STATE OF NEW JERSEY v. Linwood Walker

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2951-03T42951-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LINWOOD WALKER,

Defendant-Appellant.

______________________________________________

 

Submitted October 19, 2005 - Decided

Before Judges Weissbard and Winkelstein.

On appeal from Superior Court of New

Jersey, Law Division, Cumberland County,

Ind. No. 98-12-1136.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Thomas Menchin, Designated Counsel,

of counsel and on the brief).

Peter C. Harvey, Attorney General, attorney for

respondent (Hillary Horton, Deputy Attorney

General, of counsel and on the brief).

PER CURIAM

Defendant Linwood Walker was charged in a nine-count indictment as follows: second-degree burglary, N.J.S.A. 2C:18-2 (count one); third-degree aggravated assault on a police officer, N.J.S.A. 2C:12-1b(5) (counts two and three); first-degree robbery, N.J.S.A. 2C:15-1a(1) and (2) (count four); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d (count five); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d (count six); second-degree aggravated assault, N.J.S.A. 2C:12-1b(1) (count seven); fourth-degree possession of a weapon by a convicted felon, N.J.S.A. 2C:39-7 (count eight); and fourth-degree resisting arrest, N.J.S.A. 2C:29-2a(1) (count nine).

After a failed attempt on June 11, 1999 and another failed attempt on the morning of June 14, 1999, plaintiff pled guilty to counts four and five on the afternoon of June 14. Defendant's plea agreement called for him to receive a sentence of ten years in prison, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. On July 23, 1999, defendant was accordingly sentenced to a ten-year term subject to NERA on count four and to a concurrent five-year term on count five.

At some point, apparently in early 2002, defendant filed a petition for post-conviction relief (PCR). A copy of the petition cannot be located. However, in support of his petition, defendant filed an affidavit which read as follows:

I, Linwood Walker, the defendant in the above captioned, upon my oath depose and say,

1. I was represented by [defense counsel], in the above matter. [Defense counsel] never informed me that I may have a defense of intoxication.

2. Had [defense counsel] explained to me that I had a possible defense of intoxication, I would not have entered into the plea calling for ten year sentenced must serve 85% without parole.

3. I do not believe that I gave a sufficient factual basis for the Court to accept a guilty plea of robbery.

4. [Defense counsel] led me to believe I was going to get a reconsideration of my sentence.

5. I am asking the Court to throw out my guilty plea agreement and to allow me to proceed to trial. I understand that I am subject to penalty if any of the above statements are lawfully false.

Defendant's affidavit was attached to a motion seeking to set aside his guilty plea and vacate his sentence based upon ineffective assistance of counsel. The letter brief in support of the motion raised two arguments: (1) that defendant was never told by his counsel that he had the right to present an intoxication defense; and (2) that defendant did not provide a factual basis for his plea. The State responded, and after oral argument and an evidentiary hearing on October 11, 2002, the PCR judge, who was not the same judge who had accepted the guilty plea in 1999, denied defendant's application. An order was entered that same date. This appeal followed. We now reverse.

Before us, defendant again argues that he did not give a factual basis for his guilty plea and that he was denied the effective assistance of counsel. On the latter point, defendant contends that counsel "failed to interview any one of a number of people who could have provided useful information on defendant's level of intoxication . . . never interviewed the officers who arrested defendant . . . never interviewed the two employees who encountered defendant at the bait shop and never sought out any friend or family member who may have observed defendant drinking that day . . . [n]or did he take any steps to secure the services of an expert witness."

The charges arose from an incident on October 1, 1998 when defendant, who had been drinking all day, entered the Modern Heating and Boat Store in Bridgeton. It was alleged that defendant picked up and shook the store's cash register in an effort to get money and in doing so threatened a store employee with a knife. In order to assess defendant's claims, we are constrained to set out at length the proceedings of June 11 and June 14, 1999. On June 11, the following took place:

L I N W O O D W A L K E R, DEFENDANT, SWORN DIRECT EXAMINATION BY THE COURT:

Q. Did you hear what [defense counsel] just told me?

A. Yes.

Q. Did you understand what he said?

A. Yes.

Q. Are you going to be entering two guilty pleas?

A. Yes.

Q. What crimes are you guilty of?

A. Robbery.

Q. Okay. And what other crime are you pleading guilty to?

A. Oh, weapons.

Q. All right. Unlawful -- or possession of a weapon for an unlawful purpose?

A. Yes.

Q. And what weapon are we talking about?

A. A knife.

Q. Do you understand what robbery means?

A. Yeah, I understand what it means.

Q. Okay. Do you understand what possession of a weapon for an unlawful purpose means?

A. Yes.

Q. Did anybody force you or threaten you in any way to make you enter these two guilty pleas?

A. No.

Q. Has anyone made any promise to you as to the sentence you might receive other than the plea-bargain that [defense counsel] told me about?

A. No.

Q. Are you doing this voluntarily?

A. Yes.

Q. Are you doing this because you are guilty of possession of a weapon for an unlawful purpose and robbery?

A. Yeah. Can I say something, please?

Q. Sure.

A. All I know, I was drinking heavily. Now, this store that I entered, I go there every week. It's two people, Ann, the wife of John and John's sister. All I know, I went in there -- I looked at the charges myself. If I threatened anybody's health, life or danger, if I have a weapon and I guess some type of crime is committed, I can be charged with robbery; okay?

Now, I had been drinking all morning. I should have went to work like I started, but my nephew and my grandson asked me to take them fishing. We was just -- I was supposed to have been going fishing, that's all I know. I was too drunk. I shouldn't even -- they shouldn't have even been in my custody. How they ended up, I don't know because I had been drinking; I don't hardly remember anything.

All I know, I ended up at -- at Modern Heating and Baiting Store, I fell and -- because you have to step down to go in, and I fell, knocked down the cash register, the -- some of the fishing tackle. When I was coming back in, I had my knife and my fishing bucket to go and get some bait.

All I know, Ann asked me what was I doing. I had stuff that I was picking back up on, putting back on the counter. And the other -- her sister-in-law was around in the heating side. And when I was talking to -- well, when Ann was talking to me, because I was so screwed up and so messed up in the head, I couldn't respond. And the whole report states that even when the police came, I couldn't respond, I couldn't, because I was too drunk.

So all I know, Ann said that when she came that I was picking up the -- I had the cash register pad, the cash register, my knife and my bucket in my hand. When she came in, I set things back down on the floor. That's how I'm stuck with robbery and everything, but I have a record. My record is too long, I've been in trouble before to mention. So I have no choice. I have no choice.

THE COURT: Mr. Walker.

THE DEFENDANT: I -- I don't know what to do. I've got to plead guilty to the robbery and to possession. I can't prove it. I have no witnesses. I mean, my intentions was not to go into no store and rob anybody. They know me.

THE COURT: Mr. Walker, I can't accept your guilty plea. We'll set it down for a trial.

THE DEFENDANT: I mean, but --

THE COURT: Do you have all your discovery, [defense counsel]? If he's not guilty, --

THE DEFENDANT: Excuse me --

THE COURT: -- I certainly don't want to accept a guilty plea.

[DEFENSE COUNSEL]: Well, I wanted -- he went into some colloquy, I do want to place something on the record.

THE DEFENDANT: I don't even know what happened, I was drunk.

[DEFENSE COUNSEL]: The nature of the plea because of this -- of the -- much of what he's set forth as far as the -- regardless, it's contained in the discovery. There were some other facts, which he did not mention, were contained in the discovery.

It was my intention as to when we entered this plea is to discuss with Mr. Walker the nature of the fact that he was somewhat intoxicated. And his recollection as to some things is clear, as to other things is not clear. And I was going to go -- in my questioning of him ask him if he understood the nature of the charges and the fact that he was -- did some things occur which he wasn't aware of, did some things occur which he did not -- aware of. If I could possibly do that?

THE COURT: Well, he's already said quite a bit. And it is somewhat out of the normal sequence of questioning. If you feel it's most appropriate, I'll allow you to do that, sure.

DIRECT EXAMINATION BY [DEFENSE COUNSEL]:

Q. Linwood, let me ask you a question, okay. My understanding is on that day you got up, you were drinking pretty heavily? You've got to say yes or no.

A. Yes.

Q. Okay. And there came a time that you went into this place to get some kind of fishing equipment or fishing bait or something?

A. Yes.

Q. Okay. What was the name of the place?

A. Modern Heating and Baiting Tackle.

Q. Okay. And when you got in there, did there come a point in time that as a result of your actions, the cash register was knocked on the floor?

A. Yes.

Q. Okay. And as a result of the cash register being knocked on the floor, did one person come in -- I think it was either his wife or his sister come in to that area?

A. Yes, yes.

Q. Okay. And when they came into that area, at that time my understanding is that you were holding a knife?

A. Well, I had my -- my bucket and my knife --

Q. Right.

A. -- in my hand, yes.

Q. And at that time there was some type -- you had a what, a bucket?

A. My bait bucket.

Q. Your bait bucket, okay. And it's my understanding at that time that you -- when you were there she came in, there was some conversation but you don't have any recollection as to what the conversation was; is that correct?

A. Right.

Q. And didn't there come a point in time that as you were talking to her you had the knife in your hand; is that correct?

A. No, she was talking to me.

Q. All right. Well, there was --

A. Right.

Q. -- some type of communication?

A. Right.

Q. And isn't it also true to the best of your recollection, if you can remember, that at some point in time with the knife in your hand -- and my understanding is this is not like a kitchen knife, it's one of those knives where it opens up into a blade; is that correct?

A. Right.

Q. Okay.

A. It's folding knife.

Q. It's a folding knife?

A. Right.

Q. And the blade was, in fact, opened; isn't that correct?

A. I can't remember.

Q. Okay. But there's no dispute in your mind that you were there, but for some reason the knife was not in your pocket, the knife was in your hand; is that right?

A. Right.

Q. Okay. And the blade possibly was open; is that correct?

A. Right.

Q. Yes. And it's also my understanding that as a result, you spoke to initially Cheryl Pace(phonetic); is that correct?

A. (No audible response)

Q. You spoke to a woman, you don't know who it was?

A. It was Ann, I'm sure.

Q. Okay. And then there came a point in time when she was talking to you, you started to go towards her, walk towards her; isn't that correct?

A. Yes.

Q. And when you were walking towards her, you happened to have the knife in your hand; is that correct?

A. Yes.

Q. Okay. And she was either right near the cash register or she was holding it to picking up the cash register; is that correct?

A. No.

Q. Where was the cash register?

A. Well, it's about the distance from here to this wall to the fuel -- the fuel oil heating side and the bait side. I was gone, I had made my -- made my turn to go over to the heating oil side because I always talk to John when I go over there. But I heard another voice and it was Ann, she was going to call the police. I think she went up and complained about being scared.

But the woman who I was talking to wasn't, because I always talk to her when I go up there. She's not -- she's not the one. Ann was fearful, because she got mad at the other woman because she said that, why did you tell him John wasn't here, something could have happened. But she --

Q. My understanding is you just said that it appeared to you that one of the ladies was fearful?

A. Yes, one of them was fearful.

Q. And was she the lady that was near the cash register?

A. No.

Q. Okay. Somebody was near the cash register; is that correct?

A. Right.

Q. Which woman?

A. It was Ann or --

Q. One of them was near the --

A. Right.

Q. And the one that was near the cash register appeared to be fearful when you walked towards them; is that correct?

A. Right.

Q. Okay. And she, in fact, when you walked towards her with the knife and she was near the cash register, she took off to call the police; is that correct?

A. No, the sister called the police.

Q. Okay. But didn't the other lady also take off?

A. Not at that time.

Q. Well, at some point in time she did take off?

A. Yeah, she left later.

Q. Okay. And at that time when you started to walk towards her, okay, it's my understanding you had a knife?

A. Yes.

Q. Okay. Your recollection of this incident you said was somewhat clouded by the fact that you were intoxicated?

A. Yes.

Q. Okay. You mentioned the name fearful. What was the woman -- what did the woman appear to you to look like?

A. Well, I couldn't -- I couldn't hardly see.

Q. Well, you said fearful, why did you come up with the word fearful?

A. Because when I heard Ann, I think, mentioned why did you tell him there wasn't nobody here, something could happen; that's where I got it from. But I was so intoxicated, I couldn't respond. I mean, the police came there. I mean, I even got more confused, but I didn't say anything to them either because I heard some -- heard different voices say different things, because I --

I barely could hear and understand what Ann was saying and her sister-in-law half the time, because it was only one or two voices. But when the police came, it was like five, six voices at the same time. I could not understand what nobody was saying at no time. So that's why when -- before the police came, I just backed up against the wall and just stood there. I mean, I didn't know what to do, I couldn't say anything. I mean, I couldn't -- I just couldn't communicate with nobody that's why I didn't say anything.

Q. Well, let me get to the heart of the matter. I don't want to put any words --

THE COURT: Well -- go ahead.

BY [DEFENSE COUNSEL]:

Q. I don't want to put any words in your mouth, I don't want to --

THE COURT: Was there a theft, [defense counsel]?

[DEFENSE COUNSEL]: Well, I think that there was not a theft, but there was a -- in light of the fact that when he came in, the cash register was on the floor, he had a knife in his hand, the police discovered he walked towards her with the knife in his hand. The cash register, I think that the --

THE COURT: A person is guilty of robbery if in the course of committing a theft.

THE DEFENDANT: And there wasn't no theft.

THE COURT: There wasn't no theft, then let's --

[PROSECUTOR]: Well, Judge, does that include an attempt to commit a theft also? Because according to the discovery that I have, what occurred according to the victim was that she had heard -- there were two women there. One identified as Cheryl, heard someone come into the store. She saw the defendant with the cash register in his hands and he was shaking it trying to get it open. She said -- she told him no, to put it down, and he did at that point. She picked up the cash register, she put it back on the counter.

At that point when she looked at him, he had a knife in his hand, he was coming directly towards her and she ran out of the establishment across the street to Montana Motors. They contacted the police, the defendant was arrested. He was verbally and physically abusive to the police officers. He hit Patrolman Trout in the stomach and spit in his face. And then at the station, again, spit in Patrolman Ott's(phonetic) face.

THE COURT: Well, if it was an attempt to commit theft, as I understand the statute, it's certainly in the course of committing. The question is, I guess, and this is sort of out of the normal order of things --

Did you hear what the prosecutor said, that the --

THE DEFENDANT: Yes.

THE COURT: -- people at the store told her --

THE DEFENDANT: Yes, I heard.

THE COURT: -- or told the cops? Do you have any reason to believe that that's not true?

THE DEFENDANT: I don't know, I was intoxicated, but --

THE COURT: Do you have any reason to argue with what that woman saw or thought?

THE DEFENDANT: (No audible response given)

THE COURT: She says she came in, according to what the prosecutor just told me, you had the cash register, shaking it, which appears to be in the course of attempting a theft. And then you came at her after she told you to put it down with --

Prosecutor, I assume an open knife?

[PROSECUTOR]: Yes, Your Honor, she saw the blade?

THE COURT: She saw the blade. Do you have any reason to believe that it did not occur in that way?

[DEFENSE COUNSEL]: Excuse me, Your Honor.

THE COURT: Sure. [Defense counsel], I'll tell you what, take this discovery, go with him in the window, and --

[DEFENSE COUNSEL]: Okay.

THE COURT: -- let me resolve one other matter fairly quickly with --

[DEFENSE COUNSEL]: No problem.

THE COURT: -- while we're doing that. All right. If there's a problem or he needs to review the discovery, we can bring him back on Monday.

[DEFENSE COUNSEL]: Okay. Why don't you do this, you take this, you go over to the window, I'll meet you right there.

(Whereupon the Court dealt with an unrelated matter)

(Whereupon back on the record in State v. Linwood as follows:)

[DEFENSE COUNSEL]: Mr. Walker, at the Judge's suggestion, I think that it would be most appropriate if you had an opportunity to look over the discovery again this weekend, rather than make a quick decision.

I'm going to give you the indictment and the police reports. I'm not going to give you any other information that's contained in -- which would be some data from FBI and the actual complaints. I'm giving you the indictment and the discovery. Everything else is sort of like duplicates. Okay. You have an opportunity to look at it and we'll be back here on Monday. Fair enough?

THE COURT: Mr. Walker, I can't accept a guilty plea from you if you're not guilty, okay. And I won't accept a guilty plea from you if you're not guilty. We'll just simply set the matter for trial and let a jury decide if you're not guilty. And there's obviously a substantial question in your mind as to what happened and what the facts were. I'll give you the opportunity and I'll see you back here on Monday.

THE DEFENDANT: But can I say something, Your Honor?

THE COURT: Well, do you want to talk to [defense counsel] first?

THE DEFENDANT: No, I just want to say the cursing was -- she was right, it happened, but all of that was not at the scene.

[DEFENSE COUNSEL]: Okay. Well, listen, listen, listen. You were not -- all you're dealing with is the incident at Modern Heating involving the two ladies. As far as the police and all the other discovery, all those charges are not going to be applicable, are not going to be valid, because as part of the Plea Agreement, all that's going to be dismissed, so there's no discussion as to that. But I still want you to look at this over the weekend, okay, fair enough? Okay; is that all right?

THE DEFENDANT: That's okay.

At that point, the proceedings adjourned so that defendant would have an opportunity to review the discovery over the weekend. On the following Monday, June 14, the judge, after going over defendant's understanding of the plea agreement and his rights, asked defense counsel to elicit a factual basis for the plea. The following ensued:

DIRECT EXAMINATION BY [DEFENSE COUNSEL]:

Q Linwood, is it my understanding that it's your desire to enter a guilty plea to an incident which occurred on or about October 1st, 1998; is that correct?

A Yes.

Q It's my understanding that at the time prior to going to the Modern Heating and Bait Store that you had been doing some drinking?

A Yes.

Q Would it be fair to say that you were rather intoxicated?

A Yes.

Q Okay. Do you recollect going into the store?

A Yes.

Q Do you have recollection as a result of your condition knocking over a cash register?

A Yes.

Q Do you also have a recollection of you picking up that cash register?

A Yes.

Q And do you also have a recollection of during the period of time you were in the store having a weapon, I guess we'd commonly call a large pen knife?

A A small pen knife.

Q A small pen knife. I'm sorry. And that the pen knife was open rather than it being -- it's one of those -- it has a -- it folds in or out, it was folded out; is that correct?

A Yes.

Q And did there come a time when one and two ladies confronted you about the cash register?

A Yes.

Q And did one of those ladies in fact pick up the cash register?

A Yes.

Q And when she did in fact pick up the cash register my understanding is you had a knife in your hand; is that correct?

A Yeah.

Q Did you go towards her?

A I don't know.

Q Okay. You've reviewed the discovery have you not?

A Yeah, I read the discovery.

Q And you don't have any reason to dispute what's contained in the discovery, do you as to what transpired in relationship to the woman seeing a knife in your hand, that you were going towards her, her being in a situation where she ran out of the store; is that correct?

A I don't know which one --

Q No, the one --

THE COURT: No, that's not responsive.

THE DEFENDANT: I don't know. I'm not aware of these things, you know.

BY [DEFENSE COUNSEL]:

Q One of the ladies --

A I don't know one of them did.

Q Okay. Do you have any -- my question to you was and take your time, did you have an opportunity this weekend to review the discovery?

A Yes.

Q Do you have any reason to dispute any of these contained in the discovery?

A No.

Q And the review of that discovery became apparent to you that one of the ladies that was communicating with you or talking to you in relation to this cash register set forth in the discovery that you went towards her; you don't have any reason to dispute that do you?

A (No verbal response)

Q And you don't have any reason to dispute

that --

THE COURT: I'm sorry. His answer was?

THE DEFENDANT: No.

BY [DEFENSE COUNSEL]:

Q And you don't have any reason to dispute the fact that when you went towards her you had the open blade, open switchblade in your hand; is that correct?

A Yes.

Q And you don't have any reason to dispute the -- what was contained in the discovery that her fears were that you were coming toward her because she was still holding the cash register; is that correct?

A (No verbal response).

Q You don't have any reason to dispute that do you?

A I don't know if she was the one that ran.

Q No, no. I'm talking about one of the two ladies.

A One of the two.

Q Correct. And my question is directed to one of the two ladies in the discovery had revealed that she was holding the cash register or attempting to pick up the cash register and there was communication that went back and forth. And at some point in time with the knife in your hand you went towards her while she was in the or around the area of the cash register. And my question to you was, you don't have any reason to dispute the facts contained in the discovery; is that correct?

A Correct.

Q Okay. And recognizing at the time that you were somewhat intoxicated you have reviewed the discovery over the weekend; correct?

A Yes.

Q And after that review of the discovery advising and entering pleas of guilty based upon your limited recollection because of the nature of your physical condition; is that correct?

A Yes.

Q And that you have no reason to dispute the facts which are set forth in discovery?

A Right.

Q Okay.

THE COURT: Mr. Walker, a robbery is a theft while you use force. What was the theft, what did you steal or what did they say you were attempting to steal?

THE DEFENDANT: I don't know. A witness said I knocked things over. I picked the cash register up and she was walking from the heating oil side. And she asked me what I was doing. And I couldn't -- I didn't respond to the female in the store because I was intoxicated.

And the other one ran around and asked her if she wanted her to call the police. She didn't say anything but she had already had called the police anyway.

THE COURT: How do you know that?

THE DEFENDANT: Because I heard -- I could hear them talking. And she also got mad at Ann because of Ann told her wasn't nobody there but the two of them. Everything is shaky. I was drunk. I was drunk, you know, I was drunk. I was drunk. I don't know what happened or how it happened. I can't afford to go to trial because I'm facing 25 to life. I got to bend someway. You know I can't be stupid and go to trial when I don't know what happened because I can't say what happened. So --

BY [DEFENSE COUNSEL]:

Q You don't dispute the facts as contained in the police report, do you?

A Right. I know one of the ladies was threatened because -- I don't think it was Ann because it was her sister that came around and called the police but I don't know anything. You know, I --

Q But you said one of the ladies was threatened?

A Right, I know one of them was, the one that said about calling the police was the one that was -- was threatened.

THE COURT: What did you say to threaten her?

THE DEFENDANT: I couldn't -- I didn't talk to no one.

THE COURT: Well, what did you do that you think threatened her?

THE DEFENDANT: Well, I mean I think me not being able to talk is what threatened her because no telling how I was looking when I was in there because I was drunk.

BY [DEFENSE COUNSEL]:

Q Linwood, did you happen to have anything in your hand?

A I had the knife at the time.

Q Okay. Was the knife open or was the knife closed?

A (No verbal response)

Q The blade?

A It could have been opened. It could have been opened.

Q Well, you have no recollect -- you told us earlier that the blade was open --

A It could have --

Q -- do you have any recollection of you ever closing the blade?

A No.

Q Having taken the decision and saying, you know, closing the blade?

A No, it's hard. It's just hard. I don't know. All I know is the original -- Ann she stood there talking to me for 10, 15 minutes until that other lady came. But I do remember going over to the fuel oil side, the side that Ann was speaking from. I had heard the voice and I heard that your brother is not here which they was talking about John.

I turned back to walk towards the bait shop side and that's when I guess she let out because I had to walk by one of them to go back over there. And then I stood up against the wall until -- that's the last thing I remember.

THE COURT: When you walked over to the heating oil side and then walked back, did you have the open knife in your hand?

THE DEFENDANT: I could have. I know at that time I had my bait bucket and my knife in my hand.

THE COURT: What did you steal, sir?

THE DEFENDANT: Nothing. I was just picking everything back up off the floor that I knocked over.

THE COURT: Were you -- were you trying to take money from the cash register?

THE DEFENDANT: This is how I remember things. I went in. I knocked over the one ounce weights and the one and a half ounce weights.

THE COURT: Sinkers?

THE DEFENDANT: Right. I picked those up first. I know I messed up there because I had them mixed together. And then I picked up the cash register. I mean me being in the state of mind that I was in, I mean if I'm trying to steal money to (inaudible) or if I'm shaking it, I don't want to hear the money that I'm going to take because that's telling you that's something in there. I mean like being not focused on the situation that was around me when I picked it up first thing I thought was, oh, shit, I broke it, you know. But then at that split second that's when she came around from the heating oil side.

THE COURT: Did you pick it up and shake it so that you could shake some money out?

THE DEFENDANT: No. When I picked -- when I picked it up the (inaudible) I heard that it made noise and I said wow, I said damn, I broke it. And then as soon as I --

THE COURT: Why would you pick up the cash register if you weren't going to take something from it?

THE DEFENDANT: I had knocked it on the floor. It was on the floor. I had knocked everything down on the floor and when I was standing up to pick it up along with my bait bucket and my knife I heard the noise, I said, damn, I broke it.

So then I started setting what I -- was getting ready to set it back on the cash register, I mean on the counter and she was coming from around the fuel oil side because the -- the counter is about from as soon as you go in the store you step down. There's a step that steps down not up and after you open the door you step down. That's when I stumbled and fell. And it went from here to there and that's when I fell and knocked things over. So it was only a step away from the door.

So when I started picking everything up and when I got down and starting picking the cash register up I was down on one knee that's when she came and asked me what was I doing or you can't have -- something like that. And then I was on one knee down on the floor. I sat it back down on the floor and that's all I remember.

And then she said that John wasn't in after I started going over to the fuel oil side so I turned around and came back. And the police report should say that I was standing up against the store because I didn't say it. Maybe that's why she was scared because I couldn't say it. When they was trying to talk to me I didn't say anything. I don't know how I looked because I was -- I don't even know how I got to the store or which way I went to get to the store. I can't even remember if it was day or night. I don't know how I was even driving the car.

THE COURT: Prosecutor.

[PROSECUTOR]: Judge, I still haven't heard that in order for a robbery to go through and not have to revisit this issue at a later date the -- the defendant still has not admitted on the record that on this date he was attempting to steal anything, either the cash register or the money from inside the cash register from the Modern Bait and Tackle Shop.

THE COURT: I haven't either. [Defense counsel], if your client's not guilty of a robbery under that factual scenario we're going to have to put the matter down for a trial.

THE DEFENDANT: Excuse me. Just a second.

THE COURT: How -- how soon can you be ready to try this case, [defense counsel]?

[DEFENSE COUNSEL]: Within 30 days, Judge.

THE COURT: Okay.

[DEFENSE COUNSEL]: Can I just ask one or two questions?

THE COURT: Sure.

BY [DEFENSE COUNSEL]:

Q Linwood, when you walked into the store did you happen to have an open blade?

A No, it -- the blade and everything was in my fishing bucket. I had the little --

Q I understand that but there came a point in time, Linwood, that the blade was open, okay, and there's no way in the world by your falling that the blade that was in a bucket could open; do you understand that?

A (No verbal response).

Q The blade was open; is that correct?

A Yes.

Q Okay. And was that open blade in your hand?

A The knife was in my hand.

Q Right. And when the open -- the knife was in your hand did you have the knife in your hand when you were shaking the cash register?

A No, it had to be on the floor then because I didn't pick up the knife and the bucket until she asked me what was I doing. Then I picked up what was mine.

Q Okay. So you picked up the cash register; correct?

A Right.

Q Isn't true that you were shaking that cash register?

A I don't know.

Q Do you remember shaking it?

A I don't know. I just know I heard a noise when I picked it up. And when I picked it up when I heard the noise I said, damn, I broke it. And then she said -- she said something no, you can't have it or no -- something or what you doing. And that's when I was on one knee and I put it back down on the floor.

Q Okay. So when you stood back up did you have the knife in your hand?

A Yes, I had my bucket and the knife in my hand.

Q And did you go towards the woman with the knife in your hand?

A I went to -- yeah, to --

THE COURT: [Defense counsel], we don't have a theft.

[DEFENSE COUNSEL]: Okay.

THE COURT: Do a trial memorandum. I'll give you back the plea forms.

THE DEFENDANT: Excuse me. Your Honor.

THE COURT: Yes, sir.

THE DEFENDANT: I mean if I don't have no witnesses, I mean I can't -- I want to plead guilty to this because I --

THE COURT: I understand that.

THE DEFENDANT: -- can't -- they're talking about 25 years. I can't afford that, you know, I want this over.

THE COURT: I understand that.

THE DEFENDANT: You know I want this over.

THE COURT: Well, I can certainly understand that, Mr. Walker, but I can't accept a guilty plea from a man who is not guilty and from what you're telling me you are not guilty of robbery. You may be guilty of being drunk in public. You may be guilty of being awkward and stumbling. And you may be guilty of having this opened knife but I have heard nothing about a theft, sir, and an essential ingredient of a robbery is a theft.

Put him back in the window and let [defense counsel] talk to him in the window.

[DEFENSE COUNSEL]: I'll meet you right in there, okay.

Finally, that same afternoon, the following questioning by defense counsel took place:

Q Linwood, this afternoon when you came into the room and we discussed this did I ever discuss with you any maximum penalties you could face?

A No.

Q You had mentioned it but did I ever mention the fact that what you're facing if you go to trial; do you remember discussing that, did I bring that subject up?

A No.

Q This morning when we discussed this matter did I ever bring up the subject of any penalties that you could face if you went to trial?

A No.

Q You had mentioned it but I didn't bring the subject up; is that correct?

A Right.

Q Okay. Do you understand that when you explain to the judge as to what you're pleading guilty to you have to explain to him as best as you can your recollection or what you understand from your view of the discovery; do you understand that?

A Yes.

Q And did we also have an opportunity to go over the discovery again in the break?

A Yes.

THE COURT: I'm not sure that his responses are being picked up.

BY [DEFENSE COUNSEL]:

Q You've got to -- you got to -- the judge has got to hear you. Pretend there's a fire and you're trying to get out the house and he's got to hear you. Okay.

A Yes.

Q All right. Do you understand that --

THE COURT: Not you. I can hear you.

[DEFENSE COUNSEL]: I'm sorry. I'm sorry.

BY [DEFENSE COUNSEL]:

Q Do you have a recollection of going to the Modern Heating Store to do whatever you wanted to do on that particular day; do you have a recollection of that?

A Yes.

Q Had you been to that store previously?

A Yes.

Q Okay. Now the way in which that store is situated is it a store that is basically two stores within one?

A Right.

Q Okay. And are you aware of the fact that when you go into the store that involves the bait that if there is no one there will be a buzzer that will go off?

A Yes.

Q Okay. When you went in the store on that date to the best of your recollection did you have an understanding as to whether anyone was there initially?

A Yes.

Q Was anyone there initially?

A On the side that I went in?

Q Yes.

A No.

Q Okay. And did there come -- and you have told us on this particular day of this offense which is I believe October 1st of '98; is that correct?

A Yes.

Q That you had been drinking all day; is that correct?

A Yes.

Q Your exact words previously were you really shouldn't have been anywhere; is that correct?

A Yes.

Q You've got to speak up, Linwood.

A Yes.

Q Okay. You've had an opportunity to review the police report; is it your understanding on that particular date and your position today that you were rather intoxicated?

A Yes.

Q Okay. And is it also my understanding that your recollection as to what transpired on that date isn't as clear as it would be if you hadn't been drinking; is that correct?

A That's true.

Q Okay. On that particular date in the police report it reveals that when Ms. Page (phonetic), Cheryl Page the sister of the other woman or sister-in-law came in contact with you you had the cash register in your hand; did you review that in the police report?

A Yes.

Q Okay. If I told you that contained in the police report and that as you had the cash register in the -- in the -- in your hand you were shaking it; would you in any way dispute that?

A No.

Q It's also my understanding that it's contained in the police report that after discussions with her you placed that cash register down on the ground; is that correct?

A Yes.

Q And do you have any dispute to the fact which is contained in the police report that Cheryl Page picked up that cash register and put it back on the counter where it originally was; do you have any dispute as to that?

A No.

Q And it's contained there in the discovery and in the police report dated 10-1-98 by Officer Ott (phonetic); you have no reason to question that, do you?

A No.

Q Okay. It's also my understanding on that particular date that when she put it back onto the counter at that point in time you had a knife or a blade in your hand; is that correct?

A Yes.

Q And was that blade -- and my understanding is that blade was open or shut?

A Open.

Q Open. And it's also contained in the police report that during the course of the period of time when you were in the store that with the blade open in your hand and I believe you also had a bucket in your hand that you went towards her where she was situated in or around the area of where the counter was and the cash register; is that correct?

A Yes.

Q Do you have any reason to dispute where it states on the police reported that Cheryl stated that when she again looked at Walker he had a knife in his hand with the blade extended and was moving directly at her; do you have any reason to dispute that?

A No.

Q And that it further states that she stated that she ran out the side door, she had just opened and slammed it shut; do you have any reason to dispute that or do you know of your own recollection that she did in fact leave the store when you went towards her?

A Yes.

Q Okay. Do you have any questions at all as to the fact on that particular date that you were intoxicated?

A I was intoxicated.

Q And do you have any dispute as to the fact as I have read to you from the police report; do you dispute any of them?

A No.

Q Okay. Do you understand that the facts which you have just stated that you do not dispute basically set forth the situation where you would be in possession of an item which didn't belong to you the cash register; do you understand that?

A Yes.

Q And that by shaking the item the inferences that can be drawn therefrom would be that you were attempting to take what was in the cash register; do you understand that?

A Yes.

Q And that further when she picked up the cash register and moved it to the counter and positioned it where it was originally and you then moving towards her with a knife in your hand, the only logical inference would be drawn therefrom is that you attempted to get the money from the cash register while she was there; do you understand that?

A Yes.

Q Do you have any disputes at all?

A No.

Q Did I in any way force you or coerce you or threaten you to plead guilty?

A No.

Q Isn't it true that I never once mentioned the number of other offenses which are a part of this agreement which will be disposed of at sentencing which are not subject to this; I never discussed that before, did I?

A No.

Q I never said to you that you know you could get X, five years for this, four years for this, three years for this?

A No.

Q All we discussed were the facts; is that correct?

A Yes.

Q Do you feel in any way, now is your opportunity not a year from now or six months from now, did I in any way cause you to plead guilty?

A No.

Q Did I come into the other room and say Linwood here's the form for a pretrial memo, I want you to sign it, we'll go to trial?

A Yes.

Q And you said to me -- what did you say to me, I don't want to do that?

A Right.

Q Okay. Did I explain to you that I had no problem going to trial and that based upon what transpired that probably at that time would be our only alternative?

A Yes.

Q Do you have any questions at all?

A No.

Q Now is the time, not -- are you sure?

A Yes, right.

Q And you understand that by doing what you've done today, you're pleading guilty to an offense?

A Yes.

Q And the offense that you're pleading guilty to is an offense which is going to require you to serve ten years in prison of which you're not eligible for parole for 85 percent of the time which is eight years, six months and a couple days; do you understand that?

A Yes.

Q Any questions at all?

A No.

Q How are you feeling today, healthwise I'm talking about?

A Oh, healthwise I feel good.

Q Okay. I mean you're not happy about this are you?

A No.

Q Who would, right?

A Right.

[DEFENSE COUNSEL]: I have nothing further, Judge.

EXAMINATION BY THE COURT:

Q Mr. Walker, the sentence that has been described to me is the ten years with a requirement that you would serve eight years, six months and two days. Do you also understand that if I accept your guilty plea and sentence you in accordance with that sentence that even after you're out of jail you will be required to serve an additional five years on parole, that that's part of the 85 Percent Rule; did [defense counsel] explain that to you?

A (No verbal response)

Q And when you signed this supplemental plea form here did you understand that that's part of it, a five year period of parole with a first degree offense?

A Yes.

Q Now, the scenario that [defense counsel] just went through where he said it was a fair assumption that you were shaking this cash register, were you shaking the cash register, sir?

A Yes.

Q And were you shaking the cash register to try to get some money to come out of it?

A Yes.

Q And would you have taken that money if it had fallen out?

A Yes.

THE COURT: Prosecutor.

[DEFENSE COUNSEL]: Judge, if I could ask one question.

[PROSECUTOR]: I have no questions on that issue, Judge.

BY [DEFENSE COUNSEL]:

Q Just one question just so that the record is clear. Previous to coming into court today and I believe also previous to us coming to court on Friday you and I had discussed this indictment and all the various charges; is that correct?

A (No verbal response)

THE COURT: I'm sorry. I couldn't hear the response.

BY [DEFENSE COUNSEL]:

Q Yes?

A Yes.

Q And previously we had discussed the fact that what the various amounts of time that were existing as minimum and maximum for the various charges; is that correct?

A Yes.

Q And two of those charges involved aggravated assault and some of those charges involved resisting arrest and things of that -- is that correct?

A Yes.

Q So previous to today when we discussed this you were aware of the various penalties that could possibly be imposed on all the various counts of the indictment; is that correct?

A Yes.

Q Okay. Now, just so that -- just to make sure that everything is clear you also at the time of this particular offense were in possession of a knife; do you understand that?

A Yes.

Q Okay. And as you well know that by being in possession of a knife with -- with the purpose to use it as you have just explained to us that would be another offense, unlawful possession of a weapon; do you understand that?

A Yes.

Q I just want to make sure that there's no question in your mind as to that?

A No.

[DEFENSE COUNSEL]: I have nothing further, Judge.

THE COURT: I accept his plea. I find it knowingly and voluntarily entered. I find it was not made as a result of any threats to Mr. Walker nor any promises to Mr. Walker that were not disclosed here on the record. I find that he understands the charges and the consequences of his plea.

Nevertheless, when interviewed for his pre-sentence report, defendant provided the following version:

The defendant stated that he went to the store to buy bait. When he bent down his bucket and knife fell out. He also knocked over the cash register and as he was trying to return it, two women entered the store. He admits to being intoxicated and he can't say that he didn't do what they said he did, but he doesn't remember trying to rob the store. Walker stated that he knew the owner and had been there on several occasions to buy items for fishing.

As a result, at sentencing, the judge addressed defendant once again, as follows:

THE COURT: Let me just step back a couple of steps if [I] can, [defense counsel], because in reading the pre-sentence report I'm not sure if he is saying that he is not guilty again or not. I have my notes from the time he entered the plea and if I recall we did this like on a Friday and then it didn't work and we had to come back the next day. There was (indiscernible). And we spent a long time trying to do this. And I wrote down the following: "I was shaking the cash register to get the money to fall out in order to steal it, and either at that point, or immediately thereafter, had a knife held out in front of me." And that's partially my wording. Is that what happened, Mr. Walker?

THE DEFENDANT: Yeah. I went in the store -

THE COURT: No, no. We're not going to do that. Okay. Is that what happened? Yes or no?

THE DEFENDANT: Oh, yes.

THE COURT: And you went in there in order to try and get money from the cash register; right?

THE DEFENDANT: Yes.

THE COURT: And without going through everything that we went through before, you plead guilty to robbery because you were armed with a weapon during that theft, and that makes it the robbery. Do you understand that?

THE DEFENDANT: Yes, I understand.

THE COURT: Are you still guilty of that robbery today?

THE DEFENDANT: I had the knife in my possession - -

THE COURT: Yes or no? Are you guilty of robbery or not?

THE DEFENDANT: Yes.

THE COURT: You're sure?

THE DEFENDANT: (no response)

THE COURT: Do you want to go to trial Mr. Walker? You are entitled to a trial. We will give you a trial date. We will go to trial in about three weeks on this case.

THE DEFENDANT: Your Honor, I don't know. I plead guilty - -

THE COURT: Mr. Walker, we went through this. Okay. I want to know if you are still guilty? If not, we will give you a trial.

THE DEFENDANT: Yes.

THE COURT: You're sure?

THE DEFENDANT: I was intoxicated. I was sleep walking. I don't know.

THE COURT: Mr. Walker, you told me that a hundred times. Are you guilty or not?

THE DEFENDANT: I'm guilty. I'm guilty. Because I can't - - I mean - -

THE COURT: Now listen, you and I have gone over this many times.

THE DEFENDANT: Right.

THE COURT: We have discussed this at the jail. We discussed it in the little room, we discussed - -

THE DEFENDANT: Right.

[DEFENSE COUNSEL]: The Judge asked you a simple question. You plead guilty about a month ago, you told him what happened.

THE DEFENDANT: Yes.

[DEFENSE COUNSEL]: You go before - - now in the pre-sentence report you are doing a tape dance. You are back in the (indiscernible). Are you pleading guilty - - This thing here. Are you pleading guilty to this offense because it, in fact, happened?

THE DEFENDANT: Yes. It happened.

THE STOMEL: Okay.

THE COURT: It happened the way the women said it happened?

THE DEFENDANT: Yes.

THE COURT: Okay. You're sure?

THE DEFENDANT: Yes.

THE COURT: Is there anything you want to tell me on your own behalf. Now, I'll listen to whatever you want to tell me, Mr. Walker.

[DEFENSE COUNSEL]: Don't get into the facts.

THE COURT: He can get into the facts if he wants to.

THE DEFENDANT: I was intoxicated that day. I went in, I was picking things up, when I was picking things up, one girl walked in on me, and she said something to me, and I set things back down. I couldn't communicate, I couldn't talk. I understand the way she felt, because I couldn't talk, I couldn't think. I couldn't think of anything to say. So when I walked by to go see John. I came back by her, I think I had the knife in my hand, because I hadn't picked up the bucket, and I was going back to pick up the bucket. And I just backed up against the wall by the refrigerator and the door until the police came. That's all I remember. I can't - - that's it. It goes no farther. I don't remember anything else.

[DEFENSE COUNSEL]: The Judge asked you the question, do you have anything to say pertaining to your sentencing?

THE DEFENDANT: Oh. Yes.

[DEFENSE COUNSEL]: Do you want to tell him about the problems that you have, the illnesses, anything that would help - -

THE DEFENDANT: I'm an alcoholic. I'm sorry. (Indiscernible) I couldn't - - I'm all messed up, you know? I'm lucky I don't have a death by auto. Because I had my two seven-year-old nephews with me. I mean my grandson and my nephew. I don't know what, I just thank God it wasn't no death by auto. Because I don't know how I go there, which way I took, anything.

. . . .

Are you sure you're guilty, Mr. Walker? I am going to ask you one more final time. Because if you're not, you should go to trial. Are you guilty?

THE DEFENDANT: Can I ask the Court a question?

THE COURT: No. You are either guilty or not guilty.

THE DEFENDANT: I'm guilty. I can't afford to go to trial.

At the outset of the PCR hearing, the judge rejected defendant's claim of an inadequate factual basis for his plea. The testimony thereafter, by both defendant and his attorney, focused on whether counsel had discussed with defendant the availability of intoxication as a defense to the charges. As a result of our disposition, we have no need to discuss that testimony.

A reading of the various transcripts, set out above, persuades us that there clearly was an inadequate factual basis for defendant's plea. The plea judge's description of the effort as "like pulling teeth on a frog," is a classic understatement. While the PCR judge referred to his having viewed a videotape of the sentencing proceedings, we do not sense that in doing so he made credibility determinations to which we would ordinarily defer. The transcripts reveal what was said; either there was a factual basis provided, or not. Reviewing each transcript in light of what had come before, we are left with no doubt that the plea should not have been accepted, notwithstanding defendant's understandable desire to plead rather than risk trial.

Even a plea that results from a negotiated agreement must be supported by a factual basis. State v. Butler, 89 N.J. 220, 224 (1982); State v. Taylor, 80 N.J. 353, 362 (1979). The "trial court must be 'satisfied from the lips of the defendant that he committed the acts which constitute the crime.'" State v. Barboza, 115 N.J. 415, 422 (1989) (quoting State v. Stefanelli, 78 N.J. 418, 439 (1979) (Schreiber, J., concurring)), although defendant's admission may be understood "in light of all surrounding circumstances." Ibid. (citing State v. Sainz, 107 N.J. 283, 293 (1987)).

The State argues, however, that defendant's petition fails to clear the procedural bar of R. 3:22-4. There is no doubt that defendant could have raised this issue by direct appeal following his sentencing. PCR is "not a substitute for appeal." R. 3:22-3. Nevertheless, the bar is subject to three exceptions, two of which are applicable here: "that enforcement of the bar would result in fundamental injustice" or "that denial of relief would be contrary to the Constitution of the United States or the State of New Jersey." R. 3:22-4. The Court addressed both of these exceptions in State v. Mitchell, 126 N.J. 565 (1992). The latter exception applies where a defendant alleges, and can establish, "that his constitutional rights were seriously infringed during the conviction proceedings." Id. at 585-86. However, merely "[c]loaking the claim in constitutional language will not guarantee relief. A court must scrutinize the assertion to ascertain whether constitutional rights are truly at stake." Id. at 586. There, the Court rejected Mitchell's contention "that the lack of a sufficient factual basis for his plea violated his due process rights." Ibid. In rejecting that claim, the Court noted the following:

Our procedural Rules do require a judge to elicit a factual basis for a guilty plea. R. 3:9-2. As long as a guilty plea is knowing and voluntary, however, a court's failure to elicit a factual basis for the plea is not necessarily of constitutional dimension and thus does not render illegal a sentence imposed without such a basis. A factual basis is constitutionally required only when there are indicia, such as a contemporaneous claim of innocence, that the defendant does not understand enough about the nature of the law as it applies to the facts of the case to make a truly "voluntary" decision on his own. See McCarthy v. United States, 394 U.S. 459, 467, 89 S. Ct. 1166, 1171, 22 L. Ed. 2d 418, 425-26 (1969); State v. Barboza, 115 N.J. 415, 421 & n. 1 (1989). At Mitchell's plea hearing the court made sure that Mitchell's plea was knowing and voluntary; at no point in the plea proceedings did defendant proclaim his innocence or demonstrate a lack of understanding of the law. His sentence is not an "illegal sentence."

[Id. at 577-78.]

With respect to the "fundamental injustice" exception to the R. 3:22-4 bar, the Court held "that it should be applied only in exceptional circumstances." Id. at 586-87. In seeking to define "fundamental injustice," "the courts will look to whether the judicial system has provided the defendant with fair proceedings leading to a just outcome." Id. at 587. "The standard goes beyond constitutional infringements to any circumstance deemed 'unjust.'" Ibid. There is no bright-line rule, the question being whether the error under review resulted in a "miscarriage of justice for the individual defendant." Ibid. (citations omitted).

Judged by these standards, we conclude that an adequate factual basis for defendant's plea was not established and that the proceedings reveal "a contemporaneous claim of innocence," id. at 577, such that defendant's plea was not, despite his affirmative responses to the contrary, "a truly 'voluntary' decision on his own." Ibid. After two failed attempts, the judge finally accepted defendant's plea despite a colloquy which reflected the same concerns that had caused the judge to reject the plea earlier. Then, after "pulling teeth" to get the plea, defendant once again protested his innocence to the probation officer, leading to another equivocal back-and-forth at sentencing. Indeed, the final exchange between defendant and the judge underscores the serious inadequacy of the factual basis for the plea. After going over the facts in which defendant once again stressed his intoxication and lack of criminal intent, the judge said to defendant, "No. You are either guilty or not guilty." At the very least, the judge should have expected defendant to unequivocally confirm his guilt. However, rather than doing so, defendant responded, "I'm guilty. I can't afford to go to trial." Those were defendant's last words before sentence was imposed and they simply underscored defendant's continual equivocation.

Under Mitchell, the proceedings reveal both an illegal sentence, in that it was infected with constitutional error, id. at 577-78, 585-86, and a "fundamental injustice." Id. at 586-89. As such, defendant's petition should have been granted.

 
Reversed and remanded with directions to vacate defendant's guilty plea and sentence.

The copy of the affidavit provided to us is signed but undated.

(continued)

(continued)

39

A-2951-03T4

November 15, 2005