STATE OF NEW JERSEY v. WALTER M. TAYLOR

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4245-09T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

V.

WALTER M. TAYLOR,

Defendant-Appellant.

___________________________

May 10, 2011

Submitted May 2, 2011 - Decided

Before Judges Lisa and Reisner.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 08-12-01056.

Yvonne Smith Segars, Public Defender, attorney for appellant (Frank J. Pugliese, Assistant Deputy Public Defender, on the brief).

Paula T. Dow, Attorney General, attorney for respondent (Emily R. Anderson, Special Deputy Attorney General, on the brief).

PER CURIAM

Defendant Walter Taylor appeals from his January 28, 2010 conviction for third-degree attempted theft, N.J.S.A. 2C:20-3a and N.J.S.A. 2C:5-1, contending that the trial court erred in denying his motion to withdraw his guilty plea. He raises the following appellate argument:

POINT I

THE COURT ERRED IN DENYING DEFENDANT'S MOTION TO WITHDRAW HIS GUILTY PLEA CONTRARY TO PRINCIPLES OF FUNDAMENTAL FAIRNESS. U.S. CONST. AMENDS. V, VI, VIII, AND XIV; N.J. CONST. ART. I, 1, 10.

Finding no merit in that contention, we affirm the conviction. We remand to the trial court for the limited purpose of correcting the judgment of conviction (JOC) to reflect a conviction for attempted theft rather than robbery, and to reflect the correct statutory citations for attempted theft.

I

Based on an attempted purse-snatching that occurred in August 2008, defendant was indicted for second degree robbery. On August 3, 2009, he pled guilty to third degree attempted theft, pursuant to an agreement providing for a sentence of five years in prison with a two year period of parole ineligibility. During the plea colloquy, defendant initially expressed a desire to change attorneys, and Judge Peim gave defendant a further opportunity to discuss the proposed plea agreement with his assigned Public Defender attorney. After that discussion, defendant accepted the plea agreement and pled guilty to "attempt[ing] to steal something" from the victim.

On or about September 9, 2009, defendant filed a motion to withdraw his guilty plea. In support of the motion, defendant filed a certification, asserting in general terms that he did not commit "a robbery upon [the victim]," and that his attorney coerced him into accepting the plea agreement. In the certification defendant also attested that on the date of the plea hearing, he was "off [his] medication and was in a state of audio and video hallucinations." However, he provided no doctor s report or other evidence to support his claims as to the prescribed medication or his psychiatric condition.

On January 28, 2010, Judge Peim held a plenary hearing, during which defendant testified to the reasons he wished to withdraw the plea. After confirming the truth of the statements in his certification, defendant asserted that he did not commit the crime of which he was accused and that his attorney "did not do anything for me." He testified that the attorney told him that if he went to trial he "would lose" and would "get an extended term."

In a thorough oral opinion, Judge Peim found that defendant s testimony was not credible. He considered that during the plea colloquy, defendant showed no signs whatsoever that he was intimidated by his attorney. To the contrary, "defendant spoke up for himself, showed no reluctance to criticize his lawyer and made clear he didn t want her." Judge Peim found that "if defendant s attorney pressured him and/or did anything improper" defendant would have said so "in open court." Judge Peim therefore did not credit defendant s testimony that his attorney coerced him into accepting the plea agreement.

Judge Peim further found defendant s assertion of innocence to be "merely conclusory statements." He considered that defendant had presented "no medical testimony, no medical records [and] no diagnosis" to support his claim that he was hallucinating at the time of the crime or on the day of the plea hearing. The judge also considered what he observed of defendant s demeanor during that plea hearing, and found that he entered the plea voluntarily and knowingly. Applying the factors set forth in State v. Slater, 198 N.J. 145 (2009), Judge Peim concluded that defendant had not established a plausible basis for the request to withdraw his guilty plea. See also State v. Smullen, ll 8 N.J. 408, 416 (l990).

After rejecting the motion, Judge Peim sentenced defendant, consistent with the plea agreement, to five years in prison, subject to a two year parole bar. He awarded defendant 546 days of jail credit.

II

We review Judge Peim s decision to deny the motion for abuse of discretion. Slater, supra, 198 N.J. at 156. In conducting that review, we are bound by the judge s factual findings and we owe particular deference to his credibility determinations. State v. Locurto, 157 N.J. 463, 470-74 (1999). After reviewing the entire record in light of those legal standards, we find no basis to disturb his denial of defendant s motion to withdraw the guilty plea. We affirm, substantially for the reasons stated in Judge Peim s oral opinion of January 28, 2010. We add the following comments.

"[A] defendant's application to retract a plea must be considered in light of the competing interests of the State and the defendant." Slater, supra, 198 N.J. at 155. There is a strong public interest in the finality of plea agreements. Ibid.; State v. Smullen, supra, 118 N.J. at 416. However, a defendant may seek to withdraw a guilty plea, and the standard is relatively liberal when such a motion is made prior to sentencing pursuant to Rule 3:9-3(e). Slater, supra, 198 N.J. at 156. In making the motion, the defendant must produce evidence to satisfy the following four-prong standard:

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.]

In this case, defendant produced no evidence to support his claims that he was hallucinating on the date of the crime and at the time of the plea agreement. Indeed, the transcript of the plea hearing supports Judge Peim s finding that defendant was lucid at that hearing and was quite capable of expressing his wishes. The judge had the opportunity to observe defendant s testimony at the plea hearing and the hearing on the motion to withdraw the plea. We find no basis to disturb the judge s credibility determinations or his factual findings. Locurto, supra, 157 N.J. at 474.

Based on those findings, which are supported by the record, defendant knowingly entered a plea of guilty; he did not produce credible evidence that his attorney coerced him into pleading guilty or that his plea was anything other than voluntary; and he did not present a colorable claim of innocence. Because he did not produce credible evidence to satisfy the Slater standards, his motion was properly rejected. Slater, supra, 198 N.J. at 157-58.

Affirmed as to the conviction. Remanded to correct typographical errors in the JOC.