Opinion
DOCKET NO. A-1110-12T2
07-28-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. CHRISTIAN JEFFERSON, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Timothy P. Reilly, Designated Counsel, on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Sara A. Friedman, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fisher and Grail. On appeal from Superior Court of New Jersey, Law Division, Essex County, Accusation No. 09-01-0013. Joseph E. Krakora, Public Defender, attorney for appellant (Timothy P. Reilly, Designated Counsel, on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Sara A. Friedman, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief). PER CURIAM
Defendant Christian Jefferson appeals an order denying his motion to withdraw a guilty plea that was entered on remand from this court. Substantially for the reasons stated by Judge Cronin in a letter opinion of July 31, 2012, we affirm.
The Essex County Prosecutor issued an accusation charging defendant with second-degree luring, N.J.S.A. 2C:13-6, and first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(1). On the day the State was scheduled to present charges against defendant to the grand jury, defendant waived his right to indictment and entered a guilty plea that disposed of the accusation. He entered that plea pursuant to a plea bargain with the prosecutor that expired upon defendant's indictment.
The plea bargain offered provided for defendant to plead guilty to an amended charge of second-degree sexual assault, N.J.S.A. 2C:14-2b (sexual contact with a victim under the age of thirteen when the actor is at least four years older). In return for a guilty plea to the downgraded charge, the State promised to dismiss the luring charge and recommend a sentence for second-degree sexual assault within the third-degree range, N.J.S.A. 2C:44-1f(2), which would be subject to a term of parole ineligibility mandated by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and to a life term of parole supervision required by N.J.S.A. 2C:43-6.4. More specifically, the State promised to recommend a three-year term of imprisonment subject to the provisions of NERA and N.J.S.A. 2C:43-6.4.
Although defendant denied his guilt at the time of his arrest, he subsequently gave the police a recorded statement admitting to facts establishing aggravated sexual assault of a child who was then under the age of thirteen. Defendant did not move to suppress that inculpatory statement prior to his plea, and in support of his guilty plea, defendant admitted that when he was eighteen he had sexual contact with a child who, as he had since learned, was twelve years old at the time.
Within days of entering the plea, defendant contacted the attorney representing him to inquire about withdrawing his guilty plea, and prior to sentencing, his attorney filed a motion to withdraw. At the motion hearing, defendant's attorney argued that the police reports that included inconsistent statements from the victim and the lack of physical evidence provided a colorable claim of innocence. She also contended that promises and representations the police made to defendant provided a colorable basis for a motion to suppress her client's inculpatory statements. Defense counsel urged several reasons defendant had to withdraw his plea: that defendant, who was only nineteen years old at the time of the plea, did not appreciate the significant impact that being a registered sex offender would have on his life and that he was subject to "an enormous amount of pressure" to accept the State's plea offer when he did because it would expire that day. The judge rejected the arguments and denied the motion.
The judge subsequently sentenced defendant in conformity with his plea. At the sentencing hearing, defendant undercut one of his reasons for withdrawing the plea by acknowledging, as he had during the plea colloquy, that he knew "what the repercussions would be" when he pled guilty.
Following sentencing, defendant appealed and sought reversal of the denial of his pre-sentence motion to withdraw or, in the alternative, a remand. State v. Jefferson, No. A-5728-08 (App. Div. Aug. 16, 2010) (slip. op at 5-6). "In support of his request for a remand, defendant assert[ed] that 'the trial court's failure to afford [him] the opportunity to present the facts buttressing his contentions require[d] a remand for an evidentiary hearing.'" Id. at 6 (second alteration in original). The two-judge panel agreed.
The panel focused on the second of the four factors a court must consider in exercising its discretion to grant or deny a pre-sentence motion to withdraw a guilty plea in the interests of justice. See R. 3:9-3(e); State v. Slater, 198 N.J. 145, 156, 159-60 (2009). And the panel determined that the judge "did not adequately consider . . . the 'nature and strength of defendant's reasons for withdrawal.'" Jefferson, supra, at 7 (quoting Slater, supra, 198 N.J. at 157-58). Consequently, the panel concluded that "defendant [was] entitled to an opportunity to present his reasons for seeking to withdraw his plea and to have the trial judge address those reasons on the merits" and remanded "for further proceedings in conformity with its opinion." Id. at 6, 8.
Judge Cronin, who did not preside over any of the prior proceedings in this case, conducted the hearing on remand. Defendant testified on July 20, 2011, and the attorney who represented him prior to his plea testified on September 26, 2011.
On remand, defendant reasserted his innocence and claimed that the time pressure made his plea involuntary. In addition, defendant claimed that his plea was the result of pressure exerted by the attorney representing him at the time.
Based on a careful review of the record of the prior proceedings and the testimony presented on remand, the judge made detailed factual findings on each reason for withdrawal that defendant asserted. Relevant to defendant's claimed ignorance about the consequences of the plea, the judge found that defendant had completed plea forms detailing the consequences and acknowledged that he understood them, including that he would be subject to a registration obligation and parole supervision for life. The judge further found that defendant withdrew that claim at the time of his sentencing, when he acknowledged that he knew "what the repercussions would be." Those findings of fact are all supported by the record.
With respect to defendant's claim of time pressure that overbore his will, the judge found that the State offered the plea bargain on December 17, 2008 and that defendant did not plead guilty until January 5, 2009. The judge did not credit testimony the attorney who represented defendant at the time of the plea gave about the date she presented the plea offer to defendant, because he found it to be equivocal, inconsistent with the record and contradicted by defendant's testimony on remand.
The judge further found that the pressure to accept or reject the pre-indictment plea offer in this case was not like the pressure faced by a defendant who accepts a plea bargain on the day of trial. He concluded that the pressure defendant felt was part of the ordinary plea bargaining process, one experienced by most defendants. The judge, who had an opportunity to observe defendant's testimony at the remand hearing, concluded that defendant had ample time, nineteen days, to consider the offer, made a rational assessment and determined that entry of the plea was his best option at the time.
The judge also rejected defendant's claim that his guilty plea was the product of pressure exerted by the attorney representing him at that time and, for that reason, involuntary. The judge found that this claim not only contradicted defendant's representations at the time of the plea but also lacked support in the testimony defendant and his attorney gave on remand. It is worth noting that defendant's attorney testified that in her opinion defendant was under pressure, but the source of the pressure she referenced was the State's announced intention to withdraw the favorable plea offer if the grand jury indicted defendant before he pled guilty.
On remand, defendant testified that his attorney pressured him by telling him he would be convicted if he went to trial. Considering that claim, the judge found that the attorney gave proper advice given the fact that defendant had confessed and the recorded statements he made had not been suppressed when the defendant pled guilty.
Turning to consider and balance the four Slater factors, the judge concluded that the first factor — a colorable claim of innocence, 198 N.J. at 158-59 — weighed heavily against defendant's motion to withdraw. The judge focused on the factual basis defendant provided, most likely because defense counsel on remand did not point to any specific facts that buttressed his assertion of innocence beyond a general reference to interrogation techniques employed by the officers who interviewed defendant after his arrest.
In considering the second Slater factor, the judge referenced his own findings on defendant's reasons for withdrawal, 198 N.J. at 159-60. The judge concluded that this factor also weighed heavily against defendant.
The judge assigned some, but not great, weight against defendant on the third Slater factor. That Slater factor focuses on whether the plea was entered pursuant to a plea bargain under which the State makes promises concerning the recommended sentence, 198 N.J. at 160-61.
Finally, the judge determined that the fourth Slater factor — prejudice to the State, 198 N.J. at 161-62 — added only modest weight in favor of defendant's motion to withdraw. In that regard, he noted that the plea was entered early, prior to indictment.
On those determinations, the judge concluded that the first three factors overwhelmingly favored denial of defendant's request and the modest weight he assigned to the fourth factor favoring withdrawal was not enough to make the case a close one that should be granted. Id. at 156. On those findings and applying the "interests of justice" standard applicable in this case because defendant moved to withdraw the plea prior to sentencing, ibid., the judge concluded that defendant did not meet his burden of proof.
On appeal defendant presents these issues:
POINT I
THE ORDER DENYING DEFENDANT'S MOTION TO VACATE HIS GUILTY PLEA WAS AN ABUSE OF THE TRIAL COURT'S DISCRETION SINCE DEFENDANT CLEARLY SATISFIED REQUIREMENTS OF STATE V. SLATER, 198 N.J. 145 (2009). IN THE ALTERNATIVE, A SECOND REMAND IS REQUIRED.
A. THE TRIAL COURT ERRED IN FINDING THAT NO COLORABLE CLAIM OF INNOCENCE HAD BEEN ASSERTED BY DEFENDANT REQUIRING REVERSAL OF THE COURT'S ORDER. IN THE ALTERNATIVE, THE MATTER SHOULD BE REMANDED BECAUSE THE COURT PROHIBITED TRIAL COUNSEL FROM TESTIFYING WHETHER OR NOT DEFENDANT DENIED GUILT TO HER ON THE DAY OF HIS PLEA.
B. BASED UPON DISCOVERY, IT IS UNCLEAR AS TO WHETHER OR NOT DEFENDANT IS FACTUALLY INNOCENT OF THE CHARGE FOR WHICH HE WAS CONVICTED, WHICH AT A MINIMUM REQUIRES A REMAND TO DETERMINE THE AGE OF THE ALLEGED VICTIM.
C. THE REMAND COURT IMPROPERLY WEIGHED THE REMAINING SLATER FACTORS RENDERING ITS OPINION AN ABUSE OF DISCRETION.
After considering the arguments in light of the record and the judge's thorough and thoughtful decision, we have concluded that they have insufficient merit to warrant more than a brief comment in a written opinion. R. 2:11-3(e)(2). A motion to withdraw a guilty plea is committed to the judge's sound discretion, and we find no abuse of that discretion here. See Slater, supra, 198 N.J. at 156; State v. Phillips, 133 N.J. Super. 515, 518 (App. Div. 1975). As noted at the outset of this opinion, we affirm substantially for the reasons stated in Judge Cronin's letter opinion.
For the sake of completeness, we address a claim that defendant raises for the first time on this appeal. He now argues that the factual basis he provided was inadequate to establish the elements of the crime to which he pled guilty. That crime applies to a person who has sexual contact with a child under the age of thirteen if the person is at least four years older than the child. N.J.S.A. 2C:14-2b. Ordinarily we would decline to consider that claim in the first instance, Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973), but in this case we reject the claim because the record demonstrates that it has no merit. It is true that the State did not produce the victim's birth certificate and that the reports in the file are inconsistent on the victim's age at the time of the incident. Nevertheless, at the time of his plea defendant acknowledged that he was eighteen at the time of the sexual contact, and he testified that since his encounter with the child he had learned that the victim was twelve years old when they had sexual contact.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION