Opinion
DOCKET NO. A-2180-11T4 DOCKET NO. A-2595-11T4
06-30-2014
STATE OF NEW JERSEY, Plaintiff-Respondent v. DONALD GIDDINGS, a/k/a TYRONE JOHNSON, Defendant-Appellant. STATE OF NEW JERSEY, Plaintiff-Respondent v. SHARON PHILLIPS, Defendant-Appellant.
Patrick Michael Megaro argued the cause for appellant in A-2180-11. Patrick James Joyce argued the cause for appellant in A-2595-11. Joseph A. Glyn, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Mr. Glyn, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Messano and Sabatino.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 07-12-0176 and 10-06-0084.
Patrick Michael Megaro argued the cause for appellant in A-2180-11.
Patrick James Joyce argued the cause for appellant in A-2595-11.
Joseph A. Glyn, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Mr. Glyn, of counsel and on the brief). PER CURIAM
We have consolidated these appeals for the purpose of issuing a single opinion. In A-2180-11, defendant Donald Giddings, also known as Tyrone Johnson, appeals from the judgment of conviction following his guilty pleas to certain counts of State Grand Jury Indictment No. 10-06-00084-S. In A-2595-11, defendant Sharon Vanessa Phillips appeals from the judgment of conviction that followed her guilty pleas to the same counts of the same indictment.
Defendant has stated under oath that his true name was Tyrone Johnson. However, the indictment used the name Donald Giddings, which we adopt throughout this opinion.
Both defendants, along with James McKoy, Roy Harte and Gary L. Brown, were originally charged in State Grand Jury Indictment No. 07-12-00176-S, returned on December 17, 2007. That indictment alleged in four counts that, on various dates during June and July 2007, and at diverse locations in New Jersey and in Arizona, all five conspired to and did distribute large amounts of marijuana, shipped from Arizona to New Jersey.
On June 29, 2010, the State Grand Jury returned a superceding indictment, alleging conduct during essentially the same dates and at the same locales as the earlier indictment. Indictment No. 10-06-00084-S charged defendants with second-degree conspiracy to distribute marijuana, N.J.S.A. 2C:35-5a(1), N.J.S.A. 2C:35-5b(10)(a), and N.J.S.A. 2C:5-2 (Count One); three counts of first-degree distribution of marijuana, N.J.S.A. 2C:35-5a(1), N.J.S.A. 2C:35-5b(10)(a), N.J.S.A. 2C:35-5c, and N.J.S.A. 2C:2-6 (Counts Two, Four and Five); two counts of first-degree possession of marijuana with intent to distribute, N.J.S.A. 2C:35-5a(1), N.J.S.A. 2C:35-5b(10)(a), N.J.S.A. 2C:35-5c, and N.J.S.A. 2C:2-6 (Counts Three and Six); and third-degree distribution of marijuana within one-thousand feet of a school, N.J.S.A. 2C:35-5 (Count Seven).
Counts One through Four were those included in the initial indictment.
Prior to the return of the superceding indictment, the State and defendants filed numerous pretrial motions that necessitated evidentiary hearings to some extent, and resulted in interlocutory orders and decisions which form the basis of defendants' appeals. Defendants moved to dismiss the original indictment, alleging insufficient evidence was presented to the grand jury. They also sought to contest search warrants issued during the investigation, specifically requesting a hearing pursuant to Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 ( 1978). Giddings also sought a severance, based upon statements that Phillips and Harte gave to law enforcement officers. All of these motions were eventually denied, the latter after the State provided redacted versions of the statements which the judge concluded removed any prejudice if Giddings were tried jointly with his co-defendants.
The State also moved to introduce various evidence pursuant to N.J.R.E. 404(b). Before the judge ruled on the State's motion, the superceding indictment was returned. Counts Five and Six of the superceding indictment specifically alleged defendants were involved in shipping marijuana from Arizona to New Jersey on or about July 3, 2007. This newly-charged criminal conduct mooted part of the State's N.J.R.E. 404(b) proffer, since this specific shipment was not charged in the initial indictment.
Ultimately, on March 29, 2011, the judge entered an order granting the State's motion in part and denying it in part. Specifically, the order excluded any testimony regarding statements Phillips allegedly made about shipping marijuana to Toronto, Canada. However, the State was permitted to introduce: evidence of marijuana and other items recovered during the execution of a search warrant at Phillips's Arizona home on July 5, 2007; evidence that Giddings, Phillips and Brown were stopped by Arizona authorities as they drove together on July 3, 2007; and evidence from those portions of Phillips's statement in which she admitted shipping four packages of marijuana to New Jersey sometime in April 2007.
The judge ordered the State to "sanitiz[e]" the evidence regarding the motor vehicle stop by removing any reference to it being the result of a violation of law.
Defendants then moved to dismiss the superceding indictment in its entirety, based on a lack of evidence before the grand jury; Count Six of the superceding indictment, because the State failed to establish territorial jurisdiction over the offense; and Counts Five, Six and Seven of the superceding indictment, contending the delay in charging those offenses violated due process. The judge denied the motions.
On September 21, 2011, both defendants pled guilty before a different judge than the one who heard and decided the pre-trial motions. Pursuant to a plea agreement, Giddings pled guilty to Counts One, Two and Seven, as well as an accusation charging him with bail jumping, N.J.S.A. 2C:29-7. The State agreed to recommend a maximum eighteen-year term of imprisonment with a nine-year period of parole ineligibility, all sentences to run concurrently, and to dismiss the balance of the indictment. Giddings agreed to inculpate his co-defendants at the time of his guilty plea and testify truthfully against them at any future trial. Phillips also pled guilty to Counts One, Two and Seven of the indictment. In her case, the State agreed to recommend a maximum sentence of between twelve and fifteen years' imprisonment with a six-year maximum term of parole ineligibility, all sentences to run concurrently, and to dismiss the remaining counts of the indictment. Phillips also agreed to inculpate her co-defendants and testify truthfully if called upon at any trial. On December 9, 2011, Giddings was sentenced in accordance with the plea agreement, and Phillips was sentenced to a ten-year term of imprisonment with a three-year-and-four-month term of parole ineligibility.
Phillips did testify at the subsequent trial of Harte, and we were advised during oral argument that she has since been released from custody, although that does not moot her present appeal.
On appeal, Giddings raised the following arguments:
Point I — Because Other Crimes Evidence Regarding April, 2007, July 5, 2007 and the July 3, 2007 Motor Vehicle Stop Was Irrelevant, Far from Clear and Convincing, and the Risk of Prejudice Outweighed Any Probative Value, Its Improper Admission Was So Pervasive That It Would Have Denied the Defendant a Fundamentally Fair TrialIn her appeal, Phillips raised the following arguments:
Point II — The Trial Court Erroneously Denied the Defendant's Motion to Controvert
Search Warrants In Violation of Well-Established Federal and State Constitutional Precedent
Point III — The Trial Court Erred by Refusing to Dismiss Count 6 of the Superseding Indictment for Lack of Territorial Jurisdiction as Required by The Federal and State Constitution
Point IV — The Trial Court Erred in Not Dismissing Counts 5, 6 & 7 of the Superseding Indictment In Spite of the State's 3-Year Delay in Filing Which Violated the Due Process Guarantees of the Federal and State Constitutions
Point V — The Trial Court Erred in Not Dismissing All Counts of the Superseding Indictment In Spite of the State's Failure to Present Prima Facie [Evidence]
Point VI — The Trial Court Erred in Denying The Motion to Sever Defendants Where the Trial Court Ruled that Statements Made by Two Co-Defendants Inculpating Defendants Were Admissible Made in a Joint Trial; As A Consequence, the Defendant's Federal and State Constitutional Rights to Confront the Witnesses Against Him Were Violated
Point I — The Trial Court Erred by Refusing to Dismiss Count 6 of the Superseding Indictment for Lack of Territorial Jurisdiction as Required by The Federal and State Constitution
Point II — The Trial Court Erred in Not Dismissing Counts 5, 6 & 7 of the Superseding Indictment In Spite of the State's 3-Year Delay in Filing Which Violated the Due Process Guarantees of the Federal and State Constitutions
Point III — Because Other Crimes Evidence Regarding April, 2007, July 5, 2007 and the July 3, 2007 Motor Vehicle Stop Was Irrelevant, Far from Clear and Convincing, and the Risk of Prejudice Outweighed Any Probative Value, Its Improper Admission Was So Pervasive That It Would Have Denied the Defendant a Fundamentally Fair Trial
We have not listed the sub-parts of either defendants' point headings.
We were advised at oral argument that, in light of her testimony at Harte's trial, Phillips has abandoned this point.
When A-2180-11 was filed, the appellate record did not include either a transcript of Giddings's guilty plea or a copy of the plea form executed at that time. We subsequently obtained a copy of the transcript, which revealed that the guilty plea was not entered on the record as a conditional plea. See R. 3:9-3(f) ("the Rule") ("With the approval of the court and the consent of the prosecuting attorney, a defendant may enter a conditional plea of guilty reserving on the record the right to appeal from the adverse determination of any specified pretrial motion. If the defendant prevails on appeal, the defendant shall be afforded the opportunity to withdraw his or her plea." (emphasis added)). We therefore requested counsel to "address the issue of whether defendant's unconditional guilty plea act[ed] as a waiver of all issues now raised on appeal," citing State v. Knight, 183 N.J. 449, 471 (2005), and Pressler & Verniero, Current N.J. Court Rules, comment 7 on R. 3:9-3(f) (2014).
In response, Patrick J. Megaro, Giddings's trial and appellate counsel, supplied the plea form that he, his client and Deputy Attorney General Veronica Allende executed at the time of the plea. After question 4(e) on the form, "Do you further understand that by pleading guilty you are waiving your right to appeal the denial of all other pretrial motions except the following:", was the handwritten notation, "all pretrial motions." Since the State had not specifically raised the waiver argument in its brief, defendant contended that all the arguments raised on appeal were preserved, despite a lack of formal compliance with the Rule.
The State contended as to Giddings, however, that not only did the plea fail to comply with the formalities of the Rule, the prosecutor never consented to a conditional guilty plea. The State provided certifications from Allende, and another deputy attorney general involved with the case, Christopher Romanyshyn, who both denied consenting to entry of conditional guilty pleas. Both also said that the handwritten entry after question 4(e) was not in their handwriting and neither "kn[e]w why that language [was] on the plea form."
This prompted a further response from defendant. He attached a certification from Scott Brettschneider, counsel for McKoy, who had also pled guilty on the same day as Giddings and Phillips. Brettschneider stated that it was "a specifically-included bargaining point between the attorneys[,]" that the "State, with [the judge's] approval, . . . allow[ed] the defendants to reserve their right to appeal all pre-trial motions." He also stated that without that provision in the agreement, defendants would not have pled guilty. Brettschneider claimed that the specific language on the plea form "was discussed with and agreed to by the State, as well as [the judge]." Megaro argued that if we determined Giddings failed to preserve his right to appeal the denial of all pre-trial motions, we must also conclude that he "did not knowingly and voluntarily enter his guilty plea."
Faced with these diametrically opposed versions of whether the State consented to and the court approved the entry of a conditional plea, we remanded the matter to the Law Division for an evidentiary hearing. Our order of November 6, 2013, asked the judge to "conduct[] a hearing as to whether [Giddings's] guilty plea was entered conditionally, with defendant preserving the right to appeal the determinations of various pre-trial motions."
The remand proceeding took place before Judge Verna G. Leath, who was not the judge who decided defendants' pretrial motions or the judge who accepted their guilty pleas and imposed sentence. Judge Leath conducted a comprehensive evidentiary hearing on various dates between January 31 and February 7, 2014. She heard the testimony of Megaro, Giddings, Patrick Joyce, trial and appellate counsel for Phillips, Brettschneider, Carlos Diaz-Corbo, who represented Brown, Romanyshyn and Allende.
Giddings was represented by special counsel at the remand hearing.
Brown had pled guilty the day after defendants and McKoy entered their guilty pleas.
We need not recite at length the testimony elicited at the hearing. It suffices to say that Judge Leath's factual determinations are adequately supported by the sufficient credible evidence in the record. See, e.g., State v. Nash, 212 N.J. 518, 540 (2013) (applying this "necessarily deferential" standard of review to factual findings following an evidentiary hearing on the defendant's post-conviction relief petition). Judge Leath specifically found that the notation in question 4(e) was on Giddings's plea form when Allende, who "was primarily responsible for reviewing and signing the plea forms[,]" executed the form. However, the judge also determined that Allende "had no authority to offer a conditional plea and did not seek authorization for a conditional plea." Of particular significance for our purpose is the final paragraph of the judge's thoughtful written opinion:
[T]he court finds that . . . defendant's plea was not a conditional plea, but that . . . defendant and defense counsel did intend and had a good faith reason to believe that the plea was a conditional plea and that defendant and defense counsel, in reliance upon this belief, waived the right to trial and entered pleas of guilty.
Phillips's appeal was calendared within weeks of our receipt of Judge Leath's opinion. The plea form in Phillips's case similarly included the handwritten notation in question 4(e), "pre-trial motions," and the transcript of her plea proceedings was also devoid of any mention that her plea was conditionally entered. We therefore requested that her counsel also address the issue.
Phillips's counsel argued that the requirements of the Rule had been met, given Judge Leath's finding that the handwritten notation in question 4(e) was on Giddings's plea form when Allende signed it. Alternatively, he argued that Phillips never agreed to enter a non-conditional guilty plea. In response, the State took an entirely different tack from that it previously asserted in Giddings's appeal, stating that, "given the factual findings by [Judge] Leath, . . . [Phillips's] plea did not act as a waiver of all issues on appeal." (Emphasis added).
We are deeply troubled by the procedural history outlined above. Judge Leath concluded that defendants' guilty pleas were not conditionally entered under the Rule, in that neither defense counsel, nor the prosecutor nor the judge placed on the record that the pleas were conditioned on defendants' rights to appeal the denial of all pretrial motions. To this end, Allende, who acknowledged her unfamiliarity with the Rule, expressly testified that she never consented to the entry of conditional guilty pleas.
Judge Leath did not expressly determine whether the judge approved the entry of conditional guilty pleas, but we note there is nothing in the record to indicate that the judge accepted the pleas on a conditional basis. In extensive colloquies with both defendants, the plea judge set forth the terms of the agreement, including the condition that each defendant inculpate and be willing to testify against their co-defendants, but he never mentioned any reservation of rights to appeal the denial of pretrial motions. Moreover, at each defendant's sentencing, the issue was never addressed.
During oral argument before us, Giddings argued the reservation of his right to appeal meant that if we were to agree with any of the arguments raised by his appeal as to any ruling on the pretrial motions, his conviction must be reversed and the matter remanded for a new trial. He contends this remedy should apply to each evidentiary issue presented by the order resulting from the State's N.J.R.E. 404(b) motion, despite the fact that the evidence was never introduced because no trial occurred. So, for example, Giddings asserts that if we agreed with all the decisions made by the motion judge, save his decision to admit evidence of the Arizona traffic stop, we must reverse and order a new trial, without any showing that that particular error alone was capable of bringing about an unjust result. See R. 2:10-2 ("Any error or omission shall be disregarded by the appellate court unless it is of such a nature as to have been clearly capable of producing an unjust result . . . .").
In light of the failure to obtain the express consent of the prosecutor and explicit approval of the judge on the record when the pleas were entered, we find no principled reason to accept the possibility of such a result. For the reasons that follow, defendants' failure to enter conditional guilty pleas that complied with the Rule compels dismissal of their appeals.
We similarly cannot endorse the State's failure to address the issue squarely when presented with defendants' plea forms. Nor do we accept the State's attempt to bestow appellate jurisdiction on defendants' claims by arguing, at least as to Phillips, that her plea did not act as a waiver of the right to appeal. Judge Leath found that Giddings and defense counsel believed in good faith they were preserving the right to appeal all decisions made on all their pre-trial motions. For the reasons that follow, we are firmly convinced this basic misunderstanding requires us to remand the matter to the trial court to permit defendants to move to withdraw their guilty pleas if they so choose.
I
We set forth some basic principles. "Generally, a guilty plea constitutes a waiver of all issues which were or could have been addressed by the trial judge before the guilty plea." State v. Robinson, 224 N.J. Super. 495, 498 (App. Div. 1988). The waiver even applies to claims of certain constitutional violations. State v. Knight, 183 N.J. 449, 470 (2005); State v. J.M., 182 N.J. 402, 410 (2005). The concept does not spring from obsequious elevation of form over substance. As the United States Supreme Court has said,
When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea.
[Tollett v. Henderson, 411 U.S. 258, 267, 93 S. Ct. 1602, 1608, 36 L. Ed. 2d 235, 243 (1973).]
As the Court explained in Knight, supra, there are generally only three exceptions to the waiver rule. 183 N.J. at 471; see State v. Wakefield, 190 N.J. 397, 417 n.1 (2007). The first, expressly provided by Rule 3:5-7(d), permits a defendant to challenge on appeal an unlawful search and seizure of physical evidence after entering a guilty plea. Ibid. The second, expressly permitted by Rule 3:28(g), permits an appeal after a guilty plea from an order denying entry into the pre-trial intervention program. Ibid. Lastly, a defendant may appeal those adverse decisions specifically reserved by a conditional guilty plea entered in accordance with the Rule. Ibid.
Also, the legality or severity of a sentence may be appealed following a guilty plea. State v. Sainz, 107 N.J. 283, 292 (1987).
As noted, the Rule requires that a defendant satisfy several conditions before a conditional guilty plea can be accepted. "[A] defendant may plead guilty while preserving an issue for appellate review only with the 'approval of the court and the consent of the prosecuting attorney.'" State v. Gonzalez, 254 N.J. Super. 300, 304 (App. Div. 1992) (emphasis added) (quoting R. 3:9-3(f)). This reservation of "the right to appeal from the adverse determination of any specified pretrial motion" must be placed "on the record." R. 3:9-3(f).
In State v. Marolda, 394 N.J. Super. 430, 434 (App. Div.), certif. denied, 192 N.J. 482 (2007), one of the defendant's arguments on appeal, similar to that raised in Point V by Giddings, was that the judge erred in failing to dismiss the indictment in its entirety. We refused to consider the argument, noting that "[b]ecause [the] defendant did not preserve the issue[] . . . by entry of a conditional guilty plea, he . . . waived his right to relief . . . ." Id. at 435-36 (citing R. 3:9-3(f)).
That said, we have chosen not to apply the Rule when "[s]trict adherence to [its] requirement[s] . . . 'would result in an injustice.'" Gonzalez, supra, 254 N.J. Super. at 304 (quoting R. 1:1-2). In Gonzalez, despite the defendant's failure to enter a conditional plea, we considered the constitutional argument raised on appeal because it "relat[ed] in part to sentencing," and it was "unfair . . . to require [the] defendant to forego the benefit of the plea agreement in order to raise [an] important question[]" regarding separation of powers. Id. at 303-04. Similarly, in State v. J.M., 182 N.J. 402, 410 (2005), because the "State failed to raise [the waiver] argument below," and despite the defendant's unconditional guilty plea, the Court considered the "important issue of whether [a] juvenile may present evidence at the probable cause portion of the waiver hearing." See Pressler & Verniero, Current N.J. Court Rules, comment 7 on R. 3:9-3 (2014) (citing Gonzalez, supra, 254 N.J. Super. at 304, and noting exceptions to the Rule may be made "in compelling circumstances" (emphasis added)).
Our decision in State v. Matos, 273 N.J. Super. 6 (App. Div. 1994), also demonstrates that substantial compliance with the procedural requirements of the Rule sometimes may suffice to preserve a defendant's appellate rights. In that case, after pleading guilty pursuant to an "'open plea,'" id. at 10, the defendant sought to appeal the denial of his motion to enforce an earlier plea bargain that had been rescinded by the State. Id. at 15. The plea form contained a handwritten statement that the "defendant would 'appeal the pre-trial motions,'" but the form was unsigned by the prosecutor. Ibid. The State contended that the defendant had failed to comply with the Rule, because he had not obtained the consent of the prosecutor. Ibid.
We found that argument "disingenuous," since the prosecutor never took exception to the defense counsel's statement on the record "that the court's refusal to enforce the plea agreement was one of the pretrial motions that would be appealed[, and] [t]he judge took particular note that the plea agreement reserved [the] defendant's right to appeal the pretrial motions." Ibid.; see State v. Diloreto, 362 N.J. Super. 600, 614 (App. Div. 2003) (choosing to consider the defendant's appeal from denial of his motion to suppress where the judge explained to the defendant that his right to appeal as to "those issues [was] still available" despite entry of a guilty plea), aff'd, 180 N.J. 264 (2004).
We have applied Matos to other situations where the State essentially acquiesced to a defendant's clear statement on the record at the plea proceeding of an intention to pursue an appeal after pleading guilty. See, e.g., State v. Stephenson, 350 N.J. Super. 517, 519 n.2 (App. Div. 2002) (citing Matos, supra, and rejecting the State's argument that the defendant waived his right to appeal where the defense counsel at the plea hearing indicated an intention to appeal the denial of the defendant's pre-trial motion to suppress his statement to police); State v. Alexander, 310 N.J. Super. 348, 351 n.2 (App. Div. 1998) (citing Matos, supra, and rejecting the State's waiver argument "[i]n view of the prosecutor's apparent acquiescence in [the] defense counsel's assertion at sentencing that [the] defendant intended to appeal from the order denying his motion to dismiss the indictment").
In this case, defendants did not substantially comply with the Rule. The conditional nature of the guilty pleas was never placed on the record when they were entered, nor was it ever mentioned during the sentencing proceedings. There was, therefore, no explicit or implicit approval by the judge.
The judge expressly advised both defendants of their right to appeal the sentences imposed, but neither counsel took exception by stating the right of appeal extended further to adverse decisions on the pretrial motions because the pleas were conditional.
Judge Leath found credible a statement attributed to one of the deputy attorneys general made during plea negotiations, before the pleas were entered, that any appeal of the pre-trial motions would be unsuccessful. However, she also found Romanyshyn could not recall that any conditions were attached to the guilty pleas, except that both defendants would inculpate and testify against their co-defendants. Judge Leath also found that Allende had no authority to offer a conditional plea and never sought authority in this case. Moreover, as already noted, unlike Matos, Diloreto, Stephenson and Alexander, nothing was said by defense counsel or the judge during the proceedings that would have alerted the prosecutors to the conditional nature of the pleas, in which case their silence in that context might be construed as acquiescence.
Additionally, these appeals do not present any "compelling circumstances" such that we should relax the Rule and consider defendants' arguments on their merits. "The primary utility of the [Rule] . . . is directed to such pretrial issues as encompassed by [Rule 3:9-1(d)], namely identification and confession controversies and disputes as to the admissibility of other dispositive evidence." Pressler & Verniero, supra, comment 7 on R. 3:9-3 (emphasis added). The salutary purposes of the Rule have been recognized in a variety of contexts. See, e.g., State v. Dively, 92 N.J. 573, 578 (1983) (conditional plea preserved appeal from denial of motion to dismiss based on double jeopardy); Diloreto, supra, 362 N.J. Super. at 615-16 (imperfectly executed conditional plea preserved challenge to statements made to law enforcement); State v. Auringer, 335 N.J. Super. 94, 96-97 (App. Div. 2000) (conditional plea preserved the defendant's federal preemption and commerce clause defenses to the indictment). In these circumstances, a defendant's success on appeal would have resulted in dismissal of the prosecution, or, at the least, would have significantly affected the nature or likelihood of a trial on remand.
Rule 3:5-7(d) effectuates a similar policy. That rule automatically preserves a defendant's right to appeal the denial of a motion to suppress physical evidence after pleading guilty. Ibid. If a defendant successively appeals the denial of his motion to suppress, the State's case against him may suffer a fatal blow, or is at least measurably weakened on remand. The significance of the preserved appellate issue compels the same result under both rules when a defendant prevails, i.e., a defendant may withdraw his guilty plea. See Diloreto, supra, 362 N.J. Super. at 616 (where Judge Stern, writing for the panel, cited both Rule 3:5-7(d) and the Rule, and noted, "our plea preservation rules give the defendant the right to withdraw a guilty plea when the right to appeal survives the plea and defendant succeeds on appeal").
To the extent these appeals present arguments regarding territorial jurisdiction, speedy trial rights and the sufficiency of evidence before the grand jury, they present the types of issues for which the conditional plea mechanism may be appropriate. Although we refuse to consider the substance of these specific arguments raised by defendants, we note they present no unique compelling circumstances or merit, such that that we should excuse a clear failure to comply with the Rule and preserve the right to appeal those adverse decisions made in the Law Division.
Moreover, Giddings's arguments regarding the State's N.J.R.E. 404(b) evidence and whether admission of Phillips's redacted statement at a joint trial required severance do not necessarily entail the type of "dispositive evidence" upon which the prosecution's entire case turns. As noted above, the State's substantial case against Giddings would hardly be affected if we concluded, hypothetically, that all the proffered N.J.R.E. 404(b) evidence was admissible, except for evidence of the Arizona traffic stop. Additionally, without the benefit of seeing how the evidence at trial might unfold, it is exceedingly difficult in the abstract to weigh the effect of the motion judge's decision regarding the redaction of Phillips's statement.
Unless the conditional nature of the guilty pleas was clearly and unequivocally accepted by the judge with the prosecutor's consent, limited appellate success on an evidentiary issue cannot compel the extraordinary remedy provided by the Rule, i.e., "the right to withdraw a guilty plea." Diloreto, supra, 362 N.J. Super. at 616 (emphasis added). Under these circumstances, we refuse to relax the Rule's strictures and consider these appeals on their merits, or provide what essentially would be an advisory opinion that might aid defendants in deciding whether to seek withdrawal of their pleas.
II
Nevertheless, we cannot turn a blind eye to the findings and conclusions reached by Judge Leath regarding the good faith belief Giddings and defense counsel harbored after the pleas were negotiated, i.e., defendants could appeal each and every pretrial motion decided adversely as to them, and, if successful as to any one, that they could withdraw their guilty pleas. We do not think it is appropriate to compel defendants to file petitions for post-conviction relief and await what may be a lengthy process in the Law Division in order to fully explore the consequences of their misapprehensions. The proper remedy for this essential misunderstanding in the plea bargaining process is to permit defendants to immediately move to withdraw their guilty pleas if they choose to do so.
Because they failed to preserve their rights to appeal by entering a conditional guilty plea in accordance with the Rule, however, defendants are not entitled to the remedy afforded by the Rule. Instead, defendants may withdraw their guilty pleas if they satisfy the standards set forth in State v. Slater, 198 N.J. 145 (2009). We discuss those standards in the context of what has already occurred at the evidentiary hearing on remand in Giddings's case to provide guidance in the event that either or both defendants seek to withdraw their guilty pleas.
"Consideration 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, which requires, among other things, that the defendant's guilty plea be made with his or her "understanding of the nature of the charge and the consequences of the plea." R. 3:9-2 (emphasis added). When faced with a motion to withdraw, "[t]rial judges 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.'" State v. Mustaro, 411 N.J. Super. 91, 100 (App. Div. 2009) (quoting Slater, supra, 198 N.J. at 157-58). "No factor is mandatory; if one is missing, that does not automatically disqualify or dictate relief." Slater, supra, 198 N.J. at 162. However, because a motion to withdraw a plea made after sentencing must demonstrate that a "manifest injustice" has occurred, id. at 158 (citing R. 3:2-1), "efforts to withdraw a plea after sentencing must be substantiated by strong, compelling reasons." Id. at 160.
As the Court has explained, "[t]h[e] second factor focuses on the basic fairness of enforcing a guilty plea by asking whether [the] defendant has presented fair and just reasons for withdrawal, and whether those reasons have any force." Id. at 159. The Slater Court "identified a number of reasons that warrant withdrawal of a plea" on these grounds, including a defendant's reliance upon misinformation provided by the court and prosecutor when entering his [or her] guilty plea. Ibid. (citing State v. Nichols, 71 N.J. 358, 361 (1976)). Withdrawal may also be appropriate "'[w]here the accused's reasonable expectations are defeated, [since] the plea bargain has failed one of its essential purposes, fairness . . . .'" Id. at 160 (quoting State v. Marzolf, 79 N.J. 167, 183 (1979)). Certainly, based upon Judge Leath's findings and conclusions as to Giddings, it would appear that the failure to preserve his appellate rights to challenge each and every pretrial motion defeated a reasonable expectation he possessed when he pled guilty.
We do not necessarily determine whether Giddings's misinformed state of mind was material to his decision to plead guilty. See, e.g., State v. Johnson, 182 N.J. 232, 244 (2005) (remanding to determine whether failure to inform the defendant about the parole supervision consequences of the No Early Release Act "materially affected his decision to plead guilty"). Additionally, since the issues have not been adequately addressed either at Giddings's hearing or by the parties in their briefs, we cannot consider the relative strengths of any arguments that might be advanced regarding the other three Slater factors. We therefore remand the matter to the Law Division with instructions that defendants be permitted to immediately move to withdraw their guilty pleas if they so choose. We intimate no opinion from the limited record and briefing before us as to how such withdrawal motions, if pursued, should be decided.
Additionally, although Phillips's counsel, Joyce, testified at the remand hearing, Judge Leath was not asked to specifically address Phillips's claims. Therefore, we are unable to review any specific factual findings in that regard.
--------
The appeals are dismissed; the matter is remanded to the Law Division for further proceedings consistent with this opinion. We do not retain jurisdiction.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION