STATE OF NEW JERSEY v. MATTHEW E. PAPPAS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5989-08T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MATTHEW E. PAPPAS,

Defendant-Appellant.

_____________________________________________

December 17, 2010

Argued December 8, 2010 - Decided

Before Judges Cuff and Fisher.

On appeal from the Superior Court of New Jersey, Law Division, Hunterdon County, Indictment No. 07-05-0171.

Michael J. Rogers argued the cause for appellant (McDonald & Rogers, attorneys; Mr. Rogers, of counsel and on the brief).

Brian Uzdavinis, Deputy Attorney General, argued the cause for respondent (Paula T. Dow, Attorney General, of counsel; Mr. Uzdavinis, of counsel and on the brief).

PER CURIAM

In this appeal, defendant argues that the trial judge erred in denying his pre-sentence application to withdraw his guilty plea. Because a principled consideration of the Slater1 factors highly favored the granting of relief and because such applications when pursued prior to the imposition of sentence are to be liberally indulged, we reverse the denial of the motion to vacate the guilty plea.

On December 16, 2006, defendant was arrested for driving while intoxicated in Raritan Township. While at police headquarters, defendant allegedly spit in a police officer's face and on his chest. Defendant was indicted on May 1, 2007, and charged with fourth-degree throwing bodily fluids at a law enforcement officer, N.J.S.A. 2C:12-13.

On February 25, 2009, the date a jury trial was to commence, defendant entered into a plea agreement that called for the imposition of a probationary term and a maximum custodial sentence of 180 days in the county jail, and pled guilty to the fourth-degree offense as agreed. In responding to the judge's leading questions, defendant acknowledged that the incident in question occurred at the Raritan Township Police Department on December 16, 2006, and the alleged victim was a police officer; defendant also gave the following testimony:

THE COURT: And [the indictment] goes on to allege that at that time and place you did purposely subject [the officer] of the Raritan Township Police Department to contact with a bodily fluid while the officer was in uniform and acting performance of his duties. Is that accurate?

[DEFENDANT]: Yes.

THE COURT: And more specifically the allegation is that you spit onto the officer at that time and place, is that correct?

[DEFENDANT]: Yes.

Taken literally, the plea colloquy does not contain defendant's admission of the conduct alleged but only his acknowledgement that the indictment alleged that he "spit onto the officer."

Less than two months later, and prior to the date scheduled for sentencing, defendant moved to vacate his guilty plea, asserting that as a result of the pressure of the situation, he decided to plead guilty pursuant to the terms of a plea agreement rather than take his chances at trial. Defendant also asserted, with the support of medical records, that he has an asthmatic condition and, for years, has suffered from various side effects, including, among other things, "sneezing, stuffy nose, sinus pain or inflammation, cough." He claimed that rather than what was alleged in the indictment, the following occurred:

I was heading home when I was pulled over. I was exhausted and had a cold with a sore throat. I was using throat lozenges that I had in my car to relieve the symptoms. The officer said that he smelled alcohol. He must have mistaken the odor of the lozenges for alcohol. The officer administered field sobriety tests. I told him I had surgery on both knees and wouldn't be able to perform the tests well. He wanted me to try anyway. He then arrested me for DWI. At the police station, after I told [an officer] that I had a cold and sore throat, I asked for a drink of water. He said no and then left the room. When he came back he demanded to know where the drugs were. He was screaming in my face. I told him that I didn't know what he was talking about. He was yelling at me to stop lying and grabbed my arms to pull up my shirt sleeves. He was looking for needle marks but there weren't any. Frustrated, he then left the room. I was shocked. I was so overwhelmed and startled that I started having trouble breathing, having been sick with a cold and a sore throat and having asthma which was beginning to act up. I had throat lozenges in my pocket and took one to help relieve my symptoms due to the fact that my prescription medication was left in my car. [The officer] came back in the room and demanded that I remove the lozenge from my mouth, which I did. He then left the room again. Still having trouble breathing, I placed another lozenge in my mouth. [The officer] came back in the room and demanded that I spit out the lozenge again. He then attempted to remove the lozenge himself with his nightstick. Due to my asthma I was unable to adequately give breath samples to [the officer's] satisfaction. After only two attempts he charged me with refusal. I did ask if I could try again but was told no. I even offered blood and urine samples but was told that they don't do that there. I was being escorted out by two other officers, one at each arm, to meet my wife who was there to take me home. It was at this time that [the officer] rushed up to me and put his face to mine nose to nose. I was already suffering an asthma attack which was compounded by a cold and sore throat. I was startled by [the officer's] actions and due to my condition, I involuntarily coughed or sneezed.

By the time this motion was filed, the judge who presided over the plea hearing had retired. Another judge heard defendant's motion to withdraw his guilty plea, denied it by way of a written opinion, and imposed a two-year probationary term conditioned upon defendant's service of 180 days in the county jail and other obligations and monetary penalties and fees.

Defendant appealed,2 raising the following arguments for our consideration:

I. THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING DEFENDANT'S MOTION TO WITHDRAW HIS GUILTY PLEA.

II. THERE WAS AN INADEQUATE FACTUAL BASIS FOR A GUILTY PLEA (Not Raised Below).

We agree that the applicable liberal standard required the granting of relief and therefore reverse without needing to reach Point II.

In Slater, supra, 198 N.J. at 156, the Court held that whether a plea may be set aside is a matter resting in the exercise of the trial court's discretion. When the request is made prior to sentencing, "courts are to exercise their discretion liberally to allow plea withdrawals." Ibid. (citing State v. Smullen, 118 N.J. 408, 416 (1990)). Notwithstanding that liberal standard, "'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.'" Ibid. (quoting Smullen, supra, 118 N.J. at 416). In other words, "'[l]iberality in exercising discretion does not mean an abdication of all discretion.'" Id. at 157 (quoting Smullen, supra, 118 N.J. at 416). In considering whether to permit a withdrawal, judges are to "consider and balance . . . : (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.

In examining the first factor, judges must recognize that "a bare assertion of innocence is insufficient," and consider "whether a defendant's assertion of innocence is more than a blanket, bald statement and rests instead on particular, plausible facts." Id. at 158-59. In rejecting defendant's claim that any spitting was accidental, the judge observed that the police officer's opposing certifications "fully contradicted" defendant's version of the facts. That may be so, but the judge is not "to conduct a mini-trial at this juncture" to resolve that dispute. Ibid. The question is whether defendant provided more than a bald, unsupported declaration of innocence; he offered facts which, if accepted by a trier of fact, would require acquittal. That the judge was disinclined to believe defendant's version is not a basis for denying the motion at a stage when liberality in considering the motion was required.

The State contends that the first factor was not satisfied here because defendant expressed his guilt at the plea hearing and demonstrated at that time that he understood what he was waiving by pleading guilty. Of course, if the content of the plea transcript was determinative, no motion to withdraw could ever be granted because no judge would accept a guilty plea in the absence of such sworn statements from an accused. Having said that, we agree it may be illuminating to examine what it was that the defendant said when entering the guilty plea in determining the sufficiency of the later assertion of innocence.3 The more detail a defendant provides in describing his guilty conduct at the plea hearing, the greater tendency a court may view a later contrary assertion as insufficient. Here, however, defendant responded affirmatively to the very few leading questions put to him regarding the charges; in fact, as defendant correctly observes, defendant's affirmative responses -- when read literally -- reveal only defendant's acknowledgement of what was contained in the indictment, not what he allegedly did. Viewing these facts and circumstances with the liberality required, id. at 157, the trial judge should have concluded that the first factor favored the granting of relief.

In considering the second Slater factor, we recognize that in most cases a defendant will likely assert the pressure and duress presented by the situation when seeking relief from a guilty plea. A defendant facing an imminent trial4 with all the attendant risks is undoubtedly under great pressure. We thus place little weight on the judge's determination that "[t]here is nothing in the record to indicate that any such duress existed."5 Stress was inherent in the undertaking, particularly in this case where new information was provided to defendant at the time of trial.6 It is difficult to assess the level of that stress but considering that the motion was to be liberally indulged, the record does not permit a determination that this factor favored denial of defendant's motion.

The third Slater factor provides some support for the State's position. There is no dispute that the guilty plea was the product of an agreement. This factor, however, was not entitled to any great weight. In Slater, supra, 198 N.J. at 161, the Supreme Court stated that "[w]e recognize that the vast majority of criminal cases are resolved through plea bargains and do not suggest that this factor be given great weight in the balancing process." Contrary to that clear direction, the judge stated in his written opinion that "[t]he fact that the guilty plea was entered pursuant to a plea bargain, offered by the prosecution well-beyond the plea cut-off date, weighs heavily against the defendant in this matter" (emphasis added). The judge's heavy reliance on the third factor in denying defendant's motion was erroneous.

We also reject the judge's finding that the fourth factor militated against withdrawal. In concluding that "the State would be prejudiced if the defendant was allowed to withdraw his plea," the judge focused on the passage of time since the incident in question. Of course it is true that the alleged incident occurred on December 16, 2006, and the guilty plea was entered over two years later, on February 25, 2009, but the record does not provide a basis for laying blame for that undue passage of time on defendant nor are there any principled grounds for concluding that this passage of time warranted a denial of relief.7 Indeed, defendant's motion was filed less than two months after entry of his guilty plea. No prejudice accrued during that brief interval. Moreover, the alleged offense occurred in a police station and was witnessed by police officers. Their recollections were memorialized and will be available to them if, by the time they are called to testify by the State at some future trial, their memories have faded. Any concern the State may profess about the passage of time in light of these circumstances was of little weight.

The fourth Slater factor not only requires a consideration of whether the State will be prejudiced but whether defendant will be advantaged by the granting of relief. Here, defendant has served the incarceration portion of the sentence. The only advantage defendant would obtain in the granting of relief would be the securing of an opportunity to have a jury determine whether he is guilty of the charged offense. No one is prejudiced by that consequence.

Ultimately, in considering all the Slater factors, the judge erred in taking a jaundiced view of defendant's arguments in light of the Supreme Court's admonishment that courts, "[i]n assessing the nature and strength of the reasons for withdrawal, . . . should not approach them with skepticism." Id. at 160. To be sure, "trial judges must act with 'great care and realism' because defendants often have little to lose in challenging a guilty plea." Ibid. (quoting State v. Taylor, 80 N.J. 353, 365 (1979)). But, the undisputed facts relevant to the four Slater factors largely support defendant's position. Given the liberality with which courts must view such applications, we conclude that the judge mistakenly exercised his discretion when he denied defendant's motion to withdraw his guilty plea.

1State v. Slater, 198 N.J. 145, 157-58 (2009).

2Neither the trial court nor this court permitted a stay of the sentence pending appeal. Defendant has already served the incarceration portion of his sentence.

3A judge is entitled to rely on his or her "view of the defendant's demeanor and candor at both the plea proceeding and any later hearing on the withdrawal motion." Id. at 160. That source of information, however, was not available to the judge here because he did not preside over the plea hearing and did not conduct an evidentiary hearing with regard to the motion to withdraw the guilty plea. Indeed, the judge's decision was not even impacted by an assessment of defendant's demeanor in court on the day the motion was heard. The transcript reveals that after counsel completed their arguments the judge stated that his rationale for denying the motion was contained in a written decision that was already prepared. Clearly, the judge decided the motion by reference to the papers and not because of any impression he had gathered about defendant's demeanor or candor.

4It is noteworthy that the decision to plead guilty was not made at the time a plea cutoff was about to be imposed but was made on the trial date when defendant would have been feeling greater stress.

5We again observe that the judge who ruled on the motion to withdraw was not the judge who presided over the plea hearing, and the judge did not conduct an evidentiary hearing with regard to the motion to withdraw. Thus, the judge was in no better position to assess the earlier events than this court.

6According to the judge's written decision, defendant had provided the prosecution with "the names of additional witnesses on the eve of trial," and the prosecution provided a rebutting investigation report on the morning of February 25, the anticipated first day of trial. Although these changes in circumstances were brought about, in part, by defendant's own last-minute assertions, and even though the judge at the time generously offered defendant an adjournment to fully digest what had occurred, these circumstances certainly provided increased pressure.

7The State refers in support of this determination only to the fact that the witness list provided by defendant on February 9, 2009, which omitted any synopses of the proffered witnesses' testimony, caused an adjournment of the trial to February 25, 2009. That brief period pales in comparison to the more lengthy, unexplained delays from the date of the occurrence until defendant's guilty plea. There is nothing in the record to suggest why it took six months for the State to indict defendant or why the matter was not listed for trial until February 2009. As a result, we find no support for the judge's implicit determination that the blame for the passage of time from the date of the incident until the date the case would have been tried had the motion to withdraw been granted should be laid at defendant's doorstep. The only relevant delay is the time from the guilty plea to the filing of the motion for withdrawal of that plea -- a delay of less than two months.