Opinion
DOCKET NO. A-6088-11T3
04-21-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ORIGRA RICHARDSON, JR., Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Diane Toscano, Assistant Deputy Public Defender, of counsel and on the brief). Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Nicole D. Wallace, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Sapp-Peterson and Hoffman.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 11-02-0239.
Joseph E. Krakora, Public Defender, attorney for appellant (Diane Toscano, Assistant Deputy Public Defender, of counsel and on the brief).
Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Nicole D. Wallace, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant appeals from the denial of his motion to vacate his guilty plea. The trial court found defendant failed to satisfy the requirements for withdrawal of his plea under State v. Slater, 198 N.J. 145 (2009), and denied the motion. We affirm, substantially for the reasons expressed by Judge Anthony J. Mellaci, Jr., in his June 8, 2012 oral opinion.
On August 9, 2011, defendant appeared before Judge Mellaci and entered a guilty plea to second-degree possession of a controlled dangerous substance with the intent to distribute, N.J.S.A. 2C:35-5(b)(2) (count four) and second-degree possession of a firearm in the course of committing a drug offense, N.J.S.A. 2C:39-4.1(a) (count six). In exchange for the guilty pleas on these two offenses, the State agreed to dismiss the remaining narcotics and weapons offenses in the eight-count indictment. The State additionally agreed to recommend a ten-year custodial term on count four with a thirty-nine-month period of parole ineligibility pursuant to the Brimage guidelines and a consecutive five-year custodial term on count six, with a thirty-six-month period of parole ineligibility. Thus, the State agreed to recommend an aggregate fifteen-year custodial sentence with a seventy-five-month period of parole ineligibility. Finally, the State agreed to dismiss the charges against co-defendant Tammy Richardson, defendant's wife, who was named, along with defendant, in five counts of the indictment.
State v. Brimage, 153 N.J. 1 (1998)
After the terms of the plea agreement were placed on the record, the court personally addressed defendant as to his understanding of its terms, the voluntariness of his plea, his satisfaction with trial counsel, his personal background, including whether he had a physical or mental disability that would affect his ability to understand the proceedings or the plea papers he completed. Additionally, the court reviewed the consequences of pleading guilty to a weapons offense and alerted him to the possibility of the imposition of an extended term on the narcotics offense, which could increase his custodial term to thirty years with a fifteen-year period of parole ineligibility. The judge also questioned defendant regarding the operability of the weapon. Finally, the court advised defendant of his right to a jury trial as well the fines and penalties to which he would be exposed in the event the court accepted his guilty plea.
Once the court completed its colloquy with defendant, his trial counsel questioned him about the circumstances surrounding the commission of the two offenses. Defendant acknowledged his culpability, exculpated his wife's involvement, and in response to another question from the court, acknowledged that he had executed a consent form permitting police to search his residence, where they subsequently found the weapon and narcotics in defendant's closet.
Prior to sentencing, defendant filed a motion seeking to withdraw his guilty plea. In the certification he submitted in support of the motion, he maintained his innocence, stated his attorney failed to fully investigate the matter and pressured him into accepting the negotiated plea agreement. He additionally maintained his attorney failed to investigate the inconsistencies in the charges returned by the grand jury and also failed to order the grand jury transcripts. Finally, he stated that his attorney told him that his wife faced significant charges if he did not plead guilty and therefore did so in large part to resolve the case against his wife. For all of these expressed reasons, defendant maintained that his guilty plea was not entered voluntarily.
In a thorough and well-reasoned oral opinion, Judge Mellaci considered the application pursuant to factors outlined in Slater and found the interests of justice, which is the standard for vacating a guilty plea, prior to sentencing, did not mandate granting defendant's application. He first noted that the plea allocution was conducted in accordance with Rule 3:9-2. The judge considered that without the negotiated plea agreement defendant was facing potentially thirty years with a fifteen- year period of parole ineligibility. Next, the judge reviewed the plea colloquy during which defendant expressed his satisfaction with his lawyer, stated that he had had ample time to review the weaknesses and strengths of the case, and acknowledged the voluntariness of his decision to plead guilty. Judge Mellaci was also satisfied there was an adequate factual basis for the guilty pleas and that in contrast, his desire to withdraw the guilty pleas was based upon the bare assertion of innocence, without anything more. Finally, the judge noted that only the "passage of time may impede the State's ability to prosecute," without definitively finding prejudice. However, the judge appropriately noted that where a defendant is unable to satisfy the other Slater factors, the State need not show prejudice. The court thereafter sentenced defendant in accordance with the plea agreement. The present appeal ensued.
On appeal, defendant contends the trial court erred in denying his motion to withdraw his guilty plea and did so contrary to the principles of due process and fundamental fairness guaranteed under both the federal and state constitutions. We disagree.
"[A] defendant's application to retract a plea must be considered in light of the competing interests of the State and the defendant." Slater, supra, 198 N.J. at 155. There is a strong public interest in the finality of plea agreements. Ibid.; State v. Smullen, 118 N.J. 408, 416 (1990). However, a defendant may seek to withdraw a guilty plea, and the standard is relatively liberal when such a motion is made prior to sentencing pursuant to Rule 3:9—3(e). Slater, supra, 198 N.J. at 156. In making the motion, a defendant must produce evidence to satisfy the following four-prong standard:
We hold that trial judges are to consider and balance four factors in evaluating motions 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.
[Id. at 157—58.]
We review Judge Mellaci's decision to deny the motion under an abuse of discretion standard. Slater, supra, 198 N.J, at 156. In conducting that review, we are bound by the judge's factual findings and we owe particular deference to his credibility determinations. State v. Locurto, 157 N.J. 463, 470—74 (1999).
In this case, the fact that defendant was motivated by his desire to exculpate his wife did not negate the voluntariness of his guilty plea. As the Court reasoned, "the relevant question is not whether defendant was sensitive to external consideration[s,] many defendants are[,] but instead whether the decision to plead was voluntary, i.e., a product of free will." State v. Simon, 161 N.J. 416, 445 (1999) (citations and internal quotation marks omitted). Thus, defendant's sense of pressure to plead guilty to spare his wife from criminal prosecution is a form of pressure, but Judge Mellaci found defendant's claim that it was his attorney who coerced him into pleading guilty was not credible. This finding is entitled to deference because it is fully supported by the record of the plea colloquy and Judge Mellaci's observation of defendant during the plea proceedings.
Under oath defendant expressed his satisfaction with his attorney, he stated that he had the opportunity to discuss the strengths and weaknesses of his case with his attorney and confirmed the voluntariness of his guilty plea. He also acknowledged his full understanding of the penal consequences of his guilty plea, including his potential thirty-year custodial sentence with a fifteen-year period of parole ineligibility.
Finally, the court's imposition of consecutive sentences was statutorily mandated. N.J.S.A. 2C:39-4.1(d) requires the imposition of a consecutive sentence where a defendant has been convicted of a weapons offense in connection with a narcotics offense. Defendant was fully aware of this penal consequence prior to accepting the plea agreement.
In short, the record fully supports Judge Mellaci's finding that defendant knowingly pled guilty to the two offenses; failed to present credible evidence that his attorney coerced him into pleading guilty or that his plea was anything other than voluntary; and defendant failed to present a colorable claim of innocence. Because defendant failed to produce credible evidence to satisfy the Slater standards, Judge Mellaci did not abuse his discretion in denying the motion. Slater, supra, 198 N.J. at 156.
Affirmed
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION