August 23, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
JOSEPH C. TUCKER, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 6, 2013
On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 08-07-0769.
Leon Matchin, attorney for appellant.
Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Jennifer B. Paszkiewicz, Assistant Prosecutor, of counsel and on the brief).
Before Judges Lihotz and Guadagno.
Defendant Joseph C. Tucker appeals from his conviction for third-degree possession, distribution, manufacturing, and/or dispensing of a controlled dangerous substance, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3), following entry of his guilty plea pursuant to a negotiated plea agreement. On appeal, defendant argues:
DEFENDANT DID NOT ENTER A KNOWING AND VOLUNTARY PLEA.
DEFENDANT WAS DENIED HIS DUE PROCESS RIGHTS UNDER THE FOURTEENTH AMENDMENT BY THE COURT'S FAILURE TO PROVIDE THE LETTER IN QUESTION FROM DENISE KOWALSKI.
THE [JUDGE] COMMITTE[D] REVERSIBLE ERROR BY NOT RECUSING ITSELF IN LIGHT OF IT HAVING BECOME A WITNESS TO THE LETTER OF DENISE KOWALSKI.
Following an initial adjournment of trial, defendant appeared with private counsel on the adjourned trial date. In a pre-trial chambers conference, the judge had been advised defendant had accepted the proposed plea offer. However, after reflection, he changed his mind, rejected the plea in favor of trial, and moved to discharge private counsel. The trial judge essentially declined the request and announced he had "spoken to the presiding judge" and was calling the jurors in for selection. When defendant attempted to address his request based on his right to a fair trial, the judge cut him off stating:
First of all, Mr. Tucker, this is my courtroom, and you're not going to tell me what the law is, and you're not going to tell me what your rights are. I'm well aware of your rights, but you also have got to understand you have had a number of times to get this matter resolved. I've given you every opportunity.
You said you notified us you were going to take a plea. You're not taking a plea, because for whatever reason, that's what you decided. We're going forward with this trial and we are going to do it today.
A recess was taken and the judge was again told defendant, still represented by counsel, was accepting the plea agreement. Defendant was told to stand to be sworn when he stated: "It wouldn't be even right, but I'm going to do it." The judge inquired of defendant regarding his voluntary acceptance of the proposed plea agreement, his understanding of its terms and his waiver of rights. The judge recited the terms of the agreement, which provided defendant would plead guilty to count one of the indictment and the State would recommend a sentence of five years imprisonment, two and one-half of which must be served before being eligible for parole. Following defendant's testimony regarding the factual basis supporting the offense, the judge accepted defendant's plea. The State requested bail be revoked, asserting defendant faced a jail sentence and his significant prior criminal history, which made him subject to a mandatory extended term of imprisonment. The State's motion was denied, defendant was released on bail, and sentencing was scheduled in sixty days to allow defendant to get his affairs in order.
Sentencing was not held as scheduled but was adjourned. During the March 16, 2012 hearing, defendant asserted he no longer sought private counsel's representation and had applied for representation by the public defender's office. Nevertheless, private counsel, on behalf of defendant, requested a copy of a letter written to the court by a potential State witness, Denise Kowalski. The judge advised a copy would be provided. In a subsequent hearing, it was learned that the public defender declined defendant's representation and the judge gave defendant a couple days to hire new counsel.
The sentencing hearing commenced on July 5, 2012, almost six months following defendant's plea. Private counsel appeared, although he acknowledging defendant had instructed he did not want his representation. The judge declined to release private counsel. The State presented its position to recommend sentencing as set forth in the negotiated plea agreement. When private counsel was called on he explained he "was reluctant to speak on behalf of [defendant, ]" and suggested defendant should speak for himself. Defendant asserted he was coerced to plead guilty by defense counsel, the prosecutor, and the judge, denying him his right to a fair trial; he was denied discovery because he never received Denise Kowalski's letter; and suggested the plea agreement's provision requiring he waive his right to appeal was unenforceable. The judge did not comment on the substance of defendant's assertions, he merely ruled the motion was denied.
Thereafter, in general comments, the judge found as aggravating factors, the risk that defendant would re-offend, defendant's prior criminal history, and the need for deterrence, N.J.S.A. 2C:44-1a(3), (6), and (9), and as a mitigating factor that defendant did not contemplate his conduct would cause harm, N.J.S.A. 2C:44-1b(2). Concluding the aggravating factors outweigh the single mitigating factor, and also determining "the plea agreement was fair and in the interest of justice[, ]" the judge sentenced defendant to five years in prison with a two-year period of parole ineligibility. He advised defendant if he appealed, the prosecutor may withdraw the plea, reinstate the original charges, and request a trial. Applicable fines, penalties and suspension of defendant's driving privileges were also imposed. Defendant's appeal ensued.
Rule 3:21-1 provides a defendant may seek to withdraw a guilty plea upon a showing that he was misinformed of the terms of the agreement or that his reasonable expectations were violated. State v. Bellamy, 178 N.J. 127, 134-35 (2003) (citation omitted). If a defendant demonstrates the plea agreement was not voluntarily made or was not entered with full knowledge of its consequences, the court should vacate the plea in the interests of justice. Id. at 135. In each instance, a defendant's application to retract a previously entered plea must be considered in light of the competing interests between the State, which includes the interests of the victim, as well as the defendant. State v. Slater, 198 N.J. 145, 155 (2009).
"[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[.]" State v. Smullen, 118 N.J. 408, 416 (1990) (internal quotation marks and citation omitted). Moreover, "[w]here the plea was entered pursuant to a plea arrangement, [the] defendant's burden 'of presenting a plausible basis for his request to withdraw his guilty plea is heavier.'" State v. Rodriguez, 179 N.J.Super. 129, 136 (App. Div. 1981) (quoting State v. Huntley, 129 N.J.Super. 13, 18 (App. Div.), certif. denied, 66 N.J. 312 (1974)). "In meeting their burden, defendants must show more than a change of heart. A 'whimsical change of mind, ' by the defendant or the prosecutor, is not an adequate basis to set aside a plea." Slater, supra, 198 N.J. at 157 (quoting Huntley, supra, 129 N.J.Super. at 18).
The determination to grant or deny a request to withdraw a guilty plea rests within the trial court's sound discretion. State v. Herman, 47 N.J. 73, 76 (1966) (citation omitted). The Court has instructed that when a request is made, "[b]efore sentencing, courts are to exercise their discretion liberally to allow plea withdrawals."
Slater , supra, 198 N.J. at 156 (citing Smullen, supra, 118 N.J. at 416).
"Consideration of a plea withdrawal request can and should begin with proof that before accepting the plea, the trial court followed the dictates of Rule 3:9-2." Slater, supra, 198 N.J. at 155 (citing State v. Barboza, 115 N.J. 415, 419-20 (1989) (noting if plea was accepted without adequate factual basis, plea and sentence must be vacated upon withdrawal motion)). "A guilty plea may be accepted as part of a plea bargain when the court is assured that the defendant enters into the plea knowingly, intelligently and voluntarily." State v. Johnson, 182 N.J. 232, 236 (2005) (citing R. 3:9-2). "For a plea to be knowing, intelligent and voluntary, the defendant must understand the nature of the charge and the consequences of the plea." Ibid. (citation omitted). A defendant's representations "at plea hearings concerning the voluntariness of the decision to plead, as well as any findings made by the trial court when accepting the plea constitute a 'formidable barrier' which defendant must overcome before he will be allowed to withdraw his plea." State v. Simon, 161 N.J. 416, 444 (1999) (quoting Blackledge v. Allison, 431 U.S. 63, 74, 97 S.Ct. 1621, 1629, 52 L.Ed.2d 136, 147 (1977)). This is because "[s]olemn declarations in open court carry a strong presumption of verity." Ibid. (internal quotation marks and citation omitted). Accordingly, "'[a] guilty plea voluntarily entered should not generally be vacated in the absence of some plausible showing of a valid defense against the charges.'" Ibid. (quoting State v. Gonzalez, 254 N.J.Super. 300, 303 (App. Div. 1992)).
In Slater, supra, the Court explained the trial judge must
consider and balance four factors in evaluating motions to withdraw a guilty plea: (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.
[198 N.J. at 157-58.]
The Court then discussed each of these factors, carefully explaining the nature and reasons for each factor's application in a trail judge's analysis.
On this record, we are hard pressed to assess the application of the Slater factors, as the trial judge did not address the substance of defendant's motion, he simply denied it without comment, leaving this court to speculate on his rationale. The State urges affirmance, asserting the plea was knowingly and voluntarily made. We agree the judge's inquiry of defendant resulted in affirmative responses to the questions posed at a time when he was represented by counsel, suggesting, perhaps, the judge's decision was not clearly erroneous. Yet, the record is barren of the judge's factual findings to support the motion's denial. Consequently, we are constrained to reverse.
Defendant was very clear both at the time of the plea and prior to sentencing that he was dissatisfied with counsel's representation. Further, defendant asserted he sought to withdraw his plea prior to sentencing because he was coerced to plead guilty. Absent clear findings required of trial judges on every motion or hearing conducted, R. 1:7-4, we are unable to determine whether defendant's request was tactical to delay final disposition of the matter or whether he sought to exercise his right to require the State to prove his guilt. Because the trial judge failed to perform the basic factfinding function, we cannot reasonably assess the correctness of his decision.
As the Court emphasized in Slater, supra, "'a guilty plea is the final relinquishment of the most cherished right — to be presumed innocent of crime until a jury of one's peers has determined guilt beyond a reasonable doubt.'" 198 N.J. at 154 (quoting Smullen, supra, 118 N.J. at 414). To assure defendant's rights are respected, the trial judge cannot employ robotic or perfunctory procedures at the time the court considers defendant's guilty plea and when reviewing any subsequent motions to withdrawal such a plea. The integrity of the process must be respected and the judge must fully evaluate the facts and circumstances which support the court's conclusions. Unfortunately, that process was not followed in this matter, and we are constrained to reverse and remanded for a hearing on defendant motion to withdraw his guilty plea.
Defendant also maintained he was not provided a copy of the witness letter, which was to be released. We defer this matter to the trial judge, whose staff was to provide defendant with the letter in question. The record does not disclose whether the letter in fact existed, or whether it was authored by a State witness, was material, or exculpatory, and subject to release. See Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-97, 10 L.Ed.2d 215, 218 (1963) (holding the State must provide defendant with any material, exculpatory evidence prior to trial). See also State v. Morton, 155 N.J. 383, 413 (1998) (same).
Defendant's remaining arguments lack sufficient merit to warrant review in our opinion. R. 2:11-3(e)(2).
Reversed and remanded.