STATE OF NEW JERSEY v. PRESTON W. KELL

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5047-04T45047-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

PRESTON W. KELL,

Defendant-Appellant.

________________________________________________________________

 

Submitted July 5, 2006 - Decided July 21, 2006

 

Before Judges Skillman and Lisa.

On appeal from the Superior Court of New Jersey, Law Division, Burlington County, 03-11-0191.

Yvonne Smith Segars, Public Defender, attorney for appellant (Abby P. Schwartz, Assistant Deputy Public Defender, of counsel and on the brief).

Zulima V. Farber, Attorney General, attorney for respondent (Adrienne B. Reim, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Represented by counsel, defendant entered into a plea agreement with the State. He agreed to plead guilty to two counts of a six-count indictment against him, namely count one, second-degree attempted sexual assault, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:14-2c(4), and count three, third-degree luring or enticing a child, N.J.S.A. 2C:13-6. In exchange, the State agreed to recommend concurrent prison sentences of seven and five years respectively on counts one and three, and to move for dismissal of the remaining counts.

The plea was entered before Judge Schlosser on October 19, 2004. At the plea hearing, defendant's attorney explained that he had discussed with defendant the strong evidence against him and the poor chances of a successful result at trial. Counsel also related that he had received a voicemail message from defendant, who was in custody, informing him that he wished to accept the State's offer. Counsel went to the jail, bringing blank plea forms with him for defendant's review. He then made another trip to the jail to visit with defendant about a week prior to October 19, 2004. This time, he brought completed plea forms, which he thoroughly reviewed with defendant. Counsel then went to the jail again on October 18, 2004, and again reviewed the completed plea forms with defendant, and he answered all of defendant's questions. Defendant signed the plea forms.

During the plea hearing, Judge Schlosser explained to defendant that he had no obligation to plead guilty and could go to trial. The judge thoroughly explained the State's burden of proof and all of the rights defendant would be waiving by pleading guilty. Defendant acknowledged his understanding. Defendant also acknowledged that he had reviewed the completed plea forms with his attorney, that he understood them, that his attorney answered all of his questions, and that he felt the plea agreement was the best alternative for him. He also acknowledged that no one threatened or coerced him in any way to induce him to plead guilty to counts one and three. Defendant acknowledged he was not under the influence of any substances, he was thinking clearly, and he had enough time to talk to his attorney and make his plea decision. Defendant acknowledged that he was satisfied with the advice and services of his attorney, and that he was pleading guilty voluntarily.

Defendant pled guilty, and gave sworn testimony constituting an adequate factual basis supporting his guilt on both counts. Judge Schlosser accepted the plea.

After some delay occasioned by the scheduling and conducting of the necessary psychological evaluation at the Adult Diagnostic and Treatment Center, the matter came before the court for sentencing on March 11, 2005. Defendant had filed a number of pro se motions, including a motion to withdraw his guilty plea. At that hearing, when defendant began to present his arguments, he stated that he was "feeling totally overwhelmed and just not feeling good." Judge Schlosser adjourned the matter to a new date to accommodate defendant's apparent condition. The parties returned to court on March 30, 2005. Defendant asserted two bases in support of his motion to withdraw his guilty plea. First, he contended that his son, with whom he had had no contact for some period of time, came to see him in the jail and begged him "to find a way out of [his] situation." He told his son he would try to find a way. Defendant contended that as a result of this encounter with his son, he "felt trapped and felt [he] had no choice but to call [his] lawyer to plead guilty . . . ." Because his son came to see him several days after his attorney asked whether he had had any contact with his son, defendant was suspicious that his attorney had set up the meeting. Defendant acknowledged that he had no evidence of this.

Defense counsel represented that he had no knowledge of the name of defendant's son, did not know where he lived, and did not know his telephone number or how to reach him. The judge rejected defendant's unsupported suspicion that his attorney had anything to do with his son coming to the jail. The judge found that the meeting between defendant and the son, assuming it occurred and transpired in the manner described by defendant, provided no basis for withdrawal of the plea.

The second basis asserted by defendant was that his attorney "at times kept [him] confused about some issues, okay, about what strategy he wanted to use, okay. When [defendant] asked him questions of the case he would make -- some of the answers would be redirected, okay, elsewhere." Defendant felt his attorney should have given him "more options" and that "[p]hone calls would go unanswered leaving [defendant] to anxiety attacks and depression."

The judge rejected this basis as well, finding "no indication that [defense counsel] did anything other than what an appropriate attorney doing everything for his client's betterment could have done. And he did talk with Mr. Kell and gave him his options and indicated as he has candidly said, hey, this is a pretty tough case."

After denying defendant's motion to withdraw his guilty plea and the other motions defendant had filed, the judge imposed sentence. He sentenced defendant to seven years imprisonment on count one and a concurrent four years (one year below the recommendation in the plea agreement) on count three. The judge ordered that defendant serve his sentence at the Adult Diagnostic and Treatment Center.

Defendant appealed, and presents the following argument:

THE DENIAL OF DEFENDANT'S PRE-SENTENCE MOTION TO WITHDRAW HIS GUILTY PLEA WAS AN ABUSE OF THE TRIAL COURT'S DISCRETION.

This argument lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We have carefully reviewed the entire record, including the transcripts of the various court proceedings, including the plea hearing on October 19, 2004, and the hearings at which defendant's motion to withdraw his plea was considered on March 11, 2005, and March 30, 2005. We are satisfied that Judge Schlosser's finding that the plea was knowingly and voluntarily entered is well supported by the record.

We note that in his effort to withdraw his plea, defendant did not proffer a valid defense or assert his innocence. See State v. Gonzalez, 254 N.J. Super. 300, 303 (App. Div. 1992). With respect to the alleged pressure from defendant's son, we first note that the comments attributed to the son could as easily be understood to suggest that defendant should go to trial to bring his case to a conclusion. Even if the son made those comments and defendant interpreted them as urging him to plead guilty, that interaction would not constitute a basis for vacating a plea. The relevant question in such circumstances is not whether a defendant was "sensitive to external consideration - many defendants are - but instead whether the decision to plead was voluntary, i.e., a product of free will." State v. Simon, 161 N.J. 416, 443 (1999) (citation omitted). As we have stated, the record makes clear that defendant's plea was a product of his free will.

We find no merit to defendant's allegations of deficient conduct by his attorney. His vague and conclusory complaints lack persuasive force, particularly because he did not refute the detailed representations made by his attorney regarding their numerous meetings and discussions, during which counsel thoroughly explained the evidence, the law, the chances of success, and the advantages and disadvantages of accepting the plea agreement as opposed to going to trial.

We affirm defendant's conviction and the denial of the motion to vacate his guilty plea substantially for the reasons expressed by Judge Schlosser in his oral decision rendered on March 30, 2005.

Affirmed.

 

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A-5047-04T4

RECORD IMPOUNDED

July 21, 2006