STATE OF NEW JERSEY v. RICHARD RICH

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5666-03T45666-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RICHARD RICH,

Defendant-Appellant.

__________________________________

 

Submitted May 8, 2006 - Decided June 29, 2006

Before Judges Fall and Miniman.

On appeal from Superior Court of New Jersey, Law Division, Sussex County, Indictment No. 02-09-0340.

Yvonne Smith Segars, Public Defender, attorney for appellant (Alison Perrone, Designated Counsel, on the brief).

David J. Weaver, Sussex County Prosecutor, attorney for respondent (Francis A. Koch, Assistant Prosecutor, on the brief).

PER CURIAM

This is an appeal from the denial of a motion to withdraw a guilty plea to a charge of second-degree sexual assault, N.J.S.A. 2C:14-2c, and from the term of imprisonment imposed.

Defendant was charged in Sussex County, Indictment No. 02-09-0340-I, with first-degree aggravated sexual assault by committing an act of sexual penetration upon M.Q., a person defendant knew or should have known was physically helpless, mentally defective, or mentally incapacitated, N.J.S.A. 2C:14-2a(7) (count one); second-degree sexual assault, N.J.S.A. 2C:14-2c (count two); third-degree aggravated criminal sexual contact, N.J.S.A. 2C:14-3a (count three); and fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3b (count four). The incident giving rise to these charges occurred on April 8, 2002. The victim, M.Q., was age twenty-three at the time and was mentally handicapped and mute.

On July 14, 2003, the State and defendant entered into a plea agreement. Defendant agreed to plead guilty to the second-degree sexual assault charge contained in count two of the indictment. In return, the prosecutor recommended that the remaining charges be dismissed and also recommended a six-year term of imprisonment with an 85% parole disqualifier pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The plea was placed upon the record and accepted by the trial court during a hearing conducted on July 14, 2003.

On or about November 24, 2003, defendant moved to withdraw his plea. He contended that he was coerced by his attorney to enter a guilty plea and was threatened by his counsel with a greater sentence unless he pled guilty. He also claimed that he was informed by his attorney that if he did not plead guilty, the attorney would not represent him at trial. In addition, he alleged that his counsel directed him to answer the questions correctly at the plea hearing and to remain silent during any conversations he had with counsel regarding the entry of his guilty plea. After hearing argument on defendant's motion on January 16, 2004, the trial court properly issued an order directing an evidentiary hearing on defendant's assertions in his plea-withdrawal motion.

On January 23, 2004, the court conducted an evidentiary hearing. At the hearing defendant testified, as did the attorney who represented defendant at the plea agreement. The court reviewed on the record a number of conflicting statements made by the defendant and concluded that defendant's testimony was not credible. The court also concluded that the testimony of defendant's former attorney was credible. The court concluded that defendant's attorney had not threatened or coerced or pressured the defendant to accept the plea offer, and as a result, concluded that the motion should be denied. The court then found the presence of aggravating factors three, six and nine and sentenced defendant in accordance with the plea agreement to a six-year term of imprisonment subject to the NERA parole disqualifier.

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

POINT ONE

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

POINT TWO

THE TRIAL COURT ABUSED ITS DISCRETION IN IMPOSING A SIX-YEAR TERM BECAUSE A QUALITATIVE WEIGHING OF THE AGGRAVATING AND MITIGATING FACTORS DOES NOT SUPPORT SUCH A SENTENCE.

Rule 3:21-1 governs motions to withdraw a plea of guilty, which must "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 to 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.

We have searched the record and conclude that there was substantial evidence to support the findings made by the sentencing judge. No abuse of discretion has been shown by defendant.

We turn next to the appeal from the sentence imposed. In reviewing a sentencing decision we must determine:

first, whether the correct sentencing guidelines ... have been followed; second, whether there is substantial evidence in the record to support the findings of fact upon which the sentencing court based the application of those guidelines; and third, whether in applying those guidelines to the relevant facts the trial court clearly erred by reaching a conclusion that could not have reasonably been made upon a weighing of the relevant factors.

[State v. Roth, 95 N.J. 334, 365-66 (1984).]

In determining the appropriate sentence to be imposed on an individual convicted of a crime, the sentencing court must consider specifically enumerated aggravating and mitigating circumstances identified at N.J.S.A. 2C:44-1(a) and (b), balance them, and explain how the sentence was determined so that a reviewing court will have an adequate record to review on appeal. State v. Kruse, 105 N.J. 354, 358-59 (1987). If a sentencing court properly identifies and balances the factors, and their existence is supported by sufficient credible evidence in the record, an appellate court should affirm the sentence. State v. Jabbour, 118 N.J. 1, 5-6 (1990).

Here, the trial court followed the correct sentencing guidelines and there was substantial evidence in the record to support the fact-findings made by the sentencing court. The court considered the statutory aggravating and mitigating factors and explained on the record how the sentence was determined. Finally, the trial court reached a reasonable conclusion that was based upon a weighing of the relevant factors.

Affirmed.

 

(continued)

(continued)

7

A-5666-03T4

June 29, 2006