STATE OF NEW JERSEY v. BODIE ELLIS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5012-07T45012-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

BODIE ELLIS,

Defendant-Appellant.

_______________________________

 

Argued: January 13, 2010 - Decided:

Before Judges Payne and C.L. Miniman.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 07-08-01807-I.

Jay L. Wilensky, Assistant Deputy Public Defender, argued the cause for appellant (Yvonne Smith Segars, Public Defender, attorney).

Betsy L. Phillips, Chief Assistant Prosecu tor, argued the cause for respondent (Theodore F. L. Housel, Atlantic County Prosecutor, attorney).

PER CURIAM

Defendant Bodie Ellis appeals from an April 18, 2008, judg ment of conviction of third-degree possession of cocaine on December 19, 2006, with intent to distribute within 1000 feet of school property, contrary to N.J.S.A. 2C:35-7, and third-degree possession of cocaine on December 22, 2006, with intent to dis tribute within 1000 feet of school property, contrary to N.J.S.A. 2C:35-7, on which an aggregate sentence of eight years with forty-three months of parole ineligibility was imposed. We reverse.

Defendant pled guilty to two out of ten counts against him in a fifteen-count indictment pursuant to a plea agreement in which the State agreed to recommend an eight-year term in state prison with forty-three months of parole ineligibility based on defen dant's mandatory extended-term eligibility and to seek dismissal of the remaining counts against him.

The plea agreement recited the statutory maximum base terms of five years on each offense and noted that defendant was extended-term eligible. In answer to question #7 on the plea form, defendant admitted that he was pleading guilty to charges "that require a mandatory period of parole ineligibility or a mandatory extended term." Question #7a was then completed as follows:

If you are pleading guilty to such a charge, the minimum mandatory period of parole ineligibility is 3 years and 7 months . . . and the maximum period of parole ineligibil ity can be 3 years and 7 months . . . and this period cannot be reduced by good time, work, or minimum custody credits.

The plea hearing was attenuated:

THE COURT: You intend to enter into this guilty plea?

THE DEFENDANT: Yes.

THE COURT: Anybody force you to do that?

THE DEFENDANT: No.

THE COURT: Are you under the influence of any drug or alcohol today?

THE DEFENDANT: No.

THE COURT: You understand you have the right to go to trial and as a result of the guilty plea, you're giving up that right?

THE DEFENDANT: Yes.

THE COURT: Those papers, did you sign them and initial them and go over them with the lawyer?

THE DEFENDANT: Yes.

THE COURT: Did you understand them?

THE DEFENDANT: Yes.

THE COURT: Did you knowingly or purposely obtain or possess, with intent to distrib ute, cocaine within a thousand feet of a school?

THE DEFENDANT: Yes.

THE COURT: Which school?

THE DEFENDANT: North Main.

. . . .

THE COURT: On the 22nd of December, '06, did you do the same thing within a thousand feet of a school?

THE DEFENDANT: Yes.

THE COURT: Which school?

THE DEFENDANT: North Main Street.

Defendant was scheduled for sentencing on April 18, 2008. At that time, defendant filed a motion to withdraw his plea, contending that the Brimage Guidelines were calculated incor rectly in arriving at the extended-term portion of the sentence because the prosecutor calculated too many points for a prior sexual assault. Specifically, although defendant was convicted of a second-degree offense, he contends he was sentenced as a third-degree offender and so only six points rather than twelve points should have been assigned to this prior crime. He also asserted that he had some psychological deficiencies that his codefendants used to prey on him to distribute drugs and that these same deficiencies caused him to have an inability to understand what the plea agreement was.

In colloquy with the judge, defendant's counsel acknowl edged that, regardless of the sexual assault, defendant still had to be sentenced to an extended term because this was his second conviction for distribution of controlled dangerous substances (CDS). Defendant then said he would like to take his plea back because he had men tal issues. He further stated, "And I'm not saying I'm not guilty of the crime. I just need to have help in eight years of prison." The prosecutor contended that these were undercover buys, defendant had a record, there was no documented history of mental illness, and defendant received the lowest pre-indictment Brimage offer possible, even though the offer was made after indictment.

The judge denied the motion and immediately imposed sen tence without confirming that the presentence investigation report was accurate and without giving defendant or his counsel a chance to speak to the sentence:

All right. Well, yeah, my review of the matter is that you're getting a break on the stip back to the pre-indictment Brimage offer. Furthermore, I remember when I took your plea, that it was knowingly, voluntar ily, intelligently entered and that was right after you became aware of the codefen dant's plea and implication of you. The proofs in the case were very extremely strong. Based on your record you're manda tory extended term eligible and as far as you getting any kind of help or whatever, in light of the fact that you are mandatory extended term eligible and a state prison term is in order, you'll have to avail your self of the different types of programs that are available in the state prison system that you want to take part in. As indi cated, you pled to two counts of possession with intent in a school zone. Your record is bad; 13 arrests, three prior felonies, . . . one for which it was a sex assault, theft by unlawful taking and distribution in a school zone. Because of these offenses and because of the fact that you are manda tory extended term eligible, a prison term is absolutely necessary. Aggravating three, six, nine; no mitigating. Aggravating out weigh mitigating. On count eight you're sentenced to eight year state prison, 43 months without parole, under mandatory extended term. . . . On count 13, eight years state prison, concurrent with count eight. . . .

This appeal followed. Defendant, who seeks to withdraw his plea, contends that the plea hearing was insufficient under Rule 3:9-2: his plea was not knowing and voluntary; he did not under stand the consequences of his plea; and he was misinformed of the maximum and minimum periods of mandatory parole ineligibil ity under N.J.S.A. 2C:43-6f. He also urges that the judge was not required to give forty-three months of parole ineligibility since this was not a Brimage plea offer because the State was not offering a sentence less than what the statute required.

The State urges that the four factors governing plea with drawal enunciated in State v. Slater, 198 N.J. 145 (2009), are not present because there is no claim of innocence and defendant was given an opportunity to speak so his right of allocution was preserved. Furthermore, the State contends that Brimage does indeed apply.

We begin with the adequacy of the plea hearing. Rule 3:9-2 provides in pertinent part:

The court . . . shall not accept [a guilty] plea without first questioning the defendant personally, under oath or by affirmation, and determining by inquiry of the defendant and others, in the court's discretion, that there is a factual basis for the plea and that the plea is made voluntarily, not as a result of any threats or of any promises or inducements not disclosed on the record, and with an understanding of the nature of the charge and the consequences of the plea.

"[T]he careful codification of principles in Rule 3:9-2 reflects a preference for heightened judicial supervision of any process in which a defendant concedes guilt . . . ." State in re T.M., 166 N.J. 319, 328-29 (2001). Compliance with this rule is so important that the Supreme Court has held that "[c]onsideration of a plea withdrawal request can and should begin with proof that before accepting the plea, the trial court followed the dictates of Rule 3:9-2." Slater, supra, 198 N.J. at 155.

First, there must be an adequate factual basis for the plea. "Under Rule 3:9-2, a court taking a plea . . . must sat isfy itself through inquiry of the defendant and others, in its discretion, that an adequate factual basis exists for the plea." T.M., supra, 166 N.J. at 326. This requirement "protects a defendant who voluntarily and knowingly pleads, but without rec ognition that his or her conduct does not fall within the charge." Ibid.

Because of the constitutional values at stake, "we have been very sensitive to the requirement that there be an adequate fac tual basis for a plea of criminal guilt." [State v.] Smullen, . . . 118 N.J. [408,] 414 [(1990)]. We have adopted the shorthand expression that the trial court "must be 'satisfied from the lips of the defendant that he committed the acts which consti tute the crime.'" [State v.] Barboza, . . . 115 N.J. [415,] 422 [(1989)] (quoting State v. Stefanelli, 78 N.J. 418, 439 (1979) (Schreiber, J., concurring)).

[Id. at 326-27.]

If there is not a factual basis for every element of the crimes to which the defendant is pleading guilty, the court must reject the plea. State v. Pineiro, 385 N.J. Super. 129, 137 (App. Div. 2006) (citing State v. Sainz, 107 N.J. 283, 293 (1987)). Where a factual basis has not been established, the resulting conviction must be vacated and the parties restored to the pre-plea posture. Barboza, supra, 115 N.J. at 420.

Second, the plea must be made voluntarily and knowingly. McCarthy v. United States, 394 U.S. 459, 466, 89 S. Ct. 1166, 1171, 22 L. Ed. 2d 418, 425 (1969) ("If a defendant's guilty plea is not equally voluntary and knowing, it has been obtained in violation of due process and is therefore void."), superseded by statute, Fed. R. Crim. P. 11(h), as recognized in United States v. Raineri, 42 F.3d 36, 41 (1st Cir. 1994), cert. denied, 515 U.S. 1126, 115 S. Ct. 2286, 132 L. Ed. 2d 288 (1995); accord State v. Warren, 115 N.J. 433, 447 (1989). "A defendant whose mental condition is such that he is unable to comprehend his position, to consult intelligently with counsel and plan his defense . . . precludes the acceptance of a guilty plea." State v. Norton, 167 N.J. Super. 229, 231 (App. Div. 1979) (citations omitted).

Third, the court must establish that the plea is not the result of any threats, promises, or inducements that have not been disclosed on the record. T.M., supra, 166 N.J. at 335-36; see also State v. Simon, 161 N.J. 416, 444-45 (1999).

Fourth, the plea may not be accepted unless the defendant has an understanding of the nature of the charges. McCarthy, supra, 394 U.S. at 466, 89 S. Ct. at 1171, 22 L. Ed. 2d at 425 ("[B]ecause a guilty plea is an admission of all the elements of a formal criminal charge, it cannot be truly voluntary unless the defendant possesses an understanding of the law in relation to the facts."); State v. Rhein, 117 N.J. Super. 112, 117-18 (App. Div. 1971) (attorney's incor rect advice as to the elements of the crime requires vacation of the plea).

Fifth, the defendant must understand the consequences of the plea. "The specificity and rigor embodied in Rule 3:9-2 manifest a systemic awareness that a defendant waives signifi cant constitutional rights when pleading guilty . . . ." T.M., supra, 166 N.J. at 326. Those rights include "such fundamental constitutional protections as right to jury trial, right to con front witnesses, and the right against self-incrimination," id. at 329, and the right "to be presumed innocent of crime until a jury of one's peers has determined guilt beyond a reasonable doubt," Smullen, supra, 118 N.J. at 414. The defendant must also understand the penal consequences of the plea, which means that he must be correctly advised of the maximum penalty for the crimes to which he is pleading guilty. State v. Manzie, 168 N.J. 113, 118 (2001) (Stein, Coleman, & Zazzali, J.J., concur ring); State v. Matthews, 378 N.J. Super. 396, 404-05 (App. Div.), certif. denied, 185 N.J. 596 (2005). Additionally, the defendant must correctly understand the discretionary and manda tory parole ineligibility terms that may be imposed. State v. Burford, 163 N.J. 16, 21 (2000) (manda tory parole ineligibility); State v. Kovack, 91 N.J. 476, 481 (1982) (discretionary parole ineligi bility) (citations omitted); State v. Bailey, 226 N.J. Super. 559, 564-69 (App. Div. 1988) (mandatory parole ineligibility); State v. Naji, 205 N.J. Super. 208, 215 (App. Div. 1985), certif. denied, 103 N.J. 467 (1986) (discretionary parole ineligibility). Of course, the defendant must be advised if the No Early Release Act, N.J.S.A. 2C:43-7.2, applies to his sentence. State v. Rosado, 182 N.J. 245, 246 (2005); State v. Freudenberger, 358 N.J. Super. 162, 164 (App. Div. 2003). The defendant must also be advised of the collateral consequences of his plea. Pressler, Current N.J. Court Rules, comment 1.4.3 on R. 3:9-2 (2010).

Finally, the court should also inquire whether the defendant had an adequate opportunity to confer with counsel and is satisfied with the services provided by that attorney. Cf. State v. Melendez, 165 N.J. Super. 182, 183-84 (App. Div. 1979) (finding that the defendant did not voluntarily plead guilty where he was not represented by counsel, did not waive his right to counsel, and the trial court never asked him if he wanted to consult with an attorney before pleading guilty.)

Here, the judge's questioning of defendant failed to establish an adequate factual basis for the plea to two viola tions of N.J.S.A. 2C:35-7. The essential elements of that crime are (1) knowingly or purposely (2) possessing or controlling (3) with intent to distribute (4) CDS (5) while within 1000 feet of any school property used for school purposes which is owned by or leased to any elementary or secon dary school or school board. Of course, the particulars of the crime must also be established, to wit, the date and place where the CDS was possessed with intent to distribute. The judge's initial question to defendant was: "Did you knowingly or pur posely obtain or possess, with intent to distribute, cocaine within a thousand feet of a school?" The answer to this ques tion did not establish a factual basis for the plea but merely established, briefly, the elements of the crime charged. The judge then established that the school in question for both crimes was the North Main Street School, which presumably was located on North Main Street, but the judge did not establish in which municipal ity the school was located. He did not establish where defen dant was located when each crime was committed, nor did he establish the date of one of the crimes. He did not establish that defendant acted knowingly or purposely. He did not estab lish that defendant possessed cocaine on each occasion and that he intended to distribute it on each occasion. He did not establish that the crimes took place within 1000 feet of the school. We are not "'satisfied from the lips of the defendant that he committed the acts which constitute the crime.'" Barboza, supra, 115 N.J. at 422 (citation omitted).

The judge did not fully ensure that the plea was made vol untarily and knowingly. He did establish that defendant was not under the influence of any drug or alcohol, but he did not inquire into defendant's mental health to determine whether he was competent to enter the plea. Thus, his claims on appeal of a mental condition are not refuted with sworn testimony at the plea hearing.

The judge did not establish that the plea was not the result of any threats, promises, or inducements that were not dis closed on the record. He did establish that no one forced defendant to plead guilty, but he made no effort to ascertain whether defendant was relying on any promises or inducements other than those contained in the plea agreement or otherwise set forth on the record. In fact, he did not even review the contents of the plea agreement on the record and ascertain from defendant that it contained all of the promises and inducements on which he relied in pleading guilty.

Although the judge established that defendant had an under standing of the nature of the charges, he did not tie that under standing to the facts. McCarthy, supra, 394 U.S. at 466, 89 S. Ct. at 1171, 22 L. Ed. 2d at 425 ("[T]he defendant [must] possess[] an understanding of the law in relation to the facts.").

With respect to defendant's understanding of the conse quences of the plea, the judge only asked him whether he under stood that he was waiving his right to go to trial. That is not adequate. He was required to advise defendant, in separate statements, that he had a right to a jury trial, that at such a trial his attorney would have the right to cross-examine witnesses against him and to call witnesses on his behalf, that he had a right to remain silent, and that he would be presumed innocent until the jury determined his guilt beyond a reasonable doubt. T.M., supra, 166 N.J. at 326, 329; Smullen, supra, 118 N.J. at 414. And as to each of these rights, the judge was required to separately establish that defendant understood that he was waiving each of them by pleading guilty.

The judge completely failed to ascertain that defendant understood the penal consequences of his plea. The judge did not advise him of the maximum and minimum extended-term penalties for a violation of N.J.S.A. 2C:35-7 and the maximum and minimum parole-ineligibility terms that had to be imposed. In fact, defendant was misinformed respecting the maximum and minimum periods of mandatory parole ineligibility under N.J.S.A. 2C:43-6f because the plea form stated that the maximum and minimum periods were each three years and seven months. In fact, for an eight-year sentence, the maximum period of parole ineligibility is four years and the minimum period is three years seven months less than the plea form indicated.

Finally, the judge did not inquire at all whether defendant had an adequate opportunity to confer with his counsel and was satisfied with his services. Because the judge failed to comply with Rule 3:9-2, we need not address the factors identified by the Slater Court as informing a decision as to whether a defendant is entitled to withdraw a plea. Slater, supra, 198 N.J. at 155. Rather, we are constrained to vacate defendant's con viction and remand the matter, restoring the parties to their pre-plea posture. Barboza, supra, 115 N.J. at 420. Before doing so, we must address one other issue raised by defendant.

In Brimage, the Supreme Court addressed Section 12 of the Comprehensive Drug Reform Act of 1987 (CDRA). Brimage, supra, 153 N.J. at 3. That section provides:

Whenever an offense defined in this chapter specifies a mandatory sentence of imprisonment which includes a minimum term during which the defendant shall be ineligi ble for parole, [or] a mandatory extended term which includes a period of parole ineligibility . . . , the court upon convic tion shall impose the mandatory sentence . . . unless the defendant has pleaded guilty pursuant to a negotiated agreement . . . which provides for a lesser sentence [or] period of parole ineligibility . . . . The negotiated plea . . . may provide for a specified term of imprisonment within the range of ordinary or extended sentences authorized by law, a specified period of parole ineligibility . . . , or other dispo sition. In that event, the court at sen tencing shall not impose a lesser term of imprisonment [or] lesser period of parole ineligibility . . . than that expressly pro vided for under the terms of the plea or post-conviction agreement.

[N.J.S.A. 2C:35-12 (emphasis added).]

The Court's concern was the disparity of sentencing from one county to another where defendants entered into plea agree ments when prosecutors "waive the mandatory minimum sentence specified for any offense under the CDRA." Brimage, supra, 153 N.J. at 3. The Court had previously held that "prosecutors must adhere to written guidelines governing plea offers and state on the record their reasons for waiving or not waiving the parole disqualifier in any given case." Id. at 3-4 (citing State v. Vasquez, 129 N.J. 189, 195-96 (1992)). The Attorney General responded to Vasquez by promulgating Guidelines which prescribed "minimum statewide plea offers" but also "direct[ed] each county prosecutor[']s office to adopt its own written plea agreement pol icy, which may include standard plea offers that are more strin gent than the statewide minimums provided by the Attorney General." Id. at 4.

After a thorough review of the history of the CDRA and the Attor ney General's statewide Guidelines, id. at 7-19, the Court ultimately concluded that the Attorney General's Guidelines failed to "serve as the universal, equitable prototype that the Vasquez line of cases had in mind." Id. at 22.

The intercounty disparity authorized by the Attorney General's Guidelines . . . violates the goals of uniformity in sentencing and, thus, not only fails on statutory grounds, but also threatens the balance between prosecutorial and judicial discretion that is required under Vasquez, supra, 129 N.J. 189. The Guidelines fail to appropriately channel prosecutorial discretion, thus lead ing to arbitrary and unreviewable differences between different localities.

[Id. at 22-23.]

The Court concluded that "the plea agreement guidelines for N.J.S.A. 2C:35-12 must be consistent throughout the State." Id. at 23. As a result, the Court ordered the Attorney General to "review and promulgate . . . new plea offer guidelines." Id. at 24.

Clearly, the Brimage Guidelines were not triggered here because the plea agreement did not "provide[] for a lesser sen tence [or] period of parole ineligibility." N.J.S.A. 2C:35-12. An eight-year term was in the middle of the mandatory extended-term range for a second conviction for CDS distribution under N.J.S.A. 2C:43-6f and N.J.S.A. 2C:43-7a(4). Furthermore, the forty-three-month period of parole ineligibility was above the mandatory minimum term period of three years. Thus, the plea agreement was not subject to the Brimage Guide lines. Consequently, the sentencing judge had discretion to sentence defendant to a lesser extended-term sentence than what the prosecutor agreed to recommend and to a lesser period of mandatory parole ineligibility than the plea form indicated.

We also note that the sentencing hearing similarly failed to comply with the requirements for imposing sentence. The judgment of conviction is vacated.

 
Reversed and remanded for further proceedings consistent with this opinion.

This appeal was argued without briefs on our Excessive Sentence Oral Argument calendar.

This calculation was incorrect. A defendant who has been previously convicted of possession with intent to distribute within 1000 feet of school property is subject to a mandatory extended term under N.J.S.A. 2C:43-6f, as authorized by N.J.S.A. 2C:43-7, i.e., to a term between five and ten years for a third-degree crime. N.J.S.A. 2C:43-7a(4). Whatever term is imposed, a mandatory minimum term must "be fixed at, or between, one-third and one-half of the sentence imposed by the court or three years, whichever is greater." N.J.S.A. 2C:43-6f. This is the same mandatory minimum term where the crime is a violation of N.J.S.A. 2C:35-7. For an eight-year term, the mandatory minimum would be between three and four years. Thus, the plea form was in error.

State v. Brimage, 153 N.J. 1 (1998).

(continued)

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A-5012-07T4

February 9, 2010