Opinion
DOCKET NO. A-4901-09T3
03-12-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. PIETRO J. PARISI, JR., Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Sharon A. Quinn, Designated Counsel, on the brief). Sean F. Dalton, Gloucester County Prosecutor, attorney for respondent (Joseph H. Enos, Jr., Assistant Prosecutor, on the brief). Appellant filed a pro se supplemental brief.
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Hayden and Lisa.
On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Indictment Nos. 03-01-0106, 03-01-0105, 02-09-0554, Accusation No. 96-03-0144.
Joseph E. Krakora, Public Defender, attorney for appellant (Sharon A. Quinn, Designated Counsel, on the brief).
Sean F. Dalton, Gloucester County Prosecutor, attorney for respondent (Joseph H. Enos, Jr., Assistant Prosecutor, on the brief).
Appellant filed a pro se supplemental brief. PER CURIAM
Defendant Pietro Parisi, Jr., appeals from the October 26, 2009 Law Division order denying his motion to withdraw his guilty pleas. For reasons that follow, we affirm the order based on a different, but related, reason than the trial judge. See Osoria v. W.N.Y. Rent Control Bd., 410 N.J. Super. 437, 439 (App. Div. 2009).
The record shows that on March 26, 1996, defendant pled guilty to third-degree endangering the welfare of a child. N.J.S.A. 2C:24-4a. The conviction arose from charges that defendant had sexual contact with a child under the age of sixteen. Defendant received a sentence of three years probation, conditioned on serving 364 days in the county correctional facility and compliance with the requisite Megan's Law conditions. In December 1999, defendant signed a document acknowledging that, as part of the community supervision for life regulations, he could not live with a minor without the permission of the parole board.
On January 17, 2003, defendant pled guilty to two counts of second-degree sexual assault, N.J.S.A. 2C:14-2, and one count of fourth-degree violation of community supervision for life, N.J.S.A. 2C:43-6.4. The sexual assault convictions stemmed from defendant having sexual relations with two children under the age of sixteen. Defendant received an aggregate sentence of eight years in prison with four years of parole ineligibility. Defendant continued to be subject to Megan's Law and community supervision for life.
On September 24, 2005, defendant filed an appeal. On October 28, 2005, defendant filed a motion to vacate his 2003 guilty plea, contending that he did not know that his guilty plea made him eligible for indefinite civil commitment after he had served his sentence. After the trial judge denied the motion on April 27, 2006, defendant amended his pending appeal to include this denial. We remanded the matter for a plenary hearing, pursuant to State v. Bellamy, 178 N.J. 127, 134-35 (2003), for a determination of whether defendant understood that future indefinite confinement could be a possible consequence of his plea and for a reconsideration of defendant's sentence pursuant to State v. Natale, 184 N.J. 458, 495-96 (2005). State v. Parisi, Docket No. A-0582-04 (App. Div. May 23, 2007).
On September 12, 2007, the trial judge approved an agreement between defendant and the State whereby defendant acknowledged that he had been aware at the time of his 2003 plea of the possibility that he could be civilly committed and that he had been subject to community supervision for life since his 1996 plea. The State agreed to modify defendant's sentence to six years in prison with three years parole ineligibility. On May 27, 2008, defendant filed a motion to withdraw his guilty pleas, contending that the parole board had added new conditions to his sentence. The court denied the motion and defendant did not appeal.
In September 2008, defendant's son was born. Shortly thereafter, the Division of Youth and Family Services removed the infant from the custody of both parents. Defendant then moved to withdraw his guilty pleas because he was not informed that his convictions for child endangering and sexual assault could restrict his custody of or visitation rights to any minor child, "except upon a showing by clear and convincing evidence that it is in the best interest of the child." N.J.S.A. 9:2-4.1a to b. Defendant argued that, if he had known about this consequence, he would not have pled guilty either time. Based on an analysis pursuant to State v. Slater, 198 N.J. 145 (2009), the judge denied defendant's motion. This appeal followed.
The record is devoid of any documentation explaining the reasons for the removal of the child from both the mother and the father.
The record does not contain this motion or any supporting certifications.
On appeal, defendant reiterates his claim that he would not have agreed to plead guilty if he had known the severe restrictions on custody and visitation. He further contends that these consequences were more serious than the requirement to obtain the parole board's permission to live with a minor child, amounting to termination of his parental rights. Citing Bellamy, supra, 178 N.J. at 134-35, defendant claims that, since the consequences were direct and immediate, even if not penal, the plea must be vacated because he was not sufficiently informed. On the other hand, the State maintains that the statute does not terminate parental rights but just changes the burden of proof in custody and visitation litigation. The State also points out that defendant knew that his right to live with his children would be restricted because the parole board had to approve his living with any minor children. In addition, the State points to defendant's 2010 plea to another crime under N.J.S.A. 2C:24-4b as evidence that defendant was willing to plead guilty to a offense that triggered N.J.S.A. 9:2-4.1b, even when he was aware of the consequences.
In our view, defendant has overstated the consequences of N.J.S.A. 9:2-4.1. Contrary to his argument, the statute does not terminate defendant's parental rights. N.J.S.A. 9:2-4.1c. Moreover, decisions regarding custody and visitation must be based on the best interest of the child, N.J.S.A. 9:2-2, -4, and the burden of proof is by a preponderance of the evidence. Fawzy v. Fawzy, 199 N.J. 456, 476 (2009). N.J.S.A. 9:2-4.1 simply increases the usual burden to the higher burden of clear and convincing evidence.
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"[A] guilty plea is the final relinquishment of the most cherished right - to be presumed innocent of a crime until a jury of one's peers has determined guilt beyond a reasonable doubt." State v. Smullen, 118 N.J. 408, 414 (1990). A guilty plea must contain a factual basis and be voluntarily "given with an understanding of the nature of the charge and the consequences of the plea." R. 3:9-2; State v. Barboza, 115 N.J. 415, 420-21 (1989). Yet, in seeking to vacate a guilty plea, the burden still remains on a defendant to "present some plausible basis for his request, and his good faith in asserting a defense on the merits . . . ." Smullen, supra, 118 N.J. at 416 (citation omitted).
A motion to withdraw a guilty plea may be filed at any time "to correct a manifest injustice." R. 3:21-1; Slater, supra, 198 N.J. at 158. A decision granting or denying such a motion is committed to the sound discretion of the motion judge. Bellamy, supra, 178 N.J. at 135. This discretionary determination requires the judge to weigh "the policy considerations which favor the finality of judicial procedures against those which dictate that no man be deprived of his liberty . . . ." State v. Johnson, 182 N.J. 232, 237 (2005) (quoting State v. McQuaid, 147 N.J. 464, 487 (1997)). A post-sentencing motion to withdraw a guilty plea is subject to a "manifest injustice" standard. R. 3:21-1; State v. Hayes, 205 N.J. 522, 535 (2011). In such cases, "if a defendant wishes to withdraw a guilty plea the court weighs more heavily the State's interest in finality and applies a more stringent standard." McQuaid, supra, 147 N.J. at 487.
In evaluating a motion to withdraw a guilty plea, the trial judge must consider and balance the following factors: "(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." Slater, supra, 198 N.J. at 157-58 (citing United States v. Jones, 336 F.3d 245, 252 (3d Cir. 2003)). The trial judge must evaluate these factors within the context of the defendant's motion, bearing in mind that no one factor is mandatory and relief is neither disqualified nor dictated based upon its absence or presence. Id. at 162.
The first Slater factor focuses on whether defendant has asserted a colorable claim of innocence. "A core concern underlying motions to withdraw guilty pleas is to correct the injustice of depriving innocent people of their liberty." Id. at 158. "A colorable claim of innocence is one that rests on 'particular, plausible facts' that, if proven in court, would lead a reasonable factfinder to determine the claim is meritorious." State v. Munroe, 210 N.J. 429, 442 (2012) (quoting Slater, supra, 198 N.J. at 158-59). In weighing such motions, trial courts must bear in mind that "[a] bare assertion of innocence is insufficient to justify withdrawal of a plea," and that defendant must present specific credible facts in support of that claim. Slater, supra, 198 N.J. at 158.
Here, during all prior proceedings defendant made no assertion that he was innocent of any of the crimes to which he pled guilty. In his brief, for the first time, defendant asserted that he was innocent without providing any facts, credible or otherwise, to support this newly minted claim.
The second factor focuses on the basic fairness of enforcing a guilty plea. The court's inquiry is whether the defendant "presented fair and just reasons for withdrawal" and considers the effectiveness of those reasons. Id. at 159. Our courts have identified a number of reasons that warrant withdrawal of a plea. These reasons include whether
(1) the court and prosecutor misinformed the defendant about a material element of the plea negotiation, which the defendant relied on in entering his plea; (2) the defendant was not informed and thus did not understand material terms and relevant consequences of the guilty plea, namely, the direct, penal consequences of the plea; (3) [the] defendant's reasonable expectations under the plea agreement were not met; and (4) the defendant has not only made a plausible showing of a valid defense against the charges, but also credibly demonstratedWhen considering withdrawal of a plea based upon a claim that the defendant was not informed of the consequences, our inquiry must include whether "fundamental fairness" requires that result. Bellamy, supra, 178 N.J. at 138. Even when the consequences are not direct and penal, if they are severe and long-lasting, a defendant must understand the consequences for the plea to be fair and just. Ibid.
why that defense "was forgotten or missed" at the time of the plea.
(2)
[Id. at 159-60 (internal citations omitted).]
We first examine the statute that purportedly triggered the removal of the child from defendant's custody. When N.J.S.A. 9:2-4.1 was first enacted in 1995, see L. 1995, c. 55, it simply provided that a person convicted of sexual assault of a minor, N.J.S.A. 2C:14-2, could not be awarded the custody or visitation rights of a minor child who was born as a result of, or was the victim of, a sexual assault, unless it was in the child's best interest. N.J.S.A. 9:2-4.1 was amended in 2000, see L. 1999, c. 424 (effective Jan. 18, 2000), and now provides in pertinent part:
a. Notwithstanding any provision of law to the contrary, a person convicted of sexual assault under N.J.S. 2C:14-2 shall not be awarded the custody of or visitation rights to any minor child, including a minor child who was born as a result of or was theAdditionally, the Legislature added an identical provision for a person convicted of criminal sexual contact, N.J.S.A. 2C:14-3, or endangering the welfare of a child, N.J.S.A. 2C:24-4.
victim of the sexual assault, except upon a showing by clear and convincing evidence that it is in the best interest of the child for custody or visitation rights to be awarded.
N.J.S.A. 9:2-4.1b. This prohibition did not "by itself terminate the parental rights of the person denied visitation or custody" and the parent remains obligated to support the child. N.J.S.A. 9:2-4.1c.
Accordingly, when defendant pled guilty to child endangerment in 1996, N.J.S.A. 9:2-4.1 did not affect his custody or visitation rights. Since neither the court nor the State in 1996 could have predicted a change in the law, defendant was not misinformed about the custody and visitation consequences of his initial plea. Nevertheless, when the law was amended in 2000, defendant, by virtue of his child endangerment conviction, became subject to its provisions.
In 2003, when defendant pled to two sexual assaults, N.J.S.A. 2C:14-2, the custody and visitation restrictions in N.J.S.A. 9:2-4.1 already applied to him because of his 1996 conviction. It is undisputed that at the time of this plea and when he entered the plea in 2007 no one provided defendant with information about these restrictions. However, since the custody and visitation restriction had already been triggered by the 1996 conviction, there were no additional consequences of the second plea. "To vacate his plea, a defendant must show that he or she was prejudiced by enforcement of the agreement." Bellamy, supra, 178 N.J. at 135. Defendant is unable to show prejudice by his lack of information before entering his plea in 2003 because whatever the ultimate consequences of N.J.S.A. 9:2-4.1, they were produced by the original plea in 1996.
With respect to the third Slater factor, whether the plea was entered as the result of a plea bargain, the Court noted that a defendant had a heavier burden in seeking to withdraw pleas entered as part of a plea bargain. Slater, supra, 198 N.J. at 160. However, the Court pointed out that the third factor should not "be given great weight in the balancing process." Id. at 161. Here, the trial judge determined this factor should be given weight as defendant affirmed his guilt three times.
As to the fourth factor, there is "no fixed formula to analyze the degree of unfair prejudice or advantage that should override the withdrawal of a plea." Ibid. "The critical inquiry . . . is whether the passage of time has hampered the State's ability to present important evidence." Ibid. The State contended that, due to the length of time since the pleas, it would be extremely difficult to contact witnesses and some might be unwilling to testify.
After carefully weighing the Slater factors, we conclude that the balance goes against allowing withdrawal of defendant's guilty pleas. Defendant has not made a colorable claim of innocence. He has not shown that he was prejudiced by not being told the custody and visitation consequences in 2003 or that fundamental fairness required vacation of the pleas. As these offenses were committed in 1995 and 2002, the State's argument that the passage of time interfered with their ability to go to trial seems plausible. Consequently, we conclude that defendant has failed to establish that he suffered a manifest injustice by the denial of his motion to vacate his guilty pleas.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION