May 29, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
MICHAEL E. HAYES, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 his desire to go to trial. He explained:
I was advised by my attorney, which was ineffective counsel, . . . that you was going to revoke my bail [for the eluding case]. And I'm the sole provider for my wife and my [newborn] daughter. . . . I never wanted this deal. I wanted to go to trial. I still want to go to trial. On the day I signed the deal, I hired an attorney right after that, [the first substitute lawyer], to take the plea back. You know, like I didn't know that you was going to revoke my bail, but I was advised by [Kokes] that you was going to revoke my bail if I didn't sign for this deal. I didn't want that deal. You see that I signed for trial, and I never wanted the deal and I still don't want the deal. . . . I mean to take the plea back if you allow it and go to trial. . . . I still want to go to trial and I don't want this deal if you allow it, Your Honor. I've been trying to hire counsel from last month -- some time to put this motion in or whatever. . . . You seen when I took this plea agreement I was very emotional. . . .
The State opposed the adjournment request.
The court denied the adjournment request, concluding defendant pled guilty to the charges knowingly and voluntarily with a full understanding of the consequences of his plea, and his objections were nothing "other than a change of mind, the pleader's form of buyer's remorse." Id. at 532. After counsel made arguments with respect to sentencing, defendant again claimed he was not guilty of the charges and was pressured into pleading guilty because Kokes had told him if he did not accept the plea, the court would revoke his bail and incarcerate him. The prosecutor additionally represented that defendant was "seen on video going into and coming out of the bathroom. He's identified there. He's positively identified by his victim. He feigned the presence of a firearm during that robbery so it's a first-degree robbery and . . . [defendant is] discretionary extended term eligible[.]" The court sentenced defendant in accordance with the negotiated plea agreement and imposed a thirteen-year sentence subject to NERA. Ibid.
Defendant appealed, and during the pendency, the Supreme Court decided State v. Slater, 198 N.J. 145 (2009). On appeal, defendant argued, in part, that his plea was coerced, and the Slater factors required vacation of the plea. In an unpublished per curiam opinion, we affirmed defendant's conviction and sentence. We did "not address what effect, if any, should be given to the fact that defendant was without counsel in the presentation of his motion to withdraw his guilty plea; that issue was not raised squarely until defendant's later-filed supplemental brief before [the Supreme] Court." Hayes, supra, 205 N.J. at 533-34, n 5.
The Supreme Court granted certification, 203 N.J. 440 (2010). On certification, defendant primarily asserted trial court error in denying his request for an adjournment to secure counsel to pursue his motion to withdraw his guilty pleas. Hayes, supra, 205 N.J. at 534. The Court commented that once Kokes expressed he would be unable ethically to represent defendant in a motion to withdraw his plea, defendant "effectively was without representation, a status anathema to the fundamental constitutional notions of fairness that must guide criminal proceedings." Id. at 540. "Based on the clarity and scope of the plea colloquy coupled with the unexplained delay in notifying the trial court and the State of defendant's wish to withdraw his pleas, " the Court reluctantly concluded that the denial of the request for an adjournment was "unreasonable and prejudicial to defendant's rights" and constituted "a misuse of discretion." Ibid. The Court explained:
Slater was decided after defendant's adjournment request and plea withdrawal motion were denied. Regardless, on the record presented, we cannot gauge whether defendant's plea withdrawal application satisfied any relevant standard then obtaining. Where a defendant in practice has been denied the right to be represented by counsel -- as in the circumstances present here -- we can have no confidence in the uncounseled proceedings below. We cannot know whether defendant might have been able to satisfy the Slater standards with the help of a lawyer. We readily understand the consequences to defendant in this case, though: he lost the benefit of the less stringent pre-sentencing standard that would have applied to his plea withdrawal motion.
[Id. at 541 (footnote omitted).]
The Court reversed, concluding "the only meaningful remedy available is to remand this case to the trial court for a fulsome plea withdrawal hearing at which defendant is to be represented by unencumbered counsel." Ibid. The Court provided the following instructions to the trial court on remand:
If, once the relevant [Slater] factors are explored and determined, the trial court concludes that defendant's motion to withdraw his guilty pleas should be denied, the matter is at an end, subject to limited appellate review of that hearing only. Conversely, if, after a robust plea withdrawal hearing the trial court is of the view that defendant should be allowed to withdraw his guilty pleas, then the trial court should so order, reinstate all of the charges previously pending against defendant -- including all charges listed in both indictments as well as all of the motor vehicle summonses dismissed at sentencing --and promptly place the case on the trial calendar. Because defendant sought to have his motion to withdraw determined before sentence was imposed, we emphasize that his application on remand must be gauged under the lesser "interests of justice" burden of proof set forth for pre-sentence plea withdrawal motions under Rule 3:9-3(e), rather than the higher "manifest injustice" burden of proof applicable to post-sentence plea withdrawal motions under Rule 3:21-1.
[Id. at 541-42 (emphasis added).]
New counsel was assigned to defendant for the remand. Defense counsel subpoenaed Kokes, Sorensen, the deputy attorney general who served as plea prosecutor, and defendant's grandfather. He argued Kokes and Sorensen would support defendant's allegations that the plea was not knowing and voluntary, but was done with threats and coercion; "that basically they were going to pull [defendant] off the street" and incarcerate him. More specifically, counsel represented that Kokes "would be able to provide intimate details that . . . would fill in the cracks of what is in the transcripts[, ]" i.e., that defendant was "ready, willing and prepared to go to trial; that this was a deal that he did not want; that the only reason that he did this was because at that time, he was under the impression that they were going to be revoking his bail" if he did not plead guilty.
Defense counsel also said that Kokes would "fill in th[e] blanks" about what was said at a largely-indiscernible sidebar conference that took placed immediately preceding the entry of defendant's guilty plea. The proffer was that defendant's grandfather "was present during the times in court and he would also be able to provide testimony as to the coercion that was placed upon [defendant] to get him to . . . enter his plea."
The State moved to quash the testimony of the plea prosecutor, which the court granted. As to the other two witnesses, the State argued that the Supreme Court did not specifically require an evidentiary or testimonial hearing on remand and that defendant had made an insufficient proffer as to their testimony.
The judge permitted defendant to testify and reserved on his request as to witnesses. Defendant testified that when they first went to court, before the sidebar, Kokes told him in the presence of his grandfather that the judge was going to revoke his bail, although he did not say why. Defendant explained:
I'm under the impression they [are] going to revoke my bail, but he never [told] me why  except for  because I caught the new charge, the second charge while I was out on bail for the robbery charge.
When he comes back, the prosecutor. . . stands up and he starts speaking about my bail. I think the judge [is] going to revoke my bail and I say . . . we'll take the plea.
Hopefully, willingly,  Kokes [will] tell you that he told me they was going to revoke my bail.
In addressing the Slater prongs, at various times throughout the proceeding defendant testified as to the following with regard to his claim of a colorable defense. He told Kokes from the outset he "wasn't guilty of these charges and [he] never committed these acts." He also claimed that based on the knowledge of the law he learned in the intervening four years, he could not be guilty of armed robbery because the victim in his statements never mentioned "a weapon" or a "finger." Moreover, although defendant noted that the prosecutor stated he "had [him] on [surveillance] video, " defendant claimed "you can't see nobody on" the CDs he had. Defendant also challenged the pretrial photo array as "suggestive."
Defendant further testified he said he wanted to go to trial; however, he signed the plea agreement in the courtroom under duress because he did not want his bail revoked and wanted to be home to provide for his newborn child. Defendant explained that he "made the proper decision" in entering the plea, "thinking that, look, I'll go ahead and I'll take the deal and I'll go hire me another attorney, which I did . . . to take the plea back." On cross-examination, to which defense counsel consented, defendant had no explanation for all of his answers at the plea colloquy. Defendant also admitted that at the time he pled guilty he told the judge under oath he was satisfied with the services of both Kokes and Sorensen, and he had no question for either of them.
When asked on redirect why he admitted "to doing something [he] did not do" if he were "maintaining [his] innocence, saying [he was] not the person who committed the robbery, " defendant responded that he "feared for [his] life" and "didn't know if [the trial judge] was going to lock [him] up or not." Defendant claimed he could not speak up because Kokes told him the judge "didn't like [him] or anybody in [his] family"; he was the judge "who gave [defendant's] brother 60 years." Defendant repeated his claim that he pled guilty because of his impression that the judge was going to revoke his bail and planned to immediately hire another attorney to withdraw this plea. "It's 15 minutes and I was out on bail, " defendant testified on re-cross.
The judge declined to permit defendant to call any additional witnesses. He accepted for the sake of argument defendant's proffer that Kokes had told him if he did not plead guilty, his bail was going to be revoked, but found that fact to be immaterial to the withdrawal motion. The judge explained, even "assum[ing]" defendant pled guilty and "walked right out of the door and started to . . . plan his [withdrawal] motion, . . . the four criteria of Slater still are the issues that . . . I have to review."
The judge noted that any issues relating to defendant's dissatisfaction with Kokes' representation would be more appropriately proffered in a post-conviction relief motion. The judge also found McLaughlin's testimony to be too extraneous and irrelevant to any of the Slater prongs. Having given defendant the opportunity to testify "extensive[ly]" and his present counsel substantial oral argument throughout the proceeding, the judge was satisfied he had complied with the dictates of the Supreme Court for a "fulsome and robust" proceeding.
After analyzing the four Slater prongs under the less stringent "interests of justice" standard for vacating a guilty plea pre-sentencing, R. 3:9-3(e), the judge denied defendant's motion. He relied primarily on the first two factors. Most critically, the judge found defendant had failed to assert a colorable claim of innocence, merely making a "bald allegation that I'm not guilty of this crime" based on "some legal research he's done" of "I don't think I was charged correctly" or "I don't think they could've proven it because [of] some of the evidence[, ]" which are insufficient under Slater to justify the withdrawal of the guilty plea. Slater, supra, 198 N.J. at 158. As emphasized by the judge, in contrast with the "overwhelming evidence" of guilt set forth by the prosecutor in his brief, defendant presented no evidence to make the court "feel that it would be in the interest of justice to grant this Slater motion and to essentially declare the guilty plea a nullity." (emphasis added).
As to the second prong, the nature and strength of defendant's reasons for withdrawal, the judge found the reasons presented by defendant "have no legal force." The judge explained that whether defendant properly understood or misunderstood "what was going to happen to him vis-à-vis bail was not a -- strong enough . . . piece of evidence . . . under the Slater criteria, [to] reject [defendant's] guilty plea and set this case down for trial[, ]" having "clearly [fou]nd that [defendant] went through a full, fair and thorough process where . . . he gave the requisite answers."
As to the status of the third factor, the existence of a plea bargain, the extensive plea colloquy clearly demonstrated that defendant "understood the plea, the implications of the plea, [and] was satisfied with his counsel." Defendant also provided an "extensive basis, factual predicate for his guilty plea" in which he "indicated that he was guilty of [the armed robbery]." Defendant further got "the benefit of the bargain" by entering the plea, of which he was aware, i.e., "13 years at NERA, which is a long time, but it's not as long as what you would get if you got a life sentence."
Finally, the judge concluded that defendant was not entitled to a potential gaming of the system or a second bite of the apple. Withdrawal of the guilty plea would result in unfair prejudice to the State based on the "potential loss or inability to locate witnesses" and the State having to revisit pretrial preparation of a six-year-old case. The judge's ruling was memorialized in an order of May 15, 2012. This appeal ensued.
On appeal, defendant argues that the court's refusal to permit him to produce witnesses on his behalf at the remand hearing constituted a denial of his right to due process and denied him a fair hearing. Defendant generally contends that his witnesses "were necessary to expound on and to corroborate [his] claims." More particularly, defendant argues:
[H]e had a viable defense of misidentification, as well as a failure of proof defense as to the essential elements of armed robbery, which he discovered after the 2008 plea. Defendant produced at the hearing witnesses who could expand on and corroborate his reasons for seeking the withdrawal of the plea. The motion judge refused to permit the witnesses to give testimony.
Defense counsel argued that the witnesses were necessary to a complete hearing on Defendant's claims as each of them was in possession of information regarding the conduct of the plea negotiations in general and the Defendant's decision to enter the plea in particular. Simply put, the proffered witnesses were essential to the presentation to the court of a complete picture of the events leading up to the guilty plea, as well as to provide corroboration of Defendant's belief that he was coerced into accepting the plea.
Defendant notes that his counsel even offered to limit his case to testimony from Kokes alone and represented that his testimony would be of limited duration. He argues that Kokes considered himself to be a necessary witness at the hearing, as represented at the initial withdrawal motion, which the Supreme Court considered to be a reasonable conclusion on his part. Hayes, supra, 205 N.J. at 536, n 6.
According to defendant, the testimony of the proffered witnesses "was of material consequence" to his case, and preclusion of their testimony "unduly prejudiced his ability to present a complete, cogent application to withdraw his plea." Defendant posits that the prejudice was intensified by the court's permitting the prosecutor to extensively cross-examine him "in order to highlight the fact that his claim of innocence was inconsistent with the factual basis for the plea he had provided in 2008."
Based on our review of the record and applicable law, we are not persuaded by defendant's arguments. "Absent 'an abuse of discretion which renders the [trial] court's decision clearly erroneous, '" we must affirm such a decision on a motion to vacate a guilty plea. State v. Mustaro, 411 N.J.Super. 91, 99 (App. Div. 2009) (quoting State v. Simon, 161 N.J. 416, 444 (1999)). "A denial of a motion to vacate a plea is 'clearly erroneous' if the evidence presented on the motion, considered in light of the controlling legal standards, warrants a grant of that relief." Mustaro, supra, 4ll N.J.Super. at 99 (citing Slater, supra, 198 N.J. at 164).
"'[T]he burden rests on the defendant, in the first instance, to present some plausible basis for his request, and his good faith in asserting a defense on the merits.'" Slater, supra, 198 N.J. at 156 (quoting State v. Smullen, 118 N.J. 408, 416 (1990)). While the "interest of justice" standard is a liberal one, "[l]iberality in exercising discretion does not mean an abdication of all discretion, and, accordingly, any plea-withdrawal motion requires a fact-specific analysis." State v. Munroe, 210 N.J. 429, 441-42 (2012) (internal quotation marks and citations omitted).
The Supreme Court's concern was that because defendant did not have conflict-free counsel he was, in essence, without representation at the time of his motion to withdraw his plea. To rectify the infirmity, the Court directed that on remand defendant be afforded a properly counseled "robust" Slater hearing in which he has the burden of demonstrating "the interests of justice would not be served by effectuating the [plea] agreement, " R. 3:9-3(e). Critical to our review, the Court did not mandate that the trial judge conduct an evidentiary hearing but left the nature of the proceeding to his discretion.
Defendant's sole proffer with regard to Kokes is that he either told him or defendant understood from him that the judge, who did not like him or his family, would revoke his bail if he did not plead guilty, and the conversation was in the presence of his grandfather. There was no proffer regarding Sorensen. We do not necessarily agree with the trial judge that permitting Kokes to testify would have led to "endless examination" or a mini-trial. It would have been preferable for the judge to have permitted limited questioning of Kokes on the bail revocation issue and laid that issue to rest. Nevertheless, we are satisfied the judge acted within his discretion in allowing only defendant to testify and, as noted by the judge, defendant testified "extensive[ly]" at various times throughout the hearing.
In fact, defendant himself referenced and testified about the Slater factors and his understanding of various legal issues. Defense counsel consented at the outset to defendant being cross-examined and voiced no objection to any of the questions. Moreover, defense counsel made vigorous arguments and participated in numerous colloquies with the judge throughout the proceeding. Under the circumstances, defendant was provided a properly counseled, robust, and fair hearing. Accordingly, we discern no violation of defendant's constitutional rights or undue prejudice as to his ability to present a complete plea withdrawal application that would warrant reversal.
Defendant provides a shotgun approach in support of his withdrawal motion. On one hand he claims he did not enter his guilty plea voluntarily, despite stating otherwise and perjuring himself during a lengthy colloquy, solely because he was misinformed by Kokes that the judge would revoke his bail if he did not plead guilty. He offers the witnesses to support that claim. On the other hand, defendant first claimed at the remand hearing that he should be entitled to withdraw his guilty plea because he has a colorable claim of innocence based on the legal education he gained in jail in the interim.
Defendant was not harmed by preclusion of his witnesses as the judge assumed that even if Kokes' testimony were consistent with defendant's proffer, a misunderstanding as to bail status was an insufficient reason for withdrawal under all the circumstances of the case. As noted by the Supreme Court, "although provided the opportunity to do so several times [during the plea colloquy], defendant never asserted he was innocent of the charges to which he was pleading guilty." Hayes, supra, 205 N.J. at 530. On remand, defendant presented no witnesses or evidence to support his claim of innocence and thus he made a mere bare assertion and not a colorable claim of innocence. See Slater, supra, l98 N.J. at 158 ("Defendants must present specific, credible facts and, where possible, point to facts in the record that buttress their claim."). In evaluating defendant's claim of innocence, courts may look to the evidence that was available to the prosecutor and defendant at the time the guilty plea was entered. Id. at 158-59. However, a mini-trial is not appropriate; courts "should simply consider whether a defendant's assertion of innocence is more than a blanket, bald statement and rests instead on particular, plausible facts." Id. at 159.
That is what the trial judge did here. Defendant's detailed plea colloquy clearly supported a factual basis for the conviction, as well as a finding that the guilty pleas were knowingly and voluntarily entered with full knowledge of its terms and consequences. On remand, defendant provided nothing more than a vague, personal assessment of the evidence to support his claim of innocence, which was belied by the "overwhelming evidence of guilt" expressly cited by the prosecutor and noted by the trial judge, including the surveillance videotape, positive identification by the victim, and defendant's feigning the presence of a firearm during the robbery.
"In assessing the nature and strength of the reasons for [a plea] withdrawal . . . trial judges must act with 'great care and realism, '" recognizing that "defendants often have little to lose in challenging a guilty plea" and "some defendants will be attempting to game the system"; however, "the ultimate goal is to ensure that legitimate disputes about the guilt or innocence of a criminal defendant are decided by a jury." Id. at 160 (internal citation omitted); Munroe, supra, 210 N.J. at 443. "A court's ruling may rest, of course, on its view of the defendant's demeanor and candor at both the plea proceeding and any later hearing on the withdrawal motion." Slater, supra, 198 N.J. at 160.
We are satisfied the judge performed the appropriate assessment on remand. Defendant had selective memory at the remand hearing. He professed ignorance of his exposure if convicted of the offenses at trial and of the "13 year cap" of the plea. However, the plea form reflected maximum exposure of twenty years on the robbery charge plus five years on the eluding charge, defendant's discretionary extended-term eligibility and resulting potential life term were noted by the prosecutor at the outset of the plea hearing, and the negotiated maximum thirteen-year term was mentioned throughout the plea colloquy. Thus even accepting as true for argument sake defendant's representation that he was concerned his bail would be revoked if he did not plead guilty and he wanted to spend two months home with his wife and newborn daughter before sentencing, that alone is an insufficient reasons for withdrawal of the plea. Considering the overwhelming evidence of guilt, it is far more likely defendant knowingly and voluntarily took advantage of an extremely beneficial plea bargain that included dismissal of charges and a significantly reduced sentence. He then changed his mind. The trial judge properly concluded that defendant failed to meet his burden and is not entitled to withdraw his guilty plea in the interests of justice. See R. 3:9-3(e).