NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: May 1, 2013
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment Nos. 07-07-1563 and 07-10-2473.
Frank M. Gennaro, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Gennaro, of counsel and on the brief).
Frank J. Ducoat, Deputy Attorney General, argued the cause for respondent (Jeffrey S. Chiesa, Attorney General, attorney; Mr. Ducoat, of counsel and on the brief).
Before Judges Axelrad and Sapp-Peterson.
Defendant Michael Hayes appeals from a May 15, 2012 order of the Law Division denying his motion to withdraw his guilty plea, following a remand from the Supreme Court. We affirm.
The facts and procedural history of the case are recited at length in State v. Hayes, 205 N.J. 522 (2011), which we summarize. In April 2007, after a patron at an Atlantic City casino cashed out a significant amount of money in chips, defendant followed him into a public bathroom, used his hand to simulate a gun, poked his finger into the victim's back, and demanded his money or defendant would "'blow his brains out.'" Id. at 527. Defendant was pursued by a police officer and arrested. Ibid. Surveillance cameras captured defendant's entry into and exit from the bathroom, and the victim later positively identified defendant as his assailant and robber. Ibid. Defendant was charged by indictment with first-degree robbery, N.J.S.A. 2C:15-1, and fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a)(3). Ibid. He was represented by retained counsel regarding that indictment. Ibid.
While on bail a few weeks later, defendant refused to stop operating his vehicle when directed to do so by an officer and instead led the officer on a high-speed chase. Ibid. When defendant finally stopped, he had a firearm in his possession. Ibid. Defendant was charged by indictment with second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7; third-degree eluding, N.J.S.A. 2C:29-2(b); and third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b). Ibid. He was represented by the Office of the Public Defender on these charges. Ibid.
As noted by the prosecutor at the outset of the plea hearing on March 7, 2008, defendant was discretionary extended-term eligible with numerous prior indictable convictions with potential exposure to a life term for a conviction on the armed robbery charge. Defendant's two lawyers, however, jointly negotiated a plea agreement in which defendant would plead guilty to armed robbery and eluding. Id. at 528. In exchange, the State would recommend a maximum thirteen-year custodial term subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on the robbery charge, a concurrent five-year term on the eluding charge, and the balance of both indictments and thirty-one separate motor vehicle summonses stemming from the car chase would be dismissed. Ibid. Defendant signed a plea agreement evidencing those terms, which was also signed by both counsel, Harold Kokes, his private attorney, and Ingrid Sorensen, his Public Defender.
Again represented by both counsel, defendant entered guilty pleas pursuant to the negotiated agreement "after a comprehensive examination under oath by the trial court[.]" Ibid. The Court also noted that defendant provided a detailed colloquy as to his understanding of the terms of the plea agreement and consequences of the plea, waiver of his rights, and a factual basis for the plea. Ibid. Defendant admitted he was in the casino bathroom with the victim, took money from him without his consent, and sought to create the impression he had a gun to steal money from the victim by putting his finger in the victim's back and "threaten[ing] to blow his brains out if he didn't give [defendant] money." Defendant further acknowledged the victim gave him the money.
The Court further stated:
Throughout the entire examination under oath, defendant never wavered and, more to the point, never advised the trial court that his guilty pleas were not knowingly and voluntarily entered or that he was otherwise dissatisfied with the plea agreement terms or consequences. More specifically, although provided the opportunity to do so several times, defendant never asserted he was innocent of the charges to which he was pleading guilty.
[Id. at 530.]
The trial judge continued defendant's release on bail pending receipt of a presentence report and sentencing. He clearly advised defendant he needed to be arrest-free in the interim to remain free on bail. Ibid. Defendant, however, was arrested on new charges, and his bail was revoked. Ibid.
Defendant appeared for sentencing on May 2, 2008, and for the first time, in connection with an oral request for an adjournment, also "piggy-backed" an oral application to withdraw his pleas. Ibid. Kokes explained that he had been contacted by defendant's family the week before and requested to make the withdrawal application, which defense counsel believed he ethically could not do, given the likelihood he would be a witness in any plea withdrawal proceedings. Id. at 530-31. He also advised the court that two different attorneys had reached out to him, one a week earlier and another within two days of the scheduled sentencing. The first attorney told him a conflict of interest prevented him from filing the plea withdrawal motion, while the second attorney advised he was unavailable to appear in court at that time due to a scheduling conflict. Kokes advised the court that defendant had "'expressed an extreme displeasure with going forward to sentencing today[, ]'" and requested a two-week adjournment to allow new, substitute counsel the opportunity to file a motion to withdraw. Id. at 531. Assigned counsel joined in the application. Ibid.
Defendant personally addressed the court and said he never wanted to plead guilty and had, in fact, previously announced to the court ...