STATE OF NEW JERSEY v. ISMAEL CATHCART

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-00987-12T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ISMAEL CATHCART,

Defendant-Appellant.

___________________________________

August 12, 2015

Argued December 2, 2014 Decided

Before Judges Nugent and Accurso.

On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 07-10-8551.

Susan Remis Silver, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Silver, of counsel and on the brief).

Sara B. Liebman, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Grace H. Park, Acting Union County Prosecutor, attorney; Ms. Liebman, of counsel and on the brief).

PER CURIAM

Defendant Ismael Cathcart pled guilty to aggravated manslaughter and two counts of aggravated assault, and the trial court sentenced him to serve an aggregate twenty-five-year prison term subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. He appeals from the judgment of conviction and makes three arguments: his plea to aggravated manslaughter was not supported by an adequate factual basis; the trial court erred by denying his motion to withdraw his plea; and his sentence was excessive. Finding no merit in defendant's arguments, we affirm.

A Union County grand jury charged defendant in an eleven-count superseding indictment with murder, attempted murder, two counts of aggravated assault, six weapons offenses, and theft. On the day the parties were to begin selecting a jury for his trial, defendant pled guilty to an amended charge of first-degree aggravated manslaughter, N.J.S.A. 2C:11-4, an amended charge of second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1), and third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(2). In exchange, the State agreed to recommend a sentence of twenty-five years subject to NERA on the aggravated manslaughter offense and concurrent custodial terms of seven years subject to NERA on the second-degree aggravated assault offense and four years on the third-degree aggravated assault offense. The State also agreed to dismiss the indictment's remaining counts.

After entering the plea but before being sentenced, defendant retained new counsel and moved to withdraw his plea. Following a lengthy delay, the court conducted a four-day hearing on defendant's motion to withdraw his plea. The court denied defendant's motion in a written opinion and thereafter sentenced him in accordance with the negotiated plea.
Defendant raises these issues for our consideration

POINT I

the trial court erred when it denied defendant's motion to revoke his plea since the plea lacked an adequate factual basis to support an aggravated manslaughter conviction.

(Not raised below).

POINT II

the trial court erred when it concluded that defendant did not meet the four-pronged slater test to withdraw a plea.

point iii

The trial court referenced facts not on the record, failed to weigh mitigating factorS, and iMPOSED an excessive sentence.

We first address defendant's argument that the trial court should have permitted him to withdraw his plea to aggravated manslaughter because the factual basis did not establish the elements of that offense. Conceding that the "offense [of reckless manslaughter] . . . is actually supported by the facts in this case[,]" defendant argues that he did not admit facts from which the court could have concluded he disregarded a probability, as distinguished from a possibility, of death. We disagree.

On the morning defendant's trial was scheduled to begin, defendant, dissatisfied with his attorney, sought an adjournment to retain new counsel. The court denied the motion. Later that day, defendant pled guilty to three crimes, aggravated manslaughter and two counts of aggravated assault. During defendant's plea colloquy, after the court questioned defendant to determine that he was entering his plea knowingly and voluntarily, defendant testified to the factual basis for each offense. For the aggravated manslaughter offense, defendant admitted that the shooting occurred during an argument with the victim in her apartment, an argument that at least to some degree had become physical. During the argument, he wielded a loaded gun that he had kept under a bed. From a distance of approximately three or four feet, with his finger on the trigger, defendant pointed the gun at the victim's head. The victim grabbed the gun and it fired, causing her death. Defendant acknowledged that pointing a gun at someone's head under such circumstances created a "substantially dangerous situation." When asked how dangerous, defendant responded, "[i]t caused her death."

As to the second-degree aggravated assault offense, defendant admitted that approximately six weeks before the victim's death, in the same apartment, he put a plastic bag over her head to scare her. He acknowledged that putting a plastic bag over someone's head could cause suffocation and he said he was aware of a substantial risk that the bag could have prevented her from breathing. In response to questioning by the court, defendant admitted that he knowingly and purposefully put the plastic bag over the victim's head in an attempt to cause her serious bodily injury. He also acknowledged that serious bodily injury is defined as bodily injury that creates a substantial risk of death.

Lastly, as to the third-degree aggravated assault, defendant admitted that during an altercation with the victim earlier on the same day he put a plastic bag over her head he purposely and knowingly attempted to cut the victim with a knife.

A person commits the offense of aggravated manslaughter when that person "recklessly causes death under circumstances manifesting an extreme indifference to human life." N.J.S.A. 2C:11-4(a)(1).

A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the actor's conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a reasonable person would observe in the actor's situation. "Recklessness," "with recklessness" or equivalent terms have the same meaning.

[N.J.S.A. 2C:2-2(b)(3).]

The trial court accepted defendant's guilty plea to aggravated manslaughter, finding that there was an adequate factual basis for the plea. Our review of the adequacy of the factual basis for the plea is de novo. State v. Tate, 220 N.J. 393, 403-04 (2015). That is so because "[a]n appellate court is in the same position as the trial court in assessing whether the factual admissions during a plea colloquy satisfy the essential elements of an offense." Id. at 404. "When reviewing the adequacy of the factual basis to a guilty plea, the trial court is not making a determination based on witness credibility or the feel of the case, circumstances that typically call for deference to the trial court." Ibid.

The "law requires that each element of the offense be addressed in the plea colloquy." State v. Campfield, 213 N.J. 218, 231 (2013) (citing State ex rel. T.M., 166 N.J. 319, 333-34 (2001)). A defendant may establish the foundation of each element by "either explicitly admit[ting] guilt with respect to the elements or . . . 'acknowledg[ing] . . . facts constituting the essential elements of the crime.'" Id. at 231 (quoting State v. Sainz, 107 N.J. 283, 293 (1987)). "[T]he defendant's admissions 'should be examined in light of all surrounding circumstances and in the context of an entire plea colloquy.'" Id. at 231-32 (quoting T.M., supra, 166 N.J. at 327).

A defendant has acted with the requisite state of mind for aggravated manslaughter when the defendant was "'aware of and consciously disregarded a substantial risk of death, i.e., a probability that death would result, and that the defendant manifested extreme indifference to human life.'" State v. Jenkins, 178 N.J. 347, 362 (2004) (quoting State v. Cruz, 163 N.J. 403, 417 (2000)) (emphasis in original); see also Campfield, supra, 213 N.J. at 233 n.1. Here, we conclude that defendant admitted to facts constituting the essential elements of the crime.

Pointing a loaded gun at another's face or head during a heated altercation, at times physical, may in and of itself constitute a conscious disregard of a probability that the gun will discharge and death will result. We need not decide that question, however, because here the escalating nature of defendant's conduct toward the victim elevated the prospect of the victim's death to a probability once defendant introduced a loaded gun into one of their heated and at times physical altercations.

Defendant had once attempted to stab the victim with a knife, and later put a plastic bag over her head, attempting to cause her serious bodily injury, that is, injury creating a substantial risk of death. His ability to control his emotions was marginal and the seriousness of his attacks was escalating. Although defendant did not kill the victim when he attempted to stab her or when he attempted to suffocate her, the likelihood of her death rose to a probability when, in the heat of an altercation that at times became physical, defendant pointed a deadly weapon, namely, a loaded gun, at her head. In view of the previous attacks, it was probable either that he would shoot her in the head or that one of them would be fatally wounded in a struggle over the gun. Considering defendant's factual admissions in light of all the surrounding circumstances and in the context of an entire plea colloquy, the facts defendant admitted constituted the essential elements of the crime. Campfield, supra, 213 N.J. at 231-32.

Following his plea but before being sentenced, defendant hired a new attorney and filed a motion to withdraw his plea. For reasons not entirely clear from the appellate record - though it appears that after undertaking an investigation the attorney became ill - the hearing on defendant's motion occurred nearly three years later, at which time defendant was represented by yet another attorney. Defendant testified and presented the testimony of the two attorneys who represented him from his arrest through his plea, as well as the testimony of an investigator. Following a four-day hearing, the court denied defendant's motion.

The parties developed the following proofs at the hearing. The homicide occurred on May 29, 2007. Defendant's first attorney, a public defender, represented defendant from June or July 2007 through March 2008, when he had to withdraw due to a conflict. During that period, the attorney first represented defendant on an indictment stemming from the prior acts of domestic violence and later represented defendant on the superseding homicide indictment.

Before discontinuing his representation, the attorney evaluated the case. Defendant had given a statement to the police and the statement was very damaging. The statement apparently included references to the domestic violence incidents. The attorney discussed defendant's statement as well as the possibility of a severance of the charges for trial.

According to the attorney, he told defendant a jury did not have to believe defendant's statement that the victim grabbed the gun and it accidentally went off. The attorney also told defendant that, if the case proceeded to trial, murder was a possible verdict, aggravated manslaughter a likely verdict, and manslaughter an "outside shot."

Defendant was disinclined to plead guilty, especially if the State insisted on twenty or more years. Defendant claimed that the victim had threatened him and that she could throw a punch. Defendant also claimed that he had many witnesses who could attest to the victim's aggressive behavior. The attorney never contacted any of the witnesses, however, because he knew he would have to withdraw from the case. According to the attorney, he had noted in the file that the new attorney should contact him, although his successor never did.

The superseding attorney, a "pool" attorney, represented defendant from April 2008 through his plea in July 2009, when he turned over his file to defendant's third attorney. The pool attorney recalled that when he received the file he thought the withdrawing attorney told him that the case was one that should be pled, but defendant was not happy "with the number," though he "was kind of understanding of the reason why the case should plead." Defendant, however, said he was innocent. In defendant's mind, the shooting was accidental and might have been caused by the victim. But the pool attorney became concerned because defendant was inconsistent in his versions. At one point defendant said that there had been a struggle for the gun and the gun went off; at another point he said the gun went off and he could not explain why.

According to counsel, defendant understood that his version opened the door to the previous incidents, which a court would likely admit to negate defendant's claim that the shooting was accidental. The court would have to decide whether to admit evidence of defendant's prior acts, but if the court permitted the State to prove them, the jury would not like defendant much. Nevertheless, counsel and defendant decided to explore a strategy demonstrating that the victim was not afraid of defendant and was sometimes the aggressor in the domestic disputes.

Counsel also discussed with defendant the difference between murder and aggravated manslaughter. Counsel informed defendant that a jury could believe his version of the events and still find him guilty of aggravated manslaughter. Notwithstanding counsel's advice, in defendant's mind the shooting was an accident and defendant felt he could not be held responsible for the severity of that accident.

The pool attorney also testified that, though he did not remember reviewing defendant's statement with defendant line by line, he did inform defendant there was little likelihood that the statement would be suppressed at a Miranda1 hearing.

The last pre-trial conference took place on May 4, 2009. One week later, counsel contacted the public defender's office and requested that an investigator interview witnesses who defendant had named as people who could attest to the victim's aggressive behavior. Counsel spoke to the investigator on May 21. Trial was scheduled for July 6.

As of July 6, the first scheduled trial date, counsel had received nothing from the investigator. Defendant had become unhappy, feeling that the attorney was doing nothing to develop a defense.

Under cross-examination, counsel reiterated that he thought there was little likelihood of a court suppressing defendant's statement. The statement had been videotaped, defendant had been advised of his rights, and defendant did not appear to exhibit any signs of significant intoxication. Counsel stated that it would be difficult to cross-examine witnesses about the knife and bag incident not happening when defendant had admitted them in his statement.

Additionally, counsel had requested an investigator to provide information about the trigger pull on defendant's handgun. Counsel had also discussed the issue with a lawyer who was a licensed firearms dealer. The information counsel received from literature and reports indicated the trigger on defendant's handgun was "a double action nine pound pull." Counsel concluded that "it was a fairly significant pull required to fire that weapon[,]" and such information "[w]ould not have really helped the allegation that it fired by accident[.]"

The Public Defender's investigator testified that the pool attorney's investigation request was received in the office on May 11, 2009, with a requested return date of May 29, 2009. She opened her file on May 21, 2009. She telephoned the attorney and requested phone numbers. He said he would get her additional information. In the interim, the investigator left phone messages for some witnesses and sent the witnesses contact letters.

On May 25 or 26, the attorney provided the investigator with the phone number of defendant's grandfather, who was going to assist her in contacting witnesses. The investigator first spoke with defendant's grandfather on July 14, 2009, the day defendant pled guilty. The investigator testified that between the date she received the assignment and July 14 when defendant pled guilty, she probably told the attorney she had not heard from any witnesses.

Defendant's attorney had provided the investigator with the names of five people. She understood the purpose of interviewing the witnesses was to determine the relationship between the victim and defendant, and to determine whether the witnesses would verify that the victim was not afraid of defendant. Only one of the witnesses contacted the investigator. That witness said he could offer her nothing. The witness scheduled an appointment to meet with investigator but never kept it.

In addition to witnesses, the investigator received an inquiry from defendant's counsel about the "trigger pull" and "hammer slide" on defendant's handgun. The investigator had received a "Firearm's Identification Unit lab report." The attorney wanted to know if the "trigger pull" and "hammer slide" on defendant's gun were easy. She pulled some information from the internet and spoke with a co-worker who had some experience with guns. She learned that the trigger pull on defendant's gun was nine pounds.

The investigator became aware that defendant pled guilty on July 14, 2009, when defendant's mother called her, upset. The mother had read an article in the newspaper that her son had taken a plea. The investigator originally thought the mother had been somehow misinformed. To satisfy herself, the investigator purchased a newspaper and saw the same story. She called defendant's counsel and said she was still working the case. He had never advised her of the trial date, nor had he ever expressed any urgency about her investigation. Two weeks after defendant pled guilty, the investigator closed her file.

Defendant claimed that he received the State's discovery from his first attorney but the attorney and he never reviewed it together. His pool counsel did not discuss with him the statement he had given to police, did not interview any witnesses, and never discussed trial strategy. Defendant had provided the names of witnesses to the attorney in November 2008.

On July 14, 2009, the date defendant pled guilty, he told his attorney that the attorney was unprofessional for not telling defendant they had a trial that day, was incompetent, and that he, defendant, did not want to go to trial with the attorney. Defendant believed: the attorney had done no investigation, had not prepared for the Miranda hearing, spoke to no witnesses, and did not contact a gun expert. Consequently, defendant felt like he was forced to enter his plea.

Defendant was asked twice why he pled guilty. The first time he said: "Because I felt like I was forced to plead. I was given two options either to plea or go to trial and face life. Well, I took the plea."

Shortly after so testifying, and after explaining that he had written to the Public Defender's office and to the court for an adjournment so that he could get new counsel, he said: "Again, because . . . I felt like I was coerced into making a guilty plea. I had no other choice whether either to take the [twenty-five] with an [eighty-five] percent, or to go to trial with a lawyer that did nothing and want [sic] not." Defendant insisted, "I'm not guilty of murder."

According to defendant, whenever the attorney spoke to him about a plea, the range was always in the area of twenty years. Defendant said that he would rather go to trial.

On cross-examination, defendant admitted that his first attorney told him that murder was a possible verdict, aggravated manslaughter likely, and manslaughter an outside shot. Defendant also acknowledged that before entering his guilty plea, he spoke with his attorneys sixteen or seventeen times about his case, understood that the prior domestic violence incidents might come into his trial, and that his lawyers told him the prior incidents would be damaging. Defendant also admitted that the gun involved was his, he possessed it when the incident occurred, the gun was loaded, the victim was not armed, the victim was shot in the head, and defendant's finger was on the trigger. Defendant also conceded that if the gun indeed had a "double-trigger pull" it would hurt his defense.

Defendant also acknowledged that the attorney he had retained to help him withdraw his plea different from his present attorney could obtain no statement from any witness to support defendant's claim that the victim was aggressive toward him. Moreover, defendant's current attorney had an investigator interview his family members as well as the witnesses his pool attorney had tried to contact. Those witnesses gave no information about the victim being aggressive. In fact, defendant acknowledged the five witnesses, "kind of contradict what [defendant] had to say."

Based on the foregoing evidence, the court denied defendant's motion to withdraw his guilty plea. The court concluded defendant had "set[] forth a colorable claim of innocence to murder, which is not relevant to this analysis because he did not plead guilty to murder." The court further concluded that the defendant's own statement, notwithstanding his protestations of innocence to the contrary, did not set forth a colorable claim of innocence to aggravated manslaughter.

The court did not find defendant's reason for wanting to withdraw his plea that his attorney was unprepared to proceed to trial and defendant faced the choice of either going to trial with a lawyer who was not ready or pleading guilty to be compelling. Rather, the court found that defense counsel was ready, willing, and able to proceed to trial. That defendant thought he would fare better with a privately-retained lawyer was not a factor to which the court gave great weight. Although defendant claimed defense counsel had not taken appropriate steps to secure testimony from witnesses to establish that defendant and the victim fought frequently, the victim did not fear him, and the victim was often the aggressor, what the witnesses would say was ultimately a matter of speculation.

The court noted that defendant had produced no witnesses to testify at the hearing and had provided no certifications or affidavits. The court determined from the evidence presented that defendant's witnesses appeared not to be interested in being found or cooperating with the defense. The court concluded that what the witnesses had to say would be of little or no value.

Lastly, the court noted that the plea bargain was entered on the morning jury selection was scheduled to begin, when both sides were fully prepared to go to trial, and when both sides had invested considerable time and effort preparing for trial.

After carefully considering all of the foregoing factors, the court denied defendant's motion to withdraw his plea. We affirm, substantially for the reasons explained by the trial court. We evaluate the trial court's decision under the four-prong test set forth in State v. Slater, 198 N.J. 145, 157-58 (2009): "(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 [will] result in unfair prejudice to the State or unfair advantage to the accused." We review such a Slater determination for an abuse of discretion, "because the trial court is making qualitative assessments about the nature of a defendant's reasons for moving to withdraw his plea and the strength of his case and because the court is sometimes making credibility determinations about witness testimony." Tate, supra, 220 N.J. at 404.

The issue of whether defendant should have been permitted to withdraw his pleas was admittedly a close call. For the same reasons we expressed in rejecting defendant's argument that the factual basis for his plea was inadequate, we agree entirely with the trial court's analysis of the first Slater factor that defendant did not present a colorable claim of innocence to aggravated manslaughter.

Concerning the second Slater factor, the strength of defendant's reasons for withdrawal is debatable. Although he claims he had no confidence in his attorney proceeding to trial, mostly due to his attorney's failure to conduct an adequate investigation, defendant has offered no proof that a more thorough investigation would have made any difference in establishing a viable defense.

During the years between defendant's plea and the hearing on his motion to withdraw it, two attorneys and an investigator were unable to produce testimony or a certification from even one witness supporting defendant's claims about the victim's aggression. Nor were the attorneys able to produce data or testimony to refute the State's evidence that defendant's gun had a double-action trigger with a nine-pound pull, facts defendant conceded would undermine his defense. And defendant admitted that when the victim was shot, he had a loaded gun pointed at her head with his finger on the trigger.

Defendant testified at the plea hearing that he took the plea because his choice was to risk a murder conviction or take the plea. Based on the proofs the parties presented at the hearing, defendant would face the same choice today even after two additional attorneys have had more than ample opportunity to investigate his claims.

As to the third and fourth Slater factors, there was a plea bargain, but the hearing did not demonstrate any facts that suggest a strong likelihood of either unfair prejudice to the State or an unfair advantage to defendant had he been permitted to withdraw his plea.

Ultimately, we must determine whether the court abused its discretion in denying defendant's motion. In view of at least two, and possibly three Slater factors militating against permitting defendant to withdraw, and even recognizing that "[b]efore sentencing, courts are to exercise their discretion liberally to allow plea withdrawals[,]" Slater, supra, 198 N.J. at 156, we cannot conclude the court abused its discretion by denying defendant's motion.

In his final argument, defendant claims that he must be re-sentenced because the trial court referenced facts not on the record, failed to weigh mitigating factors, and imposed an excessive sentence. We review the imposition of a sentence under a deferential standard, being careful not to substitute our judgment for that of the trial court. State v. O'Donnell, 117 N.J. 210, 215 (1989). We will

affirm the sentence unless (1) the sentencing guidelines were violated; (2) the aggravating and mitigating factors found by the sentencing court were not based upon competent and credible evidence in the record; or (3) "the application of the guidelines to the facts of [the] case makes the sentence clearly unreasonable so as to shock the judicial conscience."

[State v. Fuentes, 217 N.J. 57, 70 (2014) (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)).]

When we review a trial court's determination of aggravating and mitigating factors, we will remand for resentencing if the court "fails to provide a qualitative analysis of the relevant sentencing factors on the record," or "the trial court considers an aggravating factor that is inappropriate to a particular defendant or to the offense at issue." Ibid. (citations omitted). The aggravating and mitigating factors found by the trial court must be based on "competent, reasonably credible evidence." Roth, supra, 95 N.J. at 363.

Applying these principles to the trial court's reasons for imposing defendant's sentence, we conclude that defendant's arguments are without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). Defendant was sentenced in accordance with the terms of his plea bargain. "A sentence imposed pursuant to a plea agreement is presumed to be reasonable because a defendant voluntarily '[waived] . . . his right to a trial in return for the reduction or dismissal of certain charges, recommendations as to sentence and the like.'" Fuentes, supra, 217 N.J. at 70-71 (quoting State v. Davis, 175 N.J. Super. 130, 140 (App. Div.) certif. denied, 85 N.J. 136 (1980)). Defendant's claim that the trial court relied on facts outside the record is based mostly on defendant's misconstruing the record by taking the court's comments out of context. Defendant's argument concerning mitigating factors related to the victim's conduct are based on defendant's continuing misapprehension of the nature of his own conduct as well as his ongoing refusal to accept responsibility for his own actions. For those reasons, we reject his argument that his sentence is excessive.

Affirmed.

1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).