STATE OF NEW JERSEY v. WILLIAM JACKSON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5072-09T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

WILLIAM JACKSON,

Defendant-Appellant.

January 10, 2013

Submitted October 16, 2012 - Decided

Before Judges Harris and Hoffman.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 07-10-1675.

Joseph E. Krakora, Public Defender, attorney for appellant (Suzannah Brown, Designated Counsel, on the brief).

Gaetano T. Gregory, Acting Hudson County Prosecutor,attorney forrespondent (Monalisa A. Tawfik, Special Deputy Attorney General/ Acting Assistant Prosecutor, on the brief).

PER CURIAM

Defendant William Jackson appeals from the denial of his motion to suppress, the denial of his motion to withdraw his guilty plea, and his sentence of five-years imprisonment, with three years of parole ineligibility.

On this appeal, defendant raises the following points for our consideration:

POINT I THE TRIAL COURT ERRED IN DENYING MR. JACKSON'S MOTION TO SUPPRESS EVIDENCE

POINT II THE TRIAL COURT ERRED IN DENYING MR. JACKSON'S MOTION TO WITHDRAW HIS GUILTY PLEA

POINT III THE TRIAL COURT IMPOSED A MANIFESTLY EXCESSIVE SENTENCE ON MR. JACKSON (NOT RAISED BELOW)

For the reasons that follow, we affirm.

I.

We first consider the suppression motion. The State introduced the following evidence. On June 8, 2007, at approximately 7:10 p.m., Detective Keith Ludwig of the Jersey City Police Department responded to an address on Oxford Avenue after receiving a call for assistance from the Narcotics Unit. At the scene, Officer Ray Weber informed Detective Ludwig "there w[ere] drug sales coming out of the location[.]" Outside of the home, Detective Ludwig spoke with defendant's father, who advised him that defendant lived in the home and was the person the police were seeking. Detective Ludwig then asked defendant's mother and father if they would consent to a search of their home. They invited the officers inside the home to discuss the request.

Once inside the home, Detective Ludwig asked defendant's parents if they would "sign a consent to search . . . [defendant's] bedroom, if they had access to it." They stated that they had access to the bedroom and agreed to the search. According to Detective Ludwig, he prepared a "consent to search form" and advised defendant's mother she had the right to refuse the search. Defendant's mother initialed next to a spot on the form that indicated she had a right to refuse, then signed the form.

Thereafter, defendant's mother led Detective Ludwig and other officers to defendant's bedroom. In the bedroom the officers found a knife, two cell phones, and a "hide-a-key," which contained what looked like Phencyclidine (PCP). The officers later recovered three more bags appearing to contain the same substance. Testing later confirmed the substance in the bags was PCP.

On October 15, 2009, a Hudson County grand jury returned a four count indictment, charging defendant with unlawful possession of a controlled dangerous substance, contrary to N.J.S.A. 2C:35-10a(1) (count one); possession of PCP, in a quantity less than ten grams, with the intent to distribute, contrary to N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(7) (count two); distribution of PCP, contrary to N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(7) (count three); and preventing an officer from effecting a lawful arrest, contrary to N.J.S.A. 2C:29-2a(2) (count four).

In arguing the motion to suppress, defense counsel contended that Detective Ludwig's timeline of events is not credible and even if the consent to search were valid, the police did not have the right to search defendant's bedroom.

In an oral decision placed on the record on October 30, 2008, the motion judge found Detective Ludwig's testimony credible. The judge determined there was probable cause to believe that a drug offense occurred in the home and the police had the right to seek consent from defendant's parents to search the home. The judge concluded there was no evidence that the police coerced defendant's mother into signing the consent form and found defendant's argument regarding the time frame unconvincing.

In reviewing a decision on a suppression motion, we must defer to the trial judge's factual findings so long as they are supported by sufficient credible evidence, and we owe special deference to his credibility determinations. State v. Diaz-Bridges, 208 N.J. 544, 565 (2011); State v. Elders, 192 N.J. 224, 243-44 (2007).

On appeal, defendant argues his parents did not voluntarily consent to the search. We disagree. The police were not required to obtain a search warrant prior to searching defendant's room because defendant's mother, who had authority to consent to the search, gave consent. See State v. Domicz, 188 N.J. 285, 305 (2006). We agree with the trial judge that the State met its burden of demonstrating the consent was voluntary. See State v. Douglas, 204 N.J. Super. 265, 277 (App. Div.), certif. denied, 102 N.J. 378, 508 (1985), certif. denied, 102 N.J. 378 (1986).

Defendant's mother signed a consent to search form and initialed next to a section that stated she had the right to refuse. Moreover, Detective Ludwig testified that he advised defendant's parents that they had the right to refuse the search. Defendant did not present any evidence at the suppression hearing showing that the police coerced defendant's mother into signing the consent form and we cannot find any such evidence in the record.

Defendant further argues that Detective Ludwig's testimony was not credible. Finding this argument without merit, we defer to the trial judge's credibility findings. See Diaz-Bridges, supra, 208 N.J. at 565; Elders, supra, 192 N.J. at 243-44.

II.

Next, we consider defendant's motion to withdraw his guilty plea. We find defendant's argument lacks merit and affirm substantially for the reasons stated by the trial judge in his thorough written opinion.

On February 18, 2009, defendant appeared with his attorney before the trial judge to place a plea agreement with the State on the record. Defendant agreed to plead guilty to count three (second-degree distribution of CDS), in exchange for the State recommending a prison sentence of seven years with forty-two months of parole ineligibility and the understanding defendant would be applying for admittance into drug court. Additionally, if defendant were not accepted to drug court, the State understood the trial judge would consider sentencing defendant to five years imprisonment with a three year period of parole ineligibility. The trial judge explained the agreement to defendant, including the possibility that defendant could be rejected from drug court. Defendant indicated that he understood and pled guilty in conformance with the plea agreement.

Defendant's application for admission into drug court was denied. He then filed a motion to withdraw his guilty plea, claiming he misunderstood the criteria for eligibility. The trial judge heard testimony on the motion from defendant and his plea attorney. Defendant testified his plea attorney misinformed him that he could be admitted into drug court for selling drugs, rather than using drugs. Defendant's plea attorney testified that he spoke with defendant regarding the requirements for drug court prior to defendant's guilty plea and it appeared that defendant understood.

On February 24, 2010, the judge issued an order along with a written opinion denying defendant's motion. In his opinion, the judge first discussed what is necessary for a court to accept a plea. The judge then applied the factors set forth in State v. Slater, 198 N.J. 145 (2009), and found defendant did not meet the requirements for withdrawing his guilty plea.

Prior to sentencing, a motion to withdraw a guilty plea is governed by the "interests of justice standard" and should be liberally granted. R. 3:9-3(e); State v. Deutsch, 34 N.J. 190, 198 (1961). However, the defendant has the burden to show why the plea should be withdrawn. State v. Huntley, 129 N.J. Super. 13, 17 (App. Div.), certif. denied, 66 N.J. 312 (1974). The trial court has vast discretion on whether to grant such a motion. State v. Bellamy, 178 N.J. 127, 136 (2003).

Pursuant to Slater:

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.

[Slater, supra, 198 N.J. at 157-58.]

The first and third Slater factors in this matter are not at issue. Defendant did not assert a colorable claim of innocence as the basis for his motion to withdraw and it is undisputed that he entered into a plea agreement.

As to the second factor, defendant claims the reason for seeking to withdraw his guilty plea is that his former attorney misinformed him regarding the criteria for eligibility for drug court and that this outweighs the other Slater factors. We disagree. As the trial judge aptly noted, defendant's reason for attempting to withdraw his guilty plea "is without merit and is contradicted by the record."

Defendant's former attorney testified that he informed defendant of the requirements for admission into drug court. Moreover, at the plea hearing, after an explanation by the trial judge, defendant claimed under oath that he understood the possibility he might not be admitted into drug court. Thus, we agree with the trial judge that defendant did not assert "valid reasons to withdraw his plea and therefore, fails to meet the second prong of Slater which weighs against [d]efendant's motion to withdraw his guilty plea."

As to the fourth factor, we agree with the trial judge that a withdrawal of defendant's guilty plea could unfairly prejudice the State. The passage of time certainly would have a negative effect on the State's case. Several years have passed since the offense occurred in 2007. Defendant pled guilty on the eve of trial in 2009, when the State's witnesses would have been more readily able to recall the events surrounding the offense. See Slater, supra, 198 N.J. at 161 ("The critical inquiry

. . . is whether the passage of time has hampered the State's ability to present important evidence."). Thus, this factor weighs against defendant withdrawing his plea as well.

We are satisfied that the trial judge correctly considered and balanced the four Slater factors, and the record supports the judge's determination that it would not be in the interests of justice to allow defendant to withdraw his guilty plea. As the judge determined, defendant voluntarily entered into the plea agreement with the State knowing it was possible he would not be admitted to drug court. Therefore, the judge correctly denied defendant's motion to withdraw his plea.

III.

Finally, we reject defendant's contention that he received an excessive sentence. Defendant was sentenced in accordance with the plea agreement. Due to defendant's prior history of convictions for drug related offenses we find the trial judge appropriately applied aggravating factors three, N.J.S.A. 2C:44-1a(3) (likelihood that defendant will commit another offense); six, N.J.S.A. 2C:44-1a(6) (extent of prior record); and nine, N.J.S.A. 2C:44-1a(9) (need to deter defendant and others from violating the law).

Additionally, we find no error in the trial judge failing to engage in an additional aggravating and mitigating factor balancing analysis prior to imposing the three-year period of parole ineligibility. Defendant's sentence was in accordance with N.J.S.A. 2C:43-6f, which requires a minimum three year period of parole ineligibility. Thus, the trial judge imposed the shortest possible term permitted by the statute.

We are satisfied that defendant's sentence is not manifestly excessive or unduly punitive, does not represent an abuse of the judge's sentencing discretion, and does not shock the judicial conscience. State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Roth, 95 N.J. 334, 363-65 (1984).

A