May 22, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
JOHN C. VANNESS, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 15, 2013
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 10-03-0654.
Joseph E. Krakora, Public Defender, attorney for appellant (Karen E. Truncale, Assistant Deputy Public Defender, of counsel and on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Jennifer E. Kmieciak, Deputy Attorney General, of counsel and on the brief).
Before Judges Axelrad and Haas.
Defendant John Vanness, who pled guilty to third-degree passing a bad check, N.J.S.A. 2C:21-5, appeals from denial of his pre-sentence motion to withdraw his plea. By request of defendant, we removed this case from an ESOA calendar, R. 2:9-11, to a plenary calendar. We affirm.
Defendant was indicted on this charge on March 18, 2010. On April 19, 2010 he retained private counsel, James Leonard, Jr. On May 10, 2010, represented by Leonard, defendant pled guilty to the charge. Defendant acknowledged he was pleading guilty voluntarily because he believed he was guilty, with full knowledge of his exposure, the terms of the plea (including three years probation conditioned on 220 days in the county jail and almost $13, 000 in restitution), and the rights he was waiving. He also expressed satisfaction with counsel.
In providing a factual basis, defendant admitted that on September 30, 2009, he deposited into a TD bank account an $8000 check that he issued from a closed business account to his brother Frank, knowing the bank would not honor the check. Defendant acknowledged he "deposited a bad check[, ]" explaining "the account was closed" so "there wasn't enough money to satisfy it[.]" When asked by Judge Bernard DeLury, Jr. whether "[t]his was more than just forgetting or slipping your mind; you knowingly issued a check knowing that the TD bank would be out of the money if it was cashed, is that true?" defendant responded, "[t]hat's correct." Judge DeLury accepted the plea as knowing and voluntary, with an adequate factual basis, found defendant guilty, ordered a presentence report, and scheduled sentencing for June 18, 2010.
In the interim, however, defendant was indicted on another count of third-degree passing a bad check, i.e., depositing a $7500 check issued to his brother from the same closed business account, so sentencing was postponed. The Public Defender's Office was assigned to represent him in the second indictment.
Leonard represented Frank in a violation of probation (VOP) matter in another county unrelated to this incident. He entered an appearance on his behalf on April 26, 2010 and ceased representation on September 30, 2010, when Frank pled guilty to the violation.
Defendant's pending cases were adjourned multiple times from June through December 2010. On December 20, 2010, Leonard moved to be relieved as defendant's counsel on the first indictment, which was granted and the case was also assigned to the Public Defender's Office. Assigned counsel then entered into negotiations with the State on defendant's behalf; ultimately, the State agreed to dismiss the second indictment and proceed to sentencing on the first indictment. On January 19, 2011, defendant appeared for sentencing on the first indictment and advised, through assigned counsel, that he sought to withdraw his guilty plea. The judge granted an adjournment for defendant to file a formal motion.
In his motion, defendant asserted a general claim of conflict of interest based on dual representation by Leonard, claiming Frank was an unindicted co-conspirator. Defendant also asserted he was innocent because TD notified his brother that the checks were declined so he did not have a chance to "make good" on them.
In a comprehensive written opinion of May 18, 2011, Judge DeLury rejected these arguments. Noting that defendant's motion was made pre-sentencing, the judge properly analyzed defendant's motion to withdraw his plea under the less stringent "interests of justice" standard, R. 3:9-3(e). As required, he also weighed the following four factors to determine if the plea should be permitted to be withdrawn, see State v. Slater, 198 N.J. 145, 157-58 (2009):
(1) whether defendant 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.
The judge found defendant did not actually assert a colorable claim of innocence in the legal sense as he did not challenge any of the elements of "passing a bad check."
Defendant admitted he knew at the time of issuance and deposit that the check would not be honored. See N.J.S.A. 2C:21-5; State v. Kelm, 289 N.J.Super. 55, 59 (App. Div.), certif. denied, 146 N.J. 68 (1996). Moreover, even if defendant had "made good" on the check after he committed the offense he admitted, that circumstance would have been only a mitigating factor, not a defense to the crime.
As to the second factor, the judge rejected defendant's claim that Leonard had a "per se" conflict of interest at the time the plea was entered because he had an attorney-client relationship with defendant's brother, who was "essentially an unindicted codefendant[.]" In fact, the judge found defendant had not even established a potential or actual conflict. He referenced Leonard's March 18, 2011 letter to the prosecutor's office setting forth the timetable of Leonard's representation of defendant and Frank. Leonard had represented Frank in October 2009 on an Atlantic City Municipal Court violation. Defendant presumably retained him based on that referral. The judge viewed the conflict claim as a "red herring" as defendant knew from the beginning of his proceedings that Leonard represented both him and Frank. Moreover, Leonard expressly stated that his representation of defendant "essentially ended with a guilty plea on May 10, 2010 [and s]ince that date [defendant] has been awaiting sentencing on the indictment to which he pled guilty."
Judge DeLury further emphasized that Frank was not indicted as a co-defendant in either of the two cases and thus his and Frank's interests were not adverse. As "Leonard represented each individual on separate and unrelated charges in differing counties[, ]" his representation did not implicate conflicting interests. In addition, defendant simply made a bald assertion of conflict which he alleged rendered his guilty plea involuntary but provided no specifics as to how Leonard's so-called "dual representation" adversely affected the circumstances surrounding defendant's guilty plea.
As to the third factor, defendant's plea was entered in accordance with a plea bargain. Having found defendant failed to satisfy the first three factors, the judge found the State was not required to show it would be prejudiced by withdrawal of defendant's guilty plea. Although the judge directed the State to prepare an order, none has been provided in the appendix or uncollated materials. This appeal ensued.
On appeal, defendant contends the court erred in denying the motion to vacate his guilty plea based upon an incorrect evaluation of the Slater factors. More specifically, defendant challenges the court's failure to conduct an evidentiary hearing during which he would have been "given the chance to articulate his understanding of [Leonard's] dual representation or whether he knowingly waived a conflict of interest or a third-party guilt defense, meaning Frank was the responsible party." He also claims that "the exact nature of  Leonard's dual representation cannot be fully understood without [Leonard's] testimony." Nevertheless, defendant contends the record supports the granting of his motion, in essence, reiterating his arguments on the Slater factors and conflict of interest made to Judge DeLury. Defendant also contends there are insufficient facts to determine the claim of ineffective assistance of counsel on direct appeal.
Based on our review of the record and applicable law, we are not persuaded by defendant's arguments. We affirm substantially for the reasons stated by Judge DeLury in his cogent written opinion and discern no basis to comment further. Defendant failed to present a prima facie case on the conflict issue warranting an evidentiary hearing. Nevertheless, recognizing that ineffective assistance claims generally are not entertained on direct appeal "because such claims involve allegations and evidence that lie outside the trial record[, ]" State v. Preciose, 129 N.J. 451, 460 (1992), we make no determination as to the merits of an ineffective assistance of counsel claim other than to hold that Leonard's representation of defendant and his brother did not constitute a conflict warranting vacation of defendant's guilty plea. See also State v. Sparano, 249 N.J.Super. 411, 419 (App. Div. 1991). Any other claim of ineffective assistance of counsel may abide PCR if defendant believes he has a factual and legal basis to assert it.