STATE OF NEW JERSEY v. ROBERT ISAIAH

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0647-08T40647-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ROBERT ISAIAH,

Defendant-Appellant.

______________________________________________________________

 

Submitted September 23, 2009 - Decided

Before Judges Graves and J.N. Harris.

On appeal from Superior Court of New Jersey,

Law Division, Passaic County, Accusation No.

08-02-0124.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Abby P. Schwartz,

Assistant Deputy Public Defender, of

counsel and on the brief).

Camelia M. Valdez, Passaic County Prosecutor,

attorney for respondent (Christopher W. Hsieh,

Senior Assistant Prosecutor, of counsel and on

the brief).

PER CURIAM

On February 4, 2008, when he was forty-nine years old, defendant Robert Isaiah pled guilty to third-degree possession of crack cocaine in violation of N.J.S.A. 2C:35-10(a)(1). Defendant appeals from an order dated August 6, 2008, denying his motion to withdraw his guilty plea prior to sentencing. After reviewing the record in light of the contentions advanced on appeal, we affirm.

On November 12, 2007, defendant was charged with possession of crack cocaine and use of drug paraphernalia, a disorderly persons offense. During plea negotiations, the State agreed to dismiss the disorderly persons charge in return for defendant's guilty plea to the indictable offense. The State also agreed to recommend that defendant be sentenced to probation with up to 364 days in the Passaic County Jail. Pursuant to Rule 3:9-3(c), the prosecutor and defense counsel conferenced the matter with the court, and the judge conditionally agreed to accept the plea. In addition, the judge agreed to release defendant from custody upon the entry of the plea because the court anticipated sentencing defendant to the eighty-five days already served.

During the plea hearing on February 4, 2008, defendant testified he graduated high school in 1977 and attended William Paterson College from 1977 to 1981. He also testified that he voluntarily waived his right to indictment and trial by jury, and acknowledged that his attorney had "explicitly and thoroughly" explained the plea forms he signed. In addition, defendant confirmed he understood the questions on the plea forms and answered them truthfully. The following colloquy between defendant and his attorney then took place:

Q. Mr. Isaiah, you and I met at the Passaic County [J]ail and we reviewed the police reports that I have in connection with this case, is that correct?

A. Yes, sir.

Q. And speaking with me, it's my understanding that you have decided to plead guilty to those charges, is that correct?

A. That is correct, sir.

Q. Are you going to be pleading guilty truthfully?

A. Yes, sir.

Q. Are you going to be pleading guilty freely and voluntarily?

A. Yes, sir.

Q. Do you understand that if the Court goes along with the recommendation made by the state, you will be placed on a period of probation anywhere from 2 to 5 years, and it would be up to the Judge to determine how long you would be placed on probation for.

A. I do understand that, sir.

Q. Do you understand that if that in a time while you are on probation, the Court finds that you have violated any of the conditions of the probation, you can be sentenced to New Jersey [S]tate [P]rison for a period of up to five years?

A. I do understand that.

. . . .

Q. Do you have any questions before we proceed?

A. No, sir, I do not.

And in response to questions from the trial court, defendant testified as follows:

Q. This accusation, in pertinent part, charges that on or about November the 12th, 2007 in the [C]ity of Clifton, you did knowingly or intentionally possess a controlled dangerous substance, namely crack cocaine. Understand the charge?

A. Yes, Your Honor, I do.

Q. How do you plead, sir?

A. I plead guilty, sir.

Q. Were you in the [C]ity of Clifton on November 12th, 2007?

A. Yes, I was, sir.

Q. Did you possess at that time any illegal substance?

A. Yes, I did, sir.

Q. And what would that be, please, Mr. Isaiah?

A. Crack cocaine.

Q. Do you remember what quantity?

A. I haven't -- no, I do not.

Q. Was that for personal use?

A. Yes, it was, sir.

THE COURT: Do you have a lab report or a field test?

MADAM PROSECUTOR: I have a lab report, Judge, and it was a total of .07 grams.

Prior to accepting defendant's plea, the court found that defendant clearly understood the nature of the charge and the consequences of his guilty plea; that defendant provided a sufficient factual basis for the plea; and that defendant entered the plea knowingly, intelligently, and voluntarily. Accordingly, the judge accepted the plea and granted defendant's request to be released on his own recognizance. The court also informed defendant he would be sentenced on June 13, 2008, following the preparation of an adult presentence report.

Defendant's presentence report, completed on June 2, 2008, contained the following information regarding defendant's arrest:

The Clifton Police report states in part that on November 12, 2007, Officers responded to 86 Fornelius Avenue on a report of a road rage incident with a hand gun shown. Further information was given that the vehicle had fled on Paulison Avenue, towards Hazel Street. Upon arrival, the officer spoke to Vanessa Overoff, who stated that she was driving on Paulison Avenue, when an erratic driver had nearly run her "off the road." Vanessa stated that the driver then immediately placed his vehicle in park, angrily exited his vehicle, removed a hand gun from his left chest pocket, pointed it in her direction while stating, "do you want to die today."

Passaic County Sheriff located a similar vehicle in the area of Hazel Street and Route 46. The Officer took Ms. Overoff to the location and she made a positive identification. A hand gun was not located. As the driver, later identified as Robert Isaiah exited the vehicle, Officer Zemzicki noticed a glass pipe fall to the ground from the inside of his clothing. Officer Hasselberger recovered one bag of crack cocaine underneath the driver's side seat. The defendant was arrested and transported to headquarters for processing.

According to the probation officer who prepared defendant's presentence report, when defendant was interviewed on April 24, 2008, he reviewed the Clifton Police report and "maintained his plea of guilty." The presentence report also stated that defendant "preferred not to comment further regarding the instant offense."

Defendant's original sentence date was adjourned and he was assigned a new attorney after he wrote a letter to the court requesting permission to withdraw his plea. On July 8, 2008, more than five months after his guilty plea, defendant filed a notice of motion to retract the plea. In a letter brief in support of the motion, defendant's new attorney argued as follows:

The defendant is asserting as grounds for his application that he was influenced by constructive or [de facto] duress and coercion at the time he chose to accept the plea offer. It is easy to understand how he could succumb to the [specter] of immediate and permanent freedom, which was a key component of the plea. Also, Mr. Isaiah had initially maintained that he was not guilty of these charges in relating his version of the subject incident to his attorney, but was dissuaded by defense counsel's less than enthusiastic assessment of that scenario. Upon further reflection the defendant regretted compromising his principles. Mr. Isaiah strongly re-asserts his innocence, as can be seen in his six page letter to the Court which is attached to the moving papers.

The trial court heard defendant's motion to withdraw his guilty plea on August 6, 2008. Defendant testified his former attorney told him he would be "taking a big chance" if he didn't "take the plea" because a jury would probably believe the police.

However, defendant's former attorney testified he told defendant "not to take the deal if [he was] not guilty," and he also told defendant "reasonable doubt was built into the case" because the alleged victim told the police that defendant "had a handgun and one was never recovered." In addition, defendant's former attorney testified he spoke with defendant "for quite awhile about the case" and believed that defendant had entered his plea freely and voluntarily.

Following the hearing, the court denied defendant's motion and stated its reasons in an oral decision. The court accepted the testimony provided by defendant's former attorney. Further, based on defendant's demeanor and testimony at the plea hearing on February 4, 2008, the court found he entered the plea "truthfully, knowingly, [and] voluntarily with a clear understanding of the particulars and ramifications of his decision." The court also noted that defendant's plea was entered pursuant to a negotiated agreement, and defendant maintained his guilty plea on April 24, 2008, when he was interviewed by the person who prepared the presentence report. Additionally, the court found that defendant understood it was his decision to either enter a plea or proceed to trial and that he was not "under any duress or coercion when he accepted the State's plea offer."

After the court denied defendant's motion to retract his plea, defendant was sentenced consistent with the negotiated plea agreement. The court imposed a two-year term of probation with eighty-five days in the Passaic County Jail, which was the time served between defendant's arrest on November 12, 2007, and his release on February 4, 2008. All mandatory fines and penalties were also imposed.

The New Jersey Supreme Court has recently considered the standards a trial court should employ when deciding a motion to withdraw a guilty plea. State v. Slater, 198 N.J. 145 (2009). In that case, 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 151-52. Twelve days after pleading guilty, the defendant filed a pro se motion seeking to withdraw his guilty plea. Id. at 152. The trial court denied the motion, ruling that defendant's change of mind was not a sufficient basis for withdrawing his guilty plea, and defendant was sentenced consistent with the plea agreement. Id. at 153. This court affirmed the trial court's denial of defendant's motion to withdraw his plea, but the Supreme Court reversed.

As the Court noted in Slater, trial courts must analyze four factors when evaluating a motion to withdraw a guilty plea:

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 157-58.]

This four-factor test applies to motions filed either before or after sentencing, but presentence motions are governed by the more liberal "interest of justice" standard under Rule 3:9-3(e), while post-sentence motions are subject to a "manifest injustice" standard under Rule 3:21-1. Id. at 158. Regardless of the timing, "'the burden rests on the defendant, in the first instance, to present some plausible basis for his request, and his good faith in asserting a defense on the merits.'" Id. at 156 (quoting State v. Smullen, 118 N.J. 408, 416 (1990)).

In this matter, defendant told the trial court that he wanted to withdraw his guilty plea because he was not guilty (he claimed the police placed the drugs and paraphernalia on him); because his attorney was "less than enthusiastic" about his case; and because his guilty plea allowed him to be released from jail. However, defendant's assertions in support of his motion to withdraw his guilty plea stand in stark contrast to his statements under oath at the time he pled guilty. Here, unlike the circumstances in Slater, the record is devoid of any evidence that defendant was coerced into pleading guilty or that he was not satisfied with his former attorney. Moreover, in Slater, the defendant's presentence report stated that he "denied culpability for the offense." Id. at 153. But in this case, defendant's presentence report confirms "he maintained his plea of guilty" when he was interviewed on April 24, 2008.

Although Judge Falcone did not have the benefit of the Court's opinion in Slater when he denied defendant's motion, his findings and conclusions are well supported by the record. Moreover, our review of the record confirms that defendant failed to present "a colorable claim of innocence"; he failed to provide strong reasons for the withdrawal of his guilty plea; and his plea was part of a negotiated agreement. Under these circumstances, the first three Slater factors favor the State, and there is an insufficient basis to permit defendant to withdraw his guilty plea.

Affirmed.

 

Although we have not been provided with a copy of defendant's letter, the trial court noted that defendant's "current position, as set forth in his letter [is] that law enforcement, in effect, placed the drugs and paraphernalia on him at the time of his arrest."

(continued)

(continued)

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A-0647-08T4

January 21, 2010