STATE OF NEW JERSEY v. AMIR W. KREPS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6008-09T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

AMIR W. KREPS,

Defendant-Appellant.

_________________________________

November 14, 2011

Submitted: October 26, 2011 - Decided:

Before Judges Axelrad and Ostrer.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 09-02-0580.

Joseph E. Krakora, Public Defender, attorney for appellant (Frank J. Pugliese, Assistant Deputy Public Defender, of counsel and on the brief).

Carolyn A. Murray, Acting Essex County Prosecutor (Gary A. Thomas, Special Deputy Attorney General/ActingAssistant Prosecutor, on the brief).

PER CURIAM

Defendant Amir Kreps appeals from denial of his pre-sentence motion to withdraw his guilty plea and, alternatively, challenges his sentence as excessive. We affirm.

On February 25, 2009, an Essex County Grand Jury returned Indictment Number 09-02-0580, charging defendant and his co-defendant, Jason O'Neil, with second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and 2C:15-1 (count one); three counts of first-degree robbery, N.J.S.A. 2C:15-1 (counts two, six and ten); three counts of fourth-degree aggravated assault, N.J.S.A. 2C:12-1b(4) (counts three, seven, and eleven); three counts of third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b (counts four, eight and twelve); and three counts of second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (counts five, nine, and thirteen). Defendant alone was charged with two counts of third-degree aggravated criminal sexual contact, N.J.S.A. 2C:14-3(a) (counts fourteen and fifteen).

Following an unsuccessful suppression motion, defendant appeared before Judge Stephen J. Bernstein on April 13, 2009, and pursuant to a negotiated plea agreement, pled guilty to three counts of first-degree robbery (counts two, six and ten) and one count of aggravated criminal sexual contact (count fifteen). In exchange, the State recommended a custodial term of thirteen years subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, Megan's Law supervision, and parole supervision for life upon defendant's release. The prosecutor noted that the plea agreement was more generous than the State's offer that morning of a fifteen-year custodial term subject to NERA. The State also expressed a willingness to dismiss the remaining counts of the indictment and a separate indictment stemming from this case charging defendant with being a certain person not to possess a firearm, N.J.S.A. 2C:39-7b.

The plea was finalized after defendant expressed some concerns about the sentence and the judge informed him that his co-defendant pled guilty to armed robbery and implicated him, advised him of his potential exposure if convicted of all the charges, and a recess was taken for defendant to have further discussions with his attorney. Defendant acknowledged he had the opportunity to review the plea forms with his attorney and signed and initialed the pages, and he understood the charges to which he was pleading guilty and all aspects of his sentence, including the ramifications of NERA, Megan's Law, and parole supervision for life. Defendant further acknowledged his waiver of rights and his knowing and voluntary entry of the guilty plea. Defendant represented he had ample time to discuss the matter with his attorney, who answered all of his questions, and he had no other questions for his attorney or the court regarding the charges.

Defendant then provided a factual allocution, admitting that on the day in question he committed a theft upon M.B. by taking her cell phone and pocketbook containing her ID card, Social Security card and her bank checks, a theft upon Martrel Gilchrist by taking his cell phone, and a theft upon Chad Hopkins by taking his sneakers and wallet containing seventy dollars, all while armed with a handgun, which he pointed at the victims, placing each in fear of immediate bodily injury. Defendant further testified that in the course of the robbery of M.B., he touched her breasts. In a colloquy with the court, defendant expressly represented he was entering the plea of his own free will because of the fact that he was guilty of the charges. The court accepted defendant's guilty plea as being "knowing, intelligent, understanding, voluntary, as well as counseled." The court scheduled sentencing for July 10, 2009, and revoked bail.

Prior to sentencing, defendant sought to vacate his plea, stating in an unsworn letter dated June 24, 2009, that he "was not informed nor fully understood the basis of the sentence imposed" because his attorney had urged him to sign the plea in a rushed manner and he was informed that if he did not sign it the sentence would be more and his bail would be revoked pending trial. The July 10, 2009 sentencing was postponed. Eventually, defendant's request to withdraw his plea came before Judge Sherry Hutchins-Henderson on April 21, 2010. Prior to the hearing, defendant's new counsel submitted a letter memorandum dated March 26, 2010 in support of defendant's request to withdraw his plea. Though recognizing that defendant provided a factual basis for the specific charges and the judge conducted a thorough inquiry into such bases, defendant's counsel argued that defendant did not understand the plea agreement because he was faced with many robbery and weapons charges and was not sure as to the exact offenses to which he pled guilty. He also argued defendant pled guilty only because he was made to understand that he would face a lengthy time in prison if he failed to comply and his attorney continued to advise him that pleading guilty would be beneficial to him.

At oral argument, defense counsel argued that defendant "felt pressured[,] [h]e didn't understand[,] [h]is lawyer didn't explain it properly to him[,] [a]nd he didn't understand and appreciate the implications of what he was doing." When the court asked defense counsel about the first Slater1 factor of a "colorable claim of innocence," counsel spoke with defendant and, for the first time, represented that defendant had an alibi witness, his aunt, who would testify that he was not present at the scene of the crime charged.

The judge denied defendant's motion, recognizing that although the standard for vacating a guilty plea pre-sentence is more lenient than post-conviction, defendant had not met the "interest of justice" standard of Rule 3:9-3(e) or the four factors enumerated in State v. Slater to justify withdrawal of his plea. 198 N.J. at 157-58 (directing the courts to 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 advantage to the accused[]").

As to the first prong, Judge Hutchins-Henderson found defendant failed to present any colorable claim of innocence, noting the strength of defendant's vague belated claim of an alleged alibi witness, his aunt, was undermined by his failure to assert any claim of innocence in submissions to the court in support of the motion to vacate. Moreover, the State apparently had a strong case against defendant based on his co-defendant's statement and his willingness to testify against defendant, while defendant had not even submitted a certification from his alleged alibi witness.

As to the second prong, the judge did not find strong evidence that defendant was coerced or forced into accepting the guilty plea and noted that negotiations were vigorous for over six months and included counter-offers. Referencing Judge Bernstein's extensive questioning of defendant during the plea colloquy as to all components of the plea and sentence, as well as the recess that was taken for defendant to have further discussions with his attorney prior to accepting and finalizing his plea, the judge was satisfied that defendant's reasons for withdrawal were nothing more than a "second thought."

As to the third factor, the judge noted this was a favorable plea bargain. The judge was satisfied her analysis of the first three factors had sufficient weight upon which to deny defendant's motion to withdraw his plea and thus did not consider the fourth factor of whether the withdrawal would result in unfair prejudice to the State.

The matter then proceeded to sentencing. On June 11, 2010, Judge Hutchins-Henderson sentenced defendant consistent with the negotiated plea to concurrent terms of thirteen years subject to NERA on counts two, six, and ten (first-degree robbery), and a concurrent five-year term on count fifteen (aggravated criminal sexual contact), subject to Megan's Law, parole supervision for life, and no contact with the victims or their family members. Appropriate fines and penalties were also imposed.

Defendant appealed. The matter was scheduled for an ESOA calendar, R. 2:9-11, but at defendant's request, was transferred to a plenary calendar for the filing of briefs. On appeal, defendant contends the court erred in denying his motion to withdraw his guilty plea, claiming he felt coerced by his circumstances and because he claimed he was not guilty of the offense. According to defendant, he satisfied the four Slater factors and established that fundamental fairness required the granting of his motion. Defendant emphasizes that since this motion was made in advance of sentencing and since the Slater factors weighed in his favor, the judge abused her discretion in denying his motion to vacate. Defendant asserts as error the court's summary rejection of his claim of innocence and declining of his offer at oral argument to bring in the alibi witness. He also contends that the undue pressure placed upon him, especially that which was created by the prospect of bail revocation, was highly coercive, and combined with his lack of understanding of the consequences of his plea, resulted in an involuntary guilty plea. Defendant also contends the fact there was a plea agreement in this case should not have been given great weight in the balancing process.

We are not persuaded by any of the arguments made by defendant in support of his motion to vacate the guilty plea. We affirm substantially for the reasons articulated by Judge Hutchins-Henderson in her comprehensive oral decision on April 21, 2010.

We add the following brief comments. The motion to withdraw a guilty plea is committed to the sound discretion of the trial judge. Slater, supra, 198 N.J. at 156. Although this discretion should ordinarily be construed liberally where the motion is made before sentencing, State v. Smullen, 118 N.J. 408, 416 (1990); State v. Deutsch, 34 N.J. 190, 198 (1961), such liberality does not mean an abdication of all discretion, State v. Huntley, 129 N.J. Super. 13, 17 (App. Div.), certif. denied, 66 N.J. 312 (1974). Moreover, as noted by the motion judge, 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.

Moreover, "[a] bare assertion of innocence is insufficient to justify withdrawal of a plea" and a defendant "must present specific, credible facts and, where possible, point to facts in the record that buttress [his or her] claim." Slater, supra, 198 N.J. at 158. As the Supreme Court also recognized in connection with its second factor, the nature and strength of the reasons for withdrawal, "trial judges must act with great care and realism because defendants often have little to lose in challenging a guilty plea" and such ruling may rest on the "view of the defendant's demeanor and candor at both the plea proceeding and any later hearing on the withdrawal of motion." Id. at 160 (internal citation and quotation marks omitted). As to the third Slater factor, we note that a myriad of counts in the indictment against defendant were dismissed, and defendant received an even more lenient sentence than had been offered by the State earlier that day.

Defendant also argues the imposition of an aggregate thirteen-year sentence, eighty-five percent of which is to be served without parole, is manifestly excessive. He challenges the aggravating factors found by the court and the weight given to them. He asserts that the court should have considered as a mitigating factor the "excessive hardship" that he and his dependents would suffer, N.J.S.A. 2C:44-1b(11), as at the time of sentencing he was married with two children under the age of seven. Defendant requests that his sentence be modified to a term of ten years or, in the alternative, to whatever lesser sentence we deem appropriate within our original jurisdiction, R. 2:10-5.

We are satisfied the sentence imposed was proper. The sentence imposed in accordance with a plea bargain "should be given great respect, since a 'presumption of reasonableness . . . attaches to criminal sentences imposed on plea bargain defendants.'" State v. S.C., 289 N.J. Super. 61, 71 (App. Div.) (quoting State v. Sainz, 107 N.J. 283, 294 (1987)), certif. denied, 145 N.J. 373 (1996). See also In re Commitment of P.C., 349 N.J. Super. 569, 578 (App. Div. 2002) ("[C]ourts generally defer to the reasonableness of negotiated criminal dispositions[.]"). The judge properly followed and applied the sentencing guidelines and criteria; the sentences imposed are not manifestly excessive nor do they shock our judicial conscience. State v. Ghertler, 114 N.J. 383, 387-89 (1989); State v. Roth, 95 N.J. 334, 362-64 (1984).

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