STATE OF NEW JERSEY v. ROBERT LEE STANTON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3276-10T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ROBERT LEE STANTON

a/k/a RAKIM L. MORRIS,

Defendant-Appellant.

__________________________________

October 18, 2012

Submitted September 24, 2012 - Decided

Before Judges Graves and Guadagno.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment Nos. 04-11-2666, 04-11-2667, and 04-11-2681.

Joseph E. Krakora, Public Defender, attorney for appellant (Arthur J. Owens, Designated Counsel, on the brief).

Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Barbara N. Suppa, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Robert Stanton appeals from the August 6, 2010 Law Division order that denied his petition for post-conviction relief (PCR). In his petition, defendant asserted that trial counsel rendered ineffective assistance by failing to advise him of the consequences of an "open" guilty plea and that he would be sentenced to an extended term. Defendant's PCR petition also asserted that had he known he was eligible for an extended term he would not have entered a plea of guilty. We agree with the PCR judge, Richard W. English, that defendant was made fully aware of his sentencing exposure when he entered his guilty plea, and he received effective assistance of counsel. We affirm.

On November 10, 2004, a Monmouth County grand jury returned three indictments against defendant, each charging him with one count of second degree robbery. N.J.S.A. 2C:15-1. The third indictment also charged defendant with conspiracy to commit robbery. N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1.

The State proceeded to try defendant on the first of the three indictments. After two days of trial before Hon. Francis P. DeStefano, and just before the State called its last witness, the defendant informed his trial counsel that he wished to enter guilty pleas to all three indictments. Counsel informed the judge that "the plea offer by the State is to plead to the other two indictments, 15 years NERA concurrent, and he would be pleading guilty open-ended to this matter." Judge DeStefano remarked, "I can't stop him from pleading guilty open-ended; that I can't do." Defendant responded affirmatively.

After defendant was sworn, he acknowledged his signature on the plea form and admitted he reviewed the form with his attorney. Judge DeStefano then cautioned defendant that if he had a "whimsical change of mind" and tried to retract the plea, the judge would not look favorably on that as the State's case was almost concluded. The judge then questioned defendant extensively on his understanding of the plea agreement:

[Y]ou are pleading guilty open-ended, meaning there's no plea bargain. You can get up to 10 years on that and the State can ask for an extended term because of your record, and it's up to me as to whether I'm going to grant that. You could get another 10 years on top of it or 20 years in state prison. Do you understand that?

Defendant answered "Yes" and acknowledged that he understood the sentence could be subject to the No Early Release Act. After the prosecutor confirmed that the State would be moving for an extended term of fifteen years, the judge questioned defendant and confirmed that he understood that possibility. Defendant then provided a factual basis for his guilty plea, admitting that on the three dates in question he1 robbed three Monmouth County banks, obtaining cash each time.

On December 9, 2005, defendant appeared for sentencing and moved to withdraw his guilty plea. He claimed there was a missing videotape and if he had known of the videotape, "he would have wanted to view that before he entered a plea of guilty on the third one[.]" The prosecutor denied that there was any missing videotape. Judge DeStefano denied defendant's motion, finding that there was no basis to withdraw the plea. The judge then granted the State's motion for imposition of an extended term and sentenced defendant on the first robbery to twenty years incarceration with an eighty-five percent period of parole ineligibility. Concurrent ten year sentences were imposed on the other two robberies.

On October 16, 2006, defendant moved for a reduction of his sentence before our excessive sentencing panel. We affirmed the trial court, finding that the sentence was not manifestly excessive or unduly punitive and did not constitute an abuse of discretion. We also found that the trial court did not abuse its discretion in refusing to permit defendant to retract his guilty plea.

On January 31, 2007, our Supreme Court granted defendant's petition for certification, State v. Stanton, 189 N.J. 425 (2007), and remanded for resentencing in light of State v. Pierce, 188 N.J. 155 (2006). The remand was "limited solely to the sentencing issue raised by defendant."

On April 13, 2007, defendant appeared for resentencing. Judge DeStefano considered defendant's extensive record and determined that he met the definition of a persistent offender. The judge then weighed the aggravating and mitigating factors to determine the base of the extended term and re-imposed the same sentence.

Defendant appealed and on November 13, 2008, we affirmed, finding that the sentence was not manifestly excessive or unduly punitive and did not constitute an abuse of discretion. Defendant then filed this PCR petition. On August 6, 2010, Judge English denied the petition without a hearing.

On appeal, defendant raises the following issues:

POINT I

THE POST-CONVICTION RELIEF COURT ERRED IN FINDING THAT DEFENDANT WAS NOT ENTITLED TO WITHDRAW HIS GUILTY PLEA UNDER THE FOUR FACTORS SET FORTH IN STATE V. SLATER, 198 N.J. 145 (2009).

A. DEFENDANT HAS ASSERTED A COLORABLE CLAIM OF INNOCENCE

B. DEFENDANT HAS DEMONSTRATED THE SUBSTANTIAL NATURE AND STRENGTH OF HIS REASONS FOR WITHDRAWAL OF HIS GUILTY PLEA

C. THE GUILTY PLEA WAS ENTERED PURSUANT TO A PLEA BARGAIN

D. WITHDRAWAL OF THE GUILTY PLEA WOULD NOT RESULT IN UNFAIR PREJUDICE TO THE STATE OR UNFAIR ADVANTAGE TO THE ACCUSED

POINT II

THE POST-CONVICTION RELIEF COURT ERRED IN FAILING TO GRANT DEFENDANT AN EVIDENTIARY HEARING ON THE ISSUE OF INEFFECTIVENESS OF TRIAL COUNSEL

In addressing a withdrawal of a guilty plea, our Supreme Court has set forth the following standard:

[T]rial judges are to consider and balance four factors in evaluating motions to withdraw a guilty plea: (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.

[State v. Slater, 198 N.J. 145, 157-58 (2009).]

At oral argument on his PCR petition, defendant claimed miscommunication with his trial counsel as to what his sentencing range could have been. Although not pleaded as such, Judge English recognized this claim was, in fact, alleging ineffective assistance of counsel and engaged in a thorough analysis under the standards established in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Judge English then noted that Judge DeStefano had covered the details of this plea with the defendant "very exhaustively" because it was entered in the midst of trial:

[T]his was not a plea on a regular Monday where you're just taking a plea after negotiations. This was a plea that was done while a trial was going on. Judge DeStefano took pains to make sure that Mr. Stanton understood what he was pleading guilty to and understood what open-ended meant. The plea transcript was 20 pages.

Judge English found defendant failed to establish a prima facie case of ineffective assistance of counsel.

In considering defendant's motion to withdraw his plea, Judge English comprehensively evaluated the Slater factors, noting that defendant did not assert a colorable claim of innocence. In analyzing the nature and strength of defendant's reasons for withdrawing, the judge reviewed the evidence of defendant's guilt that had already been presented at trial and termed it "overwhelming." The judge noted that, but for one witness, the State's case had been completed. "Once a jury has been chosen and sworn, and a plea interrupts the trial, withdrawal should only be permitted in the rarest of circumstances." Slater, supra, 198 N.J. at 161. Granting withdrawal of the plea would result in unfair prejudice to the State based on the amount of time between the original plea in 2005 and his 2010 petition for PCR in which he sought to withdraw the plea. See State v. Munroe, 210 N.J. 429, 443 (2012) ("[I]n calculating any lost opportunity to the State, ordinarily we look to the intervening time between the entry of the plea and the hearing on the withdrawal motion."). We see no reason to disturb these findings.

Judge English was also correct in denying the PCR petition without a hearing. A person making a prima facie showing of entitlement to PCR relief by demonstrating a reasonable likelihood that his or her claim will ultimately succeed on the merits is generally entitled to an evidentiary hearing. State v. Preciose, 129 N.J. 451, 463 (1992). Without such a showing, no evidentiary hearing is required. State v. Cummings, 321 N.J. Super. 154, 170-171 (App. Div.), certif. denied, 162 N.J. 199 (1999).

A

1 Defendant acted alone on the first two robberies and with another on the third.