STATE OF NEW JERSEY v. JERRY P. BUSH

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4837-06T44837-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JERRY P. BUSH,

Defendant-Appellant.

_________________________

 

Submitted January 5, 2010 - Decided

Before Judges Wefing and LeWinn.

On appeal from the Superior Court of New Jersey, Law Division, Hunterdon County, Indictment No. 06-03-0120.

Yvonne Smith Segars, Public Defender, attorney for appellant (Raquel Y. Bristol, Assistant Deputy Public Defender, of counsel and on the brief).

J. Patrick Barnes, Hunterdon County Prosecutor, attorney for respondent (Charles Ouslander, First Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

On March 7, 2006, defendant was indicted on two counts of endangering the welfare of a child, one in the first-degree and the other in the second-degree, N.J.S.A. 2C:24-4(b)(3); and one count of second-degree sexual assault, N.J.S.A. 2C:14-2(b). The conduct described in this indictment consisted of defendant photographing his stepdaughter in sexually suggestive poses for his own gratification, on or about January 2005 and August 2005.

On May 12, 2006, pursuant to a negotiated plea agreement, defendant pled guilty to the second-degree endangering count; the State recommended a six-year sentence and agreed to dismiss the remaining two counts of the indictment. As a result of his plea, defendant was referred for evaluation and examination at the Avenal Diagnostic and Treatment Center pursuant to N.J.S.A. 2C:47-1 to -10; sentencing was adjourned pending receipt of that report.

On December 8, 2006, defendant filed a motion to withdraw his guilty plea on the grounds that he had learned of the State's intent to pursue new charges against him based upon his stepdaughter's claims, revealed in July 2006, that defendant had engaged in sexual activity with her in addition to taking the photographs. Defense counsel certified that, "[h]ad defendant known at the time of his guilty plea that just two months later [his stepdaughter] would accuse him of sexual assault, allegations which he vehemently denies, he never would have entered a guilty plea to the taking of the photographs."

Sentencing was held on January 26, 2007. At the outset of that hearing, the judge heard argument on defendant's motion to withdraw his plea. It appears that defendant had given his attorney a letter for the judge to read. Defense counsel, however, stated that he had advised defendant that it was "against [his] interest to release this letter to the [c]ourt and the prosecutor . . . ." Defendant thereupon stated that he would not give his letter to the judge. Counsel represented that, in his letter, defendant "assert[ed] his innocence of the charges which he pled guilty to . . . ." Counsel also noted that defendant had foregone a possible motion to suppress evidence pertaining to the photographs which, he claimed, were seized in a warrantless search.

In denying defendant's motion, the judge found that "[d]efendant made a knowing[], intelligent[], and voluntar[y] guilty plea." The judge concluded that, "[t]here [was] no plausible showing of a valid defense[,]" and denied defendant's motion. The judge thereupon proceeded to sentence defendant to a term of six years of imprisonment.

On June 19, 2007, defendant was indicted for first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1); and second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a), based upon the new allegations by his stepdaughter. The timeframe during which this conduct allegedly occurred was "on or about October 2003 and on or about August 2005 . . . ." Defendant appealed his sentence pursuant to Rule 2:9-11. On November 20, 2008, we entered an order determining that "this matter is not ready for disposition on oral argument without briefs," and therefore ordered that "this matter [be] postponed until a later date for disposition after full briefing on a regular calendar." This appeal ensued.

On appeal, defendant contends:

THE COURT ERRED IN DENYING THE DEFENDANT'S MOTION TO WITHDRAW HIS GUILTY PLEA, CONTRARY TO PRINCIPLES OF FUNDAMENTAL FAIRNESS, AND REASONABLE EXPECTATIONS UNDERLYING THE GUILTY PLEA. U.S. Const. amends. V, VI, VIII, and XIV; N.J. const. art. I, 1, 10

A. Defendant Asserted A Valid Claim Of Innocence

B. The Nature And Strength of Defendant's Reasons For Withdrawal Are Compelling

C. The Existence Of A Plea Bargain Does Not Mean Defendant's Motion Should Not Have Been Granted

D. Withdrawal Would Not Result In Unfair Prejudice To The State, But Would Restore The Parties To Status Quo Ante

E. The Issuance Of The Subsequent Indictment On The Greater Offense Affects The Knowing Element Of The Plea To The First Indictment On The Lesser Offense.

Having considered these contentions in light of the record and controlling legal principles, we conclude that defendant is entitled to the benefit of a hearing pursuant to the Supreme Court's recent decision in State v. Slater, 198 N.J. 145 (2009), which was decided during the pendency of defendant's appeal.

In Slater, the Court established guidelines governing a trial court's consideration of a defendant's pre-sentence motion to withdraw a guilty plea. Those guidelines include: "(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 would result in unfair prejudice to the State or unfair advantage to the accused." Id. at 150. The Court added:

Consideration of a plea withdrawal request can and should begin with proof that before accepting the plea, the trial court followed the dictates of Rule 3:9-2. But the analysis cannot end there. To evaluate a plea withdrawal motion thoroughly and properly, other pertinent issues must be considered in the context of the specific facts of a case. Such a flexible approach will help to ensure that justice is done in each case.

To begin with, a defendant's application to retract a plea must be considered in light of the competing interests of the State and the defendant. Our case law has long recognized the "important interest of finality to pleas." The State's strong interest in that regard "is in having criminal wrongdoers account and in the finality of that accounting." The victims of an offense also have an obvious interest in the finality of criminal proceedings. At the same time, defendants are entitled to "fairness and protection of basic rights."

To address those concerns, the court rules set forth two standards that are dependent on the time a plea withdrawal motion is made. Motions filed at or before the time of sentencing will be granted in the "interests of justice," R. 3:9-3(e); post-sentencing motions must meet a higher standard of "manifest injustice" to succeed, R. 3:21-1. . . .

. . . .

Under either standard, a plea may only be set aside in the exercise of the court's discretion. Before sentencing, courts are to exercise their discretion liberally to allow plea withdrawals. In a close case, the "scales should usually tip in favor of defendant."

[Id. at 155-56 (citations omitted).]

Notwithstanding that "defendants have a heavier burden in seeking to withdraw pleas entered as part of a plea bargain[,]" id. at 160, the Court "recognize[d] that the vast majority of criminal cases are resolved through plea bargains and d[id] not suggest that this factor be given great weight in the balancing process." Id. at 161. In sum, the Court held: "Trial courts should consider and balance all of the factors discussed above in assessing a motion for withdrawal of a plea. No factor is mandatory; if one is missing, that does not automatically disqualify or dictate relief." Ibid.

In denying defendant's motion to withdraw his plea, the trial judge essentially limited his findings to the provisions of Rule 3:9-2, in concluding that defendant entered into his guilty plea knowingly and voluntarily and gave an adequate factual basis for that plea. As the Court noted in Slater, however, "the analysis cannot end there." Id. at 155.

The trial judge noted that the "[S]tate was unaware of the more serious charges until after the guilty plea was entered . . . ." The judge did not address, however, whether or not the intervening event of the second indictment charging the more serious offense of first-degree aggravated sexual assault, had any bearing upon defendant's plea with respect to the knowledge which informed his decision to enter into that plea. Nor did the judge address defendant's "colorable claim of innocence," id. at 150, that counsel represented was set forth in the letter defendant ultimately decided not to submit to the court.

We are satisfied that, under the circumstances, defendant is entitled to consideration of his pre-sentence motion to withdraw his guilty plea pursuant to the standards articulated in State v. Slater. Therefore, we reverse the trial court's order of January 26, 2007, and remand for further proceedings in conformity with this opinion. We do not retain jurisdiction.

 

Rule 3:9-2 provides that a court "shall not accept" a defendant's guilty plea

without first questioning the defendant personally, under oath or by affirmation, and determining by inquiry of the defendant and others, in the court's discretion, that there is a factual basis for the plea and that the plea is made voluntarily, not as a result of any threats or of any promises or inducements not disclosed on the record, and with an understanding of the nature of the charge, and the consequences of the plea.

(continued)

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A-4837-06T4

RECORD IMPOUNDED

March 31, 2010