STATE OF NEW JERSEY v. CARLOS A. MYRIE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1186-08T41186-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CARLOS A. MYRIE,

Defendant-Appellant.

_________________________________

 

Submitted: December 16, 2009 - Decided:

Before Judges Axelrad and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 07-04-571.

Robert J. Rudy, III, attorney for appellant.

Edward J. De Fazio, Hudson County Prosecutor, attorney for respondent (John R. Cascarano, Assistant Prosecutor, on the brief).

PER CURIAM

Following an indictment charging him with murder and three weapons offenses, defendant Carlos Myrie pled guilty to the amended charge of first-degree aggravated manslaughter, N.J.S.A. 2C:11-4a, pursuant to a negotiated plea, which also provided that the State would seek a twenty-year custodial term and defendant would argue for a seventeen-year term, both subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and the other charges would be dismissed. Prior to sentencing, defendant filed a motion to withdraw his guilty plea on the basis that his plea was not voluntary but was the result of coercion by his trial counsel and his mother. The court denied the motion. In accordance with the negotiated plea, at sentencing the court heard argument regarding the term, then imposed a twenty-year sentence subject to NERA and dismissed the remaining counts of the indictment.

Defendant appeals, arguing: (1) the trial court abused its discretion in failing to conduct an evidentiary hearing and in denying defendant's motion to vacate his guilty plea and (2) if not for the deficient assistance of defendant's former counsel, which consisted of failure to investigate witnesses and failure to inform defendant of inaccuracies in the witness statements, he would not have pled guilty. Based on our review of the record and applicable law, we affirm, save for defendant's second point asserting ineffective assistance of trial counsel, which we preserve for future application by defendant for post-conviction relief (PCR).

At defendant's arraignment in June 2007 for the murder of Ronald Dixon, the State's offer was for defendant to plead to an amended count of aggravated manslaughter in exchange for a twenty-five year prison term subject to NERA, which defendant subsequently rejected and proposed a counter-offer that was rejected by the State. On November 5, 2007, a pre-trial hearing was held and trial was scheduled for February l9, 2008. In late January 2008 the State reduced its offer to a twenty-year prison term subject to NERA, which defendant again rejected.

Defendant was brought back to the courthouse on February 5, 2008 for a pre-trial conference. Defendant's mother, Serita Broady, met with him in the presence of his attorney, Adrienne Edward. His mother was extremely emotional and upset. Defendant informed Edward of his desire to plead guilty and executed a plea form setting forth the aforementioned agreement. During the colloquy on that date, defendant responded in the affirmative when asked by Edward if on the subject date he recklessly used a firearm against Dixon during an altercation, resulting in Dixon's death from a gun shot wound.

In addition to providing a factual basis for the guilty plea, defendant, who was twenty-two, acknowledged, in part, that he was not under the influence of alcohol or drugs, he understood the charge against him, his attorney reviewed the plea form with him before he signed it and he understood all the questions, and he waived identified rights by pleading guilty. Defendant also unconditionally stated that he was satisfied with the services of his trial attorney. The following colloquy also took place between the court and defendant regarding defendant's potential exposure if convicted and the voluntariness of his plea, including specific reference to defendant's conversation with his mother:

[Court]: You understand that if you went to trial in this matter you could be found not guilty, but if you were found guilty you would face up to 30 years in state prison on this offense. And you were originally charged with -- first-degree murder, which this charge was amended to. And if you were found guilty of that charge, you would face up to life in prison. You understand all that?

[Defendant]: Yes, sir.

. . . .

[Court]: Other than what has been discussed with regard to your recommended sentence, has anyone promised you anything else to get you to plead guilty?

[Defendant]: No, sir.

. . . .

[Court]: Is your plea then entirely voluntarily, of your own free will?

[Defendant]: Yes, sir.

. . . .

[Court]: Are you pleading guilty to this charge because you are guilty of it?

[Defendant]: Yes, sir.

. . . .

THE COURT: I also want to -- indicate, you had an opportunity to speak with your mother about this too today, is that right?

[Defendant]: Yes, sir.

THE COURT: And -- any other questions?

[Defendant]: No, sir.

THE COURT: You still want to plead guilty?

[Defendant]: Yes, sir.

The following day defendant was returned to court to correct a technical error on his plea form regarding the calculation of parole ineligibility and to advise him of the correct calculation.

Defendant subsequently moved to vacate his plea pursuant to Rule 3:21-1, claiming his will was overborne by his mother who told him that if he did not plead guilty she would not visit him in jail, and he was pressured by his trial attorney to take the plea and was further prejudiced by counsel's lack of investigation and pre-trial preparation. Defendant presented his certification and that of his mother. In his certification, defendant claimed he asserted his innocence from the beginning of the case through to the date of his plea, set forth reasons why he did not believe he was provided a competent defense and the reasons for his reluctance to accept the State's plea offers and his attorney's suggested counter-offers. Defendant also stated that he pled guilty "because [his] mother threatened to stop visiting with [him] at the county jail if [he] did not accept the plea offer" and he was upset because, up to then, his mother regularly visited him and he "depended on her visits to keep [him] mentally strong in [his] conviction to go to trial." He related that his mother was crying and was extremely upset during their discussion; she kept telling him that Edward said he would not be successful at trial and he would be sentenced to life in prison and would spend a minimum of sixty-six years there and would die there without seeing his family again.

Broady, who is employed by the sheriff's department, certified that Edward contacted her at work on the morning of February 5, 2008, and requested she come to the courtroom and speak with defendant and Edward in the jury room. According to Broady, during the meeting Edward also advised them that, "if [defendant] were to lose the trial, which she believed he would, then his sentence would be life in prison with 66 1/2 years of parole ineligibility." Broady then "panicked and became hysterical." She related that she "begged and pleaded with [defendant] to accept the plea offer for [her], even though he kept telling [her] that he did not commit the crime and that he never wanted to plead guilty in this case from the beginning" and that she would "stop visiting him in jail pending his trial if he did not accept the State's offer that day."

The State presented Edward's certification together with a case summary outline. Edward asserted that on several occasions she encountered Broady at the courthouse and that on one occasion before February 5, Broady asked her about the status of her son's case and Edward explained about his rejection of the State's offer and the scheduled pre-trial conference. Broady requested that she speak with her son when he was produced in court that date. Because Broady became very emotional during the February 5 discussion and told defendant "she would do the time with him if he pled guilty and that she would not do the time with him if he didn't," when defendant told Edward he wanted to plead guilty, she persistently questioned him to make sure it was his voluntary decision to do so. Edward certified as follows:

ll. . . . After answering their questions I asked [defendant] . . . if it was still his intention to proceed to the trial of this matter. [Defendant] advised me that he wanted to plead guilty. I questioned him to make sure that was what he wanted to do. I told him that he has to make the decision, not his mother. I also told him that I was not there to force him to plead guilty, that he had to make the decision voluntarily. At that time [defendant] responded that he understood and he indicated that he wanted to plead guilty. . . .

l2. Before starting the plea forms I once again questioned [defendant] to make sure that this was what he wanted to do. . . . After completing the plea forms and before we put the plea on the record I confirmed with [defendant] that that was his decision and that he made it freely and voluntarily. [Defendant] responded that it was his decision.

. . . .

14. . . . Defendant was produced [on February 5] for the purposes of a pre-trial hearing. I did not have him produced so that he can plead guilty. I was ready to proceed to trial on February l9, 2008. Broady was there in the jury room because she asked to be in the jury room so that she can speak to her son and for no other reason.

Edward also explained that she "never told [defendant] or his mother that he was going to be convicted" but, rather, she "explained the strengths and weaknesses of the State's case." She also informed them of defendant's potential exposure if he were unsuccessful at trial, which was the same information that had been provided to him by the court at the plea cut-off hearing. Edward also detailed her investigation and trial preparation.

Following argument on September 26, 2008, Judge Camille Kenny denied defendant's motion to vacate his guilty plea. The judge applied the balancing test of State v. Herman, 47 N.J. 73, 76-77 (1966), noting that defendant's motion was subject to a more liberal standard as it was made pre-sentencing, but it was also entitled to a higher degree of finality because it involved a negotiated plea. She found that, even accepting that defendant's mother pressured him, an evidentiary hearing was not warranted as it did not change that there was "still a knowing, intelligent, voluntary plea [entered by defendant] on the record." In reviewing the record of the plea colloquy and the transcript the following day, Judge Kenny concluded that "there was no indication given to Judge Vasquez in any way, shape or form that [the plea] was not voluntarily made." She found that defendant was provided with ample opportunity to inform the court that he was not voluntarily entering the plea and, in response, he repeatedly stated he understood the consequences of the plea after consulting with counsel, was voluntarily entering it, specifically denied there were any threats or coercion, and provided a sufficient factual basis admitting the offense. Moreover, when Judge Vasquez asked him about his opportunity to speak with his mother, defendant made no mention of feeling pressured or that he had any trepidation about the plea. Nor did he mention anything to Judge Vasquez when he returned to court the next day to correct the NERA calculation. Considering defendant's lengthy juvenile record, prior conviction and prior state prison sentence, and that he had "been to court many, many times," Judge Kenny did not find credible defendant's claim that his will had been overborne when he accepted such an "advantageous plea." Rather, she concluded, after voluntarily pleading, defendant thought it over or got some advice at the jail and decided he did not want to serve a seventeen or twenty year parole disqualifier and wanted another opportunity to negotiate a different sentence. In denying defendant's motion, the judge also considered the State's and the victim's family's interest in the finality of the plea and the probability of a lengthy trial.

On appeal, defendant argues there were sufficient discrepancies in the certifications as to who requested that his mother come to court on February 5 to speak with him and the extent of the pressure his trial attorney placed on him to accept the plea to warrant an evidentiary hearing. In support of his assertion that he should be allowed to retract his guilty plea, defendant relies heavily on State v. Lasane, 371 N.J. Super. 151, 155, 166 (App. Div. 2004), certif. denied, 182 N.J. 628 (2005), for the proposition that a defendant may withdraw his plea on the grounds that it was accepted because his mother threatened that "the family would withdraw all support for him" if he did not. Defendant also emphasizes that he maintained his innocence up until acceptance of the plea and he supported his motion to withdraw with a plausible showing of a valid defense to the charges. According to defendant, the State's proofs are not that strong, noting specifically that the video surveillance footage only showed him inside the store before the victim was shot outside, but he could not be identified as the shooter from the parking lot footage, and that the eyewitness testimony had inconsistencies and credibility issues.

Defendant also argues that his trial counsel's performance was deficient in that, instead of investigating and advising him of fact witnesses whose contradictory testimony undermined the State's claims, she put pressure on him to accept the plea. According to defendant, Edward's action, in conjunction with his mother's coercion, resulted in his entry of the guilty plea.

We first dispose of defendant's second point pertaining to ineffective assistance of counsel. To the extent defendant's claims are reliant on matters outside the record, they are more suitable for resolution in a PCR petition and, therefore, we decline to address them here on direct appeal. See State v. Preciose, 129 N.J. 451 (1992); State v. Dixon, 125 N.J. 223 (1991); State v. Walker, 80 N.J. 187 (1979). See also State v. Sparano, 249 N.J. Super. 4ll, 419 (App. Div. l99l) ("Generally, a claim of ineffective assistance of counsel cannot be raised on direct appeal.").

We turn now to defendant's challenge to the court's denial of his motion to withdraw his guilty plea and request for an evidentiary hearing. A motion to withdraw a guilty plea is committed to the sound discretion of the trial judge. State v. Slater, 198 N.J. 145, 156 (2009). "[P]re-sentence motions to withdraw a plea are governed by the 'interest of justice' standard in Rule 3:9-3(e) . . . ." Id. at 158. Although this discretion should ordinarily be construed liberally where the motion is made before sentencing, State v. Smullen, ll 8 N.J. 408, 416 (l990); State v. Deutsch, 34 N.J. 190, 198 (1961), such liberality does not mean an abdication of all discretion, State v. Huntley, l29 N.J. Super. l3, 17 (App. Div.), certif. denied, 66 N.J. 312 (l974). Moreover, the burden is on the defendant to set forth a plausible basis for his request and his good faith for asserting a defense on the merits, weighed against the longstanding principle of recognizing the State's interest in the finality of pleas. Smullen, supra, 118 N.J. at 416.

As the first step in considering a motion to vacate, the trial court must determine whether the defendant entered the plea voluntarily and knowingly and based on a sufficiency of acknowledged facts. Slater, supra, 198 N.J. at l55. Our Supreme Court has recently directed that the courts then consider and balance the following 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 [the] 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 prejudice to the accused." Id. at 157-58.

Though not having had the benefit of the Slater decision, we are satisfied Judge Kenny considered the appropriate factors and performed the proper analysis in denying defendant's motion to vacate his guilty plea and his request for an evidentiary hearing. Accordingly, we affirm substantially for the reasons articulated by the court following oral argument. We add the following comments.

The certifications do not raise material issues of fact. It is inconsequential whether defendant's trial counsel or his mother first suggested that she speak to defendant about the State's last plea offer. Moreover, the judge accepted that Broady was upset during the meeting and threatened not to visit defendant. Even so, the judge was satisfied the record clearly supported the finding that defendant's plea was entered knowingly, voluntarily and intelligently. So are we. It is immaterial in this case that the motion judge was not the judge who took the plea because there is no evidence in the record whatsoever that defendant's demeanor was anything but calm, or that he was not voluntarily accepting the plea with the full understanding of its terms and consequences. Defendant did not hesitate in any of his responses and did not waver in his acknowledgement of guilt for the manslaughter offense. Moreover, he expressly acknowledged that he had ample opportunity to consult with his attorney and was satisfied with her services. He also assured the court that no one had coerced him into entering the plea. Certainly, if defendant were so overwrought by his mother's or trial counsel's comments to him during the meeting as he subsequently claimed he was, he would have given some indication to the court that he had some trepidation about accepting the plea, most likely in response to the specific questions about his attorney, his mother, and coercion. He said nothing. Defendant's lack of comment to the court the following day further undermines his claim that his will was overborne.

Defendant's reliance on Lasane is completely misplaced. The defendant in Lasane was a juvenile who turned seventeen years old the day after the crime was committed. 371 N.J. Super. at 154. We granted PCR relief allowing the defendant to withdraw his guilty plea because the record sufficiently demonstrated that the juvenile relied on his mother's advice to waive jurisdiction from the Family Part and plead guilty, combined with the unethical taint of his mother's sexual relationship with his attorney before sentence was imposed. Id. at l66. There is no similarity with the facts in this case.

The record is clear that defendant's guilty plea was freely, intelligently and voluntarily entered, with advice of counsel and supported by a factual basis satisfying the elements of the offense, all in full compliance with the mandates of Rule 3:9-2 and Slater. It seems clear from the record that Edward's recommendation that defendant take the plea offer in lieu of trial was not to pressure him, but simply to apprise him of the reality of the situation and offer her professional opinion as to his best interests, as upsetting as that may have been to defendant or his mother. As noted by the court, defendant, who was no stranger to the criminal justice system, was aware he received a favorable plea agreement in light of the crime, proofs and his potential exposure to prison. Defendant's claim that his attorney and his mother pressured him to plead guilty is at odds with defendant's express statements at the plea hearing and with the language of the plea form. As Judge Kenny concluded, it is more likely that defendant merely changed his mind afterwards, perhaps in the hope of negotiating a better deal. See Slater, supra, 198 N.J. at 157 (holding that a defendant must show more than a change of heart or a "whimsical change of mind" to vacate a guilty plea). Thus, given the negotiated disposition of this case, which included a downgraded charge and dismissal of several counts of the indictment, defendant's knowing and voluntary admission of guilt and favorable sentence, as well as the lack of plausible basis to support a motion for withdrawing the guilty plea, the trial court cannot be said to have abused its discretion in denying defendant's motion.

Affirmed.

 

Although the Law Division judge found that the sexual relationship between defendant's mother and his attorney began after defendant's guilty plea and before sentencing, we were concerned about the likelihood of the onset and development of "some relationship" before the plea was entered. Lasane, supra, 37l N.J. Super. at l63.

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A-1186-08T4

January 12, 2010