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State v. Kwon

Superior Court of New Jersey, Appellate Division

October 16, 2013

STATE OF NEW JERSEY, Plaintiff-Respondent,
v.
YOON S. KWON, Defendant-Appellant.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 10, 2013 [1]

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 10-06-0955.

Law Offices of Brian J. Neary, attorney for appellant (Brian J. Neary, of counsel; Jane M. Personette, on the brief).

John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Catherine A. Foddai, Senior Assistant Prosecutor, of counsel and on the brief).

Before Judges Messano and Hayden.

PER CURIAM

The Bergen County grand jury returned Indictment No. 10-06-0955, charging defendant Yoon S. Kwon in twenty-two counts, with first-degree kidnapping of Y.H.L., N.J.S.A. 2C:13-1b; second-degree aggravated assault of Y.H.L., N.J.S.A. 2C:12-1b(1); two counts of first-degree attempted aggravated sexual assault of Y.H.L., N.J.S.A. 2C:5-1 and 14-2a(3), and N.J.S.A. 2C:5-1 and 14-2a(4); third-degree possession of a weapon, N.J.S.A. 2C:39-4d; third-degree aggravated sexual contact of Y.H.L., N.J.S.A. 2C:14-3a; and other offenses.

On May 10, 2011, after the jury was selected and pursuant to a negotiated plea agreement, defendant pled guilty to third-degree possession of a weapon; third-degree aggravated sexual contact; and the lesser-included offense of third-degree aggravated assault. In return, the State agreed to dismiss the remaining nineteen counts of the complaint, and to recommend that: defendant would be sentenced to a suspended sentence of three years' imprisonment; bail would be revoked voluntarily and defendant would immediately serve six months' imprisonment as a condition of probation; he would be subject to Megan's Law, N.J.S.A. 2C:7-1 to -23, including parole supervision for life; and he would have no further contact with Y.H.L.

Before the trial judge, Edward A. Jerejian, and represented by counsel, defendant acknowledged his understanding of the plea agreement, including all the consequences of Megan's Law and parole supervision for life. Defendant acknowledged that he had adequate time to speak to his attorney, counsel "answer[ed] all [his] questions" and he was "satisfied with [counsel's] services."

Defendant further admitted he was pleading guilty because he was in fact guilty, and that he was waiving his right to a trial. Under questioning by his attorney, defendant admitted putting "a lamp cord" around the victim's neck as he touched her vagina. He further acknowledged that this was against the victim's will. Defendant also acknowledged that "he saw the marks on [the victim's] neck" that resulted from his use of the cord, and that this caused her "significant bodily injury." Defendant was provided with a date on which he was to surrender and begin his sentence.

Defendant actually began his sentence on August 1, 2011. On December 22, noting that defendant had indicated a desire to withdraw his guilty plea, Judge Jerejian conducted a hearing. Defense counsel indicated that one of the purported reasons for the application was ineffective assistance of counsel. Addressing defendant directly, the judge fully explained the consequences if the guilty plea was withdrawn. The judge relieved trial counsel of any further representation of defendant.

Since defendant had already served his period of incarceration, Judge Jerejian set bail and scheduled the matter for a further hearing with successor defense counsel. On or about April 18, 2012, successor counsel filed a motion and supporting brief seeking to withdraw defendant's guilty plea.

On April 30, the judge held a hearing on defendant's motion. After considering oral argument, Judge Jerejian applied the factors set forth in State v. Slater, 198 N.J. 145, 157-58 (2009). He concluded that defendant failed to present any "color[able] claim of innocence, " noting that defendant made only "bare assertions" without "any particular or plausible facts" in his filed statement with the court.[2] The judge also concluded that defendant was fully appraised of the consequences of his plea of guilty, including the "immigration consequences" and the possibility of civil commitment. The judge further determined that defendant had demonstrated "nothing more than a change of heart, " and evidence of only a "whimsical change of mind in order to set aside [the] plea . . . ." The judge also "recognize[d] some limited prejudice to the State." He noted that the plea agreement was struck after the victim "was made available . . . during trial." The judge denied the motion and imposed sentence in accordance with the plea agreement.

Before us, defendant contends that:
Point I
THE COURT BELOW ERRED IN DENYING DEFENDANT'S MOTION TO WITHDRAW HIS GUILTY PLEA AS THE SLATER FACTORS WEIGHED IN FAVOR OF ALLOWING THE WITHDRAWAL OF THE PLEA.
Point II
[DEFENDANT] HAS BEEN PREJUDICED BY MISINFORMATION THAT MATERIALLY INFLUENCED HIS DECISION TO PLEAD GUILTY; ACCORDINGLY, HE SHOULD BE PERMITTED TO WITHDRAW HIS GUILTY PLEA.

We have considered these arguments in light of the record and applicable legal standards. We find the arguments to lack sufficient merit to warrant extensive discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by Judge Jerejian in his comprehensive oral opinion. We add only the following brief comments.

In Slater, supra, 198 N.J. at 157-58, the Court identified four factors to be considered in deciding a motion to withdraw a previously-entered guilty plea. The first is whether the defendant has "asserted a colorable claim of innocence . . . ." Id. at 157. Next, the judge should consider "the nature and strength of defendant's reasons for withdrawal . . . ." Id. at 157-58. The third factor is whether the plea was entered pursuant to a plea bargain. Id. at 158. And, lastly, the court must consider "whether withdrawal would result in unfair prejudice to the State or unfair advantage to the accused." Ibid. In all circumstances, the defendant bears the burden "'to present some plausible basis for his request, and his good faith in asserting a defense on the merits[, ]'" and the motion is addressed to the trial court's sound discretion. Id. at 156 (quoting State v. Smullen, 118 N.J. 408, 416 (1990)).

Here, as found by Judge Jerejian, the plea was entered after the trial began, and the State established some prejudice in now having to proceed to trial with a victim who had already appeared and was "available" to testify at the time of trial, but for defendant's expressed desire to plead guilty. Both those factors mitigated in favor of denying defendant's request.

More importantly, Judge Jerejian correctly determined that defendant made no colorable claim of innocence. At the hearing on the motion, defendant's focus was entirely on the "cord" that the State contended was used to assault the victim during the sexual contact. Defendant posited doubts as to the forensic proofs, but those protestations did not amount to a colorable claim of innocence. See id. at 158 ("A bare assertion of innocence is insufficient to justify withdrawal of a plea.

Defendants must present specific, credible facts and, where possible, point to facts in the record that buttress their claim."). Nor did defendant satisfy the second Slater factor. See id. at 159 ("This second factor 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.").

Defendant's second point also lacks merit. As the colloquy at the time of plea demonstrates, Judge Jerejian fully explained the consequences of parole supervision for life to defendant and explained those consequences when defendant himself posed questions to the court. Defendant has not asserted that the judge's responses were erroneous in any fashion. Defendant frequently assented to his understanding of those consequences at the time.

Defendant claims that because he is fluent in Korean and future polygraph examinations that might impact termination or continuation of his parole supervision may not be administered with appropriate translation, he did not fully appreciate the consequences of his plea. We find this claim both speculative and specious. Our Court has made clear that basic due process rights must be afforded in the context of any parole hearing in the future. See Jamgochian v. State Parole Bd., 196 N.J. 222, 246-51 (2008). Affirmed.


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