NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 5, 2013.
On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 07-05-1678.
Joseph E. Krakora, Public Defender, attorney for appellant (Winnie E. Ihemaguba, Designated Counsel, on the brief).
Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Robin A. Hamett, Assistant Prosecutor, of counsel and on the brief).
Before Ostrer and Kennedy Judges.
Defendant Dennis Hitchens appeals from the denial of his petition for post-conviction relief (PCR) without an evidentiary hearing. We reverse and remand to the Law Division with instructions that defendant's judgment of conviction shall be vacated and defendant shall be afforded the option of (1) withdrawing his guilty plea; (2) moving for a hearing on whether his "cooperation" was of substantial benefit to the State; or (3) renegotiating the plea agreement.
As we explain later in this opinion, the relief required by our ruling is necessitated by the fatally vague "cooperation" agreement extended to and accepted by defendant both before and at his retraxit plea of guilty. The verbal agreement violates not only the principles announced by the Supreme Court in State v. Gerns, 145 N.J. 216 (1996), but also the explicit requirements of the Brimage Guidelines. See Attorney General Guidelines for Negotiating Cases Under N.J.S.A. 2C:35-12. Because of our conclusion, it is unnecessary for us to decide the merits of defendant's other arguments on appeal. To place the issue in perspective, we recite the background of this appeal at some length.
In 2007, the Camden County Grand Jury returned Indictment 07-05-1678 charging defendant with third-degree possession of a controlled dangerous substance (CDS), heroin, N.J.S.A. 2C:35-10a(1) (count one); third-degree possession of CDS, heroin, with intent to distribute, N.J.S.A. 2C:35-5a(1) and -5b(3) (count two); and third-degree possession of CDS, heroin, with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7 (count three). In addition, defendant was charged in Accusation 07-09-3060 with third-degree possession of CDS, heroin, with intent to distribute, N.J.S.A. 2C:35-5a(1). The charges in the indictment and the accusation arose from incidents alleged to have occurred on different dates.
On September 20, 2007, defendant, while represented by counsel, signed a plea form agreeing to enter a plea of guilty to count three of the indictment and the single charge set forth in the accusation in return for a concurrent sentence on each charge of five years' imprisonment subject to twenty-two months of parole ineligibility. In addition, the remaining charges in the indictment and another pending criminal complaint would be dismissed and defendant would be released on his own recognizance, pending sentence.
Further, the plea form specified that "defendant can mitigate his sentence should he perform [f]actor 12 [sic] satisfactory[ily] to the prosecutor." Other than this statement, the plea form was silent as to the nature and extent of the cooperation expected from defendant, what would constitute "satisfactory" cooperation, and the extent of the "mitigation" of sentence defendant could expect for satisfactory cooperation. No other writing was provided to defendant or his attorney respecting this issue.
On the day he executed the plea form, defendant appeared in court to place his plea upon the record. The prosecutor then placed on the record the two charges and the proposed sentences on each. He then added, "[i]n addition, Your Honor, the [S]tate has agreed to an ROR bail pending sentencing. There's some - - -mitigating factor 12, Your Honor, that the [S]tate is considering. It'll be - -[.]" At this point, the judge interrupted to inquire about fees, penalties and assessments, as well as defendant's loss of driving privileges. The prosecutor never completed his statement concerning mitigation of sentence.
Defense counsel, nonetheless stated, in pertinent part:
Judge, with respect to the plea itself, I just want it to be clear on the record that I have advised Mr. Hitchens that if no factor 12 were to be performed, or . . . if any factor 12 that is performed . . . is not satisfactory to the [S]tate, then he comes back for sentencing, assuming that the [c]ourt were to go along with the plea agreement, his sentence for both these matters would be the five years, 22 months without parole. However, if he were to perform factor 12 and that factor 12 was what the [S]tate was considering when they spoke with me and I discussed it with Mr. Hitchens, in other words, it was satisfactory to them, then it could result in his, or at least in the prosecutor recommending a lower sentence than what is contemplated at this point. He does understand that, and again, I have discussed it with him in detail.
I only indicate that on the record because I've had problems with these types of matters before, Judge, and I just wanted to make sure that it is crystal clear.
Defendant thereafter was sworn and stated he understood the plea agreement, acknowledged his voluntary agreement to change his plea, and provided a factual basis for the charges. The judge never asked defendant about "factor 12" and it was not mentioned again. The judge accepted the plea and set a date for sentencing.
Despite the agreement to release defendant on his own recognizance pending sentencing, defendant was not actually released from custody until sometime in November. Defendant's sentencing date was scheduled for December 18, 2007, and, when he failed to appear on that date, a bench warrant was issued for his arrest. Defendant was thereafter arrested and brought before the court on February 15, 2008, for sentencing.
At that time, defendant stated he "couldn't come" to court on the December sentencing date, and that he had called counsel to advise him of his difficulty. Defense counsel never addressed the issue, but merely told the judge that "[he] went over the [appeal] rights [form with defendant which] he refused to sign and [defendant] indicated he wanted to address the court." The judge then asked the prosecutor and defense counsel a series of questions pertaining to the sentence, following which defendant stated he "would like to take back the plea[, ]" and added, "I have not received what I was supposed to receive, and to the plea agreement - - [.]" The judge interrupted defendant at this point and instructed him to "file whatever you want to file . . . in writing" and he rescheduled the matter to a date in April. Defendant at this time stated, "my attorney is incompetent[, ]" but was again cut off by the judge and remanded without bail.
On April 11, 2008, defendant was brought before the court in the presence of the prosecutor and defense counsel. However, other than placing his appearance on the record and thanking the court at the end of the hearing, defense counsel said nothing. We set forth at some length much of what occurred at the hearing:
THE COURT: Sir, I'll hear you.
THE DEFENDANT: I don't know how this procedure works, so, if you can --
THE COURT: Well, sir, this is for you to show me why I should permit you to allow -- to take back your guilty plea and go to trial, sir.
THE DEFENDANT: Okay. I made a deal with the prosecution.
THE COURT: Sir, your attorney and you made the deal and the prosecutor. Yeah.
THE DEFENDANT: No, I made a deal with the State troopers, as well. I did do work for the State troopers. With this here deal, I was promised that if I had applied with State troopers that they would -- that my charge would go away. I was --
THE COURT: Sir, who -- who told you that, sir? The prosecutor didn't tell you that, sir.
THE DEFENDANT: The State troopers did.
THE COURT: The State troopers have no ability to negotiate with you for it, sir.
THE DEFENDANT: But that's the promise they had made which I had did - -
THE COURT: Yeah, but sir, it doesn't -- sir, they can't make that kind of promise. It's not up to them. It's up to the attorney general and it's up to the prosecutor's office, sir.
THE DEFENDANT: Okay. Also, with the prosecutor. They said if I make the - - if I do cooperate that also my time will be - -or my charges will be dismissed. And once I did --
THE COURT: Who said that, sir?
THE DEFENDANT: The State troop -- the prosecutor did, as well.
THE COURT: Which prosecutor, sir?
THE DEFENDANT: The one that's sitting up here today.
THE COURT: He said that, sir?
THE DEFENDANT: Yes, as part --
THE COURT: Okay. We'll let him testify, too, sir. Okay.
THE DEFENDANT: As well as Mr. Nieves. He had signed both papers, too. If I do not comply with it, with the State troopers --
THE COURT: You signed papers to that effect, sir?
THE DEFENDANT: Yes. He wrote it on his paper.
THE COURT: Prosecutor. You're talking about the plea papers.
THE DEFENDANT: Yes.
THE COURT: Oh. Okay. Let me find your plea papers. You pled guilty on September 20, 2007. Sir, what it says on here is you were given your own -- you were released on your own recognizance pending sentencing. It says, the defendant can mitigate his sentence should he perform ...