STATE OF NEW JERSEY v. RODNEY STEWART

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4845-04T44845-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RODNEY STEWART,

Defendant-Appellant.

_______________________________

 

Submitted October 31, 2007 - Decided

Before Judges Wefing and R. B. Coleman.

On appeal from Superior Court of New Jersey,

Law Division, Camden County, No. 03-06-2102-I.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Ingrid A. Enriquez, Designated

Counsel, on the brief).

Joshua M. Ottenberg, Acting Camden County

Prosecutor, attorney for respondent (Robin A.

Hamett, Acting Assistant Prosecutor, of counsel

and on the brief).

PER CURIAM

Defendant entered a negotiated plea of guilty to one count of disarming a law enforcement officer, N.J.S.A. 2C:12-11, a crime of the first degree, and was sentenced to twelve years in prison, subject to the provisions of the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2. Defendant has appealed. After reviewing the record in light of the contentions advanced on appeal, we affirm.

A twenty-nine count indictment was returned against defendant, which included, in addition to the charge to which defendant pled guilty, one count of second-degree criminal attempt to escape, N.J.S.A. 2C:5-1, 2C:29-5(a); one count of first-degree attempted murder, N.J.S.A. 2C:5-1, 2C:11-3(a); one count of third-degree aggravated assault upon a police officer, N.J.S.A. 2C:12-1(b)(5); six counts of fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(4); six counts of second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1); six counts of third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(2); one count of second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); one count of third-degree theft, N.J.S.A. 2C:20-3; and five counts of issuing or passing a bad check, N.J.S.A. 2C:21-5(a), one in the fourth degree and four in the third degree.

Defendant was arrested on March 20, 2003, following a complaint by Haddon Savings Bank that he had attempted to pass a series of bad checks. After defendant was in custody on these charges, he complained of chest pains and was transported to the hospital for examination. While there, he became involved in an altercation with one of the officers who had accompanied him to the hospital. The two struggled with one another, landing on the floor in a hallway of the emergency department. While they were fighting, defendant was able to take possession of the officer's gun, which discharged during their struggle. Fortunately, no one was injured by the bullet. One of the attending physicians came to the aid of the officer and assisted in subduing defendant. Defendant was twenty years old at the time. According to his pre-sentence report, he had several juvenile dispositions, but this was his first adult conviction.

When defendant appeared before the trial court for sentencing, he moved to withdraw his guilty plea. The trial court denied his motion and proceeded to sentence defendant in accordance with the terms of the negotiated agreement. Defendant has appealed and makes the following arguments:

POINT I THE COURT'S FAILURE TO ORDER A PLENARY HEARING TO ADDRESS ALLEGATIONS THAT THE PLEA WAS THE PRODUCT OF MISGUIDANCE FROM HIS TRIAL LAWYER WAS AN ABUSE OF DISCRETION.

POINT II THE COURT ABUSED ITS DISCRETION IN DENYING DEFENDANT'S REQUEST TO WITHDRAW HIS GUILTY PLEA PRIOR TO SENTENCING.

POINT III THE DEFENDANT'S SENTENCE VIOLATED THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION.

POINT IV THE COURT BELOW ERRED IN FAILING TO PROPERLY CREDIT DEFENDANT WITH A MITIGATING FACTOR.

We reject these arguments and affirm.

We perceive no necessity for the trial court to have conducted a plenary hearing with respect to defendant's contention that he did not enter his plea voluntarily but was coerced by his lawyer to do so. Defendant's contentions in this regard fly in the face of the plea transcript, in which defendant told the trial court that he was entering his plea voluntarily, that no one had pressured him to plead guilty and that he was satisfied with the advice he had received from his attorney. It has not escaped our notice, moreover, that during the argument on defendant's motion, when the State requested that defendant be placed under oath if he were going to make any statements to the court, since he had been under oath at the time he pled guilty, defendant elected not to say anything further. In that posture, a plenary hearing would not have served any purpose.

Similarly, we are satisfied that the trial court in no way abused its discretion when it denied defendant's motion to withdraw his guilty plea. A motion to withdraw a plea of guilty is addressed to the sound discretion of the court; in deciding such a motion,

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).]

Although there is authority for the proposition that such discretion is exercised more liberally when defendant makes such a motion prior to sentencing, State v. Deutsch, 34 N.J. 190, 198 (1961), there is an "important interest of finality to pleas." State v. Smullen, 118 N.J. 408, 416 (1990). Thus, "'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." Ibid. (quoting State v. Huntley, 129 N.J. Super. 13, 18 (App. Div. 1974)).

Here, defendant did not present such a plausible basis. His assertion that he did not intend to hurt anyone with the firearm is immaterial to the charge to which he pled guilty. As in Smullen, "there was an understandable change of mind by defendant, but little more to commend itself to the discretion of the court." Id. at 417.

We also reject defendant's arguments with respect to his sentence. The principles enunciated in State v. Natale, 184 N.J. 458 (2005), upon which defendant relies, are inapplicable for two reasons. The sentence defendant received was not above the then-existing presumptive sentence for a first-degree crime but was, rather, below it. Further, this court has held that a defendant who is sentenced in accordance with the terms of a negotiated agreement is not thereafter entitled to be resentenced under Natale. State v. Soto, 385 N.J. Super. 247, 255 (App. Div. 2006). Finally, the mitigating factor to which defendant points, that he would likely respond to probationary treatment, is inapplicable since defendant pled guilty to a first-degree crime, requiring his incarceration.

Affirmed.

 

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A-4845-04T4

December 10, 2007