STATE OF NEW JERSEY v. MATTHEW CARLEY

NOT FOR PUBLICATION WITHOUT THE
                  APPROVAL OF THE APPELLATE DIVISION

                                     SUPERIOR COURT OF NEW JERSEY
                                     APPELLATE DIVISION
                                     DOCKET NO. A-0908-08T4


STATE OF NEW JERSEY,

     Plaintiff-Respondent,

v.

MATTHEW CARLEY,

     Defendant-Appellant.


         Submitted February 3, 2010 - Decided March 11, 2010

         Before Judges Stern and J. N. Harris.

         On Appeal from the Superior Court of New
         Jersey, Law Division, Passaic County,
         Indictment No. 05-11-1605.

         Aromando, Light & Croft, LLC, attorneys for
         appellant (Benjamin D. Light, of counsel and
         on the brief).

         Camelia M. Valdes, Passaic County
         Prosecutor, attorney for respondent (Steven
         E. Braun, Chief Assistant Prosecutor, of
         counsel and on the brief).

PER CURIAM

     On November 28, 2005, defendant was indicted for first-

degree conspiracy to commit murder, N.J.S.A. 2C:5-2 and N.J.S.A.

2C:11-3; first-degree attempted murder, N.J.S.A. 2C:5-1,

N.J.S.A. 2C:2-6, and N.J.S.A. 2C:11-3; second-degree burglary,

N.J.S.A. 2C:18-2; second-degree possession of a weapon for an

unlawful purpose, N.J.S.A. 2C:39-4(a); third-degree possession

of a handgun without first having obtained a permit to carry the

same, N.J.S.A. 2C:39-5(b); second-degree aggravated assault,

N.J.S.A. 2C:12-1(b)(1); and fourth-degree aggravated assault,

N.J.S.A. 2C:12-1(b)(4). More than twenty-six months later, on

February 15, 2008, defendant negotiated a plea agreement in

which he pleaded guilty to only the charges of first-degree

conspiracy, second-degree burglary, and second-degree possession

of a weapon for an unlawful purpose. In exchange for this plea,

the State agreed to recommend a maximum aggregate sentence of

ten years incarceration subject to the eighty-five percent

period of parole ineligibility mandated by the No Early Release

Act (NERA), N.J.S.A. 2C:43-7.2. Defendant also agreed to provide

truthful testimony at trial against codefendant April Russo.1

     While under oath, defendant gave the following factual

basis to support his plea:

          Q:   All right.  Matt, on August 16, 2005,
          did you know a person by the name of April
          Russo?

          A    I did.

          Q: And you were in a relationship with her,
          correct?


1
  Apparently, following defendant's plea allocution, April Russo
herself entered a plea of guilty, but the fine points of her
arrangement with the State do not appear in the appellate
record.



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A    Yes.

Q:   She was your girlfriend, right?

A    Something of that sort, yes.

Q: Yes. Okay. Now, did you, and she reach
an agreement that her husband, Brian Grogan
would ultimately be killed?

A    Yes.

Q:   And when I say that, you knew that she
wanted that to occur, correct?

A    I had known that she had -- yes, she
had said -- talked about it prior to, yes.

Q:   Many times, right? Yes?

A    Several instances, yes.

Q:   Okay.   Now, on -- August 16, 2005, in
the wee hours of the morning did you go to
the house of Brian Grogan, and April Russo,
located . . . in Clifton, New Jersey?

A    I went to their house that night, yes.

Q:   Okay.  Now you -- you went to the back
door of the house, correct?

A    I went through the garage.

Q:   Okay.   And Ms. Russo met you at the
door, correct?

A:   Yes.

Q: And when you entered into the residence
she gave you a -- gun -- a handgun, correct?

A:   It was in a paper bag, that is correct.

Q:   A McDonald's bag I believe you said?




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                      3

A:   Dunkin Donuts.

Q: Dunkin Donuts. And you took the gun out
of the bag, and you put it in your pocket,
correct?

A:   I put the -- I put it in my pocket,
yes.

Q:   Okay.   Now, you possessed the weapon
with the purpose to use it unlawfully
against Brian Grogan, correct?

A:   If the opportunity arose, yes.

Q:   Okay.    Now, when you went into that
house, the purpose of going into that house
was to effectuate the agreement with Ms.
Russo that Brian Grogan be killed, correct?

(Tape 1 ends; Tape 2 begins)

Q:   .... the stairs, correct?

A:   She did.

Q:   And you went behind her, but only got
part way up the stairs --

A:   No, I was only a couple of steps up.

Q:   Okay.   And, at this point, Mr. Grogan
came out of his bedroom, correct?

A:   It was probably 30-45 seconds later he
came out of the bedroom.

Q:   All right.    And it was at this point
that you, and     he attacked each other,
correct?

A:   It was a little bit later, yes.

Q:   Okay.   Now, you attacked him, and he
also attacked you, believing that you were
an intruder into his home, correct?



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                      4

A:   The -- attacked occurred -- yeah,
upstairs. He came out of the closet, and he
believed I was --

Q:   All right.    You had gone --

A:   -- an intruder.

Q:    -- you had actually gone                  into     the
bedroom of the residence, correct?

A:   I had heard a bang, followed into the -
- the room that he came out of thinking that
something had happened to Ms. Russo, and
went in there to investigate what happened
while both of them were in there, and he
came out of the closet.    We struggled, and
that's when that altercation occurred.

Q: Okay. Now, you hit him several times in
the head with the gun, right?

A    Yes, I did.

Q: And I believe you grabbed him around the
neck, and -- and squeezed on his neck at
some point, too, correct?

A:   Yes.         Right.           Initially        in   the
struggle.

                                  got   the   gun   though,
Q:    Okay.       Now,   he
right?

A:   Yes.

Q:    And at some point he ran down the
stairs, and you ran down the stairs behind
him, right?

A:   Yes.

Q:   And, at this point, he ran out of the
front door, and the police were there,
correct?

A:   That is correct.


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                              5

Q:   And you, of course, were not expecting
the police at all, right?

A:   I had no idea that they were going to
be there, no.

Q:   Okay.   Unbeknownst to you Ms. Russo
phoned the police, or something like that,
right?

A:   Apparently, yes.

Q:   Now, you ran out the backdoor of the
house, correct?

A:   Yes.

Q:   You abandoned your car in front of the
home, correct?

A:   That is correct.

Q:   And you walked home to Scotch Plains,
New Jersey, arriving there sometime later
the next day, right?

A:   That is correct.

MS. KEAN:    I believe that's satisfactory,
your Honor.   I have the conspiracy, and a
substantial step.

Q:    Now -- now Mr. Grogan gave       you   no
permission to be in his home, right?

A:   Mr. Grogan did not give me permission
to be in the home. Ms. -- Mrs. Grogan did.

THE COURT:   Okay.      Are you satisfied with
the factual basis.

MR. DeMARCO: Yes.




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                        6

     Also during this plea allocution hearing, the court

directly spoke with defendant about his three pro se motions to

suppress evidence, which had yet to be resolved:

          THE COURT: Okay. But you realize that by
          pleading guilty you're waiving your right to
          have those motions heard.

          THE DEFENDANT: We discuss[ed] that the other
          day, yes, sir.

          THE COURT: All right. Thank you. All right.
          Ms. Kean, are you satisfied that the
          defendant understands the consequences of
          this guilty plea?

          MS. KEAN: Yes, Your Honor, I - - I am.

          THE COURT: Are you satisfied that this plea
          is   being   entered   into   freely,   and
          voluntarily?

          MS. KEAN: Yes, Your Honor, I am.

After accepting the guilty plea and concluding that it 1) was

the product of the advice given by competent counsel; 2) was

freely and voluntarily obtained; and 3) was not the product of

threats, the court scheduled defendant's sentencing for June 27,

2008, some four months later.

     Prior to the sentencing, however, defendant's new attorney

wrote a letter2 to the court requesting permission for defendant

to withdraw the guilty plea. The court treated the letter as a

2
  Defendant did not include the letter in the Appendix, even
though it served as a surrogate motion and triggered the Law
Division's inquiry into whether to allow defendant to withdraw
his guilty plea. See R. 2:6-1(a)(1)(I).



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motion to withdraw a plea of guilty pursuant to Rule 3:21-1, and

permitted oral argument on the merits of the application on

August 5, 2008. In so doing, defense counsel stated, "in a

nutshell, Mr. Carley has had a lot of time to think about why

he, initially, chose to accept the plea and, basically, he

changed his mind." Counsel continued by explaining, "Mr. Carley

made his decision based on what he was told. He's, since, been

given different advice and he wants to change his mind."

    When pressed by the court as to whether the plea was in

fact voluntarily given, defense counsel finessed the answer by

hinting that the advice given to defendant about his Fourth

Amendment motions was significantly deficient, noting, "he was

told certain things about the potential outcome of th[ose]

motion[s], specifically, that he had very little chance of

succeeding, and therefore, it really wouldn't be worth forcing

the state to go through with it, because then they'll just be

tougher during the plea negotiation stage."

    The court proceeded carefully. Because it did not have a

copy of the transcript of the plea allocution hearing, it

scheduled a second hearing on defendant's motion, which was

conducted on August 13, 2008. After reviewing the transcript,

the court indicated its desire to hear testimony from

defendant's prior attorney, Ms. Kean, regarding the three pro se

motions that defendant had filed while awaiting trial in order


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                               8

to "fully explore what would be the basis for the withdrawal of

the [suppression] motion." Defendant objected, claiming

surprise, and refused to waive his lawyer-client privilege.

N.J.R.E. 504. Neither Ms. Kean nor defendant testified.

     The court noted that the letter requesting permission to

withdraw the guilty plea "doesn't even contain a certification

from, from Mr. Carley, indicating that he wanted to, in fact,

withdraw his motion - - his guilty plea." But when offered an

opportunity to provide the court with "any testimony or anything

you want to produce with respect to the motion to withdraw [the

guilty plea]," defense counsel stated, "[n]o, simply just to

state clearly that my client changed his mind based on different

legal advice." Following this argument, the court thoroughly

analyzed the factual circumstances together with the then-

applicable law, and promptly denied the motion.

     Defendant was sentenced three weeks later on September 4,

2008. The court imposed the agreed-upon aggregate sentence of

ten years subject to the NERA, as contained in the plea

agreement. This appeal followed.

     Defendant presses only one issue on appeal, claiming legal

error in the Law Division's refusal to allow him to withdraw his

guilty plea. We have thoroughly reviewed the arguments presented

by both sides and conclude----notwithstanding the refinements to

plea withdrawal applications imposed by the later-decided case


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                                9

of State v. Slater, 
198 N.J. 145 (2009)----that Judge Philip H.

Mizzone, Jr. reached the correct result. We affirm.

       After the motion practice and sentencing in this case were

completed, the New Jersey Supreme Court considered the standards

that a trial court should employ when deciding a motion to

withdraw a guilty plea.    State v. Slater, supra, 
198 N.J. at
 155.    In Slater, defendant pled guilty to second-degree

possession of cocaine with intent to distribute after the trial

court denied his motion to suppress.    Id. at 151-52.    Twelve

days after pleading guilty, the defendant filed a pro se motion

seeking to withdraw his guilty plea.     Id. at 152.   The trial

court denied the motion, ruling that defendant's change of mind

was not a sufficient basis for withdrawing his guilty plea, and

then imposed a sentence consistent with the plea agreement.        Id.

at 153.     This court affirmed the trial court's denial of

defendant's motion to withdraw his plea, but the Supreme Court

reversed.

       As the Court noted in Slater, trial courts must analyze

four factors when evaluating a motion to withdraw a guilty plea:

            We hold that 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




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         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.

         [Id. at 157-58.]

This multi-faceted test applies to motions filed either before

or after sentencing, but pre-sentence motions are governed by

the more liberal "interest of justice" standard pursuant to Rule

3:9-3(e), while post-sentence motions are subject to a "manifest

injustice" standard pursuant to Rule 3:21-1. Id. at 158.

Regardless of the timing, "'the burden rests on the defendant,

in the first instance, to present some plausible basis for his

request, and his good faith in asserting a defense on the

merits.'" Id. at 156 (quoting State v. Smullen, 
118 N.J. 408,

416 (1990)).

    In this matter, defendant's new attorney told the court

that defendant wanted to withdraw his guilty plea simply because

he changed his mind. Defendant did not submit a certification,

and when given an opportunity to present competent evidence at

the hearing, declined to testify.   Thus, there is not even a

suggestion of innocence advanced by the defense, making the

motion to withdraw the plea largely ineligible for consideration

under Slater. Moreover, defendant's arguments in support of his

motion to withdraw the guilty plea stand in stark contrast to

his statements under oath at the time he originally pleaded



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guilty.   Here, unlike in Slater, the record lacks any evidence

that defendant was coerced into pleading guilty or that he was

dissatisfied with his former attorney. All we know is that the

present attorney apparently has a difference of opinion with

former counsel about the suppression motions. Current defense

counsel's conclusory statements about bad legal advice are

neither persuasive nor expressly endorsed by defendant. Finally,

defendant's mere second thoughts about proceeding to trial are,

on this record, capricious and not sufficient to surmount even

the lesser threshold of serving "the interests of justice." R.

3:9-3(e).

    We appreciate that Judge Mizzone did not have the benefit

of the Court's opinion in Slater when he denied defendant's

motion. Nevertheless, his determination is amply supported by

the record.   Moreover, our independent canvass confirms that

defendant failed to present "a colorable claim of innocence"; he

failed to provide strong reasons for the withdrawal of his

guilty plea; and his plea was part of a negotiated agreement.

Under these circumstances, the first three Slater factors

dramatically favor the State, and thus there is an insufficient

basis to permit defendant to withdraw his guilty plea.

    Affirmed.




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