STATE OF NEW JERSEY v. JON DANIEL GREEN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2134-05T42134-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JON DANIEL GREEN,

Defendant-Appellant.

__________________________________________

 

Submitted April 25, 2007 - Decided May 18, 2007

Before Judges Collester and Lyons.

On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 04-12-1300.

Yvonne Smith Segars, Public Defender, attorney for appellant (Jean M. Hartmann, Designated Counsel, of counsel and on the brief).

Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Jason D. Saunders, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant, Jon Daniel Green, appeals from a judgment of conviction entered against him following the entry of a guilty plea to third-degree theft by unlawful taking in violation of N.J.S.A. 2C:20-3a. The following factual and procedural history is relevant to our consideration of the issues advanced on appeal.

On August 20, 2004, while incarcerated in Gloucester County, defendant was arrested for the theft of a stump grinder from a commercial establishment. On December 2, 2004, defendant was indicted by a Burlington County grand jury and charged with third-degree theft by unlawful taking.

On June 3, 2005, defendant pled guilty. At the time of the plea, the prosecutor advised the court that the plea agreement called for a four-year State prison sentence, with one-year to be served without parole eligibility. In addition, the prosecutor stated that the sentence was to run concurrent with defendant's sentences arising from charges in Gloucester County and Atlantic County. The prosecutor also required an order of restitution as part of the plea agreement and the payment of statutory fines and penalties, a waiver of right to appeal, and a DNA sample.

Defendant proceeded pro se but was accompanied by stand-by counsel throughout the entry of the plea, the subsequent motion to withdraw the plea, as well as the sentencing. Defendant was questioned under oath by the court to explore the voluntariness of the plea, as well as defendant's understanding of the plea. In particular, defendant was asked, "Are you entering into this plea agreement freely, voluntarily," and he answered "yes." In addition, the court reviewed the three page plea form signed by defendant. The sentence the prosecutor agreed to recommend was written on the plea form. It called for a four-year State prison term, with one-year of parole ineligibility; the sentences in the Burlington matter to run concurrent with defendant's Gloucester County and Atlantic County sentences; full restitution to the victim, with the amount determined pursuant to a court ordered restitution report; and the payment of statutory fines and penalties. The plea form, in question 20, specifically asked if there were any other promises or representations that had been made to defendant by anyone regarding the plea. The written answer to the question was simply the additional requirement that defendant waive his right to appeal and provide a DNA sample. In response to question 21, which asked whether any promises other than those mentioned on the form had been made, the answer was "no."

During the court's questioning of defendant, the court carefully explained that, if the Burlington County sentence was imposed before either Gloucester or Atlantic County, the court could not make its sentence concurrent with one that had not yet been imposed and that the court would do its best to accommodate defendant in that regard. Defendant then raised the point that he was seeking credits for the seven months he had been incarcerated in Gloucester County. Defendant stated that if he did not get credit for the seven months, he would not take the plea. The court then asked,

Q. . . . Did you serve time here in this county?

A. No.

Q. Then why are you entitled to gap time credit?

A. I was charged two days after I was arrested in Gloucester. The day after I was arrested in Gloucester County, I was arrested for this charge. They came to the jail. I have not been sentenced in any other court on the time that I served. See, that detainer was against me at the time. So whoever gets it first.

Q. There's no double counting though. Do you understand?

A. For which now? I haven't been sentenced on anything yet.

Q. But at some point if you were in Gloucester County, as result of that Gloucester County charge and you're trying to pick up time on this Burlington County sentence, I don't believe you can get credit for both. So the Gloucester County -- whatever deal you strike in Gloucester County --

A. Wipes out the seven months?

Q. I don't think you're going to get credit for both. In one of the cases you're going to get wiped out.

A. Well, then, in this case I'd rather go to trial.

Q. Let's find out.

A. Thing is if I get sentenced here and you guys grab their time, then I lost out in Gloucester.

Q. You might.

A. I'd rather go to trial. I get gap time, which is seven months gap.

The court, following this colloquy, took a recess. Upon returning to the matter, the following dialogue took place:

The Court: "Let's go back to the Green matter. What's the situation with the credits?

Mr. Williams (defendant's stand-by counsel): There are none. We will move forward with the plea.

Examination by the court:

Q. Mr. Green, your attorney just indicated that there are no jail credits but you're going to move forward?

A. Yes.

Q. And you understand that?

A. Yes.

Q. You said just before the break that you want to withdraw --

A. I'm tired.

Q. It's not a matter of being tired. It's a matter of whether or not you're guilty of a crime.

A. Yeah.

Q. Are you guilty of this crime?

A. Yes.

Q. So you are not going to make any - - no legal maneuver. No motion. No application to withdraw the plea based upon jail credits; is that right?

A. Correct.

Following this exchange, the court then established the factual basis on the record. Defendant, under oath, stated that he had taken the stump grinder, that its value was in excess of $500 and that he took the property with the intention of depriving the owner of it permanently.

On September 30, 2005, the court entertained a motion from defendant seeking to withdraw his plea. Defendant argued that he had a promise from the State that the sentence in this Burlington matter would not cause him to serve any time in addition to the time he was already serving on the Atlantic and Gloucester County matters, and he now realized that that was not the case and that he would have to serve an additional seven months on his period of parole ineligibility and, therefore, he wished to withdraw his plea. At oral argument on the motion, defendant pointed out to the court his earlier statement at the plea hearing that he was going to withdraw his plea unless he got gap time credit. The court, however, astutely pointed out that that was prior to the recess and prior to the defendant agreeing and understanding that there would be no credits. Defendant further argued that he was denied his constitutional rights to due process because the court and prosecutors had failed to acknowledge "consequential moving papers."

The trial court denied defendant's application and proceeded to sentence him in accordance with the plea agreement. The court noted that defendant had thirty-nine separate arrests and that this was his seventh indictable conviction. The court ordered restitution stating, "[t]he restitution is a substantial amount, a stump grinder having been brand new when you took it and caused the loss of $5,000. The stump grinder having been worth in excess of $20,000." The court's conclusion as to damages apparently came, not from a restitution hearing, but from information set forth in the adult pre-sentence report. In that report, the victim had advised the probation officer that the stump grinder was "brand new and therefore had to be sold as used (as he is a dealer) causing a loss of $5,000." Following the entry of the judgment of conviction, this appeal ensued.

On appeal, defendant presents the following arguments for our consideration:

POINT I

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO WITHDRAW HIS GUILTY PLEA.

POINT II

THE IMPOSITION OF RESTITUTION WAS IMPROPER.

A. Restitution was imposed Without the Restitution Report Required by the Plea Agreement and State in the Interest of D.G.W.

B. Restitution was Imposed Without a Hearing to Determine the Amount of Loss and Defendant-appellant's Ability to Pay, a Statement of Facts considered, and the

Conclusions of Law Relied Upon.

We begin our consideration of defendant's argument by restating applicable reasonable principles.

R. 3:21-1 provides that a motion to withdraw a plea of guilty "shall be made before sentencing, but the court may permit it to be made thereafter to correct a manifest injustice." The first step in our analysis, therefore, is to examine the law permitting plea withdrawals.

The Supreme Court has held that:

[w]here a plea of guilty has been entered it may not be withdrawn except pursuant to leave granted in the exercise of the court's discretion. State v. Deutsche, 34 N.J. 190, 197 (1961). In exercising its discretion, the court must weigh the policy considerations which favor the finality of judicial procedures against those which dictate that no man be deprived of his liberty except upon conviction after a fair trial or after the entry of a plea of guilty under circumstances showing that it was made truthfully, voluntarily and understandingly.

[State v. Herman, 47 N.J. 73, 76-77 (1966).]

The Court has held that "'defendant's burden of presenting a plausible basis for his request to withdraw his guilty plea is heavier' when the plea is entered pursuant to a plea bargain." State v. Smullen, 118 N.J. 408, 416 (1990) (quoting State v. Huntley, 129 N.J. Super. 13, 18 (App. Div.), certif. denied, 66 N.J. 312 (1974)).

Defendant argues that he pled guilty "based upon the State's representations and his understanding that he would not serve any prison time in excess of that which he would serve on Atlantic and Gloucester County sentences imposed prior to his sentencing on this charge." There is absolutely no support for that whatsoever in the record. Throughout his guilty plea hearing, the trial judge patiently and thoroughly questioned defendant. The record clearly indicates that the plea terms were understood by defendant and that he knowingly and willingly entered into the agreement. The issue of the seven months he had served in Gloucester County and any credit for same was thoroughly explored and he was advised that there may be no credit for that time on this sentence.

We are satisfied from our review of the record as a whole that defendant was not misinformed but, to the contrary, was clearly advised as to the terms of his plea arrangement by the court. His plea was knowing and voluntary.

Defendant also argues that the trial court did not consider defendant's pro se pre-trial motions. This point is without merit. See R. 2:11-3(e)(2).

Defendant further argues that the imposition of restitution was improper because there was no court ordered restitution report and restitution was imposed without a hearing to determine the amount of the loss or defendant's ability to pay. In addition, the record, defendant argues, is devoid of a statement of facts considered and conclusions of law. "Restitution is proper only when the loss sustained by a victim is the direct result of the criminal offense." State v. Newman, 132 N.J. 159, 169 (1993). In imposing restitution, "the court must balance the goals of victim-compensation and offenders-rehabilitation, and thoughtfully establish a fair and reasonable amount of restitution and method of payment." Id. at 173. "Due process is satisfied by affording defendant a hearing on the amount of restitution as prescribed in D.G.W., [ 70 N.J. 488 (1976)] and where there is a factual basis in the record to support the court's determination of the amount of restitution." State v. Harris, 70 N.J. 586, 599 (1976). The Court in Harris went on to note that the foundation for the factual basis should be an investigative determination of the extent of the loss by the probation department as reflected in the pre-sentence report. Ibid. The determination of the amount of restitution, if otherwise in compliance with the due process formula of D.G.W., should be accepted except in the case of an abuse of discretion. Ibid.

In D.G.W. supra, 70 N.J. at 505-506, the Court said that prior to the time of sentencing, the contents of the probation report should be made available to defendant and at the sentencing hearing, defendant could object to any material statement of fact contained therein and present evidence necessary for the proper resolution of the issue.

In the instant case, the pre-sentence report merely reflects that the probation officer spoke with a representative of the owner of the stump grinder and was told that a loss of $5,000 was incurred because the machine was new and had to be sold as used. The trial judge simply recited that at the time of sentencing. While we have recognized that the owner of personal property can give his estimate of the value of his property, we have also held that it is up to the trier of fact to determine the probative value of that testimony. State v. Rhoda, 206 N.J. Super. 584, 594 (App. Div.), certif. denied, 105 N.J. 524 (1986). In this case, there is little evidence to support the $5,000 assessment of damage other than the assertion of the owner. There is nothing in the record showing the value of the stump grinder as new, nor is there any evidence of what the grinder sold for. Likewise, there is no finding on the record of an ability to pay, although the report indicates defendant is a high school graduate and was running a business. Consequently, the matter is remanded for a restitution hearing so that the court can determine the amount of loss as well as defendant's ability to pay.

 
Accordingly, defendant's judgment of conviction is affirmed, with the exception of the order for restitution, which is remanded to the trial court for further proceedings.

We recognize that the hearing may result in a larger, smaller, or the same amount of restitution. See Rhoda, supra, 206 N.J. Super. at 592 (noting that an increase in defendant's restitution following remand of restitution order for reconsideration did not violate defendant's double jeopardy rights since restitution is not technically punishment for a crime as defendant is merely being required to restore what he took).

(continued)

(continued)

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A-2134-05T4

May 18, 2007