STATE OF NEW JERSEY v. SCOTT NEMETH

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1382-11T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SCOTT NEMETH,

Defendant-Appellant,

______________________________

November 20, 2012

Argued November 8, 2012 - Decided

Before Judges Nugent and Haas.

On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 11-04-0430.

Andrew Mark Ferencevych argued the cause for appellant (Furlong and Krasny, attorneys; John S. Furlong, of counsel; Mr. Ferencevych, on the briefs).

Amy Devenny, Assistant Prosecutor, argued the cause the respondent (Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney; Ms. Devenny, of counsel and on the brief).

PER CURIAM

Defendant appeals from the October 28, 2011 judgment of conviction that imposed a sentence of five-years imprisonment, with a three-year period of parole ineligibility. We affirm.

I.

Defendant was the subject of four separate Mercer County indictments, which each included multiple charges. On August 10, 2010, he was charged in Indictment Number 10-08-0884 with four counts of third-degree possession of a controlled dangerous substance (CDS) (ecstasy, oxycodone, cocaine and buprenorphine), N.J.S.A. 2C:35-10a(1) (counts one, two, five and eight); three counts of third-degree possession of CDS (oxycodone, cocaine and buprenorphine) with intent to distribute, N.J.S.A. 2C:35-5a(1) (counts three, six and nine); three counts of third-degree possession of CDS (oxycodone, cocaine and buprenorphine) with intent to distribute on or near school property, N.J.S.A. 2C:35-7 (counts four, seven and ten); and fourth-degree maintaining a narcotics nuisance, N.J.S.A. 24:21-21a(6) (count eleven).

On December 16, 2010, defendant was charged in Indictment Number 10-12-1316 with two counts of third-degree possession of CDS (cocaine and oxycodone), N.J.S.A. 2C:35-10a(1) (counts one and four); two counts of third-degree possession of CDS (cocaine and oxycodone) with intent to distribute, N.J.S.A. 2C:35-5a(1) (counts two and five); two counts of third-degree possession of CDS (cocaine and oxycodone) with intent to distribute on or near school property, N.J.S.A. 2C:35-7 (counts three and six); and fourth-degree maintaining a narcotics nuisance, N.J.S.A. 24:21-21a(6) (count seven).

On April 9, 2011, defendant was charged in Indictment Number 11-04-0394 with third-degree possession of CDS (cocaine), N.J.S.A. 2C:35-10a(1) (count one); third-degree possession of CDS (cocaine) with intent to distribute, N.J.S.A. 2C:35-5a(1) (count two); and third-degree possession of CDS (cocaine) with intent to distribute on or near school property, N.J.S.A. 2C:35-7 (count three).

Finally, on April 28, 2011, defendant was charged in Indictment Number 11-04-0430 with third-degree possession of CDS (oxycodone), N.J.S.A. 2C:35-10a(1) (count one); third-degree possession of CDS (oxycodone) with intent to distribute, N.J.S.A. 2C:35-5a(1) (count two); third-degree obtaining CDS (oxycodone) by fraud, N.J.S.A. 2C:35-13 (count three); third-degree receiving stolen property, N.J.S.A. 2C:20-7a (count four); second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b (count five); second-degree possession of a weapon during the commission of a CDS offense, N.J.S.A. 2C:39-4.1a (count six); and second-degree certain persons not to possess a firearm, N.J.S.A. 2C:39-7b (count seven).

Defense counsel filed a motion to suppress in each of the four indicted matters and a request for a Miranda1 hearing in connection with Indictment Number 10-12-1316. Judge Gerald Council scheduled a status conference for Friday, May 13, 2011. Defendant did not appear on time. When he arrived approximately sixty minutes late, the judge revoked defendant's bail and he was incarcerated. A search of his person revealed he was in possession of "a small quantity of Percocet."

The prosecutor and defense counsel began plea negotiations and arrived at a tentative agreement. Defendant completed the plea forms. However, defense counsel described defendant as "appear[ing] somewhat jangly" on May 13, meaning he may have been under the influence of CDS. Accordingly, the attorneys and the judge decided to address the proposed plea agreement the following Monday, May 16, 2011. Defendant remained incarcerated over the weekend.

On May 16, defense counsel advised the judge that, if the plea was accepted by the court, he would be seeking to have defendant released on bail for at least thirty days pending sentencing. The prosecutor had no objection to this request. However, the judge made it clear he was not committed to releasing defendant on bail and that he would consider the request separately after the plea colloquy had been completed. Judge Council specifically asked defendant if he understood his bail application was not contingent upon him pleading guilty and that "[t]he two are not connected. Your guilty plea and your bail are not connected." Defendant replied he understood.

Judge Council also asked defendant whether he was "currently under the influence of any drugs, alcohol, medication or anything else that would affect your ability to understand what's going on?" Defendant replied, "No." He stated he was thinking clearly and wanted to proceed with the plea. Defendant also told his attorney he was "fine."

The terms of the plea agreement were placed on the record. Defendant agreed to plead guilty to count five of Indictment Number 11-04-0430, second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b, and to count six of Indictment Number 10-12-1316, third-degree possession of CDS (oxycodone) with intent to distribute on or near school property, N.J.S.A. 2C:35-7. In exchange for this plea, the State agreed to recommend that defendant receive a five-year prison sentence, with a three-year period of parole ineligibility on each count, to run concurrent with each other. All of the remaining charges in the four indictments would be dismissed and the State agreed not to file any charges relating to defendant's possession of CDS at the courthouse on May 13, 2011. Defendant also agreed to withdraw his pending suppression motions and his request for a Miranda hearing.

Judge Council conducted a thorough plea colloquy. In response to the judge's questions, defendant acknowledged he understood he could face up to fifteen years in prison if convicted on all of the pending charges; he would receive only five years, with a parole ineligibility period of three years if his plea was accepted; and he had completed the written plea agreement form and was afforded ample time to discuss the form with his attorney. Through his questioning, the judge confirmed defendant was aware he had the right to go to trial; the prosecutor had the responsibility to prove him guilty on each element of each offense beyond a reasonable doubt; and he had the right to remain silent.

Judge Council asked defendant about his decision to withdraw his pending suppression motions and request for a Miranda hearing. In response to the judge's searching questions, defendant stated he was aware that his attorney had filed these motions, and he understood his withdrawal of the motions meant they would not be considered by the court.

Defendant provided a factual basis for each of the offenses to which he pled. On the gun possession charge, he stated he was arrested for "jaywalking" near Genesee Street in Hamilton Township on February 7, 2011. The police officer searched him and found a Sig Sauer .380 caliber handgun. Defendant admitted he did not have a permit to possess the weapon. On the CDS possession, with intent to distribute in a school zone charge, defendant testified he was sitting on the front porch of his home with his eight-year-old son on August 16, 2010, when the police arrived with a search warrant authorizing them to search the house for CDS. Defendant led the police to areas in his house where oxycodone was located. He admitted he possessed the CDS with the intent to distribute it near an elementary school.

Judge Council then asked additional questions so he could determine whether defendant wanted to accept the plea. He specifically told defendant he would not be inclined to permit him to attempt to withdraw the plea if defendant subsequently changed his mind. Defendant again acknowledged he fully understood the terms of the plea and the plea form; had no further questions, and was satisfied with the "advice and representation" he received from his attorney. Defendant stated he was pleading guilty because he was, in fact, guilty of both of the offenses.

On the basis of defendant's responses during the plea colloquy, Judge Council accepted the plea, finding an adequate factual basis had been provided and the plea was made knowingly and voluntarily. The judge then considered defendant's separate application for bail pending sentencing. After considering the arguments of counsel, the judge reinstated defendant's bail, on the condition he be tested for CDS on a daily basis.

On June 20, 2011, defendant filed a motion to withdraw his plea. Judge Council denied this motion because defendant had not provided a transcript of the plea colloquy. Defendant re-filed the motion with the required transcript and the judge considered it on October 28, 2011.

In a lengthy oral decision placed on the record on that date, Judge Council denied defendant's motion. The judge found defendant had not asserted a colorable claim of innocence. Defendant merely asserted that, if he re-filed his suppression motions, they might be successful. However, defendant had knowingly and voluntarily withdrawn the motions prior to his plea. Judge Council also found defendant did not have strong reasons for seeking to withdraw his plea, which was entered into pursuant to a plea agreement. Although he stated the State would not be prejudiced if defendant was permitted to withdraw the plea, Judge Council found this factor was outweighed by his other findings. Therefore, he denied defendant's motion to withdraw his plea and the judge sentenced defendant in accordance with his negotiated plea. This appeal followed.

II.

Defendant presents the following arguments for our consideration:

THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED DEFENDANT'S MOTION TO WITHDRAW HIS GUILTY PLEA BECAUSE DEFENDANT DEMONSTRATED COLORABLE CLAIMS OF CONSTITUTIONAL INFRINGEMENT AND STRONG REASONS FOR WANTING TO WITHDRAW HIS GUILTY PLEA, AND THE STATE WOULD NOT HAVE BEEN PREJUDICED IF DEFENDANT WITHDREW HIS PLEA.

A. Defendant demonstrated colorable claims of constitutional infringement.

B. Defendant demonstrated strong reasons for wanting to withdraw his guilty plea.

C. The trial court improperly weighed defendant's plea bargain in its Slater analysis.

D. The State was not prejudiced if defendant withdrew his guilty plea and defendant would not unfairly benefit from withdrawing his guilty plea.

Our review of the record convinces us that the trial judge acted properly in denying defendant's motion. Defendant's arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e) (2). We nevertheless add these brief comments.

To assure that justice is served, a trial court must consider and balance four factors when evaluating a motion 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." State v. Munroe, 210 N.J. 429, 442 (2012) (citing State v. Slater, 198 N.J. 145, 157-58 (2009)). "No single Slater factor is dispositive; 'if one is missing, that does not automatically disqualify or dictate relief.'" State v. McDonald, 211 N.J. 4, 16-17 (2012) (quoting Slater, supra, 198 N.J. at 162). The decision on a motion to withdraw a guilty plea rests within the sound discretion of the trial judge. State v. Simon, 161 N.J. 416, 444 (1999).

We are satisfied the trial judge properly evaluated the Slater factors, the first three of which weighed heavily against allowing a withdrawal of the plea. First, defendant did not make a colorable claim of innocence. He provided a factual basis for each of the charges to which he pled.

Although defendant claimed he had strong arguments in support of his motions to suppress and underlying his request for a Miranda hearing, the record indicates otherwise. For example, the search of defendant's house for CDS was conducted pursuant to a search warrant. While defendant asserts he only waived his Miranda rights and told the police where the CDS was located because his son was present when they arrived, the fact remains that the police were already authorized to search the house for CDS. Defendant presented no argument as to the validity of the search warrant which authorized the seizure of the CDS found in his house.

Defendant alleged his arrest for jaywalking was a "pretext" to permit the police to search him and find the gun he was carrying. However, the police report indicated two officers observed that defendant and another man were walking down the middle of a city street at approximately 10:00 p.m. One of the officers asked the men to step to the sidewalk so he could talk to them. The two men continued to walk away and the officer again told them to stop. One of the men then ran off down an alleyway and was pursued by the second officer. The first officer stopped defendant and "broadcast an alert that my partner was in hot pursuit." The report further stated that "[d]ue to all the contributing circumstances[,]" the officer "did a pat down for weapons" of defendant and found "a handgun tucked into his right pant leg."

Defendant did not deny he and the other man had been walking in the street prior to the officer asking them to stop. His only claim was that, when the police approached, the men were "already on the other side of the street." He admitted his companion ran away after the officer asked them to stop. Under these circumstances, defendant's argument for suppression was certainly not a strong one. In any event, defendant was fully aware that the motions were pending at the time he entered his plea and, as Judge Council specifically found, defendant voluntarily withdrew those motions so he could obtain the benefit of the plea.

Second, defendant did not present any strong reasons for his change of mind regarding the plea. He asserted he may still have been under the influence of CDS at the time of the plea. However, he told Judge Council he was thinking clearly and was "fine" during the plea colloquy. He also argued he only took the plea so he could be released on bail pending sentencing. However, Judge Council repeatedly told defendant his release on bail was not contingent in any way on his plea. Alternatively, defendant contended he really wanted to enter Drug Court instead of taking a plea, but he presented no facts indicating he would be eligible for this program. Indeed, Judge Council advised defendant he was not a suitable candidate for Drug Court.

Third, the plea was made pursuant to a negotiated plea agreement. Defendant faced a possible fifteen-year sentence if convicted of the many pending charges. As a result of the plea, he received a five-year sentence, with a three-year period of parole ineligibility. Finally, while the judge found the State would not be prejudiced by a withdrawal of the plea, he found this factor did not outweigh the other three under Slater.

The judge did not abuse his discretion in making these findings, which are fully supported by the record. Therefore, defendant's motion to withdraw the plea was properly denied.

1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).