STATE OF NEW JERSEY v. RONALD P. CHERRY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RONALD P. CHERRY,

Defendant-Appellant.

____________________________________

December 29, 2014

Submitted December 1, 2014 - Decided

Before Judges Sabatino and Leone.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 09-04-0327.

Joseph E. Krakora, Public Defender, attorney for appellant (Amira R. Scurato, Assistant Deputy Public Defender, of counsel and on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent (Daniel I. Bornstein, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant Ronald P. Cherry appeals the trial court's denial of his motion to withdraw his negotiated guilty plea to a count of first-degree robbery, N.J.S.A. 2C:15-1. In addition, defendant appeals the sentence that the court imposed in accordance with his plea agreement, arguing that it is excessive. For the reasons that follow, we affirm.

According to the State's allegations, defendant participated with two accomplices on August 25, 2008 in a home invasion and robbery in Plainfield, during which they brutally attacked an eighty-three-year-old man. They tied the victim to a chair, beat him in the head with a hammer, stabbed him, burned his genitals and chest with some type of torch, and then departed with his credit cards and cash. A discarded latex glove containing defendant's DNA was subsequently found in one of the rooms of the victim's home.

In addition, the State alleged that, two days later, on August 27, 2008, defendant participated in the burglary of a home in Scotch Plains. Credit cards and other possessions of this victim, who was not at home at the time, were stolen.

The stolen credit cards from both incidents were thereafter used in several stores. Video surveillance apparently depicted defendant and his accomplices making those purchases.

Defendant and the other two accomplices were charged in a twenty-five-count indictment with numerous crimes, including first-degree attempted murder, first-degree robbery, first-degree kidnapping, and other offenses. Defendant was named in all but two counts of the original indictment. Thereafter, two more counts charging offenses occurring after the original indictment were added, neither of which named defendant.

The State provided the incriminating DNA lab results from the Plainfield incident to defendant's trial counsel. However, counsel did not notice it in his file until about six days before the scheduled trial.

After plea negotiations,1 defendant agreed to plead guilty to first-degree robbery, with the State recommending a sentence of eighteen years, subject to the parole ineligibility requirements of the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2. The other charges against defendant in the indictment were to be dismissed. Defendant entered the guilty plea before the trial court on March 22, 2011.

A few days after entering his guilty plea and before sentencing, defendant moved to withdraw his guilty plea. After a multi-day evidentiary hearing on the motion at which both defendant and his counsel testified, Judge William A. Daniel denied the application in an oral decision. The judge applied the relevant plea withdrawal factors under State v. Slater, 198 N.J. 145, 157-58 (2009). In particular, Judge Daniel considered (1) whether defendant had asserted a colorable claim of innocence; (2) the nature and strength of the asserted reasons for withdrawal; (3) the existence of the plea agreement; and (4) whether withdrawal would result in unfair prejudice to the State or unfair advantage to defendant. Ibid. On balance, the judge concluded that these factors weighed in favor of denial of the withdrawal request, and that "the interests of justice require that this plea remain in place."

Thereafter, Judge Daniel sentenced defendant in accordance with the plea agreement to an eighteen-year custodial term, subject to NERA. As contemplated, the remaining counts in the indictment were dismissed.

Defendant raises the following points on appeal for our consideration

POINT I

THE TRIAL COURT ERRED IN DENYING MR. CHERRY'S PRE-SENTENCING MOTION TO WITHDRAW FROM HIS GUILTY PLEA.

POINT II

MR. CHERRY'S SENTENCE IS EXCESSIVE.

Both of these arguments lack merit.

In support of defendant's first point, he argues that he did not have enough time to confer with his trial attorney after the report of the very incriminating DNA evidence was located in defense counsel's file. He contends that he has a colorable claim of innocence because of an alleged alibi, and that the interests of justice should have permitted him to withdraw his plea, pre-sentencing. We reject these arguments, substantially for the sound reasons articulated in Judge Daniel's June 7, 2012 bench ruling. We add only a few comments.

Although a colorable claim of innocence is not a necessary factor under Slater, supra, 198 N.J. at 158, that factor surely is important here and weighs in favor of the State, given the DNA proof and the other strong evidence tying defendant to the brutal Plainfield invasion and attack. Judge Daniel specifically and reasonably found from the hearing testimony that there was "no credible evidence" of an alibi.

The judge also found that defendant was not credible in his assertion that his mother's death in 2008, eight days after his arrest, prevented him from rationally considering the State's plea offer in 2011. The plea agreement spared defendant a far more severe aggregate exposure under the indictment, including an extended term of up to life imprisonment. See N.J.S.A. 2C:44-3(a). The judge found the plea was knowing, voluntary, and not due to pressure. Although the State was not materially prejudiced by the short time interval between the entry of the plea and the motion to withdraw it, that alone is not dispositive. Slater, supra, 198 N.J. at 162. In short, we are satisfied Judge Daniel addressed the Slater factors thoroughly and soundly.

Defendant's second point alleging that his sentence was excessive warrants little comment. As we have noted, the eighteen-year NERA sentence was consistent with the plea agreement. The judge found six aggravating factors applied under N.J.S.A. 2C:44-1(a)(1) (nature and circumstances of the offense), N.J.S.A. 2C:44-1(a)(2) (gravity and seriousness of the harm inflicted), N.J.S.A. 2C:44-1(a)(3) (risk that the defendant will commit another offense), N.J.S.A. 2C:44-1(a)(6) (extent of the defendant's prior criminal record), N.J.S.A. 2C:44-1(a)(9) (deterring defendant and others), and N.J.S.A. 2C:44-1(a)(12) (commission of an offense against a person who one knows or should have known was 60 years of age or older); and no mitigating factors.

The elderly victim suffered serious life-threatening injuries as a result of what, essentially, were cruel acts of torture in the course of a robbery. We do not second-guess the trial court's decision here to impose exactly the same sentence that defendant bargained for in the plea agreement. State v. Case ___, N.J. ___, ___ (2014) (slip op. at 26-27) (reaffirming the limited scope of appellate review of sentencing decisions based upon an assessment of aggravating and any mitigating factors); see also State v. Bieniek, 200 N.J. 601, 612 (2010).

Affirmed.

1 Evidently, a copy of the plea form cannot presently be located.