STATE OF NEW JERSEY v. ROBERT MORTON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-02778-12T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ROBERT MORTON,

Defendant-Appellant.

________________________________

December 9, 2014

Submitted November 18, 2014 Decided

Before Judges Reisner and Koblitz.

On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment Nos. 09-08-2652 and 09-10-2573.

Joseph E. Krakora, Public Defender, attorney for appellant (Anderson D. Harkov, Designated Counsel, on the brief).

Mary Eva Colalillo, Camden County Prosecutor, attorney for respondent (Natalie A. Schmid Drummond, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Robert Morton appeals from the November 16, 2012 order denying his application for post-conviction relief (PCR). In 2011 defendant pled guilty to second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b), and second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7(b). He also pled guilty to a violation of probation stemming from an earlier conviction for third-degree burglary, N.J.S.A. 2C:18-2(b). Pursuant to the plea agreement, on June 10, 2011, defendant was sentenced to an aggregate sentence of five years in prison with a five-year term of parole ineligibility. In his PCR application defendant argued that he was deprived of his constitutional right to counsel for his pre-sentence motion to withdraw his guilty plea. We agree and therefore reverse.

The following facts are taken from the Lindenwold "Incident Report Form" prepared by Patrolman1 Ronald Burrows, Jr. as well as his Grand Jury testimony. On June 24, 2010, at 11:21 p.m., Officer Burrows, dressed in his uniform and in a marked police car, was dispatched to a fried chicken restaurant in response to a report that a man with a silver handgun was shooting in the parking lot. While driving to the scene, Burrows was told that there were two suspects, one wearing a black shirt and the other wearing a white t-shirt. Burrows saw two black males dressed as described crossing the road when he was 200 feet away from his destination.

Burrows shone his patrol car spotlight on the two suspects and was provided with more light from street lights in the area. Defendant then began tucking his white shirt into his front pants. Burrows chased defendant on foot. While running, defendant was using both hands to struggle with something located at his waistband. From ten feet away, Burrows clearly saw a black and silver handgun in defendant's right hand. Burrows saw defendant throw the gun into the brush. After an extended chase, defendant was arrested. Burrows then retrieved a loaded nine millimeter black and silver gun in the area where defendant threw the gun. Three shell casings were found in the parking lot. Because of a prior conviction, defendant was ineligible for a permit to carry a gun. N.J.S.A. 2C:39-7(b).

Several witnesses who were interviewed by the police gave accounts of what they saw that night. A second man, identified as the suspect wearing a black shirt, was taken to the police station for questioning, but denied any knowledge of the incident. Defendant was indicted alone.

Defendant pled guilty immediately prior to jury selection and set forth a factual basis for the plea. On the day of sentencing, the judge began by indicating that defense counsel had told him that defendant wanted to withdraw his guilty plea. Counsel acknowledged receiving a copy of defendant's "paperwork" on this issue two days before, but he had not brought it to court with him or forwarded it to the assistant prosecutor or judge. Defense counsel was not given an opportunity to speak, except to answer a question posed by the judge.

The judge engaged defendant directly, telling defendant, "Mr. Morton, I've got a longstanding history with you." The judge reviewed his recollection of the plea hearing and indicated that the plea had been "free, knowing and voluntary." The judge asked defendant directly, "So tell me, sir, what is your reason for wanting to get out of the deal?" Defendant then attempted to explain that he saw many discrepancies in the State's evidence. The judge responded, "It doesn't matter." Defendant then said, "Why doesn't it?" The judge replied, "I know what the law is. I'm just going to apply the law. Right now you haven't even told me anything." Defendant continued to discuss the discovery, whereupon the judge said, "Why don't you just say the whole thing is inconsistent?"

The judge then asked, "Anything from the State?" whereupon the assistant prosecutor stated, "No, your Honor. Under the Slater[2] factors he failed[.]" The judge interposed, "Not even close." Defendant continued to talk about the discovery until the judge stated, apparently to defense counsel, "And the other thing I have to mention about that is the [d]iscovery had been furnished to your client before he entered the plea." Defendant then interjected that he "just got it" after he pled guilty.

Defense counsel stated, "Your Honor, our policy is to furnish our clients everything that we have when we get it. And you know, I hesitate to say too much at this point, I don t want to prejudice my own client, but as you will recall, this matter was listed for trial and I think it pled on the day of trial." When the judge persisted in asking when he turned over "the documents" to his client, counsel stated, "Perhaps it's sufficient that we reviewed the file together in preparation for the trial. That ultimately never happened, it resulted in a plea." He went on to say, "So, I don't understand about the [d]iscovery provision. But, perhaps I can leave it at that."

The judge, finding that "there is no colorable claim of innocence" and that defendant "got an enormously beneficial plea agreement[,]" denied defendant's application to withdraw his guilty plea. Defendant persisted in maintaining that if he knew about the inconsistencies in the State's case, he would not have pled guilty. The judge said that defendant "had all the information" and suggested that defendant could file a PCR application if he believed his counsel was ineffective or the sentence illegal.

Defendant did not appeal. Two years later, the same judge reviewed and denied defendant's timely PCR petition. On appeal, defendant raises the following issues

POINT ONE: THE FAILURE OF TRIAL COUNSEL TO REPRESENT DEFENDANT IN HIS MOTION TO WITHDRAW HIS GUILTY PLEA, DEPRIVED DEFENDANT OF HIS CONSTITUTIONAL RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL.

POINT TWO: THE PCR COURT SHOULD HAVE DISQUALIFIED ITSELF FROM PRESIDING OVER THE PCR PROCEEDINGS BELOW BECAUSE IT HAD ALREADY EXPRESSED AN OPINION ON THE MERITS OF DEFENDANT'S MOTION TO WITHDRAW AND THE PERFORMANCE OF TRIAL COUNSEL (NOT RAISED BELOW).

POINT THREE: THE PCR COURT ERRED WHEN IT FAILED TO GRANT DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING.

Defendant's PCR application arises from the application of Rule 3:22-2(a), which permits collateral attack of a conviction based upon a claim of a "[s]ubstantial denial in the conviction proceedings of defendant's rights under the Constitution of the United States or the Constitution or laws of New Jersey[.]" His PCR petition was based on a claim of ineffective assistance of counsel in violation of his right to counsel under the Sixth Amendment of the United States Constitution and Article I, Paragraph ten of the New Jersey Constitution. See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 58 (1987). To establish a claim for a deprivation of effective counsel, generally a defendant must satisfy the two-part Strickland test by demonstrating that: (1) counsel's performance was deficient, i.e., that "counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment[,] and (2) the deficient performance truly prejudiced the defendant's defense. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; see Fritz, supra, 105 N.J. at 58 (adopting the Strickland two-part test in New Jersey).

The New Jersey Supreme Court has outlined a framework to assess claims to withdraw a guilty plea

In evaluating motions to withdraw a guilty plea, trial courts should consider the following 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 150.]

Before sentencing, as here, the standard for plea withdrawal is "the interests of justice." R. 3:9-3(e); see also R. 3:21-1 ("A motion to withdraw a plea of guilty or non vult shall be made before sentencing, but the court may permit it to be made thereafter to correct a manifest injustice."). When application is made before sentencing, "courts are to exercise their discretion liberally to allow plea withdrawals" and "in a close case, the scales should usually tip in favor of defendant." State v. Munroe, 210 N.J. 429, 441 (2012) (citations and internal quotation marks omitted). Nevertheless, defendant has the burden of establishing and demonstrating "a plausible basis for his request and a good-faith basis for asserting a defense on the merits." Id. at 442 (citation and internal quotation marks omitted).

The record here is similar to the situation that confronted us on direct appeal in Barlow, where defense counsel failed to follow the defendant's request to file a motion to withdraw his plea, and also made adverse statements regarding defendant's claims. State v. Barlow, 419 N.J. Super. 527, 535 (App. Div. 2011) (holding that defendant "was deprived of his constitutional right to counsel when his attorney declined to pursue a motion on his behalf to withdraw his guilty plea"). We said in Barlow

R.P.C. 1.2(a) requires, in a criminal case, that defense counsel "shall consult with the client and, following consultation, shall abide by the client's decision on the plea to be entered, jury trial and whether the client will testify." We find implicit in the rule of professional conduct the requirement that counsel abide by a client's determination, after a plea of guilty has been entered, to seek its withdrawal.

[Ibid.]

Additionally, in Barlow we rejected the contention that defendant was not prejudiced because the motion lacked merit. Id. at 537. As our Supreme Court explained in 2011

Where a defendant in practice has been denied the right to be represented by counsel as in the circumstances present here we have no confidence in the uncounseled proceedings below. We cannot know whether defendant might have been able to satisfy the Slater standards with the help of a lawyer.

[State v. Hayes, 205 N.J. 522, 541 (2011).]

Our Supreme Court determined in Hayes that "the only meaningful remedy available is to remand this case to the trial court for a fulsome plea withdrawal hearing at which defendant is to be represented by unencumbered counsel." Ibid. We have noted that proof of harmful error was not a prerequisite to relief in Hayes. State v. Kates, 426 N.J. Super. 32, 48 (App. Div. 2012), aff'd, 216 N.J. 393 (2014).

After a discussion with defendant, the judge analyzed the Slater factors without affording his attorney a chance to speak on behalf of defendant, or even educating defendant about the factors. Given counsel's obvious discomfort in supplying information to the judge that undercut defendant's pro se argument, had he been given the opportunity, defense counsel may have sought an adjournment so that defendant could obtain new counsel to pursue the motion to withdraw his guilty plea based on defendant's delayed opportunity to inspect discovery.

Preventing counsel from participating in the hearing effectively deprived defendant of his right to counsel. Such a deprivation clearly constitutes a "[s]ubstantial denial in the conviction proceedings of defendant's [constitutional] rights[.]" R. 3:22-2(a). We therefore reverse and remand for a hearing on defendant's application to withdraw his guilty plea, assuming he still wishes to do so. We remand to a different judge who has not expressed an opinion as to the merits of this motion. The newly-assigned judge should assess the motion using the pre-sentencing standards for a guilty plea withdrawal.

Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.

1 Burrows is referred to as a patrolman in a police document dated June 24, 2010, although addressed as "Detective" at the Grand Jury proceedings three and one-half months later.

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