STATE OF NEW JERSEY v. ERIN M. BURKE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0095-09T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ERIN M. BURKE,

Defendant-Appellant.

_____________________________

April 15, 2011

 

Submitted March 30, 2011 - Decided

 

Before Judges Lihotz and J. N. Harris.

 

On appeal from the Superior Court of New Jersey, Hudson County, Law Division, Municipal Appeal No. 12-09.

 

Erin M. Burke, appellant pro se.

 

Edward J. DeFazio, Hudson County Prosecutor, attorney for respondent (Jordan S. Goldsmith, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Erin M. Burke appeals from the Law Division's de novo finding of guilt of the offense of harassment. N.J.S.A. 2C:33-4(a). We affirm.

I.

On February 9, 2009, defendant appeared with her attorney in the Jersey City Municipal Court to defend a harassment complaint that had been lodged against her by a private citizen on October 27, 2008. After preliminary discussions between the municipal prosecutor and defense counsel were conducted, and the court advised that defendant wished to plead guilty, Judge Carlo Abad administered an oath to defendant and engaged her in a plea allocution. The court told defendant in no uncertain terms the following:

Ms. Burke, if you're going to plead guilty you have to provide the Court with a factual basis, which means you have to admit to [the court] that you did something that makes you guilty of the charge. [The court] will not accept the plea unless you give [it] a factual basis.

 

Defendant thereupon recounted a version of events that resulted in Judge Abad exclaiming, "at this point, [the court is] not comfortable with the factual basis that . . . [has] been given already."

Turning the examination over to the municipal prosecutor, the following exchange ensued:

[PROSECUTOR]: On October 26th, 2008 did the complaining witness contact you at all?

 

[DEFENDANT]: No.

 

. . . .

 

[PROSECUTOR]: All right. So on October 26th, 2008 you did go to [the complaining witness's] place of residence?

 

[DEFENDANT]: Yes.

 

[PROSECUTOR]: And what happened?

 

[DEFENDANT]: I saw her roommate coming back to the apartment with food, although she testified to the mediator she thought it was Andre. I attempted to communicate with the roommate, who has previously communicated with me, [but] was ignoring me. I made an epithet.

 

[PROSECUTOR]: How did you enter the apartment? Did you try to physically let yourself in? Did you knock? What happened?

 

[DEFENDANT]: I tried to I tapped her roommate on the shoulder to try to speak with her. I did not try to force entry into the apartment. I understand that there are two doors. I would never be able to get to the second door. I know that rationally, so I wouldn't attempt to force entry.

 

I rang the buzzer. The complainant let me in. She claims that she did not know it was me or that it was someone else. It is possible that it was her roommate. It sounded very much like her to me, but I could be wrong about that.

 

[PROSECUTOR]: Do you think that your conduct on October 26th when you went to the complaining witness's place in light of your history, in light of the accusations that were made against you, do you think that would cause the complaining witness alarm? Do you think that would annoy her and alarm her?

 

[DEFENDANT]: I think it would offend, annoy and alarm her, yes.

 

THE COURT: Well, what did you do that would annoy or alarm her?

 

[DEFENDANT]: I brought food over to the house.

 

. . . .

 

THE COURT: I don't find that fits the statute. I mean, in order for me to accept a guilty plea you have to

 

[DEFENDANT]: Then later that day I made several phone calls to her, which were fairly harassing. I do not deny that.

 

THE COURT: And what did you say?

 

[DEFENDANT]: I'm sorry?

 

THE COURT: What did you say during those phone calls?

 

[DEFENDANT]: I didn't I did not expect her to answer. I didn't actually wait for it to go to voice mail. I sort of sent a Morse Code to express my frustration.

 

THE COURT: You sent a Morse Code? What do you mean? What does that mean?

 

[DEFENDANT]: I called several times and hung up. So that is fairly harassing.

 

. . . .

 

THE COURT: So you didn't say anything. How many calls did you make?

 

[DEFENDANT]: Including the one that she answered, I think five.

 

. . . .

 

THE COURT: Did you make these five phone calls with a purpose to annoy or harass her?

 

[DEFENDANT]: Yes.

 

THE COURT: I'll accept the guilty plea. At that point I find an adequate factual basis.

 

The court thereupon found defendant guilty of the petty disorderly offense of harassment, N.J.S.A. 2C:33-4(a). It sentenced defendant to thirty days imprisonment, suspended on the condition that defendant not contact the complaining witness; one year of supervised probation, with the proviso that defendant continue her mental health counseling; plus appropriate assessments and costs.

Notwithstanding that the conviction and sentence were based upon her plea of guilty, defendant remained aggrieved and sought review in the Law Division. A trial de novo was held pursuant to Rule 3:23-8. Judge Fred J. Theemling, Jr. found defendant again guilty of harassment, which he found consisted of the unwanted visit to the complaining witness's residence followed by the series of alarming phone calls. Judge Theemling not only reviewed the factual basis to determine if it established guilt, but he also evaluated whether the plea was knowingly and voluntarily given by defendant. Lastly, he engaged in an analysis of whether it would be appropriate to enable defendant to withdraw her plea of guilty under the principles announced in State v. Slater, 198 N.J. 145 (2009), which had been decided just four months earlier.

Based upon his understanding of what happened in the municipal court, Judge Theemling found that defendant "entered into the plea knowingly, intelligently, and voluntarily." Moreover, he found, "the interests of justice do not warrant withdrawal of [defendant's] plea of guilty." Finally, he confirmed that there was a factual basis to find defendant guilty of harassment:

The harassing conduct was admitted to by [defendant] to include an attempt to enter the victim's residence and five telephone calls to the victim in the early morning hours of October 27th.

 

. . . .

 

Although [defendant] originally stated that the reason for the visit to the victim's place of residence and the telephone calls was concern for the victim's well-being, she later admitted the purpose was to harass, annoy, offend, alarm.

Based upon these determinations, Judge Theemling entered an order on June 30, 2009, finding defendant "guilty of harassment, in violation of N.J.S.A. 2C:33-4, for which she originally pled guilty to in the Jersey City Municipal Court on the ninth day of February 2009," and imposed the same sentence as the municipal court. This appeal followed.

 

 

 

II.

Defendant's appeal presents the following points:

POINT I: ELICITING OF FACTUAL BASIS OF THE APPELLANT'S CONFESSION CONSTITUTES AN ABUSE OF DISCRETION ON THE PART OF THE TRIAL COURT, AFTER APPELLANT MADE CLEAR STATEMENTS ABOUT HER INTENT IN ACTIONS COMMITTED ON NIGHT OF OCTOBER 26, 2008.

 

POINT II: COMPLAINANT'S INCONSISTENT BEHAVIOR WITH APPELLANT, BOTH IN AND OUT OF LITIGATION, INDICATES A COMPLICATED UNDERLYING HISTORY WITH AMBIVALENT BEHAVIOR ON THE PART OF THE COMPLAINANT, WHICH CALLS [INTO] QUESTION . . . [THE] VALIDITY OF COMPLAINANT'S POSITION.

 

POINT III: THE QUESTIONABLE VERITY OF CIRCUMSTANCES SURROUNDING THE APPELLANT'S DECLARATION OF GUILT SHOWS FAIR AND JUST CAUSE FOR A RE-EXAMINATION OF THE FACTS IN THIS CASE.

 

From our review of the record, we discern no sound basis to disturb the judgment of the Law Division.

On appeal, the scope of our review of a Law Division decision is limited. We determine whether there is sufficient credible evidence present in the record to uphold the findings of the Law Division, not the municipal court. State v. Avena, 281 N.J. Super. 327, 333 (App. Div. 1995). We are not in a position to judge credibility, and we do not make new findings of fact. State v. Locurto, 157 N.J. 463, 470-71 (1999) (citing State v. Johnson, 42 N.J. 146, 161-62 (1964)). We may not "weigh the evidence, assess the credibility of the witnesses, or make conclusions about the evidence." State v. Barone, 147 N.J. 599, 615 (1997). Unless we are convinced the Law Division's finding was "'clearly a mistaken one and so plainly unwarranted . . . [and] the interests of justice demand intervention and correction . . . then, and only then, [] should [we] appraise the record as if [we] were deciding the matter at inception and make [our] own findings and conclusions.'" Avena, supra, 281 N.J. Super. at 333 (quoting Johnson, supra, 42 N.J. at 162).

The legislature has characterized harassment as an offense when a person acts "with purpose to harass another . . . [and] [m]akes, or causes to be made, a communication or communications anonymously or at extremely inconvenient hours, or in offensively coarse language, or any other manner likely to cause annoyance or alarm." N.J.S.A. 2C:33-4(a). Critically, it must be determined that the defendant had a "'conscious' objective" to harass the victim; the defendant's mental state is a central element of the offense. State v. Fuchs, 230 N.J. Super. 420, 428 (App. Div. 1989). A finding that defendant acted with the "purpose to harass" is "integral" to a determination of harassment. Bresocnik v. Gallegos, 367 N.J. Super. 178, 183 (App. Div. 2004) (citing E.K. v. G.K., 241 N.J. Super. 567, 570 (App. Div. 1990)).

Thus, as our Supreme Court held in State v. Hoffman, 149 N.J. 564 (1997):

A violation of subsection (a) requires the following elements: (1) defendant made or caused to be made a communication; (2) defendant's purpose in making or causing the communication to be made was to harass another person; and (3) the communication was in one of the specified manners or any other manner similarly likely to cause annoyance or alarm to its intended recipient.

 

[Id. at 576.]

 

The statute also provides that "[a] communication under subsection a. may be deemed to have been made either at the place where it originated or at the place where it was received." N.J.S.A. 2C:33-4.

We conclude that Judge Theemling's findings, based as they were upon defendant's own voluntarily uttered words, fully comport with legislative expectations and the mandate of Hoffman. We appreciate that defendant now claims her plea allocution was expressed in equivocal, and perhaps even contradictory, terms. The municipal court's frustration with what it described as her "dancing around" is evident. Nevertheless, the Law Division's factual conclusions are fully supported by credible evidence in the record, and were further endorsed by defendant's exclamation: "I'm pleading guilty because the evidence stands to show that." See Slater, supra, 198 N.J. at 155 (noting as a requirement in the acceptance of a guilty plea that the court be "'satisfied from the lips of the defendant that [she] committed the acts which constitute the crime'" (quoting State v. Smullen, 118 N.J. 408, 415 (1990))).

We note that defendant did not expressly move in the municipal court or in the Law Division to vacate her guilty plea, although she argues in her pro se brief "that the acceptance of her guilty plea under N.J.S.A. 2C:33-4 should be overturned, and the municipal fines against her be dismissed." This contention essentially demanding an acquittal or dismissal of the complaint enjoys no provenance in the law. At best, defendant was entitled, as provided by Judge Theemling, to a review of her circumstances under the lens of Slater.

Our law places a burden upon a defendant "'to present some plausible basis for [her] request [to withdraw a plea], and [her] good faith in asserting a defense on the merits.'" Smullen, supra, 118 N.J. at 416 (quoting State v. Huntley, 129 N.J. Super. 13, 17 (App. Div.), certif. denied, 66 N.J. 312 (1974)). "That approach logically flows from the entry of a guilty plea because a defendant's representations and the trial court's findings during a plea hearing create a 'formidable barrier' the defendant must overcome in any subsequent proceeding." Slater, supra, 198 N.J. at 156 (quoting Blackledge v. Allison, 431 U.S. 63, 74, 97 S. Ct. 1621, 1629, 52 L. Ed. 2d 136, 147 (1977); State v. Simon, 161 N.J. 416, 444 (1999)). A "whimsical change of mind" by the defendant is not an adequate basis to set aside a plea. Huntley, supra, 129 N.J. Super. at 18 (citing State v. Thomas, 61 N.J. 314, 321-23 (1972); State v. Wall, 36 N.J. 216, 218 (1961)).

Because the first assertion of defendant's desire to withdraw her guilty plea occurred after sentencing in the municipal court, she would have to show "manifest injustice" in order to vacate her plea. Slater, supra, 198 N.J. at 156. That determination takes into account the following four factors: "(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.

Having had the benefit of the then recently-decided Slater decision, Judge Theemling considered the appropriate factors and performed the proper analysis in determining not to permit defendant's guilty plea to be vacated. Accordingly, we affirm substantially for the reasons articulated in Judge Theemling's de novo review.

To the extent that we have not overtly considered defendant's other arguments, it is because they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.