STATE OF NEW JERSEY v. JOHN TATE

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2322-10T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOHN TATE,

Defendant-Appellant.

_____________________________________________

May 28, 2013

Argued January 24, 2013 - Decided

Before Judges Hayden and Lisa.

On appeal from the Superior Court of New Jersey, Law Division, Morris County, Indictment No. 04-10-1332.

Joseph E. Krakora, Public Defender, attorney forappellant (MichaelPastacaldi, Designated Counsel, on the brief).

Fredric M. Knapp, Acting Morris County Prosecutor, attorney for respondent (Erin Smith Wisloff, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant John Tate appeals from the October 25, 2010 Law Division order denying his motion to withdraw his guilty plea. For the reasons that follow, we affirm.

The record reveals that a grand jury indicted defendant on October 15, 2003 for first-degree aggravated sexual assault of a minor between ages thirteen and sixteen, N.J.S.A. 2C:14-2a(2)(c); second-degree endangering the welfare of children, N.J.S.A. 2C:24-4a; and third-degree aggravated sexual contact, N.J.S.A. 2C:14-3a. The charges were based on allegations that defendant engaged in sexual acts between September 1 and November 30, 1999, with his thirteen-year-old foster son.

Defendant pled guilty before Judge Thomas V. Manahan to an amended charge of child neglect, N.J.S.A. 9:6-3, on June 4, 2009. While defendant said he would like more time to consider the plea, he agreed that he wanted to make the plea that day, based upon a reasoned approach to his options. He told the judge he had understood, accepted and agreed to the plea arrangement worked out between him and the State. Defendant acknowledged that he had read the plea form and declined the judge's offer to review it, because he understood its terms. He had no questions for the judge concerning the agreement.

During the plea allocution, defendant acknowledged that between September 1, 1999 and November 30, 1999, he was the foster father of a thirteen-year-old boy and that he cursed and used off-color language in the child's presence in such a way as to debauch the child's morals. Noting that defendant was an intelligent and thoughtful person with some paralegal experience, the judge accepted his plea, stating

I am satisfied that Mr. Tate has entered into this plea knowingly and voluntarily. This Court bases its finding on his testimony here this afternoon and the Court's opportunity to observe his demeanor during the testimony and . . . upon the contents of the plea which he signed to acknowledge that he understood it.

On August 26, 2010, prior to his sentencing, defendant filed a motion to withdraw his guilty plea. He raised the following arguments in his motion:

POINT I: MR. TATE SHOULD BE ALLOWED TO WITHDRAW HIS GUILTY PLEA AS THERE WAS PROSECUTOR MISCONDUCT AS COMPLETE DISCOVERY WAS NOT PROVIDED TO THE DEFENSE.

POINT II: MR. TATE SHOULD BE GRANTED HIS REQUEST TO WITHDRAW THE PLEA AS IT RESULTED FROM COERCION.

POINT III: MR. TATE SHOULD BE ALLOWED TO WITHDRAW HIS PLEA AS THERE WAS INEFFECTIVE ASSISTANCE OF COUNSEL.

POINT IV: MR. TATE'S PLEA MUST BE VACATED BY THE COURT AS THE FACTUAL BASIS WAS INADEQUATE.

POINT V: MR. TATE MUST BE ALLOWED TO WITHDRAW HIS PLEA AS THE "KNOWING" REQUIREMENT WAS NOT MET AND THUS THE PLEA WAS A VIOLATION OF THE DUE PROCESS CLAUSE OF BOTH THE FEDERAL AND STATE CONSTITUTIONS.

Judge Manahan heard argument on defendant's motion on October 25, 2010. Defendant explained that he only entered his plea because the charges were constantly "hanging over" his head, and that accepting the plea "would be the right thing to do . . . ."

Judge Manahan, who had handled defendant's cases for several years, observed that "Mr. Tate is far from your average defendant. He has filed numerous pleadings,1 both in criminal courts and in the civil courts. . . . He, by far, is not a neophyte. He knows how to express himself. He knows how to formulate an argument." The judge found that, despite his continuous claims before and after the plea, defendant had not presented any evidence that the State failed to provide all available discovery or engaged in any form of prosecutorial misconduct. He also found no support for defendant's claim that the plea was coerced because the plea was offered for one day only. The judge observed that the plea agreement was very beneficial to defendant, especially because defendant was facing a first degree charge exposing him to a considerable state prison sentence. In the judge's opinion, no reasonable person would have failed to accept the offer. The judge also rejected defendant's claim of ineffective assistance of counsel as defendant did not point to any facts showing that plea counsel's performance was deficient and noted that defense counsel had obtained a very favorable plea offer. Further, the judge analyzed defendant's motion to vacate using the Slater2 factors and determined that the interest of justice would not be served by vacating defendant's plea.

Consequently, the judge denied defendant's motion and sentenced him to 1,231 days in prison, the time defendant served in jail on the indictment before posting bail. As part of the plea agreement, the State dismissed the remaining charges of aggravated sexual assault and aggravated sexual contact. This appeal followed.

On appeal, defendant raises the following contentions for our consideration:

POINT I: THE LOWER COURT ERRED IN ACCEPTING DEFENDANT'S PLEA AS IT WAS NOT KNOWINGLY AND VOLUNTARILY PROFFERED IN ACCORDANCE WITH RULE 3:9-3 THEREBY VIOLATING DEFENDANT'S DUE PROCESS RIGHTS. U.S. CONST. AMENDS. V, XIV; N.J. CONST. ART. I, PAR. I.

POINT II: THE LOWER COURT ERRED WHEN IT ACCEPTED DEFENDANT'S PLEA WITHOUT AN APPROPRIATE FACTUAL BASIS CONTRARY TO THE REQUIREMENTS OF RULE 3:9-2 THEREBY VIOLATING DEFENDANT'S DUE PROCESS RIGHTS. U.S. CONST. AMENDS. V, XIV; N.J. CONST. ART I, PAR I.

POINT III: THE LOWER COURT ERRED IN FAILING TO FIND DEFENDANT'S PLEA WAS NOT KNOWING AND VOLUNTARY AS IT RESULTED FROM UNDUE COERCION BY THE PROSECUTOR WHO PLACED A "TODAY ONLY" EXPIRATION ON THE PLEA OFFER.

POINT IV: THE LOWER COURT IMPROPERLY DENIED DEFENDANT'S MOTION TO VACATE HIS PLEA UNDER STATE v. SLATER AND THEREBY VIOLATED DEFENDANT'S DUE PROCESS RIGHTS TO A FAIR TRIAL.

Defendant also submitted a pro se supplemental brief, raising the following contentions:

POINT I: DEFENDANT WAS NOT PROVIDED WITH SUFFICIENT TIME TO CONSIDER THE PLEA.

POINT II: FAILURE OF THE PROSECUTION TO PROVIDE GOOD FAITH PLEA AGREEMENT.

POINT III: THE PLEA COLLOQUY WAS NOT COMPLETE, ACCURATE OR REVIEWED IN ITS TOTALITY PURSUANT TO LAW.

POINT IV: DEFENDANT HAS PRESENTED PRIMA FACIE EVIDENCE ENTITLING HIM TO A PLENARY HEARING.

POINT V: SUBSTANTIAL AND DETAILED MOTIONS FOR DISCOVERY, EVIDENCE, AND DUE PROCESS OF LAW HAVE NOT BEEN HEARD BY THE COURT PURSUANT TO LAW.

POINT VI: FAILURE TO CONDUCT A MINIMUM INVESTIGATION OF THE FACTS WHICH WOULD HAVE BROUGHT THE VERACITY OF THE VICTIM'S STATEMENTS INTO CONSIDERABLE QUESTION THEREBY AFFECTING THE OUTCOME OF THE PROCEEDING REGARDING DEFENDANT'S DECISION TO ACCEPT A PLEA DID NOT OCCUR.

POINT VII: FAILURE TO PROVIDE ADEQUATE REPRESENTATION AND ACCESS TO DISCOVERY INCLUDING EXCULPATORY EVIDENCE CONVOLUTED THE ABILITY OF THE DEFENDANT TO ATTAIN DUE PROCESS OF LAW.

We begin with a review of the applicable legal principles. "[A] guilty plea is the final relinquishment of the most cherished right - to be presumed innocent of a crime until a jury of one's peers has determined guilt beyond a reasonable doubt." State v. Smullen, 118 N.J. 408, 414 (1990). Yet, in seeking to vacate a guilty plea, the burden remains on a defendant "to present some plausible basis for his request, and his good faith in asserting a defense on the merits . . . ." Id. at 416 (citation omitted).

Before accepting a plea, the court must be satisfied that a factual basis for the plea exists. R. 3:9-2; State v. Barboza, 115 N.J. 415, 420-21 (1989). The "factual basis for a plea 'must obviously include defendant's admission of guilt of the crime or the acknowledgment of facts constituting the essential elements of the crime.'" State ex rel. T.M., 166 N.J. 319, 333 (2001) (quoting State v. Sainz, 107 N.J.283, 293 (1987)). A "trial court must be 'satisfied from the lips of the defendant that he committed the acts which constitute the crime.'" Barboza, supra, 115 N.J. at 422 (quoting State v. Stefanelli, 78 N.J. 418, 439 (1979)). A factual basis "should be examined in light of all surrounding circumstances and in the context of an entire plea colloquy." T.M., supra, 166 N.J. at 327 (citations omitted). We will not find a factual basis for a plea where the defendant is equivocal about committing the crime and is unable to provide facts about the crime when asked. State v. Henries, 306 N.J. Super 512, 536-39 (App. Div. 1997).

Here, defendant argues there was an inadequate factual basis for his plea since N.J.S.A. 9:6-3 requires that the profane language must be "habitual" and defendant only admitted to using off-color language without specifying the frequency. We agree with the judge that by acknowledging that his actions occurred during a three month period and constituted child neglect as it tended to debauch a child's morals, defendant admitted the habitual nature of his conduct. Moreover, this case differs from Henries, where we found no factual basis for a plea based upon the defendant's vague and hesitant statements. 306 N.J. Super. at 536-39. By contrast, defendant was unequivocal in stating that he committed the child neglect offense by engaging in language that tended to debauch a child's morals, hardly a result that comes from one profane word. We are convinced that, in the context of the circumstances of the plea colloquy, defendant provided a factual basis for his guilty plea.

In addition, the judge found that defendant entered into the plea knowingly and voluntarily. The judge had an opportunity to assess defendant's demeanor and determined in light of his intelligence and familiarity with the legal system that his acceptance was made voluntarily, even considering the swiftness of the latest highly advantageous offer. We discern no abuse of discretion in the judge's acceptance of defendant's plea.

Where a defendant wishes to withdraw from a plea agreement before the sentencing, the standard for the court's determination is whether it is in "the interests of justice." R. 3:9-3(e). A decision granting or denying a motion to vacate is committed to the sound discretion of the motion judge. State v. Bellamy, 178 N.J. 127, 135 (2003). This discretionary determination requires the judge to weigh "the policy considerations which favor the finality of judicial procedures against those which dictate that no man be deprived of his liberty . . . ." State v. Johnson, 182 N.J. 232, 237 (2005) (quoting State v. McQuaid, 147 N.J. 464, 487 (1997)).

In evaluating a motion to withdraw a guilty plea, the trial judge must consider and balance 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." Slater, supra, 198 N.J. at 157-58 (citing United States v. Jones, 336 F.3d 245, 252 (3d Cir. 2003)). No one factor is mandatory, and relief is neither disqualified nor dictated based upon its absence or presence. Id. at 162.

The first Slater factor focuses on whether defendant has asserted a colorable claim of innocence. "A core concern underlying motions to withdraw guilty pleas is to correct the injustice of depriving innocent people of their liberty." Id. at 158. "A colorable claim of innocence is one that rests on 'particular, plausible facts' that, if proven in court, would lead a reasonable factfinder to determine the claim is meritorious." State v. Munroe, 210 N.J. 429, 442 (2012) (quoting Slater, supra, 198 N.J. at 158-59). In weighing such motions, trial courts must bear in mind that "[a] bare assertion of innocence is insufficient to justify withdrawal of a plea" and that defendant must present specific credible facts in support of that claim. Slater, supra, 198 N.J. at 158. Here, defendant claims he was innocent of the underlying dismissed charges but has not provided "particular plausible facts" to show this bald assertion is meritorious. Thus, he has not presented a colorable claim of innocence.

The second factor focuses on the basic fairness of enforcing a guilty plea. The court's inquiry is whether the defendant "presented fair and just reasons for withdrawal" and considers the effectiveness of those reasons. Id. at 159. Our courts have identified a number of reasons that warrant withdrawal of a plea. These reasons include whether

(1) the court and prosecutor misinformed the defendant about a material element of the plea negotiation, which the defendant relied on in entering his plea; (2) the defendant was not informed and thus did not understand material terms and relevant consequences of the guilty plea, namely, the direct, penal consequences of the plea; (3) [the] defendant's reasonable expectations under the plea agreement were not met; and (4) the defendant has not only made a plausible showing of a valid defense against the charges, but also credibly demonstrated why that defense "was forgotten or missed" at the time of the plea.

[Id. at 159-60 (internal citations omitted).]

When considering withdrawal of a plea based upon a claim that the defendant was not informed of the consequences, our inquiry must include whether "fundamental fairness" requires that result. Bellamy, supra, 178 N.J. at 138. Even when the consequences are not direct and penal, if they are severe and long-lasting, a defendant must understand the consequences for the plea to be fair and just. Ibid.

Here defendant claims that he was not informed that he could not appeal the pretrial motions, which resulted in his plea being made without a full knowledge of, and agreement to, its terms. We disagree.

The plea agreement form asks, "Do you further understand that by pleading guilty you are waiving your right to appeal the denial of all other pretrial motions except the following . . . ?" Since the form specified this waiver, defendant circling the word "No" does not negate the very explicit information. After being so informed, defendant did not write on the form what pretrial motions he wished to preserve, nor did he ask the judge any questions concerning the waiver. Having been clearly notified of the waiver and making no effort to preserve any pretrial motion from the waiver, defendant, a sophisticated pro se litigator, cannot now reasonably claim he did not know that he was waiving his right to appeal pretrial motions. Thus, defendant has not provided a fair and just reason to vacate the plea.

With respect to the third Slater factor, whether the plea was entered as the result of a plea bargain, the Court noted that a defendant had a heavier burden in seeking to withdraw pleas entered as part of a plea bargain. Slater, supra, 198 N.J. at 160. However, the Court pointed out that the third factor should not "be given great weight in the balancing process." Id. at 161.

As to the fourth factor, "[t]here is no fixed formula to analyze the degree of unfair prejudice or advantage that should override the withdrawal of a plea." Ibid. "The critical inquiry . . . is whether the passage of time has hampered the State's ability to present important evidence." Ibid. According to the record, defendant's motion to vacate the plea was filed about a year after the plea was given, only slightly increasing the prejudice to the State.

After carefully weighing the Slater factors, the balance goes against allowing withdrawal of defendant's guilty plea. Defendant has not made a colorable claim of innocence and has not shown fair and just reasons for withdrawal. A defendant "must show more than a change of heart" and "[a] 'whimsical change of mind' . . . is not an adequate basis to set aside a plea." Id. at 157 (quoting State v. Huntley, 129 N.J. Super. 13, 18 (App. Div.), certif. denied, 66 N.J. 312 (1974)). Consequently, as defendant has failed to establish that it is in the interest of justice to vacate his guilty plea, we conclude that the trial judge did not abuse his discretion in denying defendant's motion to vacate.

Regarding defendant's claim of ineffective assistance of counsel, that argument is best reserved for presentation in a petition for post-conviction relief. State v. Preciose, 129 N.J. 451, 459-60 (1992).

We have considered defendant's additional arguments and find them without sufficient merit to warrant further discussion. R. 2:11-3(e)(2).

Affirmed.

1 During the almost six years between the indictment and plea in this case, defendant reported that he submitted at least twenty-seven motions concerning discovery, self-representation, psychological evaluation of the alleged victim, and speedy trial.

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