STATE OF NEW JERSEY v. HARRY J. SELLE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1928-07T41928-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

HARRY J. SELLE,

Defendant-Appellant.

__________________________________________

 

Submitted November 3, 2008 - Decided

Before Judges Sapp-Peterson and Alvarez.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Municipal Appeal No. 53-07.

Greggory M. Marootian, attorney for appellant.

Edward J. DeFazio, Hudson County Prosecutor, attorney for respondent (Laura A. Perry, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant appeals from the November 14, 2007 order of the trial court denying his motion to withdraw guilty pleas he entered five years earlier to various motor vehicle offenses, and also denying his motion for post-conviction relief (PCR). We affirm.

Defendant's conviction arose out of three motor vehicle charges lodged against him on May 22, 2001: (1) driving while under the influence (DWI), N.J.S.A. 39:4-50; (2) driving while on the revoked list, N.J.S.A. 39:3-40; and (3) careless driving, N.J.S.A. 39:4-97; as well as a charge of aggravated assault, N.J.S.A. 2C:12-1b(5)(a), which was amended to simple assault, N.J.S.A. 2C:12-1(a)(1), and resisting arrest, N.J.S.A. 2C:29-2(a)(1)(a). Defendant retained private counsel to represent him in connection with the charges and entered not guilty pleas to all of the offenses on June 7, 2001. On that same date, the court scheduled trial on the charges for June 26, 2001. Thereafter, defense counsel moved to suppress the test results of blood taken from defendant at a local hospital following his arrest. The court scheduled the matter for a conference on July 3, at which time defense counsel withdrew defendant's motion to suppress the blood alcohol evidence. Defendant did not appear at the July 3 conference. However, defense counsel indicated he had been in contact with his client by phone and "was sure that he would appear the following week for a plea." The case was scheduled for the entry of pleas to the charges on July 11. Although defendant's attorney appeared at that time, defendant did not. On July 17, the court received a letter from defense counsel confirming that his client had twice failed to appear for court proceedings related to the matter and failed to cooperate with his attorneys. As a result, his attorney sought to be relieved as counsel. The court granted the application on July 23 and also issued a warrant for defendant's arrest. That warrant remained open until March 2002, when bail was posted on defendant's behalf.

Defendant appeared before the court on March 5. The court once again reviewed the charges and penalties, including the fact that defendant faced a ten-day jail sentence in connection with the driving while on the revoked list charge because he had multiple prior convictions for the offense and that this jail sentence on that offense would be "in addition to anything else that [he was] sentenced to on the DWI." Defendant told the court that he was unemployed, and the court directed him to fill out an application for the public defender, adding that "[t]his case is going to get resolved one way or the other. You're not going to leave today until at least -- you've at least applied for an attorney. This case is getting old. They must be resolved relatively quickly. This is left over from last year because you didn't appear." (emphasis added).

Defendant inquired whether the court would grant him a one-week adjournment to retain counsel. The court responded,

No, you had a year to acquire an attorney. You go[t] this ticket on May 22nd, 2001. So have a seat and fill out a form for the public defender. That's what you're going to do today.

You've also got a criminal complaint in this matter. The criminal complaint is aggravated assault on a police officer, resisting arrest. So have a seat, fill out the forms. You're not leaving.

The court then proceeded to consider other matters. When defendant's case was again called, he did not approach. A search of the area did not prove successful. Defendant later returned, telling the court that he did not hear the court advise him not to leave and that his father, who apparently was with him earlier when the matter was first called before the court, told him that they should "go acquire an attorney." The court was not persuaded by this explanation and told defendant that it had received a letter from his previous attorney asking the court to please excuse defendant for having left the court prematurely. The court therefore concluded that "[defendant] knew that [he] left the courtroom prematurely." The court offered defendant two alternatives: forfeit the $1,500 bail and post $2,500 to be released or speak to a public defender. Defendant opted to speak to the public defender. The court attended to other matters.

When defendant's case was recalled, the following exchange took place on the record:

THE COURT: Selle. Right. Mr. Selle is charged on May 22nd, 2001, with three motor vehicle violations: careless driving, driving while suspended, and driving while intoxicated. There's also two criminal complaints. The criminal [charges] are resisting arrest and assault.

Mr. Selle and I went over his record before. He's charged with driving while suspended, which would be a multiple offense, more than three. Let's put it that way. He's also charged with driving while intoxicated, which is a second offense. This first offense, I think, is '94, I think.

[DEFENSE COUNSEL]: Was it '94, sir?

MR. SELLE: What?

[DEFENSE COUNSEL]: The first time you were convicted -- or pulled over for driving while intoxicated.

THE COURT: Oh, I'm sorry, '98.

MR. SELLE: No, that was '98.

THE COURT: '98.

QUESTIONS BY THE COURT:

Q Mr. Selle, do you understand the charges?

A Yes, Your Honor.

Q Have you had a chance to speak with [defense counsel] as the public attorney -- as the public defender?

A Yes, Your Honor.

Q Do you understand, sir, that you have the right to have a trial, the right to plead not guilty, and the right to call witnesses and the right to testify or not testify?

A Yes, Your Honor.

Thereafter, defendant entered guilty pleas to the DWI, driving while on the revoked list, and resisting arrest. The careless driving and aggravated assault charges were dismissed. Fines and penalties were imposed as well as a ten-day jail term. The court admitted defendant to the electronic release program in lieu of the jail sentence.

Defendant did not appeal his conviction and sentence. Five years later, defendant filed his petition for PCR, which the municipal court judge denied on July 17, 2007. He appealed the denial before the Law Division, and the court scheduled the matter for a hearing on November 7, 2007. Defense counsel first urged that the plea was not voluntarily entered. He argued that although defendant had retained counsel, as evidenced by the court's reference to the faxed correspondence from defense counsel, the court pressured defendant into posting a higher bail or speaking to a public defender. Additionally, counsel argued that the court never inquired of defendant whether the plea was being entered voluntarily. Second, defense counsel urged that the municipal court judge improperly considered defendant's driving abstract prior to taking defendant's pleas to the motor vehicle charges, contrary to our decision in State v. Hanson, 59 N.J. Super. 434, 444-45 (App. Div.), certif. denied, 32 N.J. 351 (1960).

Third, defense counsel argued ineffective assistance of counsel based upon the forcible extraction of blood from defendant at the time of his arrest on the DWI and his deprivation of the counsel of his choice, Marotta Baldi. The court denied the petition and advised that he would place his reasons on the record, which he did one week later. With respect to the denial of defendant's motion to withdraw his guilty plea, the court found:

A review of Mr. Selle's certification, and motion papers indicate he has not met his burden of proof by a preponderance of the credible evidence to show he's entitled to any relief.

Rule 7.6[-2](b) of the rules, and practice of the municipal courts speaks to the withdrawal of a guilty plea. It's, by it[]s term, say that a guilty plea may be withdrawn after sentencing, only to correct a manifest injustice. The Court finds there is not injustice, manifest, or otherwise, in this case. Mr. Selle plead[ed] guilty because he was guilty. He said he was guilty. He admitted his guilt. He explained he was drunk, and drinking beer that day. Any pressure he felt to plead guilty was caused by his own actions in failing to appear in court earlier, being a fugitive, causing a warrant to be issued, and his counsel to be relieved by the Court. His motion to contest the blood sample was withdrawn by his prior attorney.

When Selle showed up in court in March, 200[2], he was unprepared. He did not have [an] attorney with him. He left court in violation of the Court's order, and then showed up without the attorney he said he had hired. The Court acted reasonably in refusing to adjourn the matter that was a year old, because Mr. Selle had been a fugitive, and he was acting in a way to avoid proceeding on the case.

The Judge told Selle to speak to the public defender, and the other judge would have done the same thing to make sure that Selle's rights were protected.

The Court told him he could have a trial, and he had a right to plead not guilty. He chose, this Court finds, voluntarily to plead guilty, and he had the advice of counsel before, and during his plea. Nothing in the minutes of the proceeding indicates he was treated unfairly. He was treated the way anyone who is a fugitive, and refused to proceed, and try to obstruct the proceedings about an attorney would have been treated by any other judge, and then realizing that the judge was going to proceed, he decided to plead guilty, and said what he did -- what he was guilty of on the record.

Now, there's no reason to correct the withdrawal of [the] plea, because there was no injustice here, and in taking the plea by the judge, and it would be an injustice to withdraw the plea after over five years at this point.

The court then considered defendant's PCR claim. The court initially stated that both court rules and case law "make it crystal clear that post-conviction relief is not a substitute for [direct] appeal." The court noted that defendant did not specifically say what his defense counsel did wrong, nor did the record reflect any errors on the part of his trial counsel. The court found that defendant had failed to satisfy the requisite prongs for post-conviction relief as articulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), which has been applied in New Jersey through State v. Fritz, 105 N.J. 42 (1987). The court also found there was nothing improper about the court being aware of defendant's prior driving record, observing that the municipal court judge "explained clearly why she had to know of defendant's history so she could explain his options to him."

On appeal defendant contends:

POINT I

THE COURT'S REVIEW OF MR. SELLE'S DRIVING HISTORY BEFORE THE PROCEEDINGS BEGAN VIOLATED MR. SELLE'S DUE PROCESS RIGHTS.

POINT II

THE SUPERIOR COURT WAS WRONG IN THEIR POSITION THAT THE DEFENDANT SHOULD HAVE APPEALED DE NOVO FROM THE JUDGMENT FOLLOWING THE 2002 PLEA BECAUSE R[ULE] 3:23-1 IS NOT A PROPER AVENUE TO RAISE THE POST-PLEA ISSUES; A POST[-]CONVICTION RELIEF APPLICATION IS.

POINT III

THE COURT[,] THROUGH PLAIN COERCION, EXTRACTED SELLE'S GUILTY PLEAS - THE PLEAS WERE NOT VOLUNTARY.

POINT IV

SELLE DID NOT HAVE EFFECTIVE LEGAL REPRESENTATION IN VIOLATION OF HIS CONSTITUTIONAL RIGHT(S).

Rule 7:6-2(b), governing withdrawal of guilty pleas entered in municipal courts, permits the withdrawal of a guilty plea after sentencing to "correct a manifest injustice." Ibid. The decision to permit the withdrawal of a plea post-sentencing is committed to the exercise of the court's sound discretion. State v. Simon, 161 N.J. 416, 444 (1999); State v. Herman, 47 N.J. 73, 76 (1966) (citing State v. Deutsch, 34 N.J. 190, 197 (1961)). "[T]he burden rests on defendant, in the first instance, to present some plausible basis for his request, and his good faith in asserting a defense on the merits, so the trial judge is able to determine whether fundamental fairness requires a granting of the motion." State v. Smullen, 118 N.J. 408, 416 (1990).

Recently, the Supreme Court set forth the four factors a trial court must consider and balance in determining whether a guilty plea should be set aside, and made clear that these factors are to be considered for motions filed either before or after sentencing, "but the timing of the motion will trigger different burdens of proof for the movant: pre-sentence motions to withdraw a plea are governed by the 'interest of justice' standard . . . while post-sentence motions are subject to the 'manifest injustice' standard . . . ." (emphasis added). State v. Slater, ____ N.J. ____ (2009) (slip op. at 13). Those factors are: "(1) whether the defendant has asserted a colorable claim of innocence; (2) the nature and strength of defendant's reasons for withdrawal; (3) the existence of a plea bargain; and (4) whether withdrawal would result in unfair prejudice to the State or unfair advantage to the accused." Ibid. As a result, the weighing and balancing process will differ, depending on when a motion is filed.

Applying those factors here, defendant admitted that he was guilty of the charges, and the answers elicited by the municipal court judge demonstrate that the plea was entered voluntarily, with the court specifically inquiring of defendant whether he understood that "he had the right to plead not guilty, and the right to call witnesses and the right to testify or not testify." While defendant was forced to apply for a public defender, this occurred because the charges had been outstanding for nearly one year due to defendant's repeated failure to appear for court proceedings and because he appeared that day without counsel and informed the court that he was unemployed. He was not, however, forced to plead guilty. Rather, the court advised defendant of his right to trial but was informed by defendant's attorney that a plea agreement had been reached. Under the plea agreement, the indictable offense of aggravated assault upon a police officer and a second motor vehicle charge of careless driving were dismissed. Defendant received a non-custodial sentence, in contrast to the potential custodial term in state prison he faced had he been convicted of the more serious indictable offense. Because defendant asserts no "colorable claim" of his innocence, it is not necessary that the State prove prejudice. State v. Slater, supra, slip op. at 13 (citing United States v. Jones, 336 F.3d 245, 252 (3d Cir. 2002)).

On balance, we do not find that defendant has presented compelling evidence that justified setting aside the guilty plea. As the Law Division judge stated:

Also, the Court should say while this -- the plea in this case was not a paradigm of the perfect plea [allocution]. There was enough on the record to show that he comported with the requirements of New Jersey law. Selle had counsel. He voluntarily, and knowingly admitted his guilt, never claimed he was not guilty, and that is all that is required by New Jersey law under these circumstances.

The Court also feels it would be an injustice to allow [him] now to withdraw his plea . . . . It would be a travesty now to allow the withdraw[al] of a plea . . . to someone who caused his own problems, and tried to avoid the court proceeding in an orderly way after being a fugitive.

Next, defendant's claim that the court improperly considered his prior driving record in advance of accepting his guilty pleas lacks merit. The court's knowledge of defendant's reported driving record enabled the court to fully apprise defendant of the consequences of a conviction on the charges. As we stated in State v. Medina, 349 N.J. Super. 108, 130, "[t]rained judges have the ability 'to exclude from their consideration irrelevant or improper evidence and materials which have come to their attention.'" (quoting State v. Kunz, 55 N.J. 128, 145 (1969)).

Likewise, with respect to defendant's claim that he is entitled to PCR, the Law Division judge properly noted that virtually all of defendant's claims asserted in support of his PCR petition are matters that were appropriate for direct appeal. Consequently, the trial court properly held that PCR is not a substitute for direct appeal. State v. Mitchell, 126 N.J. 565, 583 (1992).

Finally, defendant's contention that he did not receive effective assistance of counsel is without sufficient merit to warrant extensive discussion in a written opinion. R. 2:11-3(e)(2). We add only the following comments.

A defendant's claim of ineffective assistance of counsel is considered under the standards enunciated in Strickland v. Washington, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. See also State v. Fritz, supra, 105 N.J. at 58 (applying the Strickland two-pronged test under New Jersey law). In order to obtain relief based upon a claim of ineffective assistance of counsel, a defendant must show that his counsel's performance was deficient and that counsel's deficient performance prejudiced his defense. Id. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693).

The Strickland test has been applied to challenges to guilty pleas. State v. DiFrisco, 137 N.J. 434, 456 (1994), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996). To have a guilty plea set aside on the basis of the ineffective assistance of counsel, a defendant must show that "counsel's assistance was not 'within the range of competence demanded of attorneys in criminal cases.'" Id. at 457 (quoting Tollett v. Henderson, 411 U.S. 258, 266, 93 S. Ct. 1602, 1608, 36 L. Ed. 2d 235, 243 (1973)). The defendant also must establish "'that there is a reasonable probability that, but for counsel's errors, [the defendant] would not have pled guilty and would have insisted on going to trial.'" Ibid. (quoting Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 210 (1985)).

Here, defendant contends that his trial counsel should have requested additional discovery related to what defendant alleges was the forced extraction of blood samples from him at the time of hospitalization following his arrest. Defendant, however, does not state how this additional discovery would have demonstrated that the resulting tests were unreliable. Nor did he attach certifications from any of the non-interested hospital staff persons to support his claims that blood samples were forcibly obtained. State v. Cummings, 321 N.J. Super. 154, 170-71 (App. Div. 1999). We note that one year prior to entering his guilty plea, defendant's prior counsel, who also was the same counsel that defendant attempted to present to the court as his retained attorney eight months later, withdrew the motion to suppress the results of the blood test. Thus, defendant has failed to satisfy the first prong of the Strickland test.

With respect to the second prong of the Strickland test, defendant fails to demonstrate that the outcome of the case would have been different but for the deficient performance of his assigned counsel on March 5, 2002. Thus, the court properly concluded that defendant was not entitled to PCR based upon a claim of ineffective assistance of counsel.

Affirmed.

 

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A-1928-07T4

March 16, 2009