Opinion
DOCKET NO. A-3399-13T1
03-12-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. L.G., Defendant-Appellant.
The Law Offices of Robin Kay Lord, LLC, attorneys for appellant (Robin Kay Lord and Richard W. Berg, of counsel and on the briefs). Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney for respondent (Dorothy Hersh, Assistant Prosecutor, of counsel and on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Alvarez and Carroll. On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 12-10-00983. The Law Offices of Robin Kay Lord, LLC, attorneys for appellant (Robin Kay Lord and Richard W. Berg, of counsel and on the briefs). Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney for respondent (Dorothy Hersh, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant L.G. appeals from the Law Division's February 20, 2014 order denying his post-sentence motion to withdraw his guilty plea. We affirm.
I.
Defendant was charged in a 2012 Mercer County indictment with first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(1); second-degree sexual assault, N.J.S.A. 2C:14-2b; and second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a. Defendant allegedly sexually assaulted his biological daughter M.F., then eleven years old, on various dates between June 1, 2011, and September 1, 2011.
On May 20, 2013, defendant pled guilty to second-degree endangering the welfare of a child. In return, the State agreed to dismiss the remaining charges in the indictment, and to recommend that: defendant would be sentenced as a third-degree offender to a suspended sentence of four years' imprisonment; 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 M.F. or any unsupervised contact with any child under age sixteen except his male children with whom he exercised visitation.
Before the trial judge, 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. During the plea colloquy, defendant recounted that he had reviewed the discovery with his attorney and was satisfied with his attorney's services, and that no one had forced him to plead guilty.
Defendant further admitted that he was pleading guilty because he was in fact guilty, and that he was waiving his right to a trial. For the purpose of eliciting a factual basis for his plea, defendant testified to the following:
[Defense counsel]: [L.G.], I want to direct your attention to the time period between June 1st, 20[1]1, [and] September 1st, 20[1]1. You had a daughter who[se] initials . . . are M.F. and you had the legal duty to care for her?
[Defendant]: Yes, sir.
[Defense counsel]: Is that correct? And during that time period, you did care for her, is that right?
[Defendant]: Yes, sir.
[Defense counsel]: And she was born in the year 2000 so she was less than [sixteen] years old at the time?
[Defendant]: Yes, sir.
[Defense counsel]: Is that correct? And something happened between the two of you. Would you explain to the court what happened?
[Defendant]: Yes, sir. I had sexual contact with my daughter.
[Defense counsel]: And you understand that that type of sexual conduct would impair or debauch her morals, is that correct?
[Defendant]: Yes, sir.
[Defense counsel]: And that's why you're entering a guilty plea today, is that right?The prosecutor then interjected with the following questioning:
[Defendant]: Yes, sir.
[Defense counsel]: Are you under the influence of alcohol or drugs today?
[Defendant]: No, sir.
[Defense counsel]: Do you have any questions of myself at this point?
[Defendant]: No, sir.
[Prosecutor]: [L.G.], . . . you said that you had sexual contact with your daughter, can you explain what you mean by that?
[Defendant]: Well sir, that I remember, we [were] playing in the living room and I guess, I was tickling her and she just — uncomfortable. I didn't know because she didn't tell me and that's when it all started.
Based on this response, the prosecutor indicated "I don't think that's going to meet the requirements of a factual basis." After the court granted defense counsel the opportunity to confer with defendant, the following questioning ensued:
[Prosecutor]: Where on [her] body did you touch your daughter?
[Defendant]: On her breasts, sir.
[Prosecutor]: Okay. And when you touched her there was the purpose for your own gratification?
[Defendant]: Yes, sir.
[Prosecutor]: Okay. And when I say gratification, I mean gratification of a sexual nature?Following some additional questioning, the judge found that defendant "provided an adequate factual basis for his guilty plea," that he "underst[ood] the nature of the charges and the consequences of his plea," and that he "entered his guilty plea knowingly, intelligently[,] and voluntarily and not as a result of any threats . . . not disclosed on the record."
[Defendant]: Yes, sir.
[Prosecutor]: Okay.
[Prosecutor]: The State's satisfied, Your Honor.
Shortly after entering his guilty plea, defendant gave the following version of events to the probation department during his Presentence Investigation (PSI) interview:
I had visitation privileges with my daughter. During the course of caring for her, we would often horse around and engage in physical activity by rolling and frolicking on the floor. It was solely in a playful manner and there was certainly never any intent on my part to harm my daughter, either in a physical or emotional way. The play always occurred in the living room and never in my bedroom. It was during these times that I touched her on her breasts. I never placed my hands under her clothing and never attempted to sexually arouse either her or myself by these actions. I admit that I did not protect my daughter's emotional well[-]being if she felt violated
by my actions. I never had any sexual fantasies about this type of behavior and certainly never engaged in this type of behavior with other minors. I was wrong and accept the consequences of my actions.
Defendant was examined at the Adult Diagnostic and Treatment Center at Avenel (Avenel) on July 1, 2013. The Avenel report
During the present examination, [L.G.] denied any wrongdoing whatsoever with regard to the instant offense. He previously told [the] probation officer [] that he touched his daughter's breasts in the context of playful roughhousing. He disputed this today.
[L.G.] maintained he has no idea why his daughter falsely accused him of sexually abusing her. "I don't understand where all this is coming from," he said. . . .
Defendant appeared for sentencing on September 10, 2013. During the sentencing hearing, defendant did not proclaim his innocence nor did he seek to withdraw his guilty plea. The court then sentenced defendant in accordance with the terms of the plea agreement.
Defendant retained new counsel the following day. On October 8, 2013, defendant moved to withdraw his plea. In support of his motion, defendant "averred that when he entered into the plea bargain he was not in his right mind, but [] was under a tremendous amount of stress and pressure, particularly since he was threatened with up to [twenty] years imprisonment."
Defendant's appendix does not include the motion to withdraw the plea or the supporting certifications. We therefore glean the grounds for the motion from the parties' briefs on appeal and the court's decision on the motion.
On January 31, 2014, the judge held a hearing on defendant's motion. After considering oral argument, the judge applied the factors set forth in State v. Slater, 198 N.J. 145, 157-58 (2009). In a twelve-page written opinion dated February 20, 2014, the court concluded that defendant failed to assert a "colorable claim of innocence," finding that "[t]here is no factual basis that defendant was pressured by trial counsel to enter his plea. All he does is make a b[a]ld allegation." The judge further noted that defendant did not contend that he was misinformed during the plea negotiations or that he did not understand the consequences of his guilty plea. The court found that defendant was offered a "favorable plea," which "places a higher burden on [] defendant to show that withdrawing the plea agreement would prevent an injustice, which the [c]ourt finds there is no merit to such claim given his suspended sentence." The court did, however, determine that defendant satisfied the fourth Slater factor, finding that the State failed to establish prejudice should the plea be withdrawn. Overall, the court concluded that "[t]he balancing test required by Slater . . . does not tip the scales in defendant's favor" and defendant "has not met the heavy burden of proving manifest injustice pursuant to [Rule] 3:21-1." The court then entered a memorializing order denying defendant's motion.
II.
Defendant appeals, essentially advancing two arguments. First, defendant contends that the factual basis given was inadequate to support his guilty plea. Second, defendant argues that the trial court misapplied the holding in Slater in denying his motion to withdraw his guilty plea. We address these arguments in turn.
A.
Before accepting a defendant's guilty plea, the court must determine "by inquiry of the defendant and others, in the court's discretion, that there is a factual basis for the plea." R. 3:9-2. "[O]ur law requires that each element of the offense be addressed in the plea colloquy." State v. Campfield, 213 N.J. 218, 231 (2013). The "court must be satisfied from the lips of the defendant that he committed the acts which constitute the crime." State ex rel. T.M., 166 N.J. 319, 327 (2001) (citation and internal quotation marks omitted); State v. Tate, ___ N.J. ___, ___ (2015) (slip op. at 14); State v. Perez, ___ N.J. ___, ___ (2015) (slip op. at 10). "The trial court's task is to ensure that the defendant has articulated a factual basis for each element of the offense to which he pleads guilty." Campfield, supra, 213 N.J. at 232. The Court has recently emphasized "that it is essential to elicit from the defendant a comprehensive factual basis, addressing each element of a given offense in substantial detail, when a defendant is pleading guilty to that offense." Id. at 236; see also State v. Gregory, ___ N.J. ___, ___ (2015) (slip op. at 7).
A guilty plea that is not supported by a sufficient factual basis will be set aside on appeal:
The remedy for an inadequate factual basis is an order vacating the guilty plea and restoring both parties to their positions prior to the trial court's acceptance of the plea. If an appellate court determines that "a plea has been accepted without an adequate factual basis, the plea, the judgment of conviction, and the sentence must be vacated, the dismissed charges reinstated, and defendant allowed to re-plead or to proceed to trial."As the Supreme Court recently held, our review of the trial court's decision here is de novo. Tate, supra, ___ N.J. at ___ (slip op. at 11).
[Campfield, supra, 213 N.J. at 232 (quoting State v. Barboza, 115 N.J. 415, 420 (1989)).]
Having reviewed the record, we conclude that defendant provided an adequate factual basis to support his guilty plea to second-degree endangering the welfare of a child. During his plea colloquy, defendant admitted that he had a legal duty to care for his daughter, that he touched her breasts for the purpose of his own sexual gratification, and that such conduct would impair or debauch the child's morals.
While defendant readily admitted having "sexual contact with my daughter," he initially equivocated when asked to explain the nature of the sexual contact. We do not view defendant's reticence as fatal to the validity of his plea. Rather, the nature of the offense, and defendant's relationship to the victim, may well explain defendant's reluctance to recount the specific details of his conduct. As the Court recently noted:
To be sure, it is always preferable for a defendant to utter the words that describe specifically what he did on a specific date or time that constitutes the offense to which he pleads guilty, and that is so here. Defendant provided an adequate factual statement. Some defendants, however, may find it difficult to speak at length on any subject let alone in a courtroom. The nature of the offense may also inhibit a recitation of the facts of a particular charge. No matter how difficult, an adequate factual basis must be provided.
T.M., supra, 166 N.J. at 331, illustrates this rule. In T.M., the defendant was charged with a sexual offense against a child victim. We have acknowledged that "'child—sexual-assault cases are extremely difficult, both for the defendants and the victims. Courts taking pleas are undoubtedly conscious of the need
to end the suffering.'" Ibid. (quoting [State v. Smullen, 118 N.J. 408, 418 (1990)]). Defendant's reluctance to speak of his communications with his thirteen-year-old victim was palpable. Unlike the plea proceeding in T.M., however, defendant responded affirmatively to the questions posed by his attorney, thereby admitting that he "attempt[ed] to lure a child whose initials are N.C. to a place where the two . . . might engage in sexual relations."
We therefore conclude that defendant provided an adequate factual basis to the charge of luring and affirm the conviction.
[Perez, supra, ___ N.J. at ___ (slip op. at 14-15.]
Akin to Perez, in the present case defendant answered affirmatively to the questions posed by his attorney and the prosecutor. Unlike T.M., defendant's responses were sufficient to establish a factual basis for every element of the crime to which he pled guilty.
B.
We next address defendant's argument that the trial judge misapplied the standard for deciding a motion to withdraw a guilty plea, as set forth in Slater. Significantly, the standard of review here differs from the de novo standard employed when reviewing a court's denial of a motion to withdraw a guilty plea that lacks an adequate factual basis. Tate, supra, ___ N.J. at ___ (slip op. at 12). Rather, "[i]n a Slater scenario, the appellate standard of review is abuse of discretion." Ibid. (citing State v. Lipa, 219 N.J. 323, 332 (2014)).
Under this standard, we will reverse the trial court's determination of whether to allow a defendant to withdraw a guilty plea "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). "'[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.'" Slater, supra, 198 N.J. at 156 (quoting Smullen, supra, 118 N.J. at 416). "Generally, representations made by a defendant 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." Simon, supra, 161 N.J. at 444 (quoting Blackledge v. Allison, 431 U.S. 63, 74, 97 S. Ct. 1621, 1629, 52 L. Ed. 2d 136, 147 (1977)). Moreover, because defendant filed his motion after sentencing, he must establish a "manifest injustice." R. 3:21-1. A motion to withdraw a plea after sentencing must be supported by "strong, compelling reasons," whereas "a lesser showing is required for motions raised before sentencing." Slater, supra, 198 N.J. at 160.
A trial court must consider and balance four factors when evaluating a motion 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.'" State v. Munroe, 210 N.J. 429, 442 (2012) (quoting Slater, supra, 198 N.J. at 157-58). "No single Slater factor is dispositive; 'if one is missing, that does not automatically disqualify or dictate relief.'" State v. McDonald, 211 N.J. 4, 16-17 (2012) (quoting Slater, supra, 198 N.J. at 162).
With respect to the first factor, "[a] bare assertion of innocence is insufficient to justify withdrawal of a plea." Slater, supra, 198 N.J. at 158. Instead, a defendant must "present specific, credible facts and, where possible, point to facts in the record that buttress [his or her] 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 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 (citing State v. Taylor, 80 N.J. 353, 365 (1979)).
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 this 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 Lipa, defendant presented a certification asserting that he was innocent because he was physically unable to climb into the victim's bedroom window to commit a sexual assault because he recently underwent knee surgery. Lipa, supra, 219 N.J. at 333. Defendant also submitted photographs of his knee after the surgery and the exterior of the building in question. Ibid. The Court concluded that these specific facts "provided more than a 'bald assertion'" and were sufficient to satisfy the first prong of the Slater analysis. Id. at 334.
By contrast, the proofs submitted by defendant in the present case fall far short of the factual showing deemed sufficient in Lipa to establish a colorable claim of innocence. Initially, we note that our review of the first Slater factor is hampered as the record on appeal fails to include defendant's supporting certification. However, we glean from defendant's argument that "[h]e averred that when he entered into the plea bargain he was not in his right state of mind, but he was under a tremendous amount of stress and pressure, particularly since he was threatened with up to [twenty] years imprisonment." The trial court correctly found that defendant's contention that he felt pressured did not amount to a colorable claim of defendant's innocence. Rather, the court determined that "[t]here is no factual basis that defendant was pressured by trial counsel to enter his plea. All he does is make a b[a]ld allegation."
Nor are we persuaded that defendant's post-plea statements during his PSI interview and his Avenel evaluation provide competent evidence of a colorable claim of innocence. First, unlike his plea colloquy, these statements were not under oath. Moreover, these unsworn statements are best characterized as equivocal and/or contradictory. During his PSI interview, defendant admitted touching his daughter's breasts, and that he was "wrong" in doing so, while attempting to minimize his conduct as mere horseplay. Later, in his Avenel evaluation, defendant disavowed both his sworn testimony during the plea colloquy and his statement to the probation officer, and speculated as to why he was "falsely accused." Such inconsistent statements hardly qualify as "specific, credible facts" that "buttress [his] claim" of innocence. Slater, supra, 198 N.J. at 158.
The trial court also found that defendant had accepted the plea deal voluntarily:
This [c]ourt did so by confirming that no one was forcing or threatening him to plead guilty, that he did not feel he had been forced to give the answers he had given
during the plea proceeding, that no one had told him to give those answers, and that he was giving this plea knowingly, intelligently, and voluntarily.The court further found "nothing in the record suggesting that [d]efendant was misled or pressured by trial counsel." Thus, it found no compelling reason to allow withdrawal.
As to the third factor, the judge noted that defendant originally "fac[ed] three separate counts in the indictment all of which carr[ied] the presumption of incarceration and two of which call[ed] for mandatory No Early Release Act sentencing requiring him to serve [eighty-five percent] of his prison term before [becoming] eligible for parole." Rather than stand trial, defendant had negotiated a very favorable plea agreement, resulting in a suspended sentence. The trial judge found that this "place[d] a higher burden on [] defendant to show that withdrawing the plea agreement would prevent an injustice." We agree that this prong favored denial of the motion. See State v. Means, 191 N.J. 610, 619 (2007) (negotiated pleas are entitled to a higher degree of finality).
N.J.S.A. 2C:43-7.2.
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Finally, as defendant moved to vacate the plea shortly after sentencing, the State has not shown any prejudice. Nonetheless, because defendant has failed to establish the first three Slater factors, the State is not required to demonstrate prejudice. Slater, supra, 198 N.J. at 162.
After carefully weighing the Slater factors, the balance disfavors allowing withdrawal of defendant's guilty plea. Defendant has failed to establish that a manifest injustice would result if he is not permitted to vacate his guilty plea. Consequently, we conclude that the trial judge did not abuse his discretion in denying defendant's motion to vacate.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION