Opinion
DOCKET NO. A-5789-13T4
04-19-2016
STATE OF NEW JERSEY, Plaintiff- Respondent, v. KOKEA SESSION, a/k/a KOREA L. SESSION, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Alyssa Aiello, Assistant Deputy Public Defender, of counsel and on the briefs). Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Joie Piderit, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Messano and Carroll. On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment Nos. 13-05-0213, 12-09-1395 and 12-09-1351. Joseph E. Krakora, Public Defender, attorney for appellant (Alyssa Aiello, Assistant Deputy Public Defender, of counsel and on the briefs). Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Joie Piderit, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
While her application to Drug Court was pending, defendant Kokea Session entered into a plea agreement with the State that effectively resolved all pending charges against her. In this appeal, defendant challenges the denial of her Drug Court application and her subsequent motion to withdraw her guilty plea. Because we conclude that the procedure for admission into Drug Court was violated, and defendant's guilty plea was not knowing and voluntary, we reverse the order denying defendant's motion to withdraw her guilty plea. Accordingly, we vacate the judgment of conviction, reinstate the indictments and the charges in the accusation, and remand for further proceedings.
I.
On September 12, 2012, defendant was charged in Middlesex County Indictment No. 12-09-1351 with third-degree possession of heroin, N.J.S.A. 2C:35-10a(1) (count one); third-degree possession with intent to distribute heroin, N.J.S.A. 2C:35-5b(3) (count two); and fourth-degree possession with intent to distribute marijuana, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(12) (count three). On September 19, 2012, defendant was charged in Middlesex County Indictment No. 12-09-1395 with third-degree possession of cocaine, N.J.S.A. 2C:35-10a(1) (count one); and third-degree distribution/possession with intent to distribute cocaine, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3) (count two). On May 30, 2013, Accusation No. 13-05-0213 charged defendant with third-degree distribution of cocaine on or near school property, N.J.S.A. 2C:35-5a and N.J.S.A. 2C:35-7 (count one); and second-degree possession of a stun gun while possessing a controlled dangerous substance (CDS) with the intent to distribute it, N.J.S.A. 2C:39-4.1 (count two).
Also on May 30, defendant waived indictment on the accusation and entered into a plea agreement with the State. Defendant pled guilty to both counts of the accusation, as well as count two of each indictment. At the plea hearing, the prosecutor stated that defendant was eligible for a mandatory extended term sentence because of her prior convictions for distribution of CDS in a school zone. Pursuant to the negotiated agreement, the State recommended an aggregate fourteen-year prison sentence with a seven-year parole ineligibility period. The plea agreement also contemplated, however, that defendant would seek admission into Drug Court.
At the plea hearing, defendant expressed hesitation when asked whether she was being forced to enter her plea. Defense counsel explained that the parties had previously appeared before a different judge, and that "the source of defendant's hesitation is that we've been sort of forced to enter a plea as opposed to going to trial, because we want to apply to Drug Court and [the other judge] said that in order to apply to Drug Court, we have to enter a plea." After additional discussion, the following exchange ensued:
[THE COURT]: All right. And seeing that you're upset, do you still want to go forward with this? Because there's no pressure on you from me to do that, but it will take away your option of being able to apply to Drug Court. So, do you want to go forward today?
[Defendant]: Yes.
The prosecutor stated that the two indictments were viewed as older cases, and that the judge before whom the parties had previously appeared
indicated that if [] defendant was interested in applying to Drug Court or was waiting on a Drug Court application that she would have to acknowledge culpability in Drug Court and there was therefore no reason for her to defer acknowledging that culpability if she was, in fact, truly willing to go to Drug Court.
And [the judge] also noted that that would be a positive factor in [defendant's] favor in her Drug Court application that she had already accepted responsibility.
At the time of the plea hearing, defendant was participating in the University of Medicine and Dentistry of New Jersey (UMDNJ) Adult Substance Abuse Program (ASAP) at the Middlesex County Jail. Defendant began the program on April 2, 2013, and successfully completed it on June 28, 2013. The record is silent as to when defendant filed her Drug Court application. However, at the plea hearing, the prosecutor advised the court that:
[D]efendant, despite entering this plea, is still, as far as I know, pursuing the Drug Court process. Her application is in with Drug Court. She's waiting, I think, on a clinical eval[uation] and . . . I, as a [p]rosecutor, on these files take no position on that whatsoever. That will run its own course and this plea will not [a]ffect that decision.In response, the judge stated, "Right. Thank you . . . . [S]he understands that and she wants to go into Drug Court, so that's why she's proceeding in this manner."
In the plea form that was signed by defendant, defense counsel, and the prosecutor, the parties agreed as follows: "Judge will hold sentencing until [D]rug [C]ourt application is acted upon. Prosecutor will not object to [D]rug [C]ourt application."
One week later, on June 6, 2013, a different prosecutor opposed defendant's Drug Court application, citing her "criminal history [that] demonstrates numerous convictions of possession with intent to distribute near a school zone." The prosecutor concluded that, rather than being drug-dependent, defendant "is a profit-motivated drug dealer and a threat to the community." Accordingly, the State "legally rejected" defendant's application on this basis.
Defendant appealed the rejection of her Drug Court application. On September 4, 2013, the Drug Court judge, who was not the plea judge, determined that defendant's juvenile adjudication of delinquency for aggravated assault rendered her statutorily ineligible for participation in the Drug Court program. The judge did not elaborate on the State's objection that defendant was disqualified because her behavior demonstrated a profit motive and a lack of addiction.
On September 19, 2013, defendant filed a pro se motion to withdraw her guilty plea. She averred that she was pressured to enter the plea in order to pursue her Drug Court application. In a supplemental motion filed on January 16, 2014, defense counsel argued that withdrawal of the plea was also warranted under the four-prong analysis established in State v. Slater, 198 N.J. 145 (2009). On February 26, 2014, the plea judge denied the motion, and sentenced defendant to an aggregate twelve-year prison term with a sixty-six month parole ineligibility period.
Under this analysis, the trial judge must consider and balance four 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." Id. at 157-58. --------
II.
Defendant appeals, raising the following arguments for our consideration:
POINT ONE
THE DRUG COURT JUDGE ERRED IN DENYING [DEFENDANT'S] DRUG COURT APPEAL
A. The "Sketchy" Juvenile Court History Contained In The 2005 PSR Did Not Adequately Establish That [Defendant] Was Adjudicated Delinquent Of Aggravated Assault 25 Years Earlier
B. There Is Simply No Support For The Prosecutor's Contention That [Defendant] Is A "Profit Motivated Drug Dealer" Who Is Not Drug Dependent; To The Contrary, The Record Unequivocally Establishes That [Defendant], The Child Of Drug-Dependent Parents, Has Recently Demonstrated Her Firm Commitment To Tackle A Serious Substance Abuse Problem That Began When She Was Thirteen Years Old And Has Plagued Her Ever Since
POINT TWO
[DEFENDANT'S] GUILTY PLEA WAS NOT KNOWINGLY AND VOLUNTARILY ENTERED, AND THUS, VIOLATED HER CONSTITUTIONAL RIGHT TO DUE PROCESS OF LAW UNDER THE STATE AND FEDERAL CONSTITUTIONS. MOREOVER, CONTRARY TO THE TRIAL COURT'S FINDING, THE WEIGHT OF THE SLATER FACTORS MILITATED IN FAVOR OF PLEA WITHDRAWAL. THEREFORE, [DEFENDANT'S] GUILTY PLEA CANNOT STAND
A. [Defendant's] Guilty Plea, Which Violated The Plea Procedure Set Forth In The Drug Court Manual, Was Not Made Knowingly Or Voluntarily
B. The Slater Factors Militate In Favor Of Plea Withdrawal
A.
We begin our analysis by addressing whether the Drug Court judge erred in denying defendant's Drug Court appeal. As noted, the Drug Court judge determined that defendant's juvenile adjudication for aggravated assault rendered her statutorily ineligible for Drug Court. On appeal, defendant concedes that a Drug Court applicant is ineligible if he or she has been previously adjudicated delinquent for aggravated assault. See N.J.S.A. 2C:35-14a(7). However, defendant challenges the sufficiency of the proofs relied on by the court to establish her prior adjudication of delinquency for aggravated assault.
The Drug Court judge relied on the juvenile court history contained in defendant's 2005 pre-sentence report (the 2005 PSR), which noted that in 1998, defendant was adjudicated delinquent for aggravated assault and placed on probation for six months. Defendant contends that the judge's reliance on the 2005 PSR constituted an abuse of discretion. Specifically, defendant posits that: (1) she has no recollection of being adjudicated delinquent for aggravated assault; (2) it is not uncommon for a PSR to contain errors; (3) the "lenient" six month probationary sentence she received suggests that the offense was downgraded to simple assault or that she pled guilty to a different offense that was charged in the juvenile complaint; and (4) the probation officer who prepared the 2005 PSR noted that the Family Court records had been destroyed and that defendant's juvenile arrest history was gathered from probation records that were "sketchy."
The procedures for admission into Drug Court are set forth in the Administrative Office of the Courts, Manual for Operation of Adult Drug Courts in New Jersey (Manual), (July 2002), available at http://www.judiciary.state.nj.us/drugcourt/dctman.pdf. "'Drug Courts are a creature of the judiciary[,]' and the practices and procedures of that court are set forth in the Drug Court Manual." State v. Clarke, 203 N.J. 166, 174 (2010) (alteration in original) (citation omitted) (quoting State v. Meyer, 192 N.J. 421, 429 (2007)). Consideration for admission to Drug Court is clearly defined.
The Manual provides that "[t]he prosecutor's office shall determine its position with regard to an applicant's legal eligibility based on a review of various sources of information," including the following:
- statutory eligibility criteria contained in N.J.S.A. 2C:35-14 or other statutory provisions in the code if applicable; and
- originating complaint(s) and associated police reports; and
- a recent computerized criminal record history from the New Jersey State Police and the Interstate Identification Index (State and Federal rap sheets); and
- Probation Division adult and juvenile records; and
- prior pre-sentence investigation reports; and
- NJ Judiciary mainframe database information; and
- other sources of criminal history information, if available.
[Manual, §IV, ¶C at 21-22 (emphasis added).]
Hence, the Manual expressly mandates review of prior pre-sentence investigation reports to determine an individual's legal eligibility for Drug Court. It also provides for consideration of other sources of criminal history information, if available. Here, due to the age of the juvenile adjudication involved, defendant's juvenile records are no longer available. In the absence of such information, we find no abuse of discretion in the judge's reliance on the criminal history contained in the 2005 PSR. Rather, the 2005 PSR reasonably precluded the judge from making the required finding under N.J.S.A. 2C:35-14a(7) that defendant "has not been previously convicted or adjudicated delinquent for . . . aggravated assault."
Accordingly, defendant's Drug Court appeal was correctly denied. Because we conclude that the 2005 PSR was sufficient to establish defendant's statutory ineligibility for Drug Court, we find it unnecessary to consider the State's alternate contention that defendant was properly rejected because "[s]he is a profit-motivated drug dealer and a threat to the community."
B.
Defendant next argues that her motion to withdraw her guilty plea was improperly denied. Specifically, defendant contends that her guilty plea violated the plea procedures set forth in the Manual and was not entered knowingly and voluntarily. She further contends that, because the plea was not knowing and voluntary, the trial court's application of the Slater factors was premature. We agree.
A motion to withdraw a guilty plea is committed to the judge's sound discretion. Slater, supra, 198 N.J. at 156; State v. Phillips, 133 N.J. Super. 515, 518 (App. Div. 1975). That discretion should ordinarily be exercised liberally where the motion is made before sentencing. Slater, supra, 198 N.J. at 156. "In a close case, the 'scales should usually tip in favor of defendant.'" Ibid. (quoting State v. Taylor, 80 N.J. 353, 365 (1979)).
[T]he motion to withdraw a plea is governed by the four-factor test in Slater, supra.
No one factor is dispositive, nor must a movant satisfy all four. 198 N.J. at 162. However, "[c]onsideration 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." Id. at 155. The rule requires the court to determine if "there is a factual basis for the plea and that the plea is made voluntarily, not as a result of any threats or of any promises or inducements not disclosed on the record, and with an understanding of the nature of the charge and the consequences of the plea." R. 3:9-2.
[State v. O'Donnell, 435 N.J. Super. 351, 369 (App. Div. 2014).]
It is readily apparent from our review of the plea transcript that defendant wished to pursue her Drug Court application and that she was informed that she could only do so if she pled guilty. The plea judge expressly acknowledged that defendant was pleading guilty because "she wants to go into Drug Court." However, the plea procedures established in the Manual provide otherwise. Rather, it is when "an applicant is found both legally and clinically acceptable for the drug court program, [that] a formal plea bargain should [] be offered to the applicant defendant which identifies [D]rug [C]ourt participation as an alternative sentence. A plea date should then be scheduled . . . ." Manual, §IV, ¶E at 23. Further, the Manual expressly provides that "[i]f the court, at the time of sentencing, decides it cannot accept the plea bargain the defendant shall be permitted to withdraw from the plea agreement." Manual, §IV, ¶C at 22; ¶E at 25.
Here, contrary to the procedures adopted in the Manual, defendant was not yet either clinically or legally approved when she was instructed that she must enter a guilty plea if she wished to gain entry into Drug Court. Because plaintiff was not informed as to the proper Drug Court admission procedures, we are unable to conclude that her guilty plea was entered knowingly and voluntarily.
We appreciate that the two indictments were viewed as "older" cases, and that consequently the court may have felt obliged to resolve them either by plea or trial rather than allow them to linger. This is especially so if defendant's Drug Court application was initially not promptly filed. Indeed, "[s]ince the purpose of [D]rug [C]ourt is to divert defendants with substance abuse problems into treatment, the earlier the diversion occurs the better. Entry of the defendant pre-indictment is therefore the best practice, although not required." Manual, §IV at 19. Nonetheless, "[d]efendants may make application to the [D]rug [C]ourt program at any time following an arrest and up until plea cutoff." Ibid. Thus, even if we were to assume that the court had established May 30, 2013, as the plea cutoff date on the indictments, the record establishes that defendant's previously-filed Drug Court application was timely. Moreover, the charges defendant was facing in the accusation were still in the pre-indictment stage when she applied to Drug Court. Hence, under the plea procedures established in the Manual, entry of defendant's plea should have awaited the acceptance or rejection of her Drug Court application.
We find another aspect of the plea proceeding troubling. As noted, the plea form reflects the parties' agreement that the "[p]rosecutor will not object to [D]rug [C]ourt application." At the plea hearing, the prosecutor indicated that he took "no position" on the pending application. Nonetheless, within a short time thereafter, the Drug Court prosecutor opposed the application. We do not imply that the State may not retain the right to do so. See Manual, §IV, ¶C at 21 (allowing a prosecutor to refuse consent if, upon considering all appropriate sources of information, he or she is concerned that the defendant's participation in the Drug Court program would present a danger to the community). However, the State having objected, fairness dictates that defendant should be permitted to withdraw her plea.
Summarizing, defendant's plea allocution and the judge's comments clearly establish that defendant pled guilty in order to be considered for Drug Court. The requirement that defendant plead guilty before her pending Drug Court application was legally and clinically approved was erroneous under the plea procedures established in the Manual. Moreover, the State, which took a neutral position at the time of the plea, thereafter actively opposed defendant's Drug Court application. The confluence of these factors leads us to conclude that defendant's guilty plea was not knowingly and voluntarily entered. Given this holding, we do not address defendant's additional arguments, which are based on the trial court's analysis of the Slater factors. Defendant's guilty plea is vacated, her indictments and accusation are reinstated, and this matter is remanded to the trial court for further proceedings.
Reversed and remanded. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION