STATE OF NEW JERSEY v. RAYMOND GORDON RAYMON GORDON MICHAEL CHUDYK

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Superior Court of New Jersey, Appellate Division.

STATE OF NEW JERSEY, Plaintiff–Respondent, v. RAYMOND GORDON, a/k/a RAYMON GORDON, a/k/a MICHAEL A. CHUDYK, Defendant–Appellant.

DOCKET NO. A–4572–12T4

Decided: April 17, 2014

Before Judges Kennedy and Guadagno. Edward C. Bertucio argued the cause for appellant (Hobbie, Corrigan & Bertucio, P.C., attorneys;  Mr. Bertucio, of counsel and on the brief;  Danielle M. Diodato, on the brief). Ian D. Brater, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney;  Mr. Brater, of counsel and on the brief).

Defendant Raymond Gordon appeals from the April 10, 2013 order of the Law Division denying his motion to withdraw his guilty pleas to third-degree possession of a controlled dangerous substance (CDS) with intent to distribute, N.J.S.A. 2C:35–5(b)(11), and second-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35–5(b)(10)(b).  On appeal, defendant claims he was innocent of the charges, he was not informed that deportation was a mandatory consequence of his plea, he did not understand the plea court's questions regarding his immigration consequences, and his sentence is excessive.   We have considered these arguments in light of the record and applicable legal standards and affirm.

I.

On September 9, 2009, Asbury Park Police obtained a search warrant for an apartment (subject apartment) based on information that marijuana was being sold by a resident of the apartment and stored in the adjacent apartment.   Prior to executing the warrant on the subject apartment, officers conducted surveillance of the apartment building and noticed defendant and two others on the balcony of the adjacent apartment smoking and sharing what appeared to be a marijuana cigarette.   Defendant then left the building, still carrying the cigarette and entered a vehicle, sharing the substance with the driver.

Police stopped the car and arrested defendant and the driver.   Defendant had marijuana in his pants pocket and the police found $3,000 in cash in the back seat.

The police then executed a search of the subject apartment.   During the search, police questioned defendant's mother, Utelia Brown, and her son, Garfield Edwards, who resided in the adjoining apartment.   Brown told police that, in addition to Edwards, defendant was also temporarily residing with her and sleeping in the living room of the adjoining apartment.   She consented to a search of her apartment and the police recovered marijuana, drug paraphernalia, and cash.

Defendant told police that all of the marijuana found inside his mother's apartment belonged to him, but refused to provide any information as to its source.

On January 7, 2010, a grand jury sitting in Monmouth County returned indictment 10–01–0022, charging defendant with fourth-degree possession of CDS, N.J.S.A. 2C:35–10(a)(3) (count one);  third-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35–5(b)(11) (count two);  and second-degree possession of CDS with intent to distribute within 500 feet of a public park, N.J.S.A. 2C:35–7.1 (count three).   Defendant's mother and brother were also charged in the indictment.

Defendant filed a motion to suppress the evidence but before that motion could be heard, he was again arrested.   Police received information that a marijuana delivery would be made via UPS to an address in Asbury Park. Surveillance was initiated and the UPS package was monitored.   A UPS driver, Alfred Farrell, placed the package in a vehicle occupied by defendant.   Police stopped defendant's vehicle and recovered the package containing seventeen pounds of marijuana.   Farrell told police that he had made several similar deliveries to defendant over the past few months.

A Monmouth County grand jury returned a second indictment, 10–10–1866, charging defendant, Farrell, and a third defendant with second-degree conspiracy to distribute CDS, N.J.S.A. 2C:5–2 and 2C:35–5(b)(10)(b) (count one);  fourth-degree possession of CDS, N.J.S.A. 2C:35–10(a)(3) (count two);  and second-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35–5(b)(10)(b) (count three).

On October 26, 2010, a case management conference was held before Judge Anthony J. Mellaci, Jr. Judge Mellaci scheduled a hearing on defendant's motion to suppress and discussed the State's plea offer.   The judge noted that defendant was not a United States citizen, and suggested that, before deciding whether to accept the plea offer, defendant should seek additional information on the impact a guilty plea might have on his immigration status:

If you want to touch base with an immigration attorney as to how a conviction here will affect you, you should do that

․  You can also speak to [defense counsel], but I don't know if he's versed in immigration law.   He may be․  But you are not [sic] being put on notice, I'm not going to hold any matter up because you haven't had an opportunity to speak to an immigration lawyer․  But you could very well be deported as a result of any conviction, either on this case or the other case even if you're in the county legally at this time if you're not a citizen.

The judge made the same suggestions to defendant's two co-defendants in defendant's presence:  “I advise you to speak to an immigration attorney about how a finding of guilt will affect you․  [I]f we go forward and you're convicted, this could affect your immigration status here.   You could very well be deported.”   The judge concluded by asking defendants, “Do you all understand me?”   Defendant and his co-defendants answered “Yes, sir.”

On December 15, 2010, defendant accepted the State's offer and pled guilty to count two of indictment 10–01–0022 and count three of indictment 10–10–1866.   In return, the State agreed to dismiss all remaining counts against defendant and recommended that he be sentenced to a five-year custodial term.   In addition, the State indicated that during his allocution, defendant was expected to exonerate his mother and brother on indictment 10–01–0022.   The State agreed to dismiss those charges against them at defendant's sentencing.

At the plea hearing, defendant's attorney represented to the court that he and his client had met “a number of times” and “gone through the plea [agreement] in detail․  He understands it completely.”   The plea agreement was signed by defendant, and he circled “Yes,” to each of the following questions:

Do you understand that if you are not a United States citizen or national, you may be deported by virtue of your plea of guilty?

Do you understand that if your plea of guilty is to a crime considered an “aggravated felony” under Federal law you will be subject to deportation/removal?

Do you understand that you have the right to seek legal advice on your immigration status prior to entering a plea of guilty?

At the hearing, defendant told the court that he spoke with his attorney about the charges, understood them, and was satisfied with his representation.   As to the immigration consequences, Judge Mellaci inquired:

Q And do you feel you had enough time to spend with [your attorney] to discuss the immigration consequences of this plea?

A Yes, sir.

Q And you've reached out for an immigration attorney at this point?

A Talked to him, sir.

Q Okay. And you're going to go through with the plea regardless of that, correct?

A Yes, sir.

Q You understand that this conviction will have an effect on your green card status, do you understand?

A Yes, sir.

Q And we've discussed that both in October, and we discussed it again today, and you've discussed it with your attorney, and you've discussed it with an immigration lawyer, correct?

A Yes, sir.

Q And as a result of all those discussions, you still want to go through with the plea of guilty today?

A Yes, sir.

Defendant provided a factual basis for the charges, admitting that the marijuana found on September 9, 2009, in his mother's apartment, and on June 8, 2010, in his car, belonged to him.   The court accepted the pleas, found the factual basis adequate, and determined that defendant entered the pleas voluntarily with a full understanding of the nature of the charges and the consequences.

Two weeks later, during his presentence interview with probation, defendant claimed that the contraband found inside his mother's apartment was not his, but belonged to his cousin.   He denied any knowledge of how the marijuana got to his mother's apartment.

On March 25, 2011, defendant failed to appear for his scheduled sentencing, and a bench warrant was issued for his arrest.   He was arrested in New York in November 2011, and returned to New Jersey.   On December 1, 2011, an Immigration and Customs Enforcement (ICE) detainer was lodged against defendant.

Defendant then moved to withdraw his pleas, claiming he “truly believe[d]” that he was not guilty of any of the charges and he only pled guilty because he “was facing two separate charges and ․ was concerned with protecting [his] family and also with the exposure to a number of years in jail.”

On April 16, 2012, represented by new counsel, defendant renewed his motion to withdraw his guilty pleas, claiming that his prior counsel

never told me that I would definitely be deported if I made the guilty pleas that he told me I should make.   I would never have made these pleas under this agreement if I knew that I would be definitely deported and separated from my family and my life in this Country because of the pleas.

Defendant further claimed he “did not understand Judge Mellaci's questions about me talking with an immigration lawyer.   I did not speak with an immigration lawyer, so my answers are a mistake that I made because I did not understand.”   Moreover, defendant claimed he was innocent of the crimes charged under indictment 10–01–0022, he did not live in the apartment with his mother, and the marijuana did not belong to him.   He maintained that he pled guilty because his attorney told him that the State would drop the charges against his mother and brother if he did so.

Defendant's mother also submitted an affidavit in which she claimed that her son's prior counsel “knew that I had not been able to get my son an appointment to speak with an immigration attorney.”   However, she did not retract her prior statement to police that defendant was residing in her apartment when the marijuana was found.

On April 5, 2013, oral argument on defendant's motion was heard by Judge Joseph W. Oxley, who reserved decision.   On April 10, 2013, Judge Oxley denied defendant's motion in a comprehensive thirty-six page oral decision.   Judge Oxley first reviewed the standard for acceptance of a plea pursuant to Rule 3:9–2 and the four-pronged test for withdrawal under State v. Slater, 198 N.J. 145 (2009).   He first found that the requirements of Rule 3:9–2 had been satisfied:

Based upon the defendant's sworn responses to the Court's and counsel's questions, this Court finds that Mr. Gordon had entered the plea voluntarily and with the [assistance] of competent counsel with whom Mr. Gordon had indicated he was satisfied.   This Court also finds that there was no undisclosed threats or promises and that Mr. Gordon understood the nature of the charges and the consequences of the plea.   I find that there was an adequate basis for the pleas of guilty.   As such, there is no basis upon which this Court could now conclude that there was not a full compliance with the requirements of Rule 3:9–2.

As to the first Slater factor, Judge Oxley found that defendant did not present a colorable claim of innocence and that the factual claims in his motion were inconsistent with his testimony under oath at the plea hearing.   As to the second factor, the court found that “defendant has not presented ‘fair and just reasons for withdrawal.’ ”   The court rejected defendant's claim that he had not met with an immigration attorney, as it contradicted his sworn testimony and the representations by his counsel at the plea hearing.   The court found that the third factor, the existence of a plea bargain, applied and therefore raised defendant's burden in vacating the pleas because defendant “received the benefit of a plea bargain with a sentence of five years as opposed to the maximum 15 years exposure he faced.”

As to the fourth factor, whether a withdrawal would result in unfair prejudice to the State, Judge Oxley noted that the State is only required to prove prejudice once defendant has offered sufficient proof of the other factors for withdrawal.   The court found that defendant did not offer sufficient proof of factors one through three, and therefore the State is not required to prove prejudice.   Notwithstanding this failure of proof, the court alternatively found the State would suffer prejudice if the pleas were withdrawn.

Judge Oxley also addressed defendant's “inference” of ineffective assistance of counsel pursuant to the standard set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L. Ed.2d 674, 693 (1984), and in the immigration context in State v. Nuñez–Valdéz, 200 N.J. 129, 139–43 (2009).   Judge Oxley found “that both Judge Mellaci and his plea counsel,

․ clearly informed defendant that his plea could adversely impact his immigration status.”

Further, the court noted “that the fact that defendant fled and absented himself from this [c]ourt's jurisdiction for approximately nine months in between his plea and the time that he was supposed to be back here for sentencing is a substantial factor in this case.”

On May 31, 2010, defendant appeared before Judge Oxley for sentencing.   The court found aggravating factors one, three, nine, and eleven, pursuant to N.J.S.A. 2C:44–1(a), and no mitigating factors.   The court sentenced defendant in accordance with the plea agreement, imposing a four-year term on count two of indictment 10–01–0022 and a concurrent five-year term on count three of indictment 10–10–1866.

On appeal, defendant presents the following points for our consideration:

point i

the trial court improperly denied mr. gordon's presentence motion to vacate his guilty pleas insofar as, contrary to united states supreme court and new jersey supreme court case law, neither the trial court, his former counsel, nor the plea form informed mr.  Gordon that he was, in fact, pleading guilty to aggravated felonies, requiring mandatory deportation.

a. mr. Gordon was clearly subject to mandatory deportation by virtue of the offenses to which he pled guilty, as indicated by the succinct and explicit language of the relevant immigration statutes.

b. the trial court failed to comply with its duty pursuant to r ule 3:9–2 and state v. nu ñ ez-vald é z [1] to ensure that mr.  Gordon understood that automatic deportation was a mandatory consequence of his guilty pleas..

c. mr. Gordon's former counsel provided ineffective assistance by failing to inform mr.  Gordon that his pleas would result in his mandatory deportation..

point ii

the trial court erred in denying mr. gordon's motion to vacate his guilty pleas because mr.  Gordon has asserted his innocence..

point iii

the above reasons for vacating the judgments of conviction and reversing the order denying mr. gordon's motion to vacate his guilty pleas satisfy the requirements set forth in state v. slater.[[2]

point iv

the sentences set forth in defendant-appellant's judgments of conviction were excessive in that the trial court erred in failing to properly weigh the aggravating and mitigating factors.

II.

A.

Defendant first argues that his motion to vacate his guilty pleas should have been granted because his pleas violated Rule 3:9–2, as he did not understand that he would be subject to mandatory deportation as a result of pleading guilty to two aggravated felonies.

Rule 3:9–2 provides in pertinent part:

The court, in its discretion, may refuse to accept a plea of guilty and shall not accept such 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.   In 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.

If the record shows that the trial court either failed altogether to ask the required questions, or that the answers elicited failed to show voluntariness, understanding of the charge and consequences, and a factual basis, the appellate court can remand for trial or new plea.   See State v. Rhein, 117 N.J.Super. 112, 120–21 (App.Div.1971).

A motion to withdraw a plea before sentencing should be liberally granted according to a court's discretion.  State v. Deutsch, 34 N.J. 190, 198 (1961);  Slater, supra, 198 N.J. at 156.   The burden is on the defendant to show why the plea should be withdrawn.  State v. Huntley, 129 N.J.Super. 13, 17 (App.Div.), certif. denied, 66 N.J. 312 (1974).   The trial court has considerable discretion in deciding such a motion, and appellate review must recognize that discretion, although the trial court should take into account the interests of the State.  State v. Bellamy, 178 N.J. 127, 135 (2003);  State v. Luckey, 366 N.J.Super. 79, 87 (App.Div.2004).

In accepting defendant's guilty pleas, Judge Mellaci found the factual basis was adequate and that defendant entered the pleas voluntarily with a full understanding of the nature of the charges and the consequences.   Judge Oxley found defendant's guilty pleas satisfied the requirements of Rule 3:9–2.

Defendant argues that the plea court had an obligation to inform him that he was subject to mandatory deportation, relying on dicta in Nuñez–Valdéz, that “it is preferable that the trial court inquire directly of defendant regarding his knowledge of the deportation consequences of his plea.”  200 N.J. at 144.   He argues that Nuñez–Valdéz requires the court to inquire into whether he understood he was pleading guilty to aggravated felonies and that he was subject to mandatory deportation.

In Nuñez–Valdéz, the Court found that the defendant demonstrated that he received ineffective assistance of counsel under Sixth Amendment standards when his first plea counsel had provided false advice assuring him that deportation would not flow from his guilty plea, and substituted counsel compounded that with affirmatively misleading information concerning the deportation consequences of his plea of guilty.  Id. at 140–43.   The Court held that when counsel provides false or affirmatively misleading advice about the deportation consequences of a guilty plea, and the defendant demonstrates that he would not have pled guilty if he had been provided with accurate information, an ineffective assistance of counsel claim has been established.   Id. at 131.

In 2010, the United States Supreme Court decided Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L. Ed.2d 284 (2010), holding that defense attorneys must advise their clients of potential immigration consequences of pleading guilty or risk providing constitutionally deficient assistance of counsel.  Id. at 371, 130 S.Ct. at 1484, 176 L. Ed.2d at 297.   The Padilla Court distinguished cases where deportation is certain from cases where the immigration consequences of a plea are not as clear:

[A] criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences.   But when the deportation consequence is truly clear, as it was in this case, the duty to give correct advice is equally clear.

[Id. at 369, 130 S.Ct. at 1483, 176 L. Ed.2d at 296.]

Applying the principles of Padilla and Nuñez–Valdéz to the facts of this case, we find no deficiency in the record.   Nuñez–Valdéz proscribed affirmative misinformation and misleading advice, which did not occur here.   We reject defendant's argument that the failure of his plea counsel to advise him that his deportation would be mandatory as a consequence of his guilty pleas constituted misadvice.

Defendant argues that he was “clearly subject to mandatory deportation” pursuant to federal law.   We note that 8 U.S.C.A. § 1227(a)(2)(A)(iii) provides that “[a]ny alien who is convicted of an aggravated felony at any time after admission is deportable.”   The definition of an aggravated felony contained in 8 U.S.C.A. § 1101(a)(43)(B), includes “illicit trafficking in a controlled substance[.]”  The Padilla Court viewed deportation under this provision as “practically inevitable,” but noted discretionary relief was available under certain limited exceptions, although not for an offense relating to trafficking in narcotics.  Padilla, supra, 559 U.S. at 364, 130 S.Ct. at 1480, 176 L. Ed.2d at 292.

It is apparent from the record that when defendant entered his guilty pleas neither the court nor defendant's counsel knew with certainty that his deportation was inevitable.   Before entry of the pleas, Judge Mellaci strongly suggested to defendant that he consult a specialist, an immigration attorney, to further clarify the issue.   Defendant not only ignored Judge Mellaci's suggestion, but lied to him under oath when he entered his pleas, assuring the judge that he had consulted with an immigration attorney and still desired to plead guilty.   At the plea hearing Judge Mellaci informed defendant in definitive and unequivocal terms, “this conviction will have an effect on your green card status.”   The plea form defendant signed and acknowledged was even more explicit:  “your plea of guilty is to a crime considered an ‘aggravated felony’ under Federal law you will be subject to deportation/removal[.]”

In his decision, Judge Oxley noted that Judge Mellaci “clearly on the record ․ told the defendant that he should avail [himself] of the opportunity between the status conference and his ultimate guilty plea to speak with an immigration attorney.”   The judge also noted that defendant “indicated that he had ‘talked to’ an immigration attorney [and t]rial counsel had also indicated that he had discussed the consequences that Mr. Gordon's plea would have on his immigration status ‘over and over.’ ”

In State v. Gaitan, 209 N.J. 339, 363 (2012), cert. denied, _ U.S. 1454, 133 S.Ct. 1454, 185 L. Ed.2d 361 (2013), the Court held that Nuñez–Valdéz did not require defense counsel “to become versed in immigration law in order to secure a knowing and voluntary plea.”   Given the uncertainty of the effect of the guilty pleas on defendant's immigration status, Judge Mellaci's suggestion was a reasonable attempt “to raise ․ defendant's consciousness of the risk of deportation and to provide an opportunity for a defendant to seek counsel specialized in the finer points of immigration law.”  Ibid. Defendant's decision to ignore the court's suggestion and later lie about it will not afford him an opportunity now to attack his pleas as uninformed.

We are satisfied that Judge Mellaci fully complied with the requirements of Rule 3:9–3(e), Padilla, and Nuñez–Valdéz and we find no basis to disturb his acceptance of defendant's pleas.   We also find no merit to defendant's argument that his plea counsel provided ineffective assistance in failing to advise him that his pleas would result in mandatory deportation.

B.

Next, defendant argues that the motion court erred in denying his motion to vacate his guilty pleas because he asserted his innocence as to the charges contained in indictment 10–01–0022.

Rule 3:9–2 requires a factual basis for a guilty plea, which must be made voluntarily and with an understanding of the nature of the charge and the consequences of the plea.   Before accepting a guilty plea, a judge must be “ ‘satisfied from the lips of the defendant that he committed the acts which constitute the crime.’ ”  Slater, supra, 198 N.J. at 155 (quoting State v. Smullen, 118 N.J. 408, 415 (1990)).

Defendant, while under oath at the plea hearing, admitted that the marijuana found at his mother's house belonged to him alone and no one else even knew it was there.   At his presentence interview, defendant claimed that he did not live with his mother at the time, the contraband was not his, but belonged to his cousin, and he lied because he did not want to get anyone else into trouble.

Judge Oxley analyzed the Slater factors and found that defendant did not assert a “colorable claim of innocence.”   The court acknowledged that defendant made a “bare assertion of innocence,” but that he provided “no specific facts to buttress his claim.”   The court distinguished this case from two cases where our Supreme Court held that the defendant should have been permitted to withdraw his guilty plea, Slater, supra, 198 N.J. at 163, where “nothing in the record conflict[ed] with Slater's account[,]” and State v. Munroe, 210 N.J. 429, 445–46 (2012), where “[n]othing in the plea colloquy contradicted defendant's later assertion that he was acting in self-defense[ ]” and the “ ‘State's version of events' in the presentence report did not undermine defendant's self-defense claim.”

Judge Oxley found the “record is replete with accounts of events that are inconsistent with each other [defendant] established at his plea hearing․  [H]e has failed to present a consistent account of events that the Court in Munroe found to be significant.”

First, defendant's mother told police on September 9, 2009, that defendant was living in her apartment at that time and defendant admitted at his plea hearing that he lived with his mother.   Second, defendant admitted to police and to the court that the marijuana belonged to him and no one else even knew about it.   Defendant fails to point to any facts in the record to buttress his claim that the marijuana belonged to someone else or that he was not living with his mother when the drugs were seized.

C.

Defendant next claims that he has satisfied the requirements of Slater and his motion to vacate his guilty pleas should have been granted.   We disagree.

The decision to grant or deny a motion to retract a guilty plea is discretionary, and is governed by four factors:  “(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.”  Slater, supra, 198 N.J. at 157–58.   Because defendant filed his motion before sentencing, he must show that enforcement of the plea agreement would be contrary to the interests of justice.   R. 3:9–3(e);  cf.  State v. Hayes, 205 N.J. 522, 535 (2011) (explaining that, in contrast, motions filed after sentencing must establish a “manifest injustice”).

Where the plea is part of a knowing and voluntary plea bargain, “defendant's burden of presenting a plausible basis for his request to withdraw ․ is heavier.”  Huntley, supra, 129 N.J.Super. at 18.   A voluntary plea should not generally be vacated absent “some plausible showing of a valid defense against the charges.”  State v. Gonzalez, 254 N.J.Super. 300, 303 (App.Div.1992).

In all cases ․ ‘the burden rests on the defendant

․ to present some plausible basis for his request, and his good faith in asserting a defense on the merits[,]' and the motion is addressed to the trial court's sound discretion.  Slater, supra, 198 N.J. at 156 (quoting Smullen, supra, 118 N.J. at 416).

As we have discussed, defendant has failed to satisfy the first Slater factor, a colorable claim of innocence.   The second factor focuses on the nature and strength of defendant's reasons for withdrawal.   This second factor focuses on the basic fairness of enforcing a guilty plea by asking whether defendant has presented fair and just reasons for withdrawal, and whether those reasons have any force.  Id. at 159.   The Slater Court discussed examples of reasons that warrant withdrawal of a plea, including:

(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, see [State v. Nichols, 71 N.J. 358, 361 (1976) ] (finding defendant misinformed about whether he would receive concurrent sentences if convicted);  (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, see State v. Johnson, 182 N.J. 232, 241 (2005) (permitting plea withdrawal where defendant was unaware of period of extended parole ineligibility under No Early Release Act, N.J.S.A. 2C:43–7.2)[.]

[Ibid.]

Judge Oxley rejected defendant's argument that he lacked a complete understanding of the proceedings because he was not well versed in the English language finding, defendant knew exactly what plea he was entering into and was made aware of the consequences of his plea when he made his plea to this Court

․  His answers do not present any credible evidence that he was without knowledge of what was occurring in the court.   We agree with Judge Oxley's assessment that the nature and strength of defendant's reasons for withdrawal were not compelling.

The third Slater factor relates to the existence of a plea bargain.   Under our case law, defendants have a heavier burden in seeking to withdraw pleas entered as part of a plea bargain.  Id. at 160.   The Slater Court recognized that the vast majority of criminal cases are resolved through plea bargains and [did] not suggest that this factor be given great weight in the balancing process.  Id. at 161.   Here, defendant received the benefit of the plea bargain from the State, accepting a five-year sentence in lieu of the maximum exposure of fifteen years that he was facing.

The last Slater factor is whether withdrawal of the plea would result in unfair prejudice to the State or unfair advantage to the accused.  Ibid. Judge Oxley noted that the State will only be required to prove prejudice if the defendant has offered sufficient proof of the other factors in support of the withdrawal.   Because the court did not find defendant had offered such proof, the State was not required to prove prejudice.

However, the court discussed prejudice, noting that because defendant has absconded and delayed his proceedings, the State lost the testimony of his co-defendants who had been sentenced in the interim.   Although the State was not required to prove prejudice, we are satisfied that the State would suffer prejudice as a result of defendant's withdrawal.

D.

Lastly, defendant argues that the sentence he received is excessive because the court failed to weigh properly the aggravating and mitigating factors.

An appellate court must make sure that the trial court followed the sentencing guidelines in the criminal code and (1) “require that an exercise of discretion be based upon findings of fact that are grounded in competent, reasonably credible evidence”;  (2) “require that the factfinder apply correct legal principles in exercising its discretion”;  and (3) modify sentences only when the facts and law show “such a clear error of judgment that it shocks the judicial conscience.”  State v. Roth, 95 N.J. 334, 363–64 (1984).   A reviewing court must make sure that the sentencing guidelines were not violated, determine that the findings on aggravating and mitigating factors were based on the evidence, and decide whether application of the guidelines makes the sentence clearly unreasonable.  Id. at 364–65.

The sentencing court found aggravating factors one, the nature and circumstances of the offense;  three, the risk that defendant will commit another offense;  nine, the need for deterring the defendant and others from violating the law;  and eleven, the imposition of a fine without also imposing a term of imprisonment would be perceived as part of the cost of doing business;  pursuant to N.J.S.A. 2C:44–1(a), and found no mitigating factors.   The court sentenced defendant in accordance with the plea agreement.

Defendant claims that he has “no prior criminal history whatsoever and presented with a sheer lack of aggravating factors that would mandate sentencing [him] at or near the top end of the plea agreement.”

A sentence imposed that conforms to a defendant's plea bargain is presumed reasonable.  State v. Pillot, 115 N.J. 558, 566 (1989).   The court's findings of aggravating factors one, three, nine, and eleven find ample support in the record and the sentence imposed was consistent with the bargained-for agreement.   We find no reason to disturb the sentence imposed in this case.

Affirmed.

FOOTNOTES

1.  FN1. Nuñez–Valdéz, supra, 200 N.J. 129.

2.  FN2. Slater, supra, 198 N.J. 145.

PER CURIAM

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