STATE OF NEW JERSEY v. DAVID HARDWICK

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Superior Court of New Jersey, Appellate Division.

STATE OF NEW JERSEY, Plaintiff–Respondent, v. DAVID HARDWICK, Defendant–Appellant.

DOCKET NO. A–2111–11T4

Decided: March 19, 2014

Before Judges Messano and Sabatino. Joseph E. Krakora, Public Defender, attorney for appellant (David A. Gies, Designated Counsel, on the brief). Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Nancy P. Scharff, Assistant Prosecutor, of counsel and on the brief).

Defendant David Hardwick appeals from the judgment of conviction and sentence imposed following his guilty pleas to two counts of the lesser-included offense of aggravated manslaughter, N.J.S.A. 2C:11–4(a)(1).   At the time of the crimes, defendant was seventeen years old.   His juvenile complaints were referred to the Law Division, and the Camden County grand jury returned an indictment charging defendant in fourteen counts with various crimes, including the murders of Muriah Huff and Michael Hawkins, pursuant to N.J.S.A. 2C:11–3(a)(1) or (2).

In return for defendant's guilty pleas to two counts of aggravated manslaughter, the State agreed to dismiss the remaining counts of the indictment and recommend a sentence of thirty years' imprisonment on each count, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43–7.2. In addition, the State agreed to recommend that the sentences run concurrently to each other.   Defendant also signed a separate “memorandum of understanding” in which he agreed to provide truthful testimony if called by the State as a witness at any proceeding against his co-defendants.

Defendant pled guilty on August 25, 2011.   On October 7, prior to his sentence and represented by trial counsel, defendant moved to withdraw his guilty pleas.   He contended that they were not voluntarily entered, and that application of the factors identified by the Court in State v. Slater, 198 N.J. 145 (2009), justified withdrawal.   In particular, defendant argued his factual basis as to Huff's death was insufficient.   In his certification in support of the motion, defendant claimed that he was “pressured” into pleading guilty, and his actions with respect to Huff did not constitute aggravated manslaughter.   In an oral opinion placed on the record, the judge denied defendant's motion and proceeded to sentence him in accordance with the plea agreement.

Defendant raises the following points on appeal:

POINT ONE

THE SENTENCING COURT ERRED BY DENYING THE DEFENDANT'S MOTION TO WITHDRAW HIS GUILTY PLEA WHERE THE ACKNOWLEDGED FACTS DO NOT ADEQUATELY SUPPORT THE DEFENDANT'S ADMISSION OF GUILT TO AN AGGRAVATED MANSLAUGHTER OFFENSE.

POINT TWO

THE SENTENCING COURT ERRED WHERE IT RELIED ON ANOTHER COURT'S FINDING REGARDING THE DEFENDANT'S DEMEANOR TO DETERMINE WHETHER HIS MOTION TO WITHDRAW WAS VOLUNTARY.

POINT THREE

THE SENTENCING COURT ERRED IN FINDING APPLICABLE AGGRAVATING FACTORS (1) AND (2) WHERE IT ATTRIBUTED TO THE DEFENDANT THE ACTS OF OTHERS.

We have considered these arguments in light of the record and applicable legal standards.   We affirm.

I.

During his plea allocution, defendant acknowledged under oath his understanding of the amended charges of aggravated manslaughter.   He further stated that he had had adequate time to discuss with his attorney the case against him, as well as the plea forms and the memorandum of understanding with the State.   The judge further explained to defendant the various rights he was giving up by pleading guilty, and defendant acknowledged his understanding of those rights and his voluntary waiver.

Defendant admitted that on February 22, 2010, he went to a certain address in Camden along with co-defendants Kuasheim Powell, Clive Hinds and Keenan Wideman.   He further admitted going upstairs, where he knew Hawkins was.   At the time, Hawkins was “[t]ied, beat up, bleeding and locked in the closet.”   Defendant admitted being armed with a firearm and giving it to Powell when asked.   According to defendant, Powell was angry with Hawkins.   Powell then shot Hawkins five or six times.

Defendant further admitted following Powell downstairs.   There, he first saw Huff who was “beat up [and] sitting in [a] chair.”   Defendant watched for five or ten minutes while Huff was being beaten by others, including co-defendant Shatara Carter.   The following colloquy ensued between defense counsel and defendant:

Q. Would you agree that by being there while they were doing the beating, that you assisted or you encouraged them to continue?

A. Umm, I gave them basically my okay by not saying ․ anything to them, basically I gave them my okay with it by trying [sic] to stop it.

Q. And did you do anything to stop the beating that she was taking?

A. No.

Huff died of her injuries.

Under further questioning by the judge, defendant admitted that he gave Powell the gun and “it didn't matter ․ what he did with that weapon․”  With respect to his conduct involving Huff, the judge asked defendant if he felt “that [he] caused her death?”   Defendant answered, “I didn't do anything to stop it.”   Asked if he had the ability to stop the beating, defendant replied, “I could have ․ tried.   I could have said something.”

Under questioning by the prosecutor, defendant acknowledged that Huff was beaten while “on her knees,” with Carter holding a knife to Huff's throat.   Huff was begging to go free, but Powell told Carter and the others to “do whatever you all want․”  Defendant also admitted knowing that Huff “could be a witness to what had happened upstairs․”  He did not want her to leave the house because she might call police, and he would “get in trouble.”   Defendant acknowledged it was “okay with [him] if [Huff] never left th[e] house․”  Under questioning by the judge, defendant admitted that “it didn't matter ․ whether [Huff] lived or died․”

In support of defendant's motion to withdraw, defense counsel argued that the guilty pleas were involuntarily entered because defendant “didn't have time to reflect on those matters.” 1  Counsel further argued that defendant provided an inadequate factual basis with regard to the aggravated manslaughter of Huff.

The motion judge, who was not the judge who accepted defendant's guilty pleas, had reviewed the transcript of those proceedings.   He noted that defendant had been questioned extensively about his understanding of the plea agreement, and that he was pleading guilty voluntarily.   The judge also noted that when defendant pled guilty, that judge had “found that the acts of ․ defendant were ․ free, knowing and voluntary, borne out by his answers and his demeanor before the [c]ourt.”

Turning specifically to defendant's claim of an inadequate factual basis regarding Huff's death, the judge specifically applied the Slater analysis.   He found there was no colorable claim of innocence because defendant's challenge was limited to the adequacy of the factual basis he provided.   The judge extensively reviewed the colloquy we recited above, and concluded that defendant admitted to being an accomplice in Huff's death.   The judge also noted that defendant “got the benefit of his bargain,” observing defendant's potential exposure at trial “was enormous.”   The judge specifically found that consideration of the fourth Slater factor, i.e., prejudice to the State or unfair advantage to defendant, was “neutral.”

The judge concluded the interests of justice did not warrant permitting defendant to withdraw his guilty pleas.   After denying the motion, the judge imposed sentence, which we discuss further below.

II.

In his first point, defendant argues the judge mistakenly exercised his discretion by denying his motion to withdraw his guilty plea regarding the aggravated manslaughter of Huff. Defendant argues that “[t]his matter hinges on the factual basis ․ for [defendant's] purported involvement in Huff's death.”

Rule 3:9–2 provides that the judge

shall not accept [a guilty] plea without first questioning the defendant personally, under oath or by affirmation, and determining by inquiry of the defendant and others, in the court's discretion, that there is a factual basis for the plea and that the plea is made voluntarily, not as a result of any threats or of any promises or inducements not disclosed on the record, and with an understanding of the nature of the charge and the consequences of the plea.

“Consideration of a plea withdrawal request can and should begin with proof that before accepting the plea, the trial court followed the dictates of Rule 3:9–2.”  Slater, supra, 198 N.J. at 155.  “But the analysis cannot end there [,]” as the judge is required to consider “other pertinent issues ․ in the context of the specific facts of a case.”  Ibid.

When the motion to withdraw a guilty plea is made before sentencing, as it was in this case, Rule 3:9–3(e) applies.   It provides in relevant part:

Withdrawal of Plea. 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 ․, the court may vacate the plea or the defendant shall be permitted to withdraw the plea.

[Ibid.]

“[A] plea may only be set aside in the exercise of the court's discretion.”   Slater, supra, 198 N.J. at 156 (citations omitted).  “In all cases, to be sure, ‘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.’ ”  Ibid. (quoting State v. Smullen, 118 N.J. 408, 416 (1990)).

In Slater, supra, 198 N.J. at 157–58, the Court identified four factors to be considered in deciding a motion to withdraw a previously-entered guilty plea.   The first is whether defendant has “asserted a colorable claim of innocence․”  Id. at 157.   Next, the judge should consider “the nature and strength of defendant's reasons for withdrawal․”  Id. at 157–58.   The third factor is whether the plea was entered pursuant to a plea bargain.   Id. at 158.   And, lastly, the court must consider “whether withdrawal would result in unfair prejudice to the State or unfair advantage to the accused.”   Ibid.

This appeal presents a somewhat novel question of whether a defendant's claim that the factual basis for his plea was inadequate dispenses with the necessity of demonstrating “a colorable claim of innocence,” as the Court used that phrase in Slater.   The motion judge concluded it was not.   We decline to consider that specific issue, because we conclude, as did the judge, that defendant's factual basis was sufficient to establish his guilt beyond a reasonable doubt of aggravated manslaughter in Huff's death.

In obtaining a factual basis for the plea, the judge need not “follow a prescribed or artificial ritual.”  In re T.M., 166 N.J. 319, 327 (2001).   “[O]ur law requires that each element of the offense be addressed in the plea colloquy.”  State v. Campfield, 213 N.J. 218, 231 (2013) (citations omitted).  “The factual foundation may take one of two forms;  defendant may either explicitly admit guilt with respect to the elements or may ‘acknowledge [ ] ․ facts constituting the essential elements of the crime.’ ”  Ibid. (quoting State v. Sainz, 107 N.J. 283, 293 (1987) (alteration in original)).

N.J.S.A. 2C:11–4(a)(1) provides that “[c]riminal homicide constitutes aggravated manslaughter when ․ [t]he actor recklessly causes death under circumstances manifesting extreme indifference to human life.”   A defendant acts “recklessly” when he

consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct.   The risk must be of such a nature and degree that, considering the nature and purpose of the actor's conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a reasonable person would observe in the actor's situation.

[N.J.S.A. 2C:2–2b(3).]

“[W]hen the State alleges criminal recklessness, it must demonstrate through legally competent proofs that defendant had knowledge or awareness of, and then consciously disregarded, ‘a substantial and unjustifiable risk.’ ”  State v. Williams, 190 N.J. 114, 124 (2007) (quoting N.J.S.A. 2C:2–2b(3)).

“The distinction between [manslaughter and aggravated manslaughter] turns on the degree of probability that the death will result from the defendant's conduct.”  State v. Galicia, 210 N.J. 364, 378 (2012).   The State must prove that “defendant's actions created a probability as opposed to the mere possibility that death would occur.”  State v. Bakka, 176 N.J. 533, 550 (2003) (citations omitted).

N.J.S.A. 2C:2–6 provides:

a.  A person is guilty of an offense if it is committed by his own conduct or by the conduct of another person for which he is legally accountable, or both.

b. A person is legally accountable for the conduct of another person when ․

(3) He is an accomplice of such other person in the commission of an offense․

c. A person is an accomplice of another person in the commission of an offense if:

(1) With the purpose of promoting or facilitating the commission of the offense;  he

(a) Solicits such other person to commit it;

(b) Aids or agrees or attempts to aid such other person in planning or committing it;  or

(c) Having a legal duty to prevent the commission of the offense, fails to make proper effort so to do․

Essentially, defendant contends that he only admitted to being present while others beat Huff to death, and that he did not try to stop the beating.   He contends that his admissions did not demonstrate a shared purpose with those who actually committed the assault.   See e.g., State v. Whitaker, 200 N.J. 444, 457–58 (2009) (noting that accomplice liability requires that a defendant “act with a purposeful state of mind in furtherance of the crime” and possess “the mental state necessary to commit the offense”).

However, Model Jury Charge (Criminal), “Liability for Another's Conduct (N.J.S.A. 2C:2–6) Accomplice” (Revised 5/22/95) provides:

While mere presence at the scene of the perpetration of a crime does not render a person a participant in it, proof that one is present at the scene of the commission of the crime, without disapproving or opposing it, is evidence from which, in connection with other circumstances, it is possible for the jury to infer that he/she assented thereto, lent to it his/her countenance and

approval and was thereby aiding the same.   It depends upon the totality of the circumstances as those circumstances appear from the evidence.

[ (emphasis added).]

In his plea allocution, defendant acknowledged that when he first saw Huff, she was tied up, being beaten by co-defendants and pleading to be set free.   One co-defendant was holding a knife to her throat.   Defendant further acknowledged that he could “have said something” that might have stopped the assault, but he chose not to.   Defendant also acknowledged that Huff knew what had transpired upstairs, i.e., the shooting death of Hawkins, a crime he was instrumental in causing by providing his cohort with the murder weapon.   Lastly, defendant admitted that he knew Huff could provide information about Hawkins's death if she were allowed to go free, and he was concerned, presumably, because she could provide law enforcement with information that would eventually lead to defendant's apprehension and prosecution.

Under these discrete circumstances, defendant's admissions establish his guilt as an accomplice to Huff's homicide beyond a reasonable doubt.   See Campfield, supra, 213 N.J. at 231 (noting the factual basis is sufficient if defendant acknowledges facts “constituting the essential elements of the crime”).   Given Huff's condition at the time, defendant's actions amounted to a conscious disregard that the probable consequences of his cohorts' acts would be her death.   Defendant acknowledged that his failure to say anything essentially signaled they could continue, thereby aiding the fatal assault, as defined by N.J.S.A. 2C:2–6(c)(1)(b).  Moreover, defendant's admission that he knew if she escaped, Huff could aid in his apprehension for Hawkins's death, was sufficient to infer that he shared the same purpose as his co-defendants, who actually caused Huff's death.

We agree with the motion judge's assessment regarding the balance of the Slater factors.  “[T]he nature and strength of defendant's reasons for withdrawal” were not compelling.  Slater, supra, 198 N.J. at 157–58.   The judge rejected defendant's assertion that he was coerced into accepting the plea, and, based upon our review of the plea proceedings, so do we.   Defendant's plea was entered into pursuant to a plea bargain, which militates against withdrawal.  Id. at 160–61.   Lastly, the judge declined to find any prejudice to the State or unfair advantage to defendant regarding withdrawal.

Balancing all these factors as required by Slater, we conclude the judge did not mistakenly exercise his discretion in denying defendant's motion to withdraw his guilty pleas to either homicide.

We find the argument raised by defendant in Point Two lacks sufficient merit to warrant discussion in a written opinion.   R. 2:11–3(e)(2).   The judge's passing reference to the conclusions reached by the judge who accepted defendant's guilty plea, i.e., that it was voluntarily entered, was insignificant.   The motion judge independently assessed the transcript of the proceedings.

II.

Defendant further argues that the judge considered the actions of his co-defendants in imposing sentence and erred in applying the aggravating and mitigating sentencing factors.   We disagree and affirm the sentence imposed.

“Appellate review of the length of a sentence is limited.”  State v. Miller, 205 N.J. 109, 127 (2011).   We assess whether the aggravating and mitigating factors were based upon “competent credible evidence in the record.”  Ibid. (citations and quotation marks omitted).   We do not ‘substitute [our] assessment of aggravating and mitigating factors' for the trial court's judgment.  Ibid. (quoting State v. O'Donnell, 117 N.J. 210, 215 (1989)).   When the judge has followed the sentencing guidelines, and his findings of aggravating and mitigating factors are supported by the record, we will only reverse if the sentence “shocks the judicial conscience” in light of the particular facts of the case.  State v. Roth, 95 N.J. 334, 364 (1984);  accord State v. Cassady, 198 N.J. 165, 183–84 (2009).

The judge found that aggravating factors one, two, three and nine applied.   See N.J.S.A. 2C:44–1(a)(1), (2), (3) and (9).   He also found mitigating factors seven, twelve and thirteen applied.   See N.J.S.A. 2C:44–1(b)(7), (12) and (13).   The judge found “clearly and convincingly[,] the aggravating factors substantially outweigh[ed] the mitigating” factors and sentenced defendant “in conformity with the plea agreement.”

Defendant specifically argues that aggravating factors one and two do not apply.   As to each, defendant contends that he was merely a bystander to the acts committed by his co-defendants.   Aggravating factor one requires the judge to consider the “nature and circumstances of the offense, and the role of the actor therein, including whether or not it was committed in an especially heinous, cruel, or depraved manner[.]”  N.J.S.A. 2C:44–1(a)(1).  N.J.S.A. 2C:44–1(a)(2) requires consideration of the “gravity and seriousness of the harm inflicted on the victim, including whether or not the defendant knew or reasonably should have known that the victim ․ was ․ substantially incapable of exercising normal physical or mental power of resistance[.]”

Defendant's own admissions demonstrate the significant role he played in both deaths.   As to Hawkins, defendant supplied the gun used to shoot a defenseless victim beset by several assailants.   As to Huff, defendant acknowledged that he witnessed the fatal assault as Huff pleaded for her life, did nothing to stop it, understood that his inaction implicitly condoned the continued assault, and further admitted that her death would eliminate an important witness to Hawkins's homicide, thereby permitting him to escape apprehension.

We have recognized that a “vicious attack” upon a victim under “brutal circumstances” that led to his suffering supported a finding of both aggravating factors one and two.  State v. Soto, 340 N.J.Super.   71–72 (App.Div.), certif. denied, 170 N.J. 209 (2001).   The circumstances in this case justify the judge's conclusion that both aggravating factors applied.

Defendant also argues that the judge should have also found mitigating factor eight, i.e., the crime was “the result of circumstances unlikely to recur [.]”  N.J.S.A. 2C:44–1b(8).   This finding was not urged at sentencing, and in his brief, defendant argues it was applicable because defendant “played football,” his family was “hardworking and ․ very supportive,” and his father served honorably in the Armed Services.   None of those facts support a finding of this mitigating factor.   It suffices to say that defendant, at age seventeen and as part of a vicious group of individuals, committed two heinous homicides.   There is nothing to support the conclusion that they resulted from circumstances unlikely to recur.

We find no reason to disturb the sentences imposed in this case.

Affirmed.

FOOTNOTES

1.  FN1. The same attorney represented defendant throughout the proceedings in the Law Division.

PER CURIAM

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