIS PLEA AGREEMENT, BECAUSE HIS SENTENCE COULD NOT RUN CONCURRENT WITH HIS EXPIRED PAROLE VIOLATION; AND (3) HE DID NOT PROVIDE A FACTUAL BASIS FOR ONE OF THE TWO CHARGES.

POINT II

MR. HERBERT SHOULD BE AWARDED DISCRETIONARY CREDITS OF 92 DAYS FOR THE TIME HE SERVED IN JAIL ON HIS PAROLE VIOLATION, AS THE PLEA AGREEMENT CALLED FOR THE PAROLE VIOLATION AND THE DRUG CHARGES TO BE SERVED CONCURRENTLY.

A motion to withdraw a guilty plea is committed to the judge's sound discretion. Slater, supra, 198 N.J. at 156; State v. Phillips, 133 N.J. Super. 515, 518 (App. Div. 1975). That discretion should ordinarily be exercised liberally where the motion is made before sentencing. Slater, supra, 198 N.J. at 156. "In a close case, the 'scales should usually tip in favor of defendant.'" Ibid. (quoting State v. Taylor, 80 N.J. 353, 365 (1979)).

Defendant bears the burden to demonstrate that fairness requires withdrawal of his plea, and he must make that showing upon a balance of competing factors. Id. at 157-58; State v. Russo, 262 N.J. Super. 367, 373 (App. Div. 1993). Although a motion to withdraw a plea after sentencing must be supported by "strong, compelling reasons," "a lesser showing is required for motions raised before sentencing." Slater, supra, 198 N.J. at 160.

The applicable factors are: "(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." Id. at 157-58. While all factors must be considered and balanced, "[n]o factor is mandatory; if one is missing, that does not automatically disqualify or dictate relief." Id. at 162.

With respect to the first factor, "[a] bare assertion of innocence is insufficient to justify withdrawal of a plea." Id. at 158. Instead, a defendant must "present specific, credible facts and, where possible, point to facts in the record that buttress [his] claim." Ibid. There must be more than just a "change of heart" to warrant leave to withdraw a guilty plea once entered. Id. at 157.

According to Slater, the second factor, the nature and strength of a defendant's reasons for withdrawal, "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." Id. at 159. Although we are not to approach the reasons for withdrawal with "skepticism," we "must act with 'great care and realism' because defendants often have little to lose in challenging a guilty plea." Id. at 160 (quoting Taylor, supra, 80 N.J. at 365).

With respect to the third Slater factor, whether the plea was entered as the result of a plea bargain, the Court noted that "defendants have a heavier burden in seeking to withdraw pleas entered as part of a plea bargain." Id. at 160. However, the Court did "not suggest" that the third factor "be given great weight in the balancing process." Id. at 161.

As to the fourth factor, unfair prejudice to the State or unfair advantage to the accused, the Court stated that there was "no fixed formula to analyze the degree of unfair prejudice or advantage that should override withdrawal of a plea" and that "courts must examine this factor by looking closely at the particulars of each case." Ibid. The "critical inquiry" is "whether the passage of time has hampered the State's ability to present important evidence." Ibid. The State need not show prejudice "if a defendant fails to offer proof of other factors in support of the withdrawal of a plea." Id. at 162.

In State v. Munroe, 210 N.J. 429 (2012), the Court reiterated its ruling in Slater. In doing so, the Court emphasized that in assessing the first factor, whether a defendant has asserted a colorable claim of innocence, "[t]he issue is not whether in the mind of the trial court 'the likelihood of [the defendant] winning on a self-defense was next to nothing.' Rather, the issue is whether defendant raised a colorable claim of innocence that should rightly have been decided by a jury." Id. at 446. The fourth factor, prejudice to the State or unfair advantage to the defendant, is measured at the time defendant seeks to withdraw his plea. Id. at 447; Slater, supra, 198 N.J. at 164. Finally, whether the plea was the product of a plea bargain "must be viewed in light of the other three factors[.]" Munroe, supra, 210 N.J. at 447. If the other factors favor withdrawal of the plea, the fact that the guilty plea was the product of a plea bargain does not defeat the motion. Id. at 447-48.

In Slater, the Court held that the defendant should have been permitted to withdraw his guilty plea because he presented evidence that he was merely a visitor in the hotel room in which drugs were found and had no knowledge of the presence of the drugs. 198 N.J. at 162-63. These specific and plausible facts constituted a colorable claim of innocence, and nothing in the record contradicted this claim. Ibid. Moreover, the defendant expressed his desire to withdraw his guilty plea within days of his plea and the State did not articulate any prejudice beyond ordinary trial preparation. Id. at 163-64.

In Munroe, the Court held that the trial court should have permitted the defendant to withdraw his plea because he advanced a colorable claim of self-defense and nothing in the record contradicted or undermined the defendant's self-defense claim. 210 N.J. at 445-47. Moreover, the State did not claim it would suffer any prejudice. Id. at 447.

Application of the Slater/Munroe principles here counsels that defendant's motion to withdraw his plea should have been granted. This case is a departure from Slater and Munroe because defendant does not directly deny his guilt. Rather, he contends he did not consent to a search of the trunk of the car. In fact, he asserts that he expressly denied permission to open the trunk. Defendant, therefore, has a viable motion to suppress, unless the State can establish probable cause to open and search the trunk of the car. See State v. Judge, 275 N.J. Super. 194, 206 (App. Div. 1994) (holding that regardless of validity of consent prior to search of trunk, probable caused justified it).

Moreover, the record of the morning session in which a judge informed several defendants of the rights waived by entry of a plea does not record defendant's presence. He admitted at his plea proceeding that he was in the courtroom at some time during the morning session but the transcript of the morning session does not indicate he was present during the critical time.

Although defendant does not assert his innocence, he does state that he has a colorable claim that the search of the trunk of his car was unconstitutional. This situation is analogous to Munroe where the defendant did not deny his presence at the scene and his participation in a violent altercation. 210 N.J. at 445. He asserted, however, he acted in self-defense. Ibid. If successful, Munroe would not be found guilty of the charged offense. Here, if the motion to suppress is granted, the State lacks evidence to proceed with the prosecution. Furthermore, the guilty plea is also deficient because defendant never provided a factual basis to the third degree possession of heroin with intent to distribute charge.

Defendant also sought to withdraw his plea before sentencing. In this posture, his motion should have been evaluated by a more relaxed standard than a motion filed after sentencing, and the discretion vested in the trial judge should be exercised liberally. Slater, supra, 198 N.J. at 156. This is so particularly when, as here, the State does not contend it would suffer any prejudice if defendant withdrew his plea. In fact, the combination of assertion of a viable motion to suppress evidence seized by police, his absence from the courtroom when a judge informed other defendants of their constitutional rights, and his failure to provide a factual basis to one of the offenses during the plea proceeding, presents the "close case" referred to in Slater when "the 'scales should usually tip in favor of defendant.'" Slater, supra, 198 N.J. at 156 (quoting Taylor, supra, 80 N.J. at 365).

Therefore, we reverse the November 17, 2009 denial of defendant's motion to withdraw his guilty plea. The matter is remanded for further proceedings.

20120828

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