STATE OF NEW JERSEY v. MARC A. JORDAN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1449-05T51449-05T5

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MARC A. JORDAN,

Defendant-Appellant.

__________________________________

 

Submitted May 8, 2006 - Decided June 15, 2006

Before Judges Yannotti and Miniman.

On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 97-04-371.

Appellant Marc A. Jordan, submitted a pro se brief.

Thomas F. Kelaher, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Senior Assistant Prosecutor, of counsel; Roberta DiBiase, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant appeals from the denial of his motion to withdraw his guilty plea to first-degree robbery as an accomplice. Defendant is currently serving two "three-strikes" life sentence. For the reasons expressed in this opinion, we affirm the denial of the motion to withdraw the plea.

The Ocean County Grand Jury returned an indictment on April 23, 1997, charging defendant and a "John Doe" with one count of first-degree robbery contrary to N.J.S.A. 2C:15-1 and complicity under N.J.S.A. 2C:2-6. Thereafter, defendant Jordan filed a notice of motion to consolidate various matters pending against him in Middlesex, Monmouth and Ocean Counties. An order of consolidation was entered on April 7, 1998, for purposes of plea negotiations and disposition of all charges in Monmouth County. On April 28, 1998, the consolidation was terminated because the matters could not be resolved by way of a negotiated plea and all charges were returned to their original counties for disposition.

On January 11, 1999, defendant pled guilty to the robbery charge in Ocean County under N.J.S.A. 2C:15-1a(2). On June 25, 1999, defendant was sentenced on the first-degree robbery charge to thirteen years incarceration with a three-year period of parole ineligibility to run concurrent to a sentence previously imposed in Middlesex County. Restitution was ordered along with the following fines and penalties: Victims of Crime Compensation Board (VCCB) - $100; Law Enforcement Officers Training and Equipment Fund (LEOTF) - $30; Safe Neighborhood Services Fund (SNSF) - $75.

Two and a half years later, defendant filed a notice of motion to appeal nunc pro tunc, which was granted, and the matter was placed on the excessive sentence oral argument calendar. It was removed from that calendar on April 17, 2002, for full briefing and placement on a regular calendar. The only issue raised by defendant on that appeal was the defendant's claim that his plea must be vacated "because the terms of the plea were not followed, to defendant's great prejudice and in violation of his rights to due process of law and a jury trial."

In our opinion we noted that defendant's contention on appeal was "that the Ocean County sentence was to have been delayed until Monmouth County sentences were imposed so that defendant could thereby avoid a 'three-strikes' life sentence without parole on the Monmouth County convictions." N.J.S.A. 2C:43-7.1. State v. Jordan, Docket No. A-2602-01 (App. Div. February 2, 2003) (slip op. at 2). We further noted that defendant had never moved before the trial court to withdraw his plea. Ibid. The plea agreement in paragraph twenty provided that defendant "may be sentenced after Monmouth charges" and "bail may be continued pending sentencing." When the plea agreement was placed on the record, the prosecutor commented that "I believe the defendant is seeking to be sentenced in Monmouth County prior to our sentence here . . . ." Defense counsel agreed. The judge went over the plea agreement with defendant stating that "the representation by the prosecutor is that they will recommend that this sentence run concurrent with any other sentence imposed upon you in charges out of Monmouth or Middlesex County or both." The court then accepted the plea of guilty and delayed sentencing ninety days.

Thereafter, defendant was sentenced on the Middlesex County convictions on June 7, 1999. Defendant was then sentenced in Ocean County on June 25, 1999. No request was made for any additional delay. There was no objection that the Monmouth charges had not yet been resolved.

There were two indictments in Monmouth County. Defendant went to trial in December 1999 on one of those two indictments and was sentenced on February 14, 2000, after having been found guilty on all four counts in the indictment. Those sentences were consecutive to the Middlesex and Ocean County sentences. Two trials were conducted on the other Monmouth County indictment, which contained thirty-two counts. The first trial took place in August 2000, and resulted in convictions on fourteen counts. Defendant was sentenced on October 17, 2000, to various terms, including a life sentence without parole pursuant to N.J.S.A. 2C:43-7.1a. The predicate convictions supporting the life sentence were the Middlesex County conviction and the Ocean County conviction. The Monmouth sentence on the partial trial of the second indictment was made consecutive to other sentences then be served.

The trial of the remaining charges in the second Monmouth indictment occurred in July and August 2001. Defendant was again found guilty of multiple charges including first-degree robbery and his sentences included a life term without parole pursuant to N.J.S.A. 2C:43-7.1a. That sentence was consecutive to other sentences and took place on November 16, 2001. The predicate convictions for the "three-strikes" life sentence were those from Middlesex and Ocean Counties and the preceding conviction in Monmouth County on portions of the second indictment. We held that the Ocean County conviction was surplusage to this "three-strikes" sentence as the other two convictions in Middlesex and Monmouth Counties were sufficient to establish "three-strikes" eligibility. Jordan, supra (slip op. at 6).

We found that the record did not support defendant's position that the Ocean County plea agreement contained an essential component, delay of the Ocean County sentence until the Monmouth sentences were entered. Ibid. We also found that "[t]he most we are able to conclude is that defendant wanted the Monmouth County matters resolved prior to sentencing on the Ocean County charges so that the Ocean County judge would have the discretion to make the Ocean County sentence concurrent with the Monmouth County sentences." Id. at 7. We held that there was no basis to vacate the Ocean County sentence and begin a process that would cause the Monmouth County life sentences to fall like dominoes. Ibid.

In conclusion we held:

In short, the record simply does not support defendant's claim that there was a material deviation from the Ocean County plea agreement. The more likely explanation is that when the Ocean County plea was entered defendant's expectations rose no higher than a desire for concurrent terms for sentences anticipated to be negotiated by plea agreements in Monmouth County. We cannot conclude that in January 1999 the defendant and the State agreed to delay sentences in Ocean County for what turned out to be a year and ten months so that defendant could avoid a three-strikes sentence in Monmouth County. A plea agreement should be carried out according to its terms and a defendant should be accorded his reasonable expectations. State v. Thomas, 61 N.J. 314, 321-22 (1972). Here, however, we cannot say that this defendant's reasonable expectations were improperly frustrated. See [State v.] Jackson, supra, 138 N.J. Super. [431,] 434 [(App. Div. 1976)].

[Id. at 8-9.]

A year after our decision, the defendant filed a notice of motion for post-conviction relief (PCR) alleging ineffective assistance of counsel with respect to his guilty plea. Relief was denied by the PCR judge on July 7, 2004. On August 11, 2004, the trial court denied defendant's motion for reconsideration. Defendant appealed the denial of PCR relief on September 3, 2004. Then on April 20, 2005, defendant filed a motion for remand to the trial court in order to permit defendant to argue for the first time that there was an inadequate factual basis for his guilty plea. The State opposed the remand and we denied defendant's motion on May 24, 2005. However, defendant was given the choice of continuing the appeal or dismissing it with prejudice and making application to the Law Division. Defendant then withdrew his appeal on June 30, 2005, and we dismissed defendant's appeal with prejudice on July 1, 2005.

On August 24, 2005, more than six years after sentence was imposed, defendant filed an application to the trial court seeking to withdraw his guilty plea, or in the alternative, to amend the first-degree robbery conviction to a second-degree conviction. That application was denied on October 21, 2005, and this appeal followed.

Rule 3:21-1 governs motions to withdraw a plea of guilty, which "shall be made before sentencing, but the court may permit it to be made thereafter to correct a manifest injustice." The burden rests on the defendant to establish why the motion to withdraw his or her guilty plea should be granted. State v. Luckey, 366 N.J. Super. 79, 86 (App. Div. 2004). Generally, a defendant seeking to vacate a plea must show that he or she was misinformed of the terms of the agreement or that his or her reasonable expectations were violated. State v. Howard, 110 N.J. 113, 123 (1988). Defendant is also entitled to withdraw a guilty plea if the court imposes a harsher sentence than that contemplated by the plea agreement. State v. Warren, 115 N.J. 433, 443 (1989).

Moreover, "the trial court has considerable discretion in entertaining such a motion," and our review must recognize the deference to which the trial court's decision is entitled. Luckey, supra, 366 N.J. Super. at 87 (citing State v. Bellamy, 178 N.J. 127, 135 (2003)). As we have noted:

In considering the motion, the timing of the plea and the fact it was a negotiated disposition, terminating the need for trial, are factors that must be considered. . . .

. . . .

In these circumstances, the "claim to be relieved of its consequences must be weighed against the strong interest of the State in its finality." State v. Taylor, 80 N.J. 353, 362, 403 A.2d 889 (1979). See also State v. Smullen, supra, 118 N.J. [408,] 418, 571 A.2d 1305 [(1990)] ("reiter[ating] the important interest of finality to pleas").

Furthermore, the burden of persuasion on the defendant is heavier when the guilty plea is made in connection with a plea bargain[.]

. . . .

Thus, when there is a negotiated "plea bargain," the defendant must show that he or she was "'misinformed' about a material element of a plea negotiation" or that his or her "'reasonable expectations,' grounded in terms of the plea agreement" were not fulfilled, and that he or she "is prejudiced by enforcement of the agreement." State v. Howard, 110 N.J. 113, 122-23, 539 A.2d 1203 (1988). "Hence, the plea will not be vacated if knowledge of the consequences would not have made any difference in the defendant's decision to plead." Howard, supra, 110 N.J. at 123, 539 A.2d 1203.

[Luckey, supra, 366 N.J. Super. at 87-88 (citations omitted).]

The withdrawal of a guilty plea is within the broad discretion of the trial court. R. 3:21-1; State v. Simon, 161 N.J. 416, 444 (1999); Bellamy, supra, 178 N.J. at 134-35.

The motion judge found that defendant admitted at the plea hearing that he knew an imitation firearm was used in the robbery for the express purpose of scaring the victim. The court rejected defendant's contention that a conviction of first-degree robbery required the State to prove that the victim reasonably believe that the perpetrator was armed with a deadly weapon. It found that the victim's subjective beliefs were not determinative. The court also found that defendant admitted to entering the structure as an accomplice to a robbery and knew the codefendant possessed an imitation firearm with the intention of using same to scare the victim, to put her in fear of bodily injury in order to take cash and jewelry. The court concluded that defendant admitted the crime and had failed to establish that leaving the plea intact would be manifestly unjust. The court also found that the record of the plea establishes that defendant shared the same intent with his codefendant, and thus there was no basis to amend the conviction to second-degree robbery.

Relying on State v. Grawe, 327 N.J. Super. 579, 592 (App. Div.), certif. denied, 164 N.J. 560 (2000), defendant argues that in order to make a robbery one of the first-degree, the victim must "reasonably believe[] the perpetrator is armed with a deadly weapon." We disagree. The discussion of first-degree robbery in Grawe was dicta. Nothing in the language of N.J.S.A. 2C:15-1 requires proof of a subjective belief on the part of the victim that the perpetrator was armed with a deadly weapon. All that is required is that the defendant "is armed with, or uses or threatens the immediate use of a deadly weapon." N.J.S.A. 2C:15-1b.

A "deadly weapon" can be any device "which in the manner it is fashioned would lead the victim reasonably to believe it to be capable of producing death or serious bodily injury." N.J.S.A. 2C:11-1c. It is the intended use of an implement that makes it a deadly weapon; "defendant's actual or presumed state of mind in possessing the implement is critical to the determination of whether the implement is a weapon at all." State v. Riley, 306 N.J. Super. 141, 150 (App. Div. 1997). Such intent, together with the totality of the circumstances, supports a conclusion that a victim would reasonably believe the perpetrator was armed with a weapon. "Even a newspaper or finger could be a sufficient object if it is fashioned in a manner to cause the victim to believe that it is or conceals a weapon." Grawe, supra, 327 N.J. Super. at 592.

In providing a factual basis for the plea, defendant testified that he entered the victim's home with another individual named "Boozer." He admitted that he knew that "Boozer" had an imitation firearm or a toy gun that he was going to use to scare the victim and, further, that the reason for scaring the victim was to take her property. Defendant testified that he did not intend to cause harm to the victim, but simply to put her in fear of bodily injury and to obtain property belonging to her. Defendant testified that he knew it was not a real gun, but that he also knew that "Boozer" had it with him.

"In determining whether an adequate factual basis exists, the court may consider the defendant's statements as well as information gleaned from the surrounding circumstances." State v. Mitchell, 126 N.J. 565, 581 (1992); State v. Barboza, 115 N.J. 415, 422 (1989); State v. Sainz, 107 N.J. 283, 293 (1987). "In evaluating the "surrounding circumstances," the court may consider a wide range of information sources, including all testimony at the plea and sentencing hearings, the presentence report, as well as other sources unique to a particular case . . . ." Mitchell, supra, 126 N.J. at 581-82. Finally, in deciding whether to set aside a plea, a court may consider evidence that was available to the prosecutor and defendant through discovery at the time of the entry of the guilty plea. State v. Smullen, 118 N.J. 408, 418 (1990).

In support of his application to withdraw his plea, defendant relies upon the investigative report prepared by Detective Bruce Florko on November 13, 1996. That report, however, contains the very information that defendant contends is missing from the factual basis for his plea. Therein, the detective states that

Jordan became engaged in a conversation with a victim relative to wanting money. The unidentified male was heard working the action of a semi-automatic handgun. The unidentified male finally got up and walked over to the victim and grabbed her in a "headlock" and put the muzzle of his gun to her head and stated he wanted her "stuff." This male then began to search for things in the room. He stated that he was not leaving without money.

Even if the State had to prove that the victim reasonably believed the perpetrator was armed with a deadly weapon, the detective's report would be sufficient to support a reasonable belief by the victim for purposes of a plea. Clearly, the defendant here has not established that a refusal to permit the withdrawal of the plea would result in manifest injustice. He was not "misinformed" about an element of the plea negotiation, we have already held that his "reasonable expectations" were not defeated, and he is not "prejudiced" by enforcement of the agreement because withdrawal of the plea would not affect one of his "three-strikes" sentences in Monmouth County.

 
Affirmed.

(continued)

(continued)

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A-1449-05T5

June 15, 2006