Opinion
DOCKET NO. A-1862-13T1
10-26-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ANTHONY SWEENEY, Defendant-Appellant.
Joel Silberman, attorney for appellant. Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Gregory S. Mullens, Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Simonelli and Leone. On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 12-08-1429. Joel Silberman, attorney for appellant. Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Gregory S. Mullens, Assistant Prosecutor, on the brief). The opinion of the court was delivered by LEONE, J.A.D.
Defendant Anthony Sweeney appeals from his June 17, 2013 judgment of conviction. We affirm.
We granted defendant's motion to file a notice of appeal as within time. The case was originally heard on the Excessive Sentencing Oral Argument panel, but was transferred for disposition after full briefing on the regular calendar.
I.
After midnight on New Year's Eve, defendant drove while under the influence of alcohol and hit a bicyclist, causing serious injuries. Defendant was indicted for second-degree aggravated assault causing serious bodily injury, N.J.S.A. 2C:12-1(b)(1); third-degree assault by auto while driving while intoxicated, N.J.S.A. 2C:12-1(c)(2); fourth-degree assault by auto, N.J.S.A. 2C:12-1(c)(1); and fourth-degree aggravated assault causing bodily injury with a deadly weapon, N.J.S.A. 2C:12-1(b)(3). Defendant also received a ticket for driving while intoxicated (DWI), N.J.S.A. 39:4-50(a)(1).
Pursuant to a plea agreement, defendant pled guilty to second-degree aggravated assault causing serious bodily injury under N.J.S.A. 2C:12-1(b)(1). In return, the prosecutor agreed to move to dismiss the other charges, and to recommend a sentence of five years in prison, with 85% to be served before parole eligibility. At the sentencing hearing, defendant received the recommended sentence, which ran concurrent with his sentence on his separate plea to DWI entered at the sentencing hearing.
Defendant appeals, raising the following claims:
POINT I — APPELLANT'S CONVICTION SHOULD BE VACATED BECAUSE APPELLANT'S PLEA ALLOCUTION DID NOT ESTABLISH AN ADEQUATE FACTUAL BASIS FOR THE CHARGE OF 2ND DEGREE AGGRAVATED ASSAULT IN VIOLATION OF N.J.S.A. 2C:12-1(b)(1).
POINT II — APPELLANT'S CONVICTION MUST BE OVERTURNED BECAUSE HE WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT OF THE CONSTITUTION.
II.
"The standard of review of a trial court's denial of a motion to vacate a guilty plea for lack of an adequate factual basis is de novo." State v. Tate, 220 N.J. 393, 403-04 (2015). However, defendant did not make a motion to vacate his plea in the trial court. Accordingly, he must show plain error. R. 2:10-2. We must hew to that standard of review.
A judge must determine that there is "a factual basis for the [guilty] plea." R. 3:9-2. The factual basis for the plea can be established in either of two ways: "defendant may either explicitly admit guilt with respect to the elements or may 'acknowledge[ underlying] facts constituting the essential elements of the crime.'" State v. Campfield, 213 N.J. 218, 231 (2013) (citation omitted); see State v. Gregory, 220 N.J. 413, 419-20 (2015).
During his plea colloquy, defendant testified as follows. In the early morning darkness of January 1, 2012, he was driving his car in Jersey City though impaired by his use of alcohol. While driving under the influence, he hit the victim who was riding a bicycle. The victim sustained serious injuries.
At sentencing, it was represented that the victim required two surgeries before regaining the ability to walk and limited use of his arm. Defendant does not dispute it was sufficiently established that the victim suffered serious bodily injury.
Defendant's counsel at the aggravated assault plea (plea counsel) "stipulate[d] that the injuries were completely committed while [defendant] was recklessly operating the motor vehicle." Defendant then responded affirmatively that he still wanted to plead guilty and was "actually guilty." The trial court was "satisfied that defendant pled guilty freely and voluntarily, understood what he was doing, [and] waived his rights."
In his plea form, defendant similarly stated that he understood what the charges meant, and that he committed the offense to which he pled guilty.
Defendant now complains that he was not asked whether he was operating the motor vehicle recklessly. While that would have been preferable, it was not required. Trial courts may "consider at the plea hearing stipulations and facts admitted or adopted by the defendant when assessing the adequacy of a defendant's factual basis." Gregory, supra, 220 N.J. at 420; see, e.g., State v. Perez, 220 N.J. 423, 429, 435 (2015) (finding an adequate factual basis where the defense counsel stipulated to the age of the victim). Moreover, immediately after hearing his plea counsel's stipulation, defendant affirmed that he was actually guilty and wanted to plead guilty, thus adopting his plea counsel's statement. In any event, "'a defendant's driving while intoxicated may [by itself] support a determination of recklessness.'" State v. Bakka, 176 N.J. 533, 549 (2003) (quoting State v. LaBrutto, 114 N.J. 187, 204 (1989) (alteration in original)).
Defendant does not argue that an oral stipulation was barred by Rule 3:9-2, which provides that "[i]n addition to its inquiry of the defendant, the court may accept a written stipulation of facts, opinion, or state of mind that the defendant admits to be true, provided the stipulation is signed by the defendant, defense counsel, and the prosecutor." In any event, defendant's admitted driving while intoxicated provided sufficient "evidential support for the stipulation." State v. Norman, 405 N.J. Super. 149, 160-61 (App. Div. 2009).
Defendant principally argues that the colloquy did not address another element of aggravated assault. N.J.S.A. 2C:12-1(b)(1) provides that "[a] person is guilty of aggravated assault if he . . . [a]ttempts to cause serious bodily injury to another, or causes such injury purposely or knowingly or under circumstances manifesting extreme indifference to the value of human life recklessly causes such injury." Defendant contends that his plea colloquy was inadequate because he did not admit to having caused the injuries "under circumstances manifesting extreme indifference to the value of human life." Ibid. Again, it would have been preferable to ask defendant to admit guilt with respect to that element, but it was not required.
However, defendant acknowledged underlying facts that established that element, namely that he was driving while intoxicated. "A person who drives a motor vehicle while intoxicated, consciously disregards the risk of an accident and therefore acts with indifference to the value of human life when viewed in the context of all the surrounding circumstances." State v. Mara, 253 N.J. Super. 204, 213 (App. Div. 1992). Thus, "a jury may infer that an individual who drives while intoxicated is consciously disregarding the risk of an accident and acting with extreme indifference to human life." State v. Radziwil, 235 N.J. Super. 557, 563 (App. Div. 1989), aff'd o.b., 121 N.J. 527 (1990). By testifying that he drove while intoxicated, defendant provided sufficient basis to find that he acted "under circumstances manifesting extreme indifference to the value of human life." N.J.S.A. 2C:12-1(b)(1).
"'[I]n assessing whether a defendant has manifested extreme indifference to human life, the focus is not on the defendant's state of mind, but on the circumstances under which the defendant acted.'" State v. Wilder, 193 N.J. 398, 409 (2008) (quoting Cannel, New Jersey Criminal Code Annotated, comment 2 on N.J.S.A. 2C:11-4 (2007)); accord Model Jury Charge (Criminal), "Aggravated Assault — Serious Bodily Injury" (2012).
Defendant argues that Mara and Radziwil require a high level of intoxication. As set forth above, however, we imposed no requirement that a defendant be "highly" intoxicated in stating the principle of law allowing the inference "that an individual who drives while intoxicated is consciously disregarding the risk of an accident and acting with extreme indifference to human life." Radziwil, supra, 235 N.J. Super. at 563.
Defendant cites the facts in those cases. In Mara, the defendant had a blood alcohol content (BAC) of .16%, did not attempt to slow down before the accident, and did not stop or attempt to obtain assistance for the victim. Mara, supra, 253 N.J. Super. at 210, 213-14. In Radziwil, "the prosecutor lacked direct evidence of defendant's intoxication," and merely presented testimony that defendant had a "habit of getting intoxicated" at a social club, was traveling at a high rate of speed, lacked control over his vehicle, and fled the scene. Radziwil, supra, 235 N.J. Super. at 563, 570. Those facts provided added evidence to support the jury verdicts in those cases, but we did not limit the principle of law to cases involving such additional evidence.
The State attaches to its appellate brief police reports and photographs indicating it possessed additional evidence that defendant: had bloodshot eyes, had slurred speech, smelled of alcohol, was swaying, and was indifferent to the circumstances; admitted seeing the bicyclist but was unable to stop; left seventy-five-foot tire marks, and drove over the sidewalk into a dirt lot with the bicycle under his wheels; and caused the victim to damage the hood and shatter the windshield of defendant's car. Because this evidence was not filed or admitted in the trial court, they are not in the record on appeal. R. 2:5-4. We decline to "consider evidentiary material that is not in the record below." Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 452 (2007); see Tate, supra, 220 N.J. at 407-08 (declining to follow State v. Mitchell, 126 N.J. 565 (1992)).
Moreover, defendant ignores that this is a guilty plea, in which he admitted he drove impaired by and under the influence of alcohol, and stipulated he drove recklessly when he hit the bicyclist. That was sufficient evidence for the plea court to apply the principle set forth in these cases and "infer that an individual who drives while intoxicated is consciously disregarding the risk of an accident and acting with extreme indifference to human life." Radziwil, supra, 235 N.J. Super. at 563.
Defendant cites State v. Kromphold, 162 N.J. 345 (2000), which addressed whether "the sentencing court double-counted the defendant's level of intoxication by supporting the first aggravating factor with the same evidence that the jury was authorized to consider in determining whether the State had proved 'recklessness' or 'circumstances manifesting extreme indifference to the value of human life.'" Id. at 356 (quoting N.J.S.A. 2C:12-1(b)(1)). In so ruling, the Court commented that "the trial court properly permitted the jury to consider the extent of defendant's intoxication on the issue of defendant's recklessness" because "the presence of [a .10%] blood-alcohol level does not necessarily equate to reckless behavior that manifests extreme indifference to the value of human life." Ibid. Nothing in Kromphold holds that defendant's admitted driving while intoxicated was insufficient to show circumstances manifesting extreme indifference to the value of human life.
Defendant argues his guilty plea colloquy would also have supported a plea to assault by auto, which requires that a person drive a vehicle "recklessly and cause[] either serious bodily injury or bodily injury to another." N.J.S.A. 2C:12-1(c)(1). That is irrelevant to the validity of his separate guilty plea to aggravated assault. As set forth above, the colloquy also showed "circumstances manifesting extreme indifference to the value of human life," and thus aggravated assault under N.J.S.A. 2C:12-1(b)(1).
In the text of his argument, defendant challenges for the first time his plea colloquy to DWI, N.J.S.A. 39:4-50(a)(1). However, defendant's argument heading challenges only his "FACTUAL BASIS FOR THE CHARGE OF 2ND DEGREE AGGRAVATED ASSAULT IN VIOLATION OF N.J.S.A. 2C:12-1(b)(1)," and his brief asks us to vacate only that conviction. We decline to address the merits of an attack on a different conviction and a separate guilty plea proceeding, improperly presented "without a separate point heading, in violation of Rule 2:6-2(a)(5)." Mid-Atlantic Solar Energy Indus. Ass'n v. Christie, 418 N.J. Super. 499, 508 (App. Div. 2011), certif. denied, 207 N.J. 190 (2011); Dougherty v. N.J. State Parole Bd., 325 N.J. Super. 549, 553 (App. Div. 1999), certif. denied, 163 N.J. 77 (2000).
In any event, defendant cannot show that any error was "clearly capable of producing an unjust result." R. 2:10-2. Defendant does not claim or show that he did not act under circumstances manifesting extreme indifference to the value of human life. Further, defendant admitted to operating a motor vehicle while under the influence of intoxicating liquor, and plea counsel agreed that defendant's BAC was .084%, each of which was sufficient to show he committed DWI, N.J.S.A. 39:4-50(a)(1). Thus, defendant cannot show plain error.
We emphasize, however, that "'it is essential to elicit from the defendant a comprehensive factual basis, addressing each element of a given offense in substantial detail.'" State v. Urbina, 221 N.J. 509, 526 (2015) (quoting Campfield, supra, 213 N.J. at 236). "The court must be satisfied from the lips of the defendant that he committed every element of the crime charged." Perez, supra, 220 N.J. at 432-33 (citations and internal quotation marks omitted). Much of our analysis, and perhaps this appeal, might have been avoided if the parties or the trial court had directly asked defendant to admit each of the elements of the crimes.
III.
Next, defendant claims his counsel provided him with ineffective assistance of counsel. In fact, defendant had two attorneys: plea counsel, who represented him at the aggravated assault plea; and the "name partner" in the same law office, who represented him at his DWI plea and at his aggravated assault sentencing (sentencing counsel).
In his plea form and plea colloquy, defendant said he was satisfied with the advice he had received from his plea counsel. --------
Defendant argues that his counsel was unfamiliar with DWI, quoting sentencing counsel's statements at sentencing, including that he did not do "much Municipal Court work anymore." Defendant also asserts that his counsel failed to comprehend the relevant law and guided defendant into a factually and legally deficient plea agreement that prejudiced him. However, the current record does not allow us to determine the factual questions raised by defendant's claim, including: whether sentencing counsel had any role in defendant's entry into his aggravated assault plea; whether plea counsel had more recent experience with such pleas; whether plea counsel or sentencing counsel was unaware of the relevant law; or whether defendant was prejudiced by the plea agreement. See State v. Nunez-Valdez, 200 N.J. 129, 139 (2009) (a defendant must show "'there is a reasonable probability that, but for counsel's errors, [the defendant] would not have pled guilty and would have insisted on going to trial'").
New Jersey courts "routinely decline to entertain ineffective-assistance-of-counsel claims on direct appeal because those claims 'involve allegations and evidence that lie outside the trial record.'" State v. Hess, 207 N.J. 123, 145 (2011) (citation omitted). Such claims generally "should be determined in a post-conviction relief [PCR] proceeding." State v. McDonald, 211 N.J. 4, 30 (2012). Because the record before us is inadequate to adjudicate defendant's ineffectiveness claim, we decline to address it on direct appeal. Our decision "is without prejudice to [any] right that he may have to raise this issue in post-conviction relief proceedings." State v. Loftin, 287 N.J. Super. 76, 110 (App. Div.), certif. denied, 144 N.J. 175 (1996).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION