STATE OF NEW JERSEY v. PATRICK JULNEY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3754-09T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

PATRICK JULNEY,

Defendant-Appellant.

__________________________________

February 10, 2012

 

Submitted November 30, 2011 - Decided

 

Before Judges Axelrad and Ostrer.

 

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 07-11-0986.

 

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

 

TheodoreJ. Romankow,Union County Prosecutor, attorney for respondent (Michelle J. Ghali, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant appeals from the denial after an evidentiary hearing of his pre-sentence motion to vacate his plea to two counts of first degree robbery, N.J.S.A. 2C:15-1. He also challenges his sentence as excessive. We reverse and remand.

I.

Defendant and four co-defendants (three male and one female) were charged in a November 2007 indictment with various crimes arising out of a home invasion on July 17, 2007 in Elizabeth, including: second-degree burglary, N.J.S.A. 2C:18-2 (count one); nine counts of first and second-degree robbery that victimized three adult women and six children between the ages of one-and-a-half and twelve years old (counts two through ten); third-degree possession of a weapon, a knife, for an unlawful purpose, N.J.S.A. 2C:39-4d (count eleven); first-degree kidnapping involving one of the adult women, Susan Madison,1 N.J.S.A. 2C:13-1b (count twelve); and eight counts of second-degree kidnapping involving another adult, Sharon Dimsdale, and the seven child victims, N.J.S.A. 2C:13-1b (counts thirteen through twenty). Two co-defendants were separately charged with fourth-degree obstruction of law, N.J.S.A. 2C:29-1 (count twenty-one).

During the course of a hearing on a motion to exclude out-of-court identifications pursuant to United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967), there were significant breaks to allow counsel to explore potential plea agreements. The hearing was still continuing when defendant and the three male co-defendants entered pleas of guilty on February 18, 2009. (The record shows that the indictment against the female co-defendant was dismissed.) No trial date had been set in the case.

Under his plea agreement, defendant pled guilty to two counts of first-degree robbery, one involving Dimsdale and one involving a minor victim (counts two and five). In exchange, the State agreed to seek dismissal of the remaining charges, and to recommend concurrent, custodial terms of fourteen years, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The robbery sentence would also run concurrent with a custodial sentence of three years, with an eighteen-month parole disqualifier, which was pending imposition for two third-degree violations of N.J.S.A. 2C:35 that preceded the robberies and to which he had already pled guilty on December 23, 2008.

Apparently, each co-defendant's plea was, as a practical matter, contingent on the others pleading, but no defendant wished to implicate another. Defendant's plea form did not indicate a promise to cooperate in the prosecution of others, nor was it expressly conditioned upon another defendant's plea. Defendant was the third or fourth defendant who entered a plea. His co-defendants received sixteen-year terms under their plea agreements.

During his allocution, defendant agreed that he had ample time to review his plea with his attorney, who answered all his questions. He stated that he was satisfied with his attorney's services. He also denied that anyone had forced, threatened, or pressured him to plea. He also agreed that he reviewed every line of the plea forms with his attorney, he understood the forms, and his answers were truthful and accurate. The court also established that defendant understood the terms of his sentence, including the consequences of NERA.

With respect to the factual basis, defendant volunteered that he possessed a knife when asked if he or individuals with him showed weapons to the occupants of the apartment he entered on July 17, 2007. He admitted that he displayed a knife to put the victims in fear in the course of committing a theft. The court found that the plea was knowing and voluntary, and supported by a sufficient factual basis, and scheduled sentencing for May 29, 2009.

In defendant's version of the offense in his pre-sentence report (PSI), he stated, "I was on Jefferson and the Police came and locked me up. They took me to a crime scene and the victim told the Police that she knew me." The probation officer also reported in the PSI, "Mr. Julney related that he plead [sic] to the instant offense because he was forced to."

According to the State's version of the offense, as reported in the PSI, the adult victims of the robbery reported that one of the children opened the apartment door after hearing a knock. A man then kicked the door, striking the child in the head, and three other men entered, all with knives, and all wearing white t-shirts with the sleeves cut off. They used the sleeves as face-masks, although one defendant removed his mask, allowing the victims to observe his face. The victims heard a female's voice from the front of the apartment but did not see her. The men seized the victims' cell phones, a wallet, and over $800 in cash.

The State's version also stated that police responded to a 911 call. They arrested one co-defendant fleeing the scene; he was wearing a ripped t-shirt sleeve around his neck. Another co-defendant was apprehended. The police also stopped a silver Chevrolet wagon that "match[ed] the description of the vehicle leaving the crime scene at high speed." The driver was the female later charged, and the passengers were a co-defendant, wearing a white t-shirt with the sleeves ripped off, and defendant, who was wearing a white tank top. The PSI stated that all defendants were positively identified by the victims in show-ups at the scene. However, an officer testified in the Wade hearing that the victims identified only the male defendants. As noted above, defendant's pending motion to suppress the out-of-court identification was abandoned upon entry of his plea.

The May 29, 2009 sentencing did not proceed as scheduled. The attorney who had represented defendant at the plea hearing filed a notice of motion to withdraw defendant's plea, with a certification and brief to follow after receipt of the plea transcript. Defendant obtained substitute counsel sometime thereafter and filed a certification alleging that he entered his plea because his attorney pressured him.

Defendant stated, "When I pled, I pled Guilty not because I regarded myself as guilty, but because my Public Defender was unprepared, unwilling to try the case and unable to provide me with a meaningful defense." He also stated, "I originally agreed to the plea because I felt I had no other choice since my attorney failed to prepare for a Trial."

Protesting his innocence, defendant asserted an alibi:

I was charged with having committed a robbery on July 17, 2007 at 102 Fairmont Avenue, in Elizabeth, New Jersey. I did not commit any robbery on that date or at that place. On July 17, 2007 I was at my house and had gotten into my car. While driving to Walgreens, my car was stopped by the Elizabeth Police Department and arrested.

 

Defendant's version implied that he was alone in his vehicle, and not in a Chevrolet with two other co-defendants, one of whom was driving.

Defendant asserted that he was a victim of mistaken identification, stating, "Based upon the Discovery I reviewed in this case, the Police were looking for a man wearing blue jeans and a white t-shirt. When I was arrested, I was wearing black jeans and a white tank top. The clothing I was wearing was not the same as the suspect." He asserted that one of the victims was unable to identify him as one of the robbers, although she identified the three other male co-defendants. He also noted the absence of incriminating finger-print evidence. The discovery to which defendant referred was neither attached to his certification nor made a part of the record before us. In a supplemental certification, defendant alleged that none of the stolen items were found in the vehicle in which he was arrested. He also claimed that when the police stopped his vehicle, they did not have a license plate number and had only a general description of the vehicle as a grey Suburban or Caravan.

The testimony of the police witness in the Wade hearing lends plausibility to defendant's claim, and undermines the State's official version of the crime in the pre-sentence report.2 First, the officer testified that as he was proceeding to the scene, officers were chasing two individuals on foot. When he arrived they had one suspect in custody. One might infer therefrom that, at most, three individuals would be found in vehicles. Second, as we have discussed, according to the official version, defendant was arrested while riding in a vehicle, along with the female co-defendant who was driving, and a male co-defendant, another passenger, who was "identified as Barry Porter, [who] had both sleeves ripped off his white t-shirt." Moreover, apparently, only one vehicle was seen leaving the scene, since the official version stated that the Chevy Wagon "match[ed] the description of the vehicle leaving the crime scene." (emphasis added).

However, contrary to the assertion that one vehicle was stopped containing three suspects, the officer testified at the Wade hearing that two vehicles were stopped. In the following line of questioning, the officer testified that one suspect was arrested in a vehicle with a female.

Q And what happened when you got to Augusta Street?

 

A When I got to Augusta, officers had one person handcuffed in custody and were placing them in the rear of a police vehicle.

 

Q And what did you do at that point?

 

A I was just present during that time. From there there were officers at the house, there were descriptions being broadcast of four suspects, and right from that scene I went around the corner as another suspect and I believe a female was also stopped.

 

Q Do you recall what the description of the suspects were?

 

A Four black males, white tee shirts with sleeves the sleeves cut off the tee shirts or ripped off, the sleeves were used as masks with slits cut out in them and blue jeans all with butcher butcher-type knives.

 

Q And actually let me back up. How far is Augusta where that one individual that you witnessed, how far is Augusta from Fairmont?

 

A The next block over.

 

Q And after you deal with this person who is arrested as a suspect, you did you just testify that you went over back down to 1012 Fairmont?

 

A No. At that point they had another suspect stopped inside of a minivan right around the corner on Jackson Avenue between Augusta and like Meadow and Fairmont, right around the corner, and I just from where I was I just went around the block, they had two people there, several officers and other supervisors were there as well.

 

[(Emphasis added).]

In the course of describing the show-up procedure, the officer made it clear that two vehicles were stopped a truck and a minivan but he initially testified co-defendant Porter was in the minivan, and defendant, impliedly, was arrested in the truck.

 

Q And I know you said you don't know who the first and second suspects were just but or the order rather that they were brought over [for show-up identification], but do you recall who the order of the third suspect?

 

A I think it was was Mr. Julney, but I'm I'm not a hundred percent sure.

 

THE COURT: Was it the second one or the first one?

 

THE WITNESS: The the third one. The first and second, I believe the first one was the guy who was stopped on Augusta Street. I'm not even sure what his name is. The second one I believe was the one that was on in the minivan on Jackson Avenue. I think that was Barry Porter (phonetic). And then the last two were stopped together in a truck and I they were the last ones to come up.

 

[(Emphasis added).]

However, the prosecutor apparently realized that the officer was mistaken. She refreshed the officer's recollection with a police report, and, upon additional questioning, the officer testified that it was Porter who was arrested with Cheryl Milligan. Impliedly, defendant was not arrested in the vehicle driven by the female, as alleged in the State's official version.

Q Judge, I'm going to mark this S-8 for identification. Sergeant Kelly, I'm just going to ask that you take a look at that report as long as you need to review it.

 

A Okay.

 

Q And does reading that report refresh your recollection as to the identity of the suspect who was found in who you saw initially

 

A Yes.

 

Q being arrested outside. And what was that suspect's name?

 

A Keyshaun Soule (phonetic).

 

Q And I don't know if you're going to need this report back again, but would seeing this report also refresh your recollection with respect to the name of the second suspect who you saw being arrested in the car?

 

A Yes. That was Barry Porter.

 

Q And do you know who else was arrested with Barry Porter in that car?

 

A It was a female, I think Milligan was the last name, Cheryl maybe.

 

[(Emphasis added).]

 

In other testimony at the Wade hearing, Dimsdale testified that she was able to identify three of the four men who removed their masks. She admitted that one of the suspects vociferously asserted he was wrongly arrested, but Dimsdale could not recall if he was the one she was unable to identify. The assistant prosecutor stated that she did not intend to call Dimsdale at trial to make an in-court identification, but would seek to introduce her prior identification from the show-up. Aside from attempting to demonstrate in the course of the Wade hearing that aspects of the show-up identification were suggestive, defense counsel elicited that Dimsdale had a criminal record; she had obtained a prescription for glasses for distance vision in 2008 after not filling a prescription that she had received in 2005; she had conducted her own investigation into the suspects; and she had never seen the four male defendants "on the street" before the night of the crime. Madison had not yet testified at the Wade hearing when defendant and co-defendants entered plea agreements.

The court conducted an evidentiary hearing on the plea withdrawal motion in December 2009. In his direct testimony, defendant essentially confirmed the truthfulness of his statements in his two certifications. During cross-examination, he admitted that the Wade hearing was interrupted to allow co-defendants to confer among themselves and counsel about plea offers. He also admitted that he signed his plea form and responded as he did to the court's questioning during his plea hearing. Defendant then rested.

The State called defendant's attorney at the time of the plea. He testified that he was not defendant's original attorney, but was a "pool attorney" later assigned to represent defendant by the Office of the Public Defender. He admitted that defendant had maintained his innocence to him. "[H]e expressed to me throughout that he was he was not the person, he was not there, and I told him that I thought that the proofs were were otherwise and that that was the risk he was going to run if he took it to trial."

Counsel maintained that he reviewed with defendant the strengths and weaknesses of his case. He also believed that discovery had been sent to defendant before he came into the case and asserted that he discussed various aspects of it, but did not go over it page by page. He saw defendant twice at the jail, meeting for forty-five minutes to an hour, although he conceded that the first visit also pertained to defendant's drug case.

Counsel denied that he pressured his client to enter a plea, but he said:

I gave him my opinion and I didn't think that he was likely to be successful in the case, and I and I say that particularly because the the victims, who had allegedly identified him, had didn't know him well but had knowledge of him, so it wasn't like a stranger-to-stranger identification.

 

He also stated that the potential of a co-defendant to implicate defendant was another factor in the plea deliberations. "There was a lot of discussion about identification and, of course, the other issue with regard to identification was what the co-defendants were going to do because potentially each each one of the defendants was a witness against the other in terms of identification." In connection with that, counsel stated that "for the most part it was done kind of as a group thing," stating that the State's plea offer to each defendant was contingent on acceptance by other defendants. In that regard, he stated, "I think there was a mindset among the defendants that nobody wanted to be put in a position of having to be called to testify against anybody else."

Counsel admitted that when plea negotiations were active, during the Wade hearing, he did not meet with defendant in the jail, but met with defendant while other co-defendants were present. Counsel stated that he did not observe co-defendants pressuring defendant, nor did defendant complain about pressure, and defendant and co-defendants spoke to each other as if they knew each other. Finally, he agreed that the State's plea offer originally called for eighteen-year terms; the other co-defendants were able to obtain sixteen-year terms; but defendant was able to hold out for a fourteen-year term.

The court characterized defendant's motion as one alleging ineffective assistance of counsel. Considering the two-prong standard under Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984) and State v. Fritz, 105 N.J. 42, 58 (1987), the court found that counsel was not ineffective. He found defendant not credible in his assertions that counsel had failed to confer adequately with him, or pressured him to plea. The court expressly rejected defendant's claim that his attorney denied him the ability to review discovery; and, in so doing, the court referred to some of the evidence against defendant.

Before me is a motion to withdraw a guilty plea by Patrick Julney. The basis for that is in essence ineffective assistance of counsel and the impact that that ineffective assistance of counsel had on his decision to plead guilty. In essence he said that he feels that he was forced, coerced into pleading because of the ineffective assistance of counsel, as set forth in D-1 [his certification].

 

This was a four-defendant case. All the defendants have pled guilty but all pleas are contingent upon each other. The victims consisted of two to three adults and several children. The plea took place in the middle of a WADE hearing that everyone was prepared to continue. I would note that the defendant in his certification says that no pre-trial motions were filed on his behalf. That is a total and complete fabrication. The charges involved a home invasion, were charges of kidnapping, robbery and burglary. Based on the discovery and the testimony in the hearings that were conducted, although unfinished, the defendant was identified by two of the adult victims.3 I find based on the testimony that the defendant had discovery in the case, that he reviewed the discovery and was aware of the discovery and went over certain of the discovery with his attorney and had the opportunity to go over other portions of the discovery.

 

The plea took place approximately two years after the arrest. There was a completed motion to suppress,4 but we were in the middle of the WADE hearing. Also based on the testimony, the defendant had considerable time to consult with his attorney . . . .

 

Given his finding that counsel was not ineffective, the court did not expressly reach the second prong.

The court then recited the four-part standard for reviewing a motion to withdraw a plea, but only expressly considered factors two through four:

In STATE VS. SLATER, 198 New Jersey 145, 2009, the New Jersey Supreme Court stated: "The trial court should consider the following factors on a motion to withdraw a guilty plea: 1) whether defendant has asserted a plausible claim of innocence;5 2) the nature and strength of defendant's reasons for withdrawal; 3) the existence of a plea bargain; 4) whether the withdrawal could result in unfair prejudice to the State or unfair advantage to the accused.["]

 

As far as No. 2 is concerned, the nature and strength of defendant's reasons for withdrawal, I find that the nature and strength of defendant's reasons for withdrawal are are totally without merit. I find that [counsel] acted appropriately and professionally, that he reviewed all the information in the file, that he pursued the appropriate motions, that he met with his client on a number of occasions, and that he in no way pressured or coerced his client. There's a difference between pressuring and coercion, and giving an accurate, professional opinion on the strengths and weaknesses of the case.

 

There was a plea bargain here, although the SLATER court noted that that should not be given significant weight. And No. 4, whether the withdrawal would result in unfair prejudice to the State or unfair advantage to the accused, I find that this factor tips in favor of not allowing withdrawing of the guilty plea. As previously said, there were juvenile victims here. We were in the middle of a WADE hearing where everyone was ready to proceed and there are interlocking pleas all dependent on each other. Based on the SLATER factors I do not find that the defense has met its burden of of showing a proper basis for withdrawal of a guilty plea. Motion is denied.

On appeal, defendant argues:

POINT I

THE COURT ERRED IN DENYING THE 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.

 

POINT II

 

THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.

II.

We reverse and remand to allow the court expressly to consider whether defendant has a "colorable claim of innocence" as defined in State v. Slater, 198 N.J.148, 150 (2009), and if so, to weigh that factor along with the other Slaterfactors. Consequently, we shall not address defendant's challenge to his sentence.

Our Court Rules permit a defendant to withdraw a guilty plea before sentencing if withdrawal would serve the interests of justice. R.3:9-3(e). The motion is committed to the court s discretion. Slater, supra, 198 N.J. at 156. The standard applied is more liberal when the motion precedes sentencing. Compare R. 3:9-3(e) ("interests of justice" standard applies to pre-sentence motion to withdraw plea), with R. 3:21-1 ("manifest injustice" standard applies to motions post-sentencing). While a defendant bears the burden to justify withdrawal, "courts are to exercise their discretion liberally to allow plea withdrawals," and should favor defendants in close cases. Ibid.

The Slater Court synthesized the law governing plea withdrawals and identified four factors that a trial court must consider:

(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 150.]

The first factor addresses the courts' core concern to avoid convicting the innocent. Id. at 158. A "bare assertion" of innocence is not enough, yet the trial court need not hold a mini-trial to determine if the innocence claim is "colorable." Instead, defendants must "present specific, credible facts, and where possible, point to facts in the record," and the court should determine whether the claim "rests . . . on particular, plausible facts." Id. at 158-59. In making that determination, the court may consider evidence disclosed in discovery. Id. at 158. Consistent with these principles, a court may consider testimony presented in pre-trial hearings.

In reviewing a trial court's decision to deny a motion to withdraw a guilty plea, we apply an abuse of discretion standard. State v. Simon, 161 N.J. 416, 444 (1999). Where the court has conducted an evidentiary hearing, we defer to the judge's credibility determinations, and will not disturb his fact findings if supported by sufficient credible evidence. State v. Locurto, 157 N.J. 463, 470-74 (1999); State v. Johnson, 42 N.J. 146, 162 (1964). To enable adequate appellate review, however, there must be adequate findings of fact and conclusions of law. See R. 1:7-4; see also Truchan v. Sayreville Bar & Rest., Inc., 323 N.J. Super. 40, 50 (App. Div. 1999).

Here, the court did not expressly address the "colorable claim of innocence" factor. In finding defendant was adequately informed by his attorney, the court briefly reviewed discovery against defendant, including the two alleged show-up identifications, whose reliability was disputed in the unfinished Wade hearing. This does not suffice as consideration of the "colorable claim of innocence" factor. The court did not expressly address or weigh defendant's assertion of innocence, or the facts defendant cited to support it. We presume that the court had access to additional discovery materials that would have either strengthened or weakened defendant's claim of innocence. However, they were not addressed.

Based on the limited record before us, we are unable to dismiss out-of-hand defendant's claim of innocence. He supported his motion to withdraw by a clear assertion of innocence. His attorney testified at the evidentiary hearing that defendant had maintained his innocence before pleading. As reflected in his pre-sentence report, defendant also maintained his innocence after entering his plea. According to the victim's testimony at the Wade hearing, one of the suspects perhaps defendant protested his innocence at the show-up.

In support of his claimed innocence, defendant certified that he was arrested while driving to a drug store, in clothes that did not precisely match those identified by the victims. He wore a tank top shirt and not, as the victims recalled, a t-shirt with its sleeves torn off and used as a face mask. He also wore black jeans as opposed to blue jeans the victims described.

As we noted above, the police witness's testimony in the Wade hearing lends plausibility to defendant's claim, and undermines the State's official version of the crime, set forth in the pre-sentence report. According to the official version, defendant was arrested while riding in a vehicle, along with the female co-defendant who was driving, and a male co-defendant, another passenger, who was "identified as Barry Porter, [who] had both sleeves ripped off his white t-shirt." The alleged circumstances of the arrest, as so alleged, certainly support defendant's involvement in the crime. However, the officer testified at the Wade hearing that two vehicles were stopped a truck and a minivan, and Cheryl Milligan and Barry Porter and no others were in one vehicle. Therefore, one may infer that defendant was alone in his vehicle (particularly since the officer testified that two suspects fled on foot, and police were searching for a total of five suspects four males and one female). Moreover, at least according to the official version, it appears that witnesses at the scene identified only one vehicle leaving the crime scene at high speed.

Inasmuch as we are remanding for the court to expressly address and weigh the "colorable claim of innocence" factor, we add these brief comments regarding the other factors. Regarding factor two and defendant's reasons for seeking to withdraw his plea, we find no error in the court's fact-findings regarding the credibility of defendant's claim that he was uninformed and coerced by his attorney. The court assessed witnesses' demeanor and there is sufficient credible evidence to support his finding. We also find no error in his finding that the State would be prejudiced by withdrawal, given the impact on juvenile victims.

However, under the circumstances of this multi-defendant case, we suggest that the court consider whether factor three, the existence of a plea bargain, and factor four, prejudice to the State, are entitled to greater weight. As the court noted, the Slater Court did not suggest that the existence of a plea bargain be given "great weight in the balancing process." Id. at 161. However, in this case, defendant's plea bargain was apparently linked to the plea of other defendants. The State did not secure promises of cooperation by any co-defendant against another, presumably because all defendants pled simultaneously. If defendant is permitted to withdraw his plea, the State may be disadvantaged if it is unable to obtain cooperation from the other defendants. Moreover, we do not have the plea agreements of the co-defendants to determine whether their pleas were expressly contingent upon defendant's plea, nor do we address what impact withdrawal would have on those co-defendants' rights if their pleas were contingent.

R

eversed and remanded.

1 We use pseudonyms to protect the victims' privacy.

2 Defendant initially filed with the court an incomplete transcript of the Wade hearing. Upon the court's request, the complete transcript was submitted.

3 We note that only one of the victims testified at the unfinished Wade hearing.

4 We have been informed that there was no testimonial hearing regarding a motion to suppress. Efforts to obtain a copy of the order denying the motion to suppress were also unsuccessful.

5 Correctly stated, the factor is "whether the defendant has asserted a colorable claim of innocence." State v. Slater, 198 N.J. 145, 150 (2009) (emphasis added).