STATE OF NEW JERSEY v. DERRICK MOORE

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1911-09T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DERRICK MOORE,

a/k/a JAMES MOORE,

Defendant-Appellant.

__________________________________

Submitted May 10, 2011 Decided June 28, 2011

Before Judges Wefing and Koblitz.

On appeal from Superior Court of New Jersey,

Law Division, Atlantic County, Docket No. 03-07-1349.

Derrick Moore, appellant pro se.

Theodore F.L. Housel, Atlantic County Prosecutor,

attorney for respondent (Jack J. Lipari, Assistant

County Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant appeals from a trial court order denying his motion to withdraw his previously entered plea of guilty. After reviewing the record in light of the contentions advanced on appeal, we reverse and remand for further proceedings.

Defendant was charged with two counts of aggravated sexual assault, two counts of sexual assault, and two counts of endangering the welfare of a child. In October 2004, he entered a negotiated plea of guilty to two counts of sexual assault, and the prosecutor agreed to recommend a sentence of ten years incarceration on each count, to be served concurrently and subject to the parole disqualification provisions of N.J.S.A. 2:43-7.2, the No Early Release Act (NERA). On January 28, 2005, the trial court sentenced defendant in accordance with that recommendation. Defendant appealed, disputing the amount and allocation of credits to which he was entitled. We rejected defendant s argument and affirmed. State v. Moore, No. A-4639-04 (App. Div. Sept. 21, 2006).

In October 2009, defendant filed a motion with the trial court seeking to withdraw his guilty plea. The trial court denied his motion in an order dated November 6, 2009, and this appeal followed.

We reverse the trial court order and remand for further proceedings because the trial court did not address the merits of defendant s motion. Rather, it expressed the view that defendant s motion was not cognizable at this time. We are unable to understand this reference by the trial court.

Motions to withdraw a plea of guilty are governed by Rule 3:21-1. The rule distinguishes between the standard to be applied in the case of a motion to withdraw a guilty plea that is filed prior to sentencing and a motion to withdraw a guilty plea that is filed subsequent to sentencing. It does not create a time bar for such a motion to be filed.

If the trial court viewed defendant s motion as a petition for post-conviction relief under Rule 3:22, it was still timely as it was filed within five years of defendant s conviction. R. 3:22-12.

As the trial court did not address the merits of defendant s application, in particular whether defendant had satisfied the criteria enunciated in State v. Slater, 198 N.J. 145 (2009), to be entitled to withdraw his guilty plea, we decline to do so in the first instance.

The order under review is reversed, and the matter is remanded to the trial court for further proceedings.