Opinion
DOCKET NO. A-3255-12T1
03-10-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. C.G.G., Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Brian P. Keenan, Assistant Deputy Public Defender, of counsel and on the brief). Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Angela K. Halverson, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Yannotti and Whipple. On appeal from Superior Court of New Jersey, Law Division, Union County, Accusation No. 11-06-0773. Joseph E. Krakora, Public Defender, attorney for appellant (Brian P. Keenan, Assistant Deputy Public Defender, of counsel and on the brief). Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Angela K. Halverson, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant appeals from his conviction for second-degree sexual assault, N.J.S.A. 2C:14-2b. We affirm.
We discern the following facts from the record. Defendant was charged with second-degree sexual assault, N.J.S.A. 2C:14- 2b, of his daughter Jane. On June 29, 2011, defendant waived indictment and trial by jury and entered a guilty plea to the charge. At the plea hearing, defendant was advised of certain rights and the consequences of entering a guilty plea and was questioned by the court and counsel. The court and defense counsel engaged defendant in the following colloquy:
Pseudonyms are used to protect the identity of the minors and to avoid confusion with initials.
THE COURT: So on dates between November the 2nd of 2003 and November the 1st, 2008[,] . . . did you commit sexual assaults upon a child . . . [whose name is Jane and who was under the age of thirteen]?
. . . .
COUNSEL: May I get the factual basis?
THE COURT: Go ahead.
COUNSEL: [I]n a period between those dates did you touch this child's vagina?
DEFENDANT: Only once or twice. That was it.
COUNSEL: And you did so for the purpose [of] your sexual gratification?
DEFENDANT: Yes.
On March 15, 2012, defendant moved to withdraw his guilty plea, arguing that at the time he entered his plea his attorney was unprepared and provided misleading advice. He asserted that he did not have the opportunity to review discovery and his attorney scared him into pleading, but after he pled guilty he learned that the main witness against him was his oldest daughter, Jenn. He said that he did not get along with Jenn and that she lied about his actions with her younger sister, Jane, so that he would be taken out of the house.
Defendant denied sexually assaulting Jane and asserted that he was not guilty. The sentencing judge heard defendant's motion and rendered an oral opinion denying defendant's request to withdraw his guilty plea. The judge sentenced defendant to a term of four years with eighty-five percent parole ineligibility, three years of parole supervision, Megan's Law conditions, and fees and penalties.
Defendant raises the following issue on appeal:
POINT I
[THE SENTENCING JUDGE] ERRED IN DENYING DEFENDANT'S MOTION TO WITHDRAW HIS GUILTY PLEA BECAUSE THE PLEA JUDGE FAILED TO COMPLY WITH THE REQUIREMENTS OF RULE 3:9-2, AND BECAUSE DEFENDANT HAD A COLORABLE CLAIM OF INNOCENCE AND DID NOT SEE DISCOVERY PRIOR TO HIS PLEA. STATE V. SLATER, 198 N.J. 145 (2009).
A determination of whether to allow a defendant to withdraw a guilty plea lies within the sound discretion of the trial court, and will be reversed "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 State v. Smullen, 118 N.J. 408, 416 (1990)). In all plea withdrawal cases, "'the 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)).
A 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 (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 (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, "[d]efendants must present specific, credible facts and, where possible, point to facts in the record that buttress their 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 (quoting 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." Ibid. 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.
Defendant asserts for the first time that during the plea hearing the plea judge failed to inquire of defendant whether the plea was made voluntarily pursuant to Rule 3:9-2 and failed to elicit a factual basis "from the lips of the defendant that he committed the acts which constitute the crime." Defendant does not argue that his factual basis was inadequate to establish that he violated N.J.S.A. 2C:14-2b. Instead, he argues that the sparse factual basis demonstrates that the requirements of Rule 3:9-2 were not met.
The record establishes that defendant executed the plea form and the plea judge addressed defendant directly. The judge questioned defendant to ascertain that he was aware of all direct and collateral consequences of entering a plea, had reviewed discovery, had consulted with his lawyer, and understood what the plea offer was and what he was doing. We conclude that the requirements of the rule were satisfied.
We also conclude the sentencing judge correctly weighed the Slater factors. The judge correctly found defendant's claims of innocence to be insufficient under the Slater standard. The court noted that defendant admitted that he had time to review the discovery before he entered into the plea agreement, that he had time to talk to his lawyer and that defendant's claim of innocence was inconsistent with statements he made prior to the entry of his plea and were neither credible nor plausible. The judge correctly evaluated the relevant facts and found no basis for a colorable claim of innocence, including defendant's voluntary, counseled guilty plea.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION