Opinion
DOCKET NO. A-5612-14T2
07-08-2016
STATE OF NEW JERSEY, Plaintiff-Appellant, v. SHERARD WILLIAMS, Defendant-Respondent.
Robert D. Bernardi, Burlington County Prosecutor, attorney for appellant (Jennifer Paszkiewicz, Assistant Prosecutor, of counsel and on the brief). Joseph E. Krakora, Public Defender, attorney for respondent (Diane Toscano, Assistant Deputy Public Defender, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Lihotz and Nugent. On appeal from Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 14-05-0486. Robert D. Bernardi, Burlington County Prosecutor, attorney for appellant (Jennifer Paszkiewicz, Assistant Prosecutor, of counsel and on the brief). Joseph E. Krakora, Public Defender, attorney for respondent (Diane Toscano, Assistant Deputy Public Defender, of counsel and on the brief). PER CURIAM
The State appeals from a July 10, 2015 order denying its motion for reconsideration of a prior order denying its request to vacate a plea agreement and stay defendant's sentencing. The State argued the explicit terms of the negotiated plea agreement required defendant's testimony during the trial of his co- defendant. The State moved to vacate the plea when defendant refused to testify. The trial judge declined and imposed sentence based on the plea agreement terms. On appeal, the State argues:
POINT I
THE TRIAL COURT ERRED IN DENYING THE STATE'S MOTION TO RECONSIDER ITS MOTION TO STAY SENTENCING PENDING APPEAL WHEN THE INTERESTS OF JUSTICE DEMANDED RECONSIDERATION.
POINT II
THE TRIAL COURT ERRED IN DENYING THE STATE'S MOTION FOR A STAY OF SENTENCE PENDING APPEAL BECAUSE THE COURT ABUSED ITS DISCRETION IN HOLDING THAT THE DEFENDANT'S REFUSAL TO TESTIFY AGAINST HIS CODEFENDANT, A MATERIAL TERM OF HIS NEGOTIATED PLEA AGREEMENT, DID NOT WARRANT VACATION OF DEFENDANT'S GUILTY PLEA.
Although we conclude the State should have been given an opportunity to appeal from the denial of its motion to vacate the plea agreement because of defendant's alleged breach, we are constrained to dismiss the appeal because defendant has commenced serving his sentence and double jeopardy has attached.
The facts underlying this case are undisputed. On December 13, 2013, defendant, along with co-defendants Issiah Williams and Jaquan Knight, executed a planned robbery of a residence in Burlington City with the objective of stealing Percocet. Co-defendant Knight remained outside as the getaway driver while defendant and Williams entered the residence. Williams was armed with and displayed a shotgun during the commission of the robbery.
Noting he has the same surname as defendant, references to Williams in our opinion refer to co-defendant Issiah Williams. We also note the transcripts refer to Williams' first name as "Isaiah"; we adopt the spelling stated in the indictment.
Defendant, Knight and Williams were charged in Indictment No. 14-05-0486 with: first-degree robbery (count one), N.J.S.A. 2C:14-1(a)(1) and (2); second-degree conspiracy (count two), N.J.S.A. 2C:5-2(a)(1); second-degree possession of a firearm by convicted persons (count four), N.J.S.A. 2C:39-7(b); and fourth-degree unlawful possession of a weapon (count five), N.J.S.A. 2C:39-5(d). Defendant and Williams were also charged with second-degree aggravated assault (count three), N.J.S.A. 2C:12-1(b)(1).
Following the indictment, defendant voluntarily confessed. In exchange for defendant's guilty plea to conspiracy, the State agreed to dismiss the remaining charges and recommend a six-year term of imprisonment, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Although the written plea agreement does not contain a specific reference, defendant accepted the obligation to testify during Williams' trial. When the terms of the plea agreement were placed on the record, defense counsel stated:
Knight entered a guilty plea to robbery and was sentenced to eight years in prison, subject to NERA.
[DEFENSE COUNSEL]: . . . [Defendant] and I have discussed it. And he has made a statement to the police. . . . He has no problem standing by that statement and in his factual acknowledging the facts that actually occurred in regards to the people with him. It's just the fact that he will have paperwork, he is going to State Prison, and the last things he wants written on there is truthful testimony.
THE COURT: I understand. All right.
[DEFENSE COUNSEL]: . . . I did explain to [defendant] that as far as the State is concerned if they went to trial on a co-defendant, they could always call [defendant]. And technically he's under oath. And, under oath, he has to give truthful testimony.
So just because it's not going to say it and just because he's not standing here saying, yes, I will give truthful testimony as part of the plea, doesn't mean he can't be called at a later time for trial purposes.
THE COURT: Right. You don't want any misunderstandings.
[DEFENSE COUNSEL]: No. I want him to know that it still could happen for trial purposes and he understands that. He understands the statement. We just discussed the fact that he did give a statement before. And, again, there's no problem with that.
. . . .
[THE PROSECUTOR]: -- under Indictment 2014-05-486-I, this defendant will be pleading guilty to [c]ount two[,] which is second degree conspiracy to commit robbery. And the agreed-upon sentence is six years in New Jersey State Prison, 85 percent without parole, mandatory fines and penalties. He is also subject to three years of parole supervision. . . . And he agrees to give truthful testimony[,] but not officially written on the plea papers[,] but he agrees to it verbally.
Defense counsel further acknowledged the State's representations accurately reflected the plea agreement, as negotiated. Defendant was placed under oath and examined by the judge. The judge repeated the terms of the agreement then stated:
THE COURT: Is that the entire agreement as you understand it to be — oh, the truthful testimony. You'll be giving a proffer. And you may be called upon to testify truthfully at trial. Do you understand that?Toward the close of the hearing, defense counsel stated:
[DEFENDANT]: Yes.
[DEFENSE COUNSEL]: Your honor, if I can make one quick request. I know that you had mentioned as part of the plea agreement and I know when we mention things, they get put on the minutes, the court minutes.
But, again, as far as truthful testimony, we're asking that that not be listed. Today, [defendant] gave his proffer. He stands by his statement. That can be used later against him if he takes
the stand, but I'd ask for it not to be read in —
[UNIDENTIFIED SPEAKER]: (Indiscernible)
[DEFENSE COUNSEL]: Sorry, Judge. Thank you, thank you.
Defendant's sentencing was delayed pending disposition of the charges against his co-defendant. Defendant was notified he would be called as a material witness to testify at Williams' trial. When the assistant prosecutor met with defendant, he was "adamant" he would not cooperate and was unwilling to testify. Thereafter, the State requested defendant not be sentenced until Williams' trial concluded. Attempts to change defendant's position were unsuccessful. Ultimately, Williams and the State negotiated a plea agreement.
The State moved to vacate defendant's guilty plea, arguing defendant breached a critical term of the contract, explaining "the reason for the State filing its notice of motion and motion papers in support of the motion is because [defendant] has willfully failed to comply with material terms of the plea agreement." The State had interviewed defendant in preparation for Williams' trial and he refused to testify. Before the motion judge, the assistant prosecutor argued: "But for [defendant]'s noncompliance, we were forced to do the unconscionable." This referred to the plea agreement with Williams, recommending he serve 364 days in county jail. Defense counsel opposed the motion and argued the State had "tools in [its] tool box for trial," including defendant's proffer and custodial statement, along with the four victims and Knight.
Following argument, the judge considered all of the evidence. She noted there were several witnesses, other than defendant, whom the State could call. Reading from one victim's impact statement, the judge found the victim could provide a positive identification of the perpetrators. She next recounted defendant's reluctance to testify, noting it was not sudden and, in part, resulted when his family was threatened after a newspaper report of the upcoming trial stated he was the State's witness. Further, she noted defendant was never called during a Rule 104 hearing to state his position on whether he would testify. In fact, the judge was aware the State informed the court it reached a plea agreement with Williams before defendant was sentenced. Based on her objective analysis of these facts, the judge rejected the State's position defendant "refused" to testify at trial, stating "it would be difficult to argue [defendant] was the linchpin of [the State's] case."
The judge also weighed the State's need to know plea agreements would be enforced. She considered "the havoc that would be wreaked on the entire system if the [c]ourt were to easily or readily allow defendants to get out of their plea bargains or renege essentially on terms of their plea bargains as a precedent." However, characterizing the facts of this matter unique, rather than the "usual case where maybe [a] defendant just changed his mind," the judge concluded the State was not precluded from proceeding to try Williams because of defendant's reluctance to testify. She denied the State's motion and proceeded to defendant's sentencing.
The State moved to stay sentencing pending its appeal of the order denying the motion to vacate the plea agreement. Finding the State suffered no prejudice, the judge denied the motion. The judge acknowledged the State's objection and imposed the sentence recommended in the plea agreement.
The State filed a motion for reconsideration, at which time the judge acknowledged "the State was pretty much foreclosed from any other option at that point about appealing my denial of the State's motion to withdraw the plea" because defendant was sentenced. The judge admitted she believed the order denying the motion to vacate the plea could be appealed. Nevertheless, the judge emphasized she would not have ruled differently based on the facts presented. The State's appeal ensued.
In considering the State's appeal, we conclude defendant's sentencing forecloses our review. R. 2:3-1 (identifying the limited grounds when the State can appeal in a criminal action). Importantly, once sentence is imposed, if it cannot be attacked as illegal, double jeopardy attaches, see U.S. Const. amend. V; N.J. Const. art. I, ¶ 11, and "prohibits the increase of the term imposed in a discretionary sentence." State v. Veney, 327 N.J. Super. 458, 461 (App. Div. 2000) (quoting State v. Kirk, 243 N.J. Super. 636, 642 (App. Div. 1990)); State v. Johnson, 376 N.J. Super. 163, 171 (App. Div.) ("Sentencing appeals by the State implicate the prohibitions against multiple punishment incorporated in the double jeopardy provisions of the Federal and State Constitutions." (citing State v. Roth, 95 N.J. 334, 342-43 (1984))), certif. denied, 183 N.J. 592 (2005). Because defendant has commenced serving his sentence, we have no jurisdiction to consider the State's appeal. Veney, supra, 327 N.J. Super. at 459; see State v. Cannon, 128 N.J. 546, 573 n.13 (1992) (stating absent explicit statutory authority, the State has no right to appeal a sentence). Although the appeal must be dismissed, we briefly address the State's argument the judge erroneously denied its right to withdraw from the negotiated plea agreement when defendant breached his obligation to testify.
Review of the sentence imposed reveals it is not illegal. Johnson, supra, 376 N.J. Super. 170 ("An illegal sentence may be corrected at any time because a defendant has no expectation that an illegal sentence is final."). Further, we discern no clear error of judgment and the sentence does not shock the judicial conscience. Roth, supra, 95 N.J. at 364-65.
"Plea bargaining has become firmly institutionalized in this State as a legitimate, respectable and pragmatic tool in the efficient and fair administration of criminal justice." State v. Means, 191 N.J. 610, 618 (2007) (quoting State v. Taylor, 80 N.J. 353, 360-61 (1979)). Our Supreme Court has long recognized that "[t]he cornerstone of the plea bargain system is the 'mutuality of advantage' it affords to both defendant and the State." Taylor, supra, 80 N.J. at 361 (quoting Bordenkircher v. Hayes, 434 U.S. 357, 363, 98 S. Ct. 663, 668, 54 L. Ed. 2d 604, 611 (1978)). Once the State and a defendant reach a plea agreement, "[d]ue process concerns . . . inhibit the ability of the prosecutor to withdraw from a guilty plea." Means, supra, 191 N.J. at 618 (alterations in original) (quoting State v. Warren, 115 N.J. 433, 445 (1989)). Further, the court rules sanction "[t]he prosecutor and defense attorney [to] engage in discussions relating to pleas and sentences." R. 3:9-3(a).
Generally, a plea agreement is treated as a contract. Means, supra, 191 N.J. at 622.
When two parties reach a meeting of the minds and consideration is present, the agreement should be enforced. The essence of a plea agreement is that the parties agree that defendant will plead guilty to certain offenses in exchange for the prosecution's recommendation to dismiss other charges and suggest a certain sentence, all subject to the right of the court to accept or reject the agreement in the interest of justice.However, the court retains authority to assure the interest of justice is served. Rule 3:9-3(e) states:
[Ibid.]
If at the time of sentencing the court determines that the interests of justice would not be served by effectuating the agreement reached by the prosecutor and defense counsel or by imposing sentence in accordance with the court's previous indications of sentence, the court may vacate the plea or the defendant shall be permitted to withdraw the plea.See also Means, supra, 191 N.J. at 619 (stating a trial court may vacate a plea "when the interests of justice will not be served by approval of the terms of the plea agreement" (quoting R. 3:9-3(e))).
Rule 3:21-1 states a motion to withdraw a plea should be made prior to sentencing, but may be permitted "thereafter to correct a manifest injustice." --------
Withdrawal from a negotiated plea agreement is also addressed in the court rules. "Rules 3:9-3(e) and 3:21-1 explicitly preserve a defendant's right to move to withdraw from a plea agreement in certain circumstances." State v. Conway, 416 N.J. Super. 406, 410 (App. Div. 2010); see also State v. Bellamy, 178 N.J. 127, 135 (2003) ("The withdrawal of a guilty plea agreement is within the sound discretion of the trial court."). No specific reference to the State's right to withdraw from a plea bargain is found. However, this court has concluded "[i]n proper circumstances the State may withdraw its agreement after the defendant has accepted." State v. Smith, 306 N.J. Super. 370, 383 (App. Div. 1997) (citing Mabry v. Johnson, 467 U.S. 504, 510, 104 S. Ct. 2543, 2548, 81 L. Ed. 2d 437, 444 (1984)). "[T]he measure of what constitutes fair and just reason for withdrawal must be reposed in the sound confidence of the court." Means, supra, 191 N.J. at 619-20 (quoting State v. Smullen, 118 N.J. 408, 417 (1990)); Conway, supra, 416 N.J. Super. at 411; State v. Chappee, 211 N.J. Super. 321, 331 (App. Div.), certif. denied, 107 N.J. 45 (1986); State v. Antieri, 186 N.J. Super. 20, 25 (App. Div.), certif. denied, 91 N.J. 546 (1982).
Therefore, the State correctly asserts it should be permitted to withdraw from a plea agreement when all of its material terms have not been met by defendant. We also might agree the judge's evaluation of the State's evidence regarding whether defendant refused to testify may have been too exacting. The record strongly suggests other problems arose making defendant's testimony critical, which the State maintains was not appreciated by the judge.
Indeed, defendant does not dispute the State conditioned the plea agreement and recommended sentence on his truthful testimony at co-defendant's trial. Unlike the facts in Conway, which precluded the State from vacating the plea agreement, in this matter, the State confirmed the express condition on the record prior to defendant entering his plea. Conway, supra, 416 N.J. Super. at 412. In fact, at defendant's request, which the State obliged, the condition in the written plea agreement was omitted. Defendant's "reluctance" to testify against Williams was established. The reason for defendant's reticence is not completely clear, but should not impact the fulfillment of the condition of the plea agreement.
On the other hand, the State had the opportunity to subpoena defendant for Williams' trial, at which time he may have again reassessed his position. Also, the record does not clearly support the position defendant's reluctance forced the State to enter an extremely favorable plea agreement with Williams.
Our review suggests the question is a close one. We are persuaded that the facts surrounding defendant's position regarding compliance should have been more developed prior to moving to vacate the plea agreement because of an alleged breach of that term. Understanding "plea-bargain jurisprudence recognizes the important interest of finality to pleas," State v. Russo, 262 N.J. Super. 367, 373 (App. Div. 1993) (quoting Smullen, supra, 118 N.J. at 416), we cannot conclude, under the facts presented, the judge abused her discretion in denying the State's motion to withdraw the plea agreement.
Appeal dismissed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION