August 9, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
SMITTY VINCENT, A/K/A SMITY VINCENT, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued February 25, 2013
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 10-10-2416.
James N. Butler, Jr., argued the cause for appellant.
John E. Anderson, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Carolyn A. Murray, Acting Essex County Prosecutor, attorney; Mr. Anderson, on the brief).
Before Judges Parrillo and Maven.
Pursuant to a negotiated agreement with the State, defendant Smitty Vincent pled guilty to one count of fourth-degree possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-5(d). Consistent with the plea agreement, the trial court sentenced defendant to a term of three years' probation conditioned upon serving 364 days in the county jail, drug counseling, community service, as well as the payment of fines and penalties. The sentence was stayed pending appeal.
While awaiting his sentence, defendant filed a motion to withdraw his guilty plea pursuant to Rule 3:9-3(e). Defendant contended that he did not consult with an immigration attorney and, hence, was not aware of the immigration consequences of his plea. After considering the evidence presented and applying the standard of review established by the Supreme Court in
State v. Slater , 198 N.J. 145, 150 (2009), the motion judge denied defendant's motion. The judge noted that the risk of deportation and other immigration consequences had been discussed with defendant by the two trial court judges and his defense counsel on multiple occasions and defendant testified that he understood the risk prior to entering the plea. Defendant appeals from the order denying his motion and the sentence. We affirm.
The following facts will inform our analysis. Defendant was to appear before the trial court on November 29, 2011. During the prior afternoon, defendant was called by his attorney's secretary and advised to proceed to another attorney's office. When he arrived there, defendant learned it was the office of an immigration attorney; however, he did not complete the meeting because he did not have the consultation fees. The following day, defendant appeared before the Honorable Ronald Wigler, J.S.C., with his attorney, who announced to the court that defendant was prepared to plead guilty pursuant to a negotiated agreement with the State. As the judge began to question defendant in advance of accepting his guilty plea, the judge asked if defendant was a United States citizen. When defendant answered "No, " the judge asked if he understood that he may be deported by virtue of the guilty plea. The judge then asked defendant if he had an opportunity to consult with an immigration lawyer. Defendant replied "Yes. But I didn't get to talk to him." The judge then spoke directly to defendant and told him that "under Federal law if you plead guilty to a fourth degree charge that could subject you to deportation." After the judge explained the penal consequences of the plea, defendant requested time to talk to an immigration attorney.
After a recess, the case returned to court in the afternoon, but before the Honorable Joseph V. Isabella. J.S.C. The assistant prosecutor announced that defendant agreed to withdraw his plea of not guilty and enter a plea of guilty to count two of the indictment. When this judge reached the citizenship question, defense counsel advised the court that a "tremendous" amount of time was spent addressing the issues. Defendant agreed with counsel that he understood that he "technically has deportation issues but is not immediately deportable." The judge then discussed the deportation consequences and questioned defendant about his discussions with counsel, his consultation with an immigration attorney, and the effect a guilty plea would have on his immigration status. The judge continued with the plea colloquy by asking the following:
THE COURT: So as a result of your consultation with the immigration attorney, you are willing to plead guilty as per the plea offer recommended by the [p]rosecutor. Correct?
THE DEFENDANT: Yes.
THE COURT: So your immigration lawyer has advised you of all possible immigration consequences resulting from your plea. Correct? Your immigration attorney has advised you of all possible immigration consequences resulting from your plea. Is that correct? Yes or no?
THE DEFENDANT: Will you repeat the question for me?
THE COURT: I'll repeat the question one more time. Has your immigration lawyer --
THE DEFENDANT: Yes.
THE COURT: -- advised you of all possible immigration consequences --
THE DEFENDANT: Yes.
THE COURT: -- resulting from your plea?
THE DEFENDANT: Yes.
THE COURT: And therefore, based upon that consultation, you wish to plead guilty?
THE DEFENDANT: Yes.
The judge then continued to question defendant regarding the voluntariness of the plea. The judge and defense counsel responded to defendant's questions regarding the length of the sentence and his right to a jury trial. When asked if he wanted to plead guilty or have a jury decide, he responded, "I will plead guilty. That's why I'm here."
The judge also reviewed the plea form with defendant and defendant answered "yes" to all of the trial judge's questions concerning his understanding of the plea agreement and his willingness to plead guilty to the offense.
In accepting the guilty plea, the court made the following findings:
I find that [defendant] understands the nature of the charges, has competent counsel, [and] knows the maximum penalties
. . . .
. . . .
I'm also satisfied that he has explored all possible immigration consequences after consulting with an immigration lawyer. And he has stated for the record [that] he's aware of all possible immigration consequences . . . as a result of that . . . consultation. And he's ready and knowledgeable enough to accept this plea.
After placing on the record his findings concerning defendant's ability to understand the proceeding, as well as his willingness to waive his rights to trial and give up his presumption of innocence after having had the opportunity to confer with and receive the advice of competent counsel, the trial judge accepted defendant's guilty plea and set a tentative sentencing date of January 20, 2012.
On March 12, 2012, defendant presented his motion to retract his guilty plea. Represented by a different attorney, defendant argued that he entered a guilty plea without an understanding of the immigration laws. He maintained that he appeared before two judges and advised both that he had not met with an immigration attorney.
After considering the arguments of counsel, Judge Isabella denied defendant's motion, setting forth his reasons in a written opinion dated March 12, 2012. The judge then proceeded with sentencing.
Defendant now appeals the trial court's decision denying his motion to withdraw his guilty plea raising the following arguments:
I. JUDGE ISABELLA COMMITTED REVERSIBLE ERROR IN DENYING [DEFENDANT'S] MOTION TO RETRACT HIS GUILTY PLEA.
II. SENTENCED IMPOSED BY JUDGE ISABELLA WAS EXCESSIVE.
We reject defendant's arguments. A defendant may withdraw his guilty plea before the imposition of sentence if the trial court "determines that the interests of justice would not be served by effectuating the agreement reached by the prosecutor and defense counsel." R. 3:9-3(e). A defendant's desire to withdraw his plea must be balanced against the State's "'important interest of finality to pleas, '" Slater, supra, 198 N.J. at 155 (quoting
State v. Smullen , 118 N.J. 408, 416 (1990)), as well as the victim's interest in "end[ing] the suffering." Smullen, supra, 118 N.J. at 418.
This determination lies within the sound discretion of the trial court, and will be reversed "only if there was an abuse of discretion which renders the lower court's decision clearly erroneous." State v. Simon, 161 N.J. 416, 444 (1999) (citing Smullen, supra, 118 N.J. at 416);
see also Slater, supra , 198 N.J. at 156. "As an appellate court, we are required to give great deference to those findings of the trial [court] [that] are substantially influenced by [its] opportunity to hear and see the witnesses and to have the feel of the case, which a reviewing court cannot enjoy." Simon, supra , 161 N.J. at 445 (alterations in original) (internal quotation marks omitted).
If, as here, the motion to withdraw a guilty plea is filed before sentencing, trial court judges are encouraged to "exercise their discretion liberally to enable withdrawal of the plea and a trial on the merits."
State v. Deutsch , 34 N.J. 190, 198 (1961). However, a defendant does not have an "absolute right" to withdraw his guilty plea.
Simon, supra , 161 N.J. at 444. A defendant's admissions of criminality made at a plea hearing are entitled to great respect. A defendant has the burden of showing "'some plausible basis for his defense, and his good faith in asserting a defense on the merits.'"
Slater, supra , 198 N.J. at 156 (quoting Smullen, supra , 118 N.J. at 416).
To determine whether a defendant has met this burden, our Supreme Court established the following four-factor test:
(1) whether the defendant has asserted a colorable claim of innocence;
(2) the nature and strength of the 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 150.]
Here, the trial judge applied the Slater factors and concluded that defendant was not entitled to the relief sought. The judge explained his analysis in his March 12, 2012 opinion. Without restating his analytical process, we agree with the judge that defendant did not present a compelling case in favor of withdrawing his guilty plea.
Primarily, as noted by the trial judge, there is nothing in the record of the plea hearing that indicates defendant did not understand the nature of the proceedings. He was responsive to every question posed to him, indicated that he did not need an interpreter and gave no indication that he was dissatisfied with his counsel's representation. Although he had expressed that he wanted to speak with an immigration attorney, he informed the court that he had consulted with an immigration attorney and as a result of that discussion was prepared to enter a guilty plea. As to the factual basis, defendant acknowledged he possessed the bottle with intent to threaten someone with it.
Defendant failed to satisfy the first prong of the Slater test by not putting forth a colorable claim of innocence. He did not mention the underlying offence but rather focused on the immigration issues. As was evident from the record, defendant was repeatedly and extensively advised of the immigration consequences by the court and counsel. Under these circumstances, the motion judge had a sufficient basis to determine that defendant has not met his burden. We incorporate by reference the remainder of the trial judge's analysis and affirm substantially for the reasons expressed therein.
We turn now to defendant's excessive sentence claim. He contends that the judge failed to set forth mitigating factors and improperly weighed aggravating factor nine, N.J.S.A. 2C:44-1(a)(9) (the need to deter) and mitigating factor seven, N.J.S.A. 2C:44-1(b)(7) (no prior criminal record). This claim has no merit. The judge found those factors in equipoise and imposed a term of the negotiated term of probation. While the defendant now posits additional mitigating factors, we are satisfied that the judge's findings on and balancing of the aggravating and mitigating factors are supported by the record and the sentence is neither shocking to the conscience nor an abuse of discretion. See State v. Bieniek, 200 N.J. 601, 608 (2010); State v. Cassady, 198 N.J. 165, 180-81 (2009).