STATE OF NEW JERSEY v. ROODY FEVRY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0863-05T40863-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ROODY FEVRY,

Defendant-Appellant.
________________________________________________________________

 

Submitted November 28, 2006 - Decided December 18, 2006

Before Judges Lisa and Grall.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, 04-10-3224-I.

Yvonne Smith Segars, Public Defender, attorney for appellant (Frank J. Pugliese, Assistant Deputy Public Defender, of counsel and on the brief).

Paula T. Dow, Essex County Prosecutor, attorney for respondent (Sara A. Friedman, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant was the subject of a seven-count indictment. All seven charges arose out of a single course of conduct. On November 19, 2004, defendant, with the assistance of counsel, entered into a plea agreement with the State. The essential terms of the agreement were that a second-degree aggravated assault charge, which exposed defendant to a No Early Release Act (NERA) sentence with an 85% parole disqualifier, see N.J.S.A. 2C:43-7.2, was downgraded to third-degree aggravated assault, which is not subject to NERA; defendant would plead guilty to four counts in the indictment, including second-degree eluding, N.J.S.A. 2C:29-2b; defendant would receive an aggregate sentence of five years imprisonment with no minimum mandatory period of parole ineligibility; and the remaining three counts would be dismissed.

The written plea agreement clearly set forth the terms agreed upon. On November 19, 2004, defendant testified under oath before Judge Vichness. He acknowledged that he reviewed the plea agreement with his attorney, he understood it and signed it. He acknowledged he was satisfied with his attorney's services and that he had sufficient time to discuss the charges and the plea with his attorney. The judge asked whether defendant had any questions of either his attorney or the court, to which defendant responded in the negative. Defendant admitted his guilt to the following four charges, provided a sufficient factual basis to support them, and pled guilty to them: third-degree aggravated assault, N.J.S.A. 2C:12-1 (count one); third-degree receiving stolen property (an automobile), N.J.S.A. 2C:20-7 (count five); second-degree eluding, N.J.S.A. 2C:29-2b (count six); and fourth-degree resisting arrest, N.J.S.A. 2C:29-2a (count seven).

Prior to sentencing, defendant filed a pro se motion seeking to withdraw his guilty plea. He claimed he was not provided with complete discovery, his attorney was ineffective for failing to fully investigate the case, the State's evidence was fabricated and falsified, the State's evidence was insufficient, and he was pressured into pleading guilty.

The matter came before Judge Vichness on February 28, 2005. The judge denied defendant's motion and sentenced him, consistent with the plea agreement, to concurrent prison terms of five years on counts one, five and six, and eighteen months on count seven.

Defendant appealed. Because the issues on appeal related solely to the sentence, the appeal was placed on our excessive sentence calendar and listed for oral argument without briefs. See R. 2:9-11. After hearing oral argument, the panel ordered briefing and transferred the case to the plenary calendar. Defendant argues:

POINT I

THE COURT ERRED IN DENYING DEFENDANT'S REQUEST TO WITHDRAW HIS GUILTY PLEA.

POINT II

THE MAXIMUM TERMS IMPOSED ON DEFENDANT'S THIRD AND FOURTH-DEGREE CONVICTIONS VIOLATED DEFENDANT'S SIXTH AMENDMENT RIGHT TO TRIAL BY JURY. U.S. CONST. AMENDS. VI AND XIV. (Not raised Below).

We are unpersuaded by Point I. Defendants are permitted to move for withdrawal of a guilty plea. R. 3:21-1. However, withdrawal of a guilty plea is not an absolute right, but a matter left to the broad discretion of the trial court. State v. Simon, 161 N.J. 416, 444 (1999). The burden is on the defendant to demonstrate why the plea should be withdrawn. Huntley, 129 N.J. Super. 13, 17, certif. denied, 66 N.J. 312 (1974). A voluntary plea will generally not 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). Where the plea was entered as part of a knowing and voluntary plea agreement, the defendant's "burden of presenting a plausible basis for his request to withdraw . . . is heavier." Huntley, supra, 129 N.J. Super. at 18. "All plea-bargain jurisprudence recognizes the important interest of finality to pleas." State v. Smullen, 118 N.J. 408, 416 (1990). Nevertheless, a motion to withdraw a plea before the imposition of sentence should be viewed more liberally than such a motion made after sentence. State v. Deutsch, 34 N.J. 190, 198 (1961).

Applying these principles, we first note that at the plea proceeding, defendant provided under oath an adequate factual basis for the crimes to which he pled guilty, and the judge scrupulously adhered to the requirements of Rule 3:9-2 to determine that "the plea [was] 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." Based upon defendant's sworn testimony, including his responses to the questions directly addressed to him by the judge, and defendant's responses in the written plea agreement, which he acknowledged he answered truthfully after thoroughly reviewing the document with his attorney, the judge made this finding:

I find the defendant understands the nature of the charges; has received the advice of competent counsel; he knows and understands the maximum penalties; the defendant admits to the charges and understands the nature of the plea proceedings; he enters these pleas freely and voluntarily; he's voluntarily waived his right to a jury trial, right of confrontation, right against self incrimination and other constitutional rights under the U.S. and New Jersey Constitution.

I further find the pleas are not the result of any threats, force or coercion.

The factual basis for the entry of the pleas have been entered on the record.

I find that the defendant understands the mandatory nature of the various financial penalties; any promises made to induce the plea are limited to those set forth on the record; the defendant fully understands the parameters of the plea agreement.

In Simon, the Court described the substantial weight that should be attributed to a defendant's statements when entering a plea and the judge's findings at the plea hearing:

Generally, representations made by a defendant at plea hearings concerning the voluntariness of the decision to plead, as well as any findings made by the trial court when accepting the plea, constitute a "formidable barrier" which defendant must overcome before he will be allowed to withdraw his plea. Blackledge v. Allison, 431 U.S. 63, 74, 97 S. Ct. 1621, 1629, 52 L. Ed. 2d 136 (1977). That is so because "[s]olemn declarations in open court carry a strong presumption of verity." Ibid.; State v. DiFrisco, 137 N.J. 434, 452, 645 A.2d 734 (1994) (DiFrisco II), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996). When the trial court determines that a guilty plea has been voluntarily entered, "the measure of what constitutes fair and just reason for withdrawal must be reposed in the sound confidence of the [trial] court." State v. Smullen, 118 N.J. 408, 417, 571 A.2d 1305 (1990); see also R. 3:21-1.

[Simon, supra, 161 N.J. at 444.]

In his written motion to vacate the plea, defendant described with considerable specificity what he considered contradictory, fabricated and falsified evidence against him. His discussion included this:

IF HIS HONOR WOULD REFER TO THE INCONSISTANT [SIC] AND FALSIFIED POLICE REPORTS YOU WILL READ TWO CONFLICTING STATEMENTS, ONE ARRESTING AGENCY SAID I WAS APPREHENDED AND ARRESTED ON THE INTERSECTION OF THOMAS BLVD. AND DODD ST. IN ORANGE, AND THE OTHER AGENCY SAID I WAS ARRESTED ON COTTAGE ST. IN EAST ORANGE . . . .

This belies defendant's contention that he did not have discovery.

At the hearing of February 28, 2005, defendant complained he was furnished with no evidence such as fingerprints or DNA samples. As Judge Vichness explained to defendant, such evidence would normally not exist in a case such as this, where defendant was chased by the police, involved in a collision with another vehicle (causing injury to an occupant), then fled on foot, and was caught by the police in direct pursuit. The judge explained to defendant that if the police "see you committing a crime, that's all they got to do is testify about what they saw." Likewise, defendant complained that he was provided with no evidence of video cameras. Again, the judge explained from his extensive experience in trying criminal cases in Essex County that Essex County does not "have cameras on every corner." Defendant failed to make any credible showing that he was deprived of discovery or that his attorney did not review it thoroughly with him and answer all of his questions before defendant decided to enter into the plea agreement.

Defendant also contended that he was pressured into the plea because his attorney advised him if he did not accept the offer "the situation would get even worse." It is not uncommon for defendants to feel some pressure in the give-and-take of the plea bargaining process and to be reluctant to plead guilty to criminal charges that will result in their imprisonment. But at his plea hearing, defendant acknowledged under oath that he was not coerced and that he entered his plea voluntarily. The judge observed his demeanor and assessed his credibility, concluding that he entered the plea voluntarily. As in Smullen, although "every defendant is under pressure," the record here does not support defendant's contention that he was "under any undue pressure or forced by anyone, including [his counsel]." Smullen, supra, 118 N.J. at 413 (emphasis added).

Finally, defendant has offered no plausible defense to the charges. At the February 28, 2005 hearing, defendant suggested he was around the scene where the accident happened and the police "thought I was the guy. The[y] didn't see me -- they didn't [see] me in no car. They didn't see me jump out of the car." The statement, of course, is incompetent, because defendant does not possess personal knowledge of what the police officers saw. The statement is also contradictory to the apparent evidence in the case. Most importantly, it is contradicted by defendant's sworn testimony at his plea hearing, where he admitted driving a stolen car, seeing the police signal him to stop, failing to stop, crashing his car into another vehicle, and then fleeing on foot until the police caught and subdued him. And, the presentence investigation report reveals that when defendant was asked by the probation officer preparing the report on December 27, 2004 to give his version of the incident, defendant said, "I did what I did, but, I didn't mean to hurt anybody. She came out of nowhere. It was a mistake. If I could apologize to her, I would."

In his effort to withdraw his plea, defendant never said he was not driving the car or did not commit any of the crimes. He merely made the unsubstantiated comment that, in his belief, the police did not see him when he was driving the car or when he jumped out of it after the crash. We find no fault in the judge's rejection of this comment, which did not constitute a claim of innocence, in favor of the sworn testimony to the contrary previously given at the plea hearing.

Judge Vichness did not mistakenly exercise his discretion in denying defendant's motion to withdraw his guilty plea. In close cases, such motions when made prior to sentencing should be viewed more liberally. In our view, this was not a close case and, particularly in light of the heavier burden imposed upon a defendant where there is a plea agreement, the decision to deny the motion was not clearly erroneous and we will not interfere with it on appeal. See Simon, supra, 161 N.J. at 444.

In Point II, defendant asks for a limited remand for reconsideration of his sentence on the third and fourth-degree counts because those sentences were above the presumptive terms previously authorized by the Criminal Code. This argument does not apply to the below-presumptive five-year sentence for second-degree eluding.

The State concedes that because this case was on direct appeal, and therefore in the pipeline, when our Supreme Court decided State v. Natale, 184 N.J. 458 (2005), a remand on the third and fourth-degree counts is required. Because the five-year sentence on the eluding count will remain in effect, regardless of any changes that might be made in the sentences on the other counts, which are being served concurrently, and because this was a plea agreement for a specific term and falls within an exception to the Natale principles, see State v. Anderson, 374 N.J. Super. 419, 424 (App. Div.), certif. denied, 185 N.J. 266 (2005), cited with approval, Natale, supra, 184 N.J. at 495 n.12, we question the necessity of a remand for reconsideration of the sentences imposed on the other counts. Nevertheless, out of an abundance of caution and in light of the State's concession, we order a limited remand for reconsideration of the sentences imposed on counts one, five and seven, without regard to any presumptive term, in accordance with the Natale principles.

Defendant's conviction on all counts and his sentence on count six are affirmed. The matter is remanded for reconsideration of sentence on counts one, five and seven.

 

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A-0863-05T4

December 18, 2006