STATE OF NEW JERSEY v. WILLIAM BYRD

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-002583-04T12583-04T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

WILLIAM BYRD,

Defendant-Appellant.

 

Submitted September 27, 2005 - Decided

Before Judges Payne and Francis.

On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment Nos. 03-11-1028 and 03-11-1029.

Powell & Baltimore, attorneys for appellant (Wayne Powell on the brief).

Ronald J. Casella, Cumberland County Prosecutor, attorney for respondent (Matthew M. Bingham, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant William Byrd appeals the denial of his motion to withdraw a guilty plea to count three of Indictment 03-11-1028 charging third-degree possession of a controlled dangerous substance (CDS) with intent to distribute in a school zone, N.J.S.A. 2C:35-7 and N.J.S.A. 2C:35-5, and to count three of Indictment 03-11-1029 charging third-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5b(3). Concurrent terms of five years with a twenty-one month parole disqualifier were imposed on each count along with mandatory fines and penalties.

Prior to sentencing, defendant moved to vacate his plea. The motion was denied.

On appeal, defendant asserts that the motion judge abused his discretion in denying his motion, as his guilty plea was not knowing and voluntary because his attorney misinformed him as to his maximum exposure to incarceration. We disagree and affirm.

The factual predicates for the plea and convictions are as follows. On July 17, 2003, narcotics were seized following the search of a vehicle from which defendant, allegedly, had recently fled. As a result, defendant was charged with possession of CDS, possession with intent to distribute CDS, and possession with intent to distribute CDS within 1000 feet of a school. On August 4, 2003, defendant was arrested at his girlfriend's home. The discovery of drugs in defendant's clothes following his arrest led to separate drug charges.

Defendant filed a motion to suppress the evidence seized both in the vehicle and at the time of arrest. On the return date of the motion, a plea agreement was entered. The plea form provided that defendant's total maximum sentencing exposure was twenty years. During the plea, defendant testified that he could read and write English and was not under the influence of any medication at the time of the proceeding. He acknowledged that he had discussed the agreement with his attorney, that he had understood the agreement, that he was "very satisfied" with the representation of his attorney, Troy Archie, and he had no questions. Defendant then admitted that he owned the cocaine found in the vehicle and in his clothing, which he intended to use and sell. During the plea hearing, the following colloquy took place between the judge, defendant, and prosecutor:

[PROSECUTOR]: I also wanted to note for the record, Your Honor, that in questioning Mr. Byrd you noted that maximum sentence could be five years on each of these offenses. He does have a prior conviction for possession with intent, so that an extended-term sentence would be appropriate.

And the form is correct. His lawyer does have 20 years -- as a total. And I believe he does understand that that is, in fact, the maximum exposure he would have.

THE COURT: Right. But the plea agreement would still call for the five years concurrent.

[PROSECUTOR]: Correct.

THE COURT: All right. Do you understand that maximum possible exposure, sir?

[DEFENDANT]: Yes.

THE COURT: All right. All right; very well. Do you have any questions at this point, sir?

[DEFENDANT]: No.

After entering his pleas, defendant hired new counsel.

On November 15, 2004, defendant moved to withdraw the guilty pleas, pursuant to R. 3:21-1, and stay the imposition of sentence. Defendant asserted that he was innocent, that his former attorney misinformed him as to his maximum exposure, and that he pled guilty out of fear of the imposition of a wrongly-stated extended period of incarceration. The judge found, from his review of the record, that there was no support for defendant's position that he had been misinformed. He then found that "[t]here [were] no additional submissions in this matter from Mr. Archie . . . No representations in that regard. We only have what Mr. Byrd has to say. And this Court doesn't find him to be very credible at all." The motion was accordingly denied

On appeal, defendant again argues that his original counsel misinformed him that his maximum exposure was in excess of thirty-seven years if he were tried and convicted on all counts. He claims that counsel arrived at that conclusion under the assumption that defendant would be subject to an extended term sentence due to his significant past criminal history. Defendant contends that his counsel's mistake in calculating his maximum exposure rendered it impossible for him to make a knowing and voluntary plea. The plea transcript and agreement are plainly to the contrary.

Defendant further contends that the court below erred by failing to apply the Court's decision in State v. Nichols, 71 N.J. 358 (1976). In Nichols, defense counsel, the prosecutor, and the court misinformed defendant regarding his sentencing exposure on charges of armed robbery and murder, neglecting to tell him that the charges would merge upon sentencing. Nichols, thus, is clearly distinguishable from the present action in that, here, the trial court and prosecutor were not involved in the alleged miscalculation of maximum exposure and, further, had reason to believe that defendant was aware of the twenty-year maximum. Moreover, no miscalculation of the maximum sentence occurred. See id. at 361.

A guilty plea that is entered voluntarily may not be withdrawn, except pursuant to a trial judge's discretion. State v. Smullen, 118 N.J. 408, 416 (1990) (citing State v. Huntley, 129 N.J. Super. 13, 16 (App. Div.), certif. denied, 66 N.J. 312 (1974)); State v. Phillips, 133 N.J. Super. 515, 518 (App. Div. 1975) (citing State v. Deutsch, 34 N.J. 190 (1961)). A pre-sentence motion to withdraw a guilty plea is treated with greater liberality than a post-sentence motion. Deutch, supra, 34 N.J. at 198. Nonetheless, defendant bears the burden of presenting a plausible basis for the request. Smullen, supra, 118 N.J. at 416. We find that the mere assertion by defendant of mistake, unsupported by evidence, is insufficient.

At oral argument, the court and prosecutor clearly set forth the twenty-year maximum exposure, related that number to the defendant, and asked if he had any questions, to which he responded in the negative. The plea form that defendant reviewed with his attorney and signed clearly indicated a twenty-year maximum exposure. Such a form is designed to elicit a defendant's understanding of the charges and plea. Deutsch, supra, 34 N.J. at 201. While not conclusive proof, the form "weighs heavily against a contention that the plea was not entered into voluntarily and understandingly." State v. Herman, 47 N.J. 73, 77 (1966) (citing Deutsch, supra, 34 N.J. at 201).

With the advice of counsel, defendant entered into the plea voluntarily and knowingly. There was no abuse of discretion by the trial judge in refusing to vacate the plea.

 
Affirmed.

Although N.J.S.A. 2C:44-5a(2) only permits the imposition of one extended term in a single sentencing proceeding, sentences pursuant to N.J.S.A. 2C:43-6(f) are not subject to this limitation. State v. Singleton, 326 N.J. Super. 351, 355 (App. Div. 1999). Because the two drug offenses were separate in time, consecutive sentences would have been proper under State v. Yarbough, 100 N.J. 627 (1985).

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A-2583-04T1

December 22, 2005