June 3, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
CALVIN ANDREWS, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 18, 2012
On appeal from Superior Court of New Jersey, Law Division, Essex Count Indictment No. 09-06-1624.
Joseph E. Krakora, Public Defender, attorney for appellant (Michael B. Jones, Assistant Deputy Public Defender, of counsel and on the brief).
Jeffrey S. Chiesa, Attorney
General, attorney for respondent (Frank J. Ducoat Deputy Attorney General, of
counsel and on the brief).
Before Judges Fisher and St. John.
Defendant Calvin Andrews pleaded guilty to third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(7). Following denial of defendant's motion to withdraw his guilty plea, the judge sentenced defendant to an extended eight-year term of imprisonment with a four-year period of parole ineligibility. The sentence was to run consecutively to the sentences defendant was then serving. The appropriate fees, fines, penalties, and assessments were also imposed.
The record discloses the following facts and procedural history leading to the determination under review.
Defendant, an inmate at Northern State Prison, was charged with attempted murder and aggravated assault for causing serious bodily injury to another inmate. Defendant used the empty barrel of a pen wrapped in a bed sheet to stab the victim-inmate in his neck, causing a tear to an artery. Originally, defendant was represented by the public defender's office and his counsel submitted a pretrial memorandum to the trial judge, as well as a notice of self-defense. The matter was later reassigned to a second judge and defendant's case proceeded before that judge. A trial date was set for late March 2010, but before that date, defendant retained private counsel. The second trial judge was unable to begin jury selection on the scheduled trial date and selection was conducted by a third judge. There was no Sands/Brunson hearing held before jury selection.
After the jury had been sworn, the matter was returned to the second trial judge and he held a Sands/Brunson hearing and determined that defendant's prior conviction for aggravated assault would be sanitized under Brunson, but his other convictions, including two robbery convictions, would not be sanitized. After rendering that decision, the judge asked defendant whether he would be interested in accepting a plea offer from the State. After consultation with the State, defense counsel represented to the court that defendant was willing to enter a plea of guilty.
Defendant entered a plea of guilty to third-degree aggravated assault in exchange for the State's recommendation of an extended term of eight years with four years of parole ineligibility. A factual basis was given by defendant, including an acknowledgment by defendant that he was not acting in self-defense when he struck the inmate. Sentencing was scheduled for June 28, 2010.
Prior to that date, defendant wrote to his private counsel stating that he wished to withdraw his plea of guilty. On June 26, defendant filed a pro se notice of motion to withdraw his plea of guilty. In his attached certification, defendant stated his innocence, asserting he had acted in self-defense and under duress. Defendant sought to withdraw his guilty plea so that he could proceed to trial and avail himself of the defenses of duress and self-defense. Defendant contends that counsel had advised him prior to selection of the jury that all his prior convictions would be sanitized. Assuming this was correct advice, defendant did not excuse a juror who had been the victim of a robbery, and who also had a family member who had been shot and paralyzed during a robbery. Once the judge ruled his unsanitized robbery convictions could be used by the State, defendant contends he was compelled to enter a plea of guilty. As a result, defendant maintained that he had not entered a knowing and voluntary guilty plea.
At the scheduled sentencing date, private counsel argued that he might become involved as a witness and therefore requested that he be relieved as counsel, at least for purposes of the motion to withdraw defendant's guilty plea. Defendant applied to the public defender's office for representation and the matter proceeded with a second attorney from the public defender's office.
Defendant had originally filed a notice of self-defense. His contention was that the victim-inmate, several days prior to the stabbing, had attacked him and threatened even greater future consequences. As a result, counsel indicated that defendant maintained his innocence.
The State argued against the plea-withdrawal motion contending prejudice because the doctor who performed surgery on the victim-inmate had moved to California. The incident itself was captured on video and there was no representation that other witnesses would not be available.
In denying the motion to withdraw the guilty plea, the second trial judge noted defendant's factual basis which acknowledged the absence of self-defense. The judge then analyzed the plea-withdrawal request pursuant to State v. Slater, 198 N.J. 145 (2009), and denied defendant's application. The second trial judge imposed the agreed upon sentence. This appeal ensued.
On appeal, defendant raises the following argument:
THE JUDGE ERRED IN DENYING MR. ANDREWS' MOTION TO WITHDRAW HIS GUILTY PLEA. MR. ANDREWS MET THE CRITERIA SET FORTH IN STATE V. SLATER, 198 N.J. 145 (2009) AND STATE V. MUNROE, ___N.J.___, 2012 N.J. LEXIS 680 (DECIDED JUNE 27, 2012) AND MR. ANDREWS SHOULD HAVE BEEN ALLOWED TO PROCEED TO TRIAL.
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 of demonstrating 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. Supra, 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. Supra, 210 N.J. at 445-47. Moreover, the State did not claim it would suffer any prejudice. Id. at 447.
In this case, application of the Slater/Munroe principles counsels that defendant's motion to withdraw his plea should have been granted. This case is a slight departure from Slater and Munroe because of defendant's factual basis which eschewed self-defense and the issue of defendant's unsanitized prior criminal record. Here, defendant contends he stabbed the victim-inmate in self-defense and under duress. Further, he asserts his plea was not voluntary since the judge's Sands/Brunson ruling compelled him to enter his plea.
This situation is analogous to Munroe where the defendant did not deny his presence at the scene and his participation in a violent altercation. Supra, 210 N.J. at 445. There, the defendant asserted that he acted in self-defense and if successful with that defense, would not have been found guilty of the charged offense. Ibid. Here, defendant makes the same argument.
Additionally, defendant's guilty plea was deficient because of the judge's decision to admit defendant's prior robbery convictions unsanitized. When a defendant testifies at trial, the fact that the defendant has previously been convicted of a crime may be used for purposes of impeachment. State v. Sands, 76 N.J. 127, 144-45 (1978). The Court in Brunson, detailed the manner in which such evidence is to be presented to the jury. Supra, 132 N.J. 377.
To impeach the credibility of a testifying defendant, the State may introduce into evidence only the number, degree, and date of the defendant's prior similar convictions. When a defendant has multiple prior convictions, some of which are similar to the charged offense and some of which are dissimilar, the State may introduce evidence only of the date and degree of crime of all of the defendant's prior convictions, but cannot specify the nature of the offenses.
[Id. at 394.]
Here, defendant had a similar conviction, aggravated assault, and dissimilar convictions, which included robbery. The judge only required sanitization of the conviction for aggravated assault. The judge erred in doing so.
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 have been 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 significant prejudice if defendant withdrew his plea. In fact, the combination of an assertion of self-defense and the coercive nature of the Sands/Brunson ruling 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 April 4, 2011 denial of defendant's motion to withdraw his guilty plea. The matter is remanded for further proceedings.