STATE OF NEW JERSEY, Plaintiff–Respondent, v. BASSEM M. ABDOLRAZEK, a/k/a BASSEM A. RAZER, Defendant–Appellant.
During defendant's plea hearing, the court conditionally promised to sentence defendant to non-custodial probation, provided he appear at sentencing and remain arrest-free. After defendant was arrested before sentencing, he sought to withdraw his plea. The court denied his motion and later imposed probation conditioned on time served. Defendant, pro se, now appeals the order denying his motion to withdraw his guilty plea.
Defendant was charged in a single-count Monmouth County indictment with third-degree possession of a controlled dangerous substance, heroin. Defendant was the subject of a traffic stop. A subsequent search of his person led to the seizure of the drugs. He entered his plea agreement on November 16, 2011.
The plea forms did not discuss the impact of a pre-sentencing arrest. According to the main plea form, the prosecutor agreed to recommend a flat three-year term, but the judge conditionally agreed to a non-custodial probationary sentence. Paragraph 13 of the plea form states, “Specify any sentence the prosecutor has agreed to recommend.” The entry of “noncustodial probation” was crossed out, and replaced by “FLAT 3, NJSP.” However, as expressly stated at the end of the main plea form, the plea was “the result of the judge's conditional indications of the maximum sentence he ․ would impose independent of the prosecutor's recommendation.”
In an accompanying “Supplemental Plea Form” for “Non–Negotiated Pleas,” the judge indicated that he would impose a sentence of non-custodial probation. The first paragraph of the supplemental form provides, “List any promises or representations that have been made by the judge as to what your sentence will be.” The entry states that the “court [was] invited in for non-custodial probation.” The supplemental form advised defendant that if the judge decided at sentencing that imposing the promised sentence “would not serve the interests of justice,” the judge could “order your plea be vacated or you will be allowed to withdraw your plea, and your case will proceed to trial.”
However, during the plea hearing, the judge explained, and defendant agreed, that if he were arrested before sentencing, the court could impose a custodial term. At the outset of the hearing, the prosecutor explained that the State agreed to recommend a flat three-year sentence, but the court had given “a conditional indication of the maximum sentence the Court would impose independent of the State's recommendations.” The prosecutor then noted that the supplemental form “indicates in Paragraph 1 that your Honor is invited in for non-custodial probation.”
Defendant affirmed that he understood the terms of the plea agreement and was thinking clearly. Although he was taking medication, Abilify, he explained that it enhanced his understanding.1 The court then addressed what would happen if defendant were arrested before sentencing.
Q Here, the Prosecutor has entered into an agreement with you where they're willing to dismiss a Summons 2011–466–1313 and they're going to recommend a three-year flat term [in] New Jersey State Prison. Do you understand that?
Q However, they've invited me into the plea negotiations and I've indicated that as long as you don't get arrested between now and the sentencing date and that you appear at sentencing I'd be willing to give you a straight probation. Do you understand?
Q Now if you don't show up for the sentencing date or if you get arrested between now and the sentencing date, then I don't have to give you probation, I can send you to jail. Do you understand?
Q Have any other promises or representations been made to you to get you to plead guilty?
Q Is that the total plea agreement between you and the State —
Q — and myself.
And is that the agreement you want me to accept?
Q Do you understand if I accept that agreement today I will not give you your plea back if you change your mind later. Do you understand?
Q Knowing that, do you still wish to plead guilty?
A I do.
Defendant presented a factual basis for the plea, which the court accepted.
On December 1 or 2, 2011 — the record is unclear — defendant was arrested in Ocean County and charged with conspiracy to possess CDS. He was initially held in lieu of bail.
On February 10, 2012, defendant appeared for sentencing on the Monmouth County plea. The judge acknowledged that defense counsel had indicated defendant wished to withdraw his plea. As a result, the court adjourned sentencing pending receipt of a formal motion. However, the judge recalled that at the plea hearing:
[A] negotiated plea between the prosecutor and the defendant was for a flat three years [in] New Jersey State Prison. I was invited into the discussions and I indicated that I would give him probation. That's what's on the plea form.
I then clarified for him at the time of the taking of the plea that my giving him probation was strictly conditioned ․ on his (A) appearance at sentence; and (B) his not being arrested between the plea and the sentencing date.
The judge stated that if the sentencing proceeded that day, he was prepared to impose the three-year term “that [defendant] had bargained [for] with the Prosecutor.” 2
The judge then sua sponte increased defendant's bail, which had been ROR, to $100,000 cash only. The judge stated that based on defendant's Ocean County arrest, “he is a danger not to return to court.”
Defendant's motion to withdraw his plea was accompanied by a certification of counsel. Counsel explained that defendant maintained his innocence of the Ocean County charge, which was still pending indictment. She argued in her certification that the condition that defendant remain arrest-free was unreasonable, as it presupposed defendant's guilt.3 Counsel cited State v. Slater, 198 N.J. 145, 150 (2009), which identified the four factors a trial court must consider on a motion to withdraw a 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.”
Defendant provided a pro se certification in which he claimed his innocence, and asserted that he was not thinking clearly when he entered his plea. The form affidavit and defendant's handwritten entries (which we underscore) stated:
1. I am the defendant on a criminal charge arising out of the Town of Howell charging me on May 23rd 2012 with Possession of CDS.
2. At the time I pleaded guilty I didn't know there was a lengthy mandatory county jail sentence because this is my 1st Drug offense.
3. Even though I was not guilty it was easier to plead than to go back and get a lawyer, come back to Court and all of the other things involved. I thought I would only be assessed a fine and leave.
4. I am not guilty. The actual circumstances of the offense are as follows: State vs. Doss, Chain of custody of evidence, & State Jenkins I need to see lab reports on how supposed CDS was stored & tested step by step.
5. I want to go [to] trial.
6. Most importantly, I was under the influence of a new prescription of psychotropic meds. & 60 mgs. of prescribed methadone when I signed the plea.4
On the return date of the motion to withdraw, May 25, 2012, new counsel for defendant asserted that he believed the Ocean County charges would be resolved in defendant's favor. Citing State v. Shaw, 131 N.J. 1 (1993), he argued that the court should conduct a hearing on whether the arrest warranted an enhanced sentence. He also asserted that defendant had a viable suppression motion in connection with his original traffic stop, which he asserted supported a claim of innocence. Counsel noted that defendant had recently posted bail on the Ocean County charge. We presume he was in custody because he could not post the cash bail set in the instant case.
The court permitted defendant to argue in favor of his motion. Although not sworn, defendant asserted that his plea attorney “told me, if you [the court] impose any jail time I have the right to take my deal back and go to trial.” He also argued that he relied on the terms of the plea agreement, which he understood to say that if the court imposed a sentence greater than non-custodial probation, he could withdraw his plea. Referring to the plea form, he said:
I got the contract right here, non-custodial probation. That's the promise․ Then you throw a couple words in there, oh, by the way, you get rearrested we're going to burn you. Okay. I'm not even thinking that's what it means, but I'm just like, okay, yeah, I understand. Because that's not the agreement, that's not what I signed for. So, I was deceived.
The court denied the motion. Before doing so, the judge stated that if the Ocean County charge was dismissed before sentencing, the judge would impose non-custodial probation. The court also explained that it imposed the $100,000 cash bail because it found that defendant posed “a danger to the public because” of his extensive prior juvenile and adult record of arrests, convictions, and probation violations.
Turning to the motion, the court observed that under Slater, supra, 198 N.J. at 154–55, the court must first confirm that the plea was entered knowingly and voluntarily, in accord with Rule 3:9–2. The court acknowledged the plea form omitted the conditions governing the court's promise to impose a non-custodial sentence. However, referring to the transcript of the plea hearing, the court found that defendant understood that if he were arrested or failed to appear, the court could impose a custodial term.
The court also rejected defendant's claim that he was not thinking clearly and was under the influence of medication, including methadone. The judge noted that defendant only mentioned Abilify — not methadone — at his plea hearing, and affirmed that it enhanced his thinking.
The court then considered each of the four Slater factors. The court found that defendant had not presented a colorable claim of innocence. The court noted that defendant's assertions in his pro se certification — which referred to chain of custody and lab reports — did not adequately support a claim of innocence. The court also observed that defendant had never filed a motion to suppress.
Regarding the reasons for defendant's request to withdraw, the court reviewed the examples provided in Slater:
(1) the court and prosecutor misinformed the defendant about a material element of the plea negotiation, which the defendant relied on in entering his plea ․ (2) the defendant was not informed and thus did not understand material terms and relevant consequences of the guilty plea, namely, the direct, penal consequences of the plea ․ (3) defendant's reasonable expectations under the plea agreement were not met ․ and (4) the defendant has not only made a plausible showing of a valid defense against the charges, but also credibly demonstrated why that defense “was forgotten or missed” at the time of the plea.
[Slater, supra, 198 N.J. at 159–60 (citations omitted).]
The court found that defendant did not contend he was misinformed. Also, he “could reasonably expect a three-year flat ․ term,” and no valid defenses were omitted.
As for the third factor, the court found that the existence of a plea bargain slightly weighed against defendant. Regarding the fourth factor, the court found that “the passage of time may impede the State's ability to prosecute” its case against defendant. However, the State was not required to show prejudice, because defendant failed to satisfy the other factors.
When defendant appeared for sentencing on June 15, 2012, it was reported that defendant had been indicted on the Ocean County charge. Defense counsel argued for probation, conditioned on mental health treatment. Defendant reiterated arguments he made in support of his motion to withdraw his sentence. He asserted for the first time that the cross-out of the words “non-custodial probation” under paragraph 13 of the plea form was made after the plea hearing. The court restated its previous decision on the motion to withdraw, and imposed a sentence of three years of probation, conditioned on time served of 197 days, from December 2, 2011 to June 15, 2012.
Defendant presents the following point on appeal:
PETITIONER WAS [MISLED] INTO BELIEVING THAT HE WOULD RECEIVE NON–C[U]STODIAL PROBATION IN RETURN OF A GUILTY PLEA. THE JUDGE HAD DECIDED TO IMPOSE [A] SENTENCE, WHICH WAS MORE SEVERE THAN WHAT WAS RECOMMENDED BY THE PROSECUTOR AND SHOULD HAVE BEEN PERMITTED TO TAKE BACK HIS PLEA.
“[C]ourts are to exercise their discretion liberally to allow plea withdrawals.” Slater, supra, 198 N.J. at 156. However, we discern no abuse of the trial court's discretion in denying defendant's motion. See State v. Munroe, 210 N.J. 429, 448 (2012) (stating that “a clear error of judgment” constitutes abuse of discretion in denying a motion to withdraw a plea) (internal quotation marks and citation omitted).
We recognize the inconsistency between the plea form and supplemental plea form, and the oral recitation of the plea. Focusing first on the plea forms, we do not believe a fair reading is that defendant agreed to a flat three-year term — which the State agreed to recommend — if the judge withdrew his promise of non-custodial probation. Based on the terms of the agreement, defendant agreed to plea in return for the judge's conditional promise of a non-custodial term. Looking only at the plea forms, if the judge declined to impose that sentence for any reason, defendant would have been entitled to withdraw his plea.
However, the judge amended the plea agreement orally. He stated that if defendant were arrested or did not appear, the court would be empowered to impose a custodial term. We recognize the length of that custodial term was not defined. Nonetheless, defendant agreed to those terms. The judge found that defendant did so knowingly and voluntarily and we discern adequate support in the record for that conclusion. See State v. Johnson, 42 N.J. 146, 161–62 (1964); State v. Jumpp, 261 N.J.Super. 514, 534 (App.Div.), certif. denied, 134 N.J. 474 (1993). Indeed, at oral argument before us, defendant admitted the judge informed him that he would be free to sentence defendant to prison if defendant were rearrested. Defendant said he understood the judge, but he simply did not think the judge was “serious.” We conclude he did so at his own peril.
The trial judge conceded that the oral agreement was at odds with the written plea forms. It is manifest that the better practice would have been to revise the written forms to conform to the terms set forth orally to avoid possible confusion. Nevertheless, in this case, we affirm the trial court's finding that defendant understood the oral terms of the plea agreement.
We also discern no error in the court's analysis of the four Slater factors. Defendant presented no colorable claim of innocence. He did not deny possession of heroin. He offered vague references to a potential suppression motion. However, that did not pertain to his innocence. See State v. Burnett, 42 N.J. 377, 386 (1964) (noting that a motion to suppress does not pertain to the truth of the charges, but compliance with the Fourth Amendment).
Defendant's reason for withdrawing his plea — Slater factor two — was his claimed understanding that if he were rearrested, he could withdraw his plea. However, relying on defendant's acknowledgements at his plea hearing, the court rejected that claim.
Finally, we discern no impediment to conditioning a promised sentence upon a defendant's appearance at sentencing, or remaining arrest-free before sentencing. “[A] component of a plea agreement that provides for an increased sentence when a defendant fails to appear that is voluntarily and knowingly entered into between a defendant and the State does not offend public policy.” State v. Subin, 222 N.J.Super. 227, 238–39 (App.Div.), certif. denied, 111 N.J. 580 (1988). See also Shaw, supra, 131 N.J. at 15–16 (citing Subin with approval).
However, the court may not impose the enhanced sentence mechanistically. Subin, supra, 222 N.J.Super. at 239. The court is obliged to conduct a hearing to determine whether, under the circumstances, the violation of the condition justifies a change in sentence. Shaw, supra, 131 N.J. at 16–17. As the Court explained in Shaw, in reference to a defendant's non-appearance, the court may consider whether the breach of the condition is excusable; and whether it is material to the plea. Id. at 17.
In the case of an arrest in violation of a condition that a defendant remain arrest-free, the court should consider the nature of the charge, and the strength of the evidence. However, we disagree with defendant that, absent a conviction on the new arrest, the court may not consider the arrest. “Facts related to an arrest that did not result in conviction ․ may ․ offer insight into an applicant's character and conduct.” In re Kollman, 210 N.J. 557, 576 (2012). Nonetheless, the court must look beyond the arrest itself, and consider the underlying facts. Ibid.
The court should have done so here. Regardless, we perceive no harmful error. The record before us contains the affidavit in support of an arrest warrant in connection with the Ocean County charge. A detective stated that he observed defendant engage in a hand-to-hand transaction with a drug seller. The detective also stated that the seller admitted to selling 100 bags of heroin to defendant in exchange for $600 in cash. Defendant was ultimately indicted. Defendant provided no cognizable evidence regarding his innocence of the charge, or in mitigation of the circumstances. We have no basis to conclude that a hearing on the Ocean County arrest would have yielded a different result.
Defendant's remaining arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11–3(e)(2).
1. FN1. The record reflects that defendant appeared before the court on October 31, 2011, and had expressed an interest in pleading to a non-custodial sentence, but was unable to do so because he was experiencing the symptoms of mental illness. We have not been provided with the transcript of defendant's October 31 appearance. However, the record reflects that defendant has a history of treatment for mental illness.
2. FN2. The judge added, “[I]f I find that there is no reasonable basis to give him his plea back, I'm not restricting myself to the three-year sentence. I'm going to give myself the ability to sentence him to whatever I think is appropriate under the statute․”
3. FN3. We note that it is inappropriate for counsel to include argument in a certification. See Pressler & Verniero, Current N.J. Court Rules, comment on R. 1:6–6 (2014) (“The requirements of the rule also are not met by affidavits containing argument, other forms of hearsay and general factual or legal conclusions.”).
4. FN4. We have removed defendant's idiosyncratic capitalization for ease of reading.