Opinion
DOCKET NO. A-3065-09T1
08-04-2011
STATE OF NEW JERSEY, Plaintiff-Respondent, v. DIJON B. PEELE, a/k/a DAMIEN WILKERSON, Defendant-Appellant.
Nelson, Fromer & Crocco, attorneys for appellant (Steven E. Nelson, of counsel; Jeffrey Zajac, on the brief). Marlene Lynch Ford, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Supervising Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad and R. B. Coleman.
On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 01-12-1634.
Nelson, Fromer & Crocco, attorneys for appellant (Steven E. Nelson, of counsel; Jeffrey Zajac, on the brief).
Marlene Lynch Ford, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Supervising Assistant Prosecutor, on the brief). PER CURIAM
On December 12, 2001, an Ocean County grand jury returned Indictment Number 01-12-1634 charging defendant Dijon B. Peele with third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1) (count one) and first-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35- 5(a)(1), N.J.S.A. 2C:35-5(b)(1) (count two). The first-degree charge in count two was based on the reported finding of the Ocean County Criminalistics Investigation Unit (OCCIU) that the suspected CDS seized from defendant's person at the time of his arrest tested positive for cocaine with a "total weight" of 142.4 grams, which excluded the requisite five ounces (141.7 grams) for a crime of the first degree.
Following his indictment, defendant failed to appear for a scheduled status conference on July 23, 2002, and a bench warrant was issued for his arrest. Almost five years later, on June 7, 2007, he was arrested in Illinois for drug charges unrelated to the charges that were the subject of Indictment Number 01-12-1634 (the indictment) and in July 2008, defendant entered a plea of guilty to one of the offenses charged in Illinois. He was sentenced to an eight-year prison term in that state.
On February 27, 2009, defendant was transported from Illinois to New Jersey, pursuant to the Interstate Agreement on Detainers, N.J.S.A. 2A:159-1 to -15, to face the indictment in this case. At that time, defendant's original defense counsel (original counsel) filed a motion to dismiss the indictment on due process grounds. However, before that motion was heard, defendant agreed to enter a plea of guilty to count two of the indictment and the motion was withdrawn. At the plea hearing, on March 10, 2009, the prosecutor informed the court of the following understanding between the parties:
Your Honor, it's the State's understanding Mr. Peele will be pleading guilty on Indictment 01-12-1634 to Count 2, possession with intent to distribute a controlled dangerous substance, a first-degree crime.
In exchange for the defendant's guilty plea, the State will be recommending a sentence of 20 years to the custody of New Jersey State Department of Corrections, with an 81-month period of parole ineligibility. This sentence is pursuant to the Brimage guidelines. The defendant is mandatory extended term pursuant to those guidelines. The State will file the appropriate motion.
Furthermore, your Honor, the State will be seek[ing] a consecutive sentence to the sentence that Mr. Peele is currently serving in Illinois which my understanding is an eight-year sentence. The defendant does reserve the right to argue for a concurrent sentence to the Illinois sentence.
Additionally, the balance of the indictment as well as Summons S-2001-16521514, Count 1, and Motor Vehicle Summons S-139549 and 550 are to be dismissed at the time of sentence.
Your Honor, in Paragraph 21, the defendant has reserved the right to argue for a concurrent sentence. And the Court has indicated that it will strongly consider giving such a concurrent sentence.
During the court's examination of defendant, he acknowledged that it was his intention to plead guilty to count two of Indictment 01-12-1634, which charged a first-degree offense for which defendant could receive twenty years in prison. At that point, the prosecutor interjected: "Your Honor, 20 years would be the low end of the mandatory extended term, in my understanding. So that's what the plea offer we made was low end, mandatory extended term." The court then asked, "So without a plea agreement, he would be subject to 20 years to life; right?" to which the prosecutor answered "Yes."
Continuing with the allocution, the following exchange took place between Judge Francis R. Hodgson, Jr., and defendant:
[JUDGE]: So you understand that without a plea agreement, you would be subject to 20 years to life for a guilty plea to this charge?
[DEFENDANT]: Yes.
[JUDGE]: It's your understanding that there's a plea agreement between yourself, your attorney and the State pursuant to which the State will be seeking a Brimage, what is a so-called Brimage term of 20 years with 81 months without parole, consecutive to the sentence you are currently serving in Illinois.
Is that your understanding of what the prosecutor will be seeking?
[DEFENDANT]: Yes.
[JUDGE]: You also understand that the Court, myself, will determine whether or not you will get a consecutive or concurrent term, but that the term is going to be 20 years with 81 months. The question is
whether it's going to [be] consecutive or concurrent, and that based on what the attorney has told me about this case, what I've indicated is that I'd be inclined to sentence you concurrently --
[DEFENDANT]: Yes.
[JUDGE]: -- to your sentence in Illinois, here on in there are going to be interstate detainers application.
[DEFENDANT]: Yes.
[JUDGE]: And that based on what I know about your case that I'd be inclined to sentence you concurrently.
[DEFENDANT]: Yes.
Based on his examination of defendant, the judge found that there was a factual basis for the court to accept the plea as offered and that defendant had "freely, knowingly and voluntarily given up his right to trial by jury and ha[d] entered into a guilty plea which is based in part upon the terms of the plea agreement set forth in the plea forms and on the record."
The sentencing hearing was expedited so defendant could be returned to the custody of Illinois. Thus, on March 13, 2009, three days after defendant had entered his plea of guilty, the court imposed the twenty-year sentence in accordance with the plea agreement, with an 81 month period of parole ineligibility. As he had indicated he would, the judge ordered that the sentence was to run concurrent to the sentence defendant was then serving in Illinois.
On April 17, 2009, about a month after the sentence was imposed, defendant filed a pro se motion to withdraw his guilty plea. In the affidavit submitted in connection with his motion, defendant asserts that original counsel did not properly advise him of the consequences of his plea and that he did not understand what he was agreeing to. Defendant contends his original counsel told him any sentence in New Jersey would run concurrently with his Illinois sentence, and that once he was finished with the Illinois sentence, he would not have to "do any time in the State of New Jersey."
On May 29, 2009, defendant retained current counsel to pursue the motion to withdraw a guilty plea. According to current counsel's certification, after he received the file from original counsel, and while researching, he noted that the laboratory report indicated that the "total weight" of the CDS, 142.4 grams, was only seven/tenths of a gram over five ounces. Current counsel contacted original counsel and inquired as to whether he had requested a copy of the chemist notes from the OCCIU, to potentially challenge the alleged weight of the cocaine. Original counsel advised that he had not requested those notes.
By letter dated August 6, 2009, counsel asked the prosecutor to provide the chemist's notes from the forensic analysis of the substance submitted to the OCCIU which reportedly tested positive for cocaine with a "total weight" of 142.4 grams. By letter dated August 26, 2009, the prosecutor advised defense counsel that he would not provide the requested discovery material. Counsel thereafter filed a motion to compel discovery, seeking among other things:
The entire file from the Ocean County Sheriff's Department, Criminalistics Investigative Unit regarding the receipt, forensic analysis and results of the examination of the suspected CDS submitted to the OCCIU on or about August 22, 2001 and resulting in Evidence Report 2603-2001 dated September 17, 2001.On December 11, 2009, at the conclusion of oral arguments on the motions to withdraw the guilty plea and to compel discovery, the judge denied both motions, prompting this appeal.
In his brief on the appeal, defendant raised the following points of argument:
POINT I: IN DENYING MR. PEELE'S MOTION TO WITHDRAW HIS GUILTY PLEA, THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY MISAPPLYING THE SUPREME COURT'S DECISION IN SLATER.
a. Because He Did Not Knowingly Enter Into the Plea Agreement Below, Mr. Peele's Motion to Withdraw His Guilty Plea Should Have Been Granted.
POINT II: THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION TO COMPEL DISCOVERY.i. The failure by initial defense counsel to conduct discovery to confirm the weight of the alleged cocaine precluded Mr. Peele from knowingly entering into the plea agreement.b. The Trial Court Erred in Denying Mr. Peele's Motion to Withdraw His Plea.
ii. The hurried nature of the plea agreement and sentencing does not evidence that Mr. Peele entered into the plea agreement in knowing manner.
iii. Because Mr. Peele was misinformed as to sentencing, he did not knowingly enter into the plea agreement below.
a. Under the Court Rules of New Jersey, Mr. Peele was Entitled to the Post-judgment Discovery Requested in Defense Counsel's Motion Below.
b. Principles of Judicial Economy Compelled the Granting of Defense Counsel's Discovery.
Having reviewed these contentions in light of the record and the controlling legal principles, we affirm the denial of the motion to withdraw the guilty plea, as well as the denial of the motion for discovery.
I.
It is well established that "[a] guilty plea that is not voluntary and knowing violates due process and thus is constitutionally defective." State ex rel. T.M., 166 N.J. 319, 327 (2001). To vacate a plea, however, a "'defendant must show not only that he was misinformed of the terms of the agreement or that the sentence violated his reasonable expectations, but also that he is prejudiced by enforcement of the agreement.'" State v. Johnson, 182 N.J. 232, 241 (2005) (quoting State v. Howard, 110 N.J. 113, 123 (1988)).
The Supreme Court reviewed the standards governing motions to withdraw a guilty plea in State v. Slater, 198 N.J. 145 (2009). There, the Court identified four factors that trial judges are to consider and balance in evaluating motions to withdraw a guilty plea. Those factors are:
(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.]
This multi-faceted test applies to motions filed either before or after sentencing, but pre-sentence motions to withdraw a plea are governed by the more liberal "interest of justice" standard pursuant to Rule 3:9-3(e), while post-sentence motions, such as the motion under review, are subject to a higher standard of "manifest injustice" pursuant to Rule 3:21-1. Id. at 158. Regardless of the timing, "'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.'" Id. at 156 (quoting State v. Smullen, 118 N.J. 408, 416 (1990)). "In meeting their burden, defendants must show more than a change of heart." Id. at 157.
Here, defendant submits that his motion to withdraw should have been granted for essentially two reasons. First, he contends his original counsel failed to investigate and challenge the reported weight of the cocaine, which was only slightly above the quantity that qualified possession as a first-degree crime. Second, defendant complains he was not told that he would still be required to serve prison time in New Jersey following his release from prison in Illinois. Given these alleged shortcomings on the part of his original counsel, defendant argues he could not have made his plea knowingly.
Notwithstanding such arguments by defendant, Judge Hodgson determined that the plea had been entered knowingly, intelligently, and voluntarily after consultation with counsel. We are satisfied that the judge properly considered the factors identified in the four-factor Slater standard, and justifiably denied defendant's motion to withdraw his plea of guilty to the first-degree offense.
Certainly, it was or should have been clear that the quantity of the drugs alleged in the indictment was close to the statutory limit for a first-degree crime. Obviously, that would likely be a major point of contention if the matter were to be tried, however, there is nothing offered by defendant to suggest that he and his original counsel did not appreciate that the quantity reported was only slightly above the amount that would support a conviction of a first-degree offense. The same appreciation of that fact well may have motivated the State to offer defendant the plea agreement that limited his period of incarceration to twenty years, whereas a conviction after trial could have exposed defendant to a sentence from twenty years to life. In other words, the quantity of drugs was a strategic consideration for both sides. Plainly, defendant could have obtained an independent assay of the drugs to confirm whether the quantity was over the critical limit, but if the reported quantity were confirmed, all leverage for negotiating the sentence at the low end of the extended term would have been lost.
Defendant's second complaint about his original counsel — that he did not tell him he would still have to serve time in New Jersey after completion of his sentence in Illinois — lacks merit on its face. That complaint is belied by simple arithmetic and by the record established at the plea hearing. At all times, it was repeated in open court that, pursuant to the plea agreement, defendant would be serving twenty years on the New Jersey sentence. The sole question was whether it would be consecutive to the Illinois sentence or concurrent. Either way, the New Jersey sentence was longer than the Illinois sentence.
Judge Hodgson undertook a proper and thorough analysis in denying defendant's motion to withdraw his guilty plea. The first factor under the Slater standard requires the court to determine "whether the defendant asserted a colorable claim of innocence." Slater, supra, 198 N.J. at 157. "A bare assertion of innocence is insufficient to justify withdrawal of a plea. Defendants must present specific, credible facts and, where possible, point to facts in the record that buttress their claim." Id. at 158. Here, the trial court observed "[t]he defendant made no claims to this court that he is innocent of the charge to which he pled guilty, nor would such claim find support in the record." Defendant merely points out that to be convicted of the first-degree possession of CDS crime, the CDS must be five ounces or more and that the "total weight" of the CDS seized and tested by the State was a "mere seven-tenths" of a gram above five ounces, and he speculates something besides that substance may have been the tipping point between the first-degree and second-degree crime. Such speculation does not warrant an order withdrawing the guilty plea.
Although defendant now posits that he could not have entered into his plea agreement "knowingly" since there was no verification that the cocaine actually weighed five ounces, he knew the charge was based on the quantity possessed. As already noted, if he had obtained that verification he now claims was essential to a knowing plea, the State would have had no incentive to offer a plea bargain.
Defendant emphasizes that his original attorney never requested discovery of the chemist's notes and never procured an independent weighing of the substance. Nevertheless, after the trial judge personally questioned defendant concerning his understanding of the charge to which he was pleading guilty, defendant admitted that the quantity he possessed was sufficient to constitute a first-degree crime. The record does not reflect that original counsel or anyone else misinformed defendant about the quantities of drugs involved or the consequence of such quantities. We find no reason to disagree with the trial judge's finding that defendant had not made a "colorable claim of innocence."
While his arguments sound like a claim of ineffective assistance of counsel, defendant states that he is not raising ineffective assistance of counsel and that he is preserving that claim for post-conviction relief. Without conceding that such a reservation is appropriate, we are limiting our consideration to whether the court properly denied the motion to withdraw the plea on the record established.
The second factor of the Slater standard requires the court to assess "the nature and strength of defendant's reasons for his withdrawal." Id. at 159. "This second factor 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." Ibid. In assessing the second factor, the court "should not approach" defendant's reasons for withdrawal "with skepticism." Id. at 160. "At the same time, trial judges must act with 'great care and realism' because defendants often have little to lose in challenging a guilty plea." Ibid. (quoting State v. Taylor, 80 N.J. 353, 365 (1979)).
Here, defendant sets forth three reasons that allegedly warrant withdrawal of his guilty plea: (1) defense counsel failed to confirm the weight of the CDS found in defendant's possession; (2) the plea proceedings were conducted in a "hurried manner"; and (3) defendant was misinformed as to ultimate effect of concurrent sentencing. None of those is a compelling reason to vacate the guilty plea. The first two were known or were obvious at the time. As to the assertion that the plea was based on a misrepresentation or misunderstanding with his original counsel, the motion judge observed:
[D]efendant pled guilty when he knew he was getting a 20-year New Jersey sentence to run concurrent to his 40 [sic] year Illinois sentence he was already serving. There was no indication that it would be coterminous or that his sentence would end at the same time as the Illinois sentence. Now, defendant claims he was misinformed by his counsel that he would not have any New Jersey time remaining once his Illinois sentence was served.
. . . .
[T]he defendant never explicitly states that he would never [sic] entered into the plea agreement if this evidence was available to him.
Indeed the proofs appear to be very strong against the defendant. A search warrant was executed and a substantial
amount of drugs were found. The sentence would probably, in all likelihood, result in a consecutive sentence as he was serving a sentence in Illinois, so there was no indication that defendant would not have entered the plea had he been told that he had additional time to serve in new Jersey after his Illinois sentence.
The judge also noted that "the Court, nor the Prosecutor misinformed the defendant. . . . [n]othing in the existing case law known to this Court supports the notion that a misinformation about the timeliness of an overlap of a sentence imposed with an existing out of state sentence is a deficiency as to a penal consequence sufficient to grant the relief sought."
Judge Hodgson further rejected the claim that original counsel failed to conduct an adequate pre-trial investigation with respect to the quantity of CDS, and considered it an attempt at a "backdoor argument for ineffective assistance of counsel at this Court without making it a PCR." As we have noted, defendant specifically wishes to preserve the ineffective assistance of counsel claim for PCR, and as a result, we do not determine whether original counsel's failure to request a verification of the CDS weight was deficient performance "not within the range of competence demanded of attorneys in criminal cases." State v. Nunez-Valdez, 200 N.J. 129, 139 (2009) (quoting State v. DiFrisco, 137 N.J. 434, 457 (1994)). Accepting that a defendant's claim of ineffectiveness of counsel is best addressed in a post-conviction relief proceeding, State v. Preciose, 129 N.J. 451, 460 (1992), the judge did not consider this argument relevant to the question of whether defendant entered into a knowing and intelligent plea. On the other hand, there is no evidence in this record that defendant ever requested his prior counsel to confirm the weight of the CDS, nor evidence that he ever challenged the weight before he was sentenced. Indeed, it is not clear what triggered defendant's belated realization that he would still have time to serve in New Jersey after the completion of his sentence in Illinois.
The third factor requires the court to consider whether the plea had been entered as part of a plea bargain. Slater, supra, 198 N.J. at 158. "Under our case law, defendants have a heavier burden in seeking to withdraw pleas entered as part of a plea bargain." Ibid. Although the motion judge determined that this third factor should not be given "great weight" under the standard, id. at 161, it unquestionably weighs in favor of the State as the plea was a negotiated plea.
Under the fourth factor, the court should consider "whether withdrawal [of the plea] would result in unfair prejudice to the State or unfair advantage to the accused." Id. at 158. "There is no fixed formula to analyze the degree of unfair prejudice or advantage that should override withdrawal of a plea." Id. at 161. Other than the lack of finality, we do not discern any disadvantage to the State or advantage to defendant. In light of the first three Slater factors favoring the State, however, we agree there was a justifiable basis for the trial court's denial of the motion to withdraw his guilty plea.
II.
Finally, defendant submits that the trial court erred in denying his motion to compel discovery. The trial judge denied this request and explained that "I am with the opinion that once a guilty plea, there is no entitlement [to discovery] in this Court. There may be a need as a result of a PCR at a later date, but not in the parameters of this motion to withdraw the guilty plea. I view it as . . . a fishing expedition." The Supreme Court has stated that "'there is no postconviction right to fish through official files for belated grounds of attack on the judgment, or to confirm mere speculation or hope that a basis for collateral relief may exist.'" State v. Marshall, 148 N.J. 189, 270 (1997) (quoting People v. Gonzalez, 800 P. 2d 1159, 1205 (1990), cert. denied, 502 U.S. 835, 112 S. Ct. 117, 116 L. Ed. 2d 85 (1991)). In a slightly different procedural context, the Court has stated:
We anticipate that only in the unusual case will a PCR court invoke its inherent right to compel discovery. In most cases, a post-conviction petitioner will be fully informed of the documentary source of the errors that he brings to the PCR court's attention. Moreover, we note that PCR "is not a device for investigating possible claims, but a means for vindicating actual claims." The filing of a petition for PCR is not a license to obtain unlimited information from the State, but a means through which a defendant may demonstrate to a reviewing court that he was convicted or sentenced in violation of his rights.Presumably, defendant may obtain the discovery he desires to pursue a PCR, and though "there is no Court Rule explicitly governing post-conviction discovery," the court has the discretion to grant the relief where good cause is shown. Id. at 275. In any event, we find this argument better reserved for consideration, if warranted, in connection with defendant's anticipated petition for post-conviction relief.
[Id. at 270 (internal citations omitted).]
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
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CLERK OF THE APPELLATE DIVISION