STATE OF NEW JERSEY v. JARRELL PEREIRA

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3330-07T43330-07T4

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

JARRELL PEREIRA,

Defendant-Respondent.

________________________________________________________________

 

Argued December 16, 2008 - Decided

Before Judges Parker, Yannotti and LeWinn.

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment Nos. 04-11-2249 and 04-12-2426.

Vered Adoni, Assistant Prosecutor, argued the cause for appellant (John L. Molinelli, Bergen County Prosecutor, attorney; John J. Scaliti, Assistant Prosecutor, of counsel and on the briefs).

Nathan Kittner argued the cause for respondent.

PER CURIAM

On leave granted, the State appeals from an order entered on January 29, 2008 vacating two judgments of conviction entered after defendant Jarrell Pereira was sentenced on two indictments in accordance with a negotiated plea agreement. Defendant pled guilty to first degree robbery, N.J.S.A. 2C:15-1, under Indictment 04-11-2249, and to third degree theft by unlawful taking, N.J.S.A. 2C:20-3(a), under Indictment 04-12-2426. Defendant was sentenced on September 23, 2005 to an aggregate term of twelve years subject to 85% parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, in accordance with the plea agreement covering both indictments. The sentences on these two indictments were imposed "concurrent to but not coterminous to [a] sentence [defendant was] presently serving" on Indictment 02-12-3016.

On November 29, 2006, we reversed defendant's conviction on Indictment 02-12-3016, in which a jury found him guilty of first degree robbery, second degree possession of a weapon for an unlawful purpose and third degree possession of a weapon without a permit. We remanded the matter for a new trial on the ground that the exclusion of prior inconsistent statements of a witness was prejudicial error in light of the weakness in the State's case on the issue of the perpetrator's identity. In that case, defendant had been sentenced to an aggregate term of twelve years subject to 85% parole ineligibility pursuant to NERA.

On November 15, 2007 defendant moved to withdraw his guilty pleas on Indictments 04-11-2249 and 04-12-2426 on the ground that the negotiated plea agreements on those two indictments were no longer valid because those sentences were to run concurrent with the now-vacated sentence on 02-12-3026.

On January 18, 2008, the trial court granted defendant's motion to withdraw his guilty pleas, and the State moved for leave to appeal. On March 14, 2008, we granted the motion.

In this appeal, the State argues:

THE TRIAL COURT ERRED IN GRANTING DEFENDANT'S POST-SENTENCE MOTION TO WITHDRAW HIS GUILTY PLEAS.

In defendant's November 13, 2007 certification in support of his motion to withdraw his plea, he stated that "[i]n a written opinion dated November 29, 2006 the Superior Court, Appellate Division reversed the conviction on Indictment [02-12-3016] and remanded the matter to the Law Division for retrial." He claimed that "[o]ne of the primary motivations . . . to enter in plea negotiations on Indictment [04-11-2249] and Indictment [04-12-2426] was the fact that I was already serving a twelve-year state prison sentence with NERA and that the subsequent sentences would run concurrent to that sentence." He further indicated that "[a]s a direct result of the reversal of the conviction on Indictment [02-12-3026], there is no longer any issue as to the concurrency on the subsequent sentences, therefore a material factor of the subsequent sentence is no longer available to me, and I am unable to get the benefit of the negotiations with the State."

We are at a loss to see how the reversal of defendant's conviction on Indictment 02-12-3016 deprives him of the benefit of the plea bargains in the two indictments subject to this appeal. Defendant was sentenced under Indictment 02-12-3016 on December 3, 2003 to an aggregate term of twelve years subject to 85% parole ineligibility pursuant to NERA. On September 23, 2005, he was sentenced on the two indictments subject to this appeal. The plea agreement on these two indictments provided that the State would recommend an aggregate term of twelve years subject to 85% parole ineligibility concurrent to the term defendant was then serving on 02-12-3016. While the agreement provided that the terms would run concurrently, the judgment of conviction specifically stated that they were not coterminous with 02-12-3016. Defendant's aggregate twelve-year term was not subject in any way to the term he was then serving.

"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. Bellamy, 178 N.J. 127, 134-35 (2003). But where the plea is part of a knowing and voluntary plea agreement, a defendant's "burden of presenting a plausible basis for his request to withdraw his guilty plea is heavier." State v. Huntley, 129 N.J. Super. 13, 18 (App. Div.), certif. denied, 66 N.J. 312 (1974). When preceded by negotiation between a defendant and the State, the plea is presumed to have a higher degree of finality. State v. Means, 191 N.J. 610, 619 (2007). A voluntary plea so negotiated should not generally 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). On a motion to withdraw a plea after sentencing, a defendant must demonstrate that there was "manifest" injustice. R. 3:21-1; State v. Deutsch, 34 N.J. 190, 198 (1961). "Manifest" is defined as "[e]vident to the senses . . .; apparent; distinctly perceived; . . . obvious to the understanding; evident to the mind; . . . synonymous with . . . [o]pen, clear, visible, unmistakable . . . self-evident." State v. Fischer, 38 N.J. 40, 45 (1962).

The determination of whether manifest injustice has been demonstrated requires a weighing of "the policy considerations which favor the finality of judicial procedures against those which dictate that no man be deprived of his liberty except upon conviction after a fair trial or after the entry of a plea of guilty under circumstances showing that it was made truthfully, voluntarily and understandably." State v. Herman, 47 N.J. 73, 76-77 (1966). "[I]f a defendant wishes to withdraw a guilty plea after sentencing has occurred, 'the court weighs more heavily the State's interest in finality and applies a more stringent standard' than that which is applied to a withdrawal application made before sentencing has occurred." State v. Johnson, 182 N.J. 232, 237 (2005) (quoting State v. McQuaid, 147 N.J. 464, 487 (1997)). "To demonstrate a manifest injustice, defendant must show that the lack of information [misapprehension or violation of reasonable expectations] prejudiced him in making his decision to plead." Id.

Recently, our Supreme Court considered the standards a trial court should apply when it is called upon to decide a motion to withdraw a guilty plea. State v. Slater, ___ N.J. ____ (2009). In Slater, the defendant pled guilty to second degree possession of cocaine with intent to distribute after the trial court denied his motion to suppress. Id. at ____ (slip op. at 3-4). Twelve days after pleading guilty, the defendant filed a hand-written motion seeking to withdraw his guilty plea. Id. at ___ (slip op. at 5). The trial court denied his motion, saying that a change of mind was not sufficient for withdrawal of a guilty plea. The court proceeded to sentence defendant to a term of five years in accordance with the negotiated plea agreement. Id. at ____ (slip op. at 6). We affirmed the trial court's denial of defendant's motion to withdraw his plea but the Supreme Court reversed. The Court articulated four factors to be considered in deciding the motion:

We hold that trial judges are to consider and balance four factors in evaluating motions to withdraw a guilty plea: (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.

[Id. at _____ (slip op. at 13).]

Here, defendant's reason for seeking to withdraw his plea - the reversal and remand for a new trial of the conviction on which he was then serving a concurrent twelve-year term - has no effect on the twelve-year aggregate term imposed on September 23, 2005.

Although not articulated, the best we can determine from defendant's brief is his concern that after re-trial on Indictment 02-12-3016, he may be sentenced to a more lengthy term that, even if imposed concurrently with the twelve-year aggregate term he is now serving, will exceed the terms on Indictments 04-11-2249 and 04-12-2426. We see no prejudice to defendant in this potential consequence of the reversal on 02-12-3016. Defendant would have to serve the twelve-year term subject to 85% parole ineligibility on Indictments 04-11-2249 and 04-12-2426 irrespective of the term on 02-12-3016. Moreover, defendant will be credited with time served on 02-12-3016.

 
In short, when we consider the Slater factors, defendant has not asserted a colorable claim of innocence; his reasons for withdrawal have no legal basis; he entered guilty pleas in accordance with a negotiated agreement; and the withdrawal of his plea would result in undue prejudice to the State. Id. at ___ (slip op. at 13). Accordingly, we reverse the order entered on January 29, 2008 and reinstate defendant's convictions on Indictments 04-11-2249 and 04-12-2426.

Reversed.

(continued)

(continued)

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A-3330-07T4

April 30, 2009