STATE OF NEW JERSEY v. CHARLES WELCH

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3808-10T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CHARLES WELCH,

Defendant-Appellant.

__________________________________

October 26, 2012

Submitted October 16, 2012 - Decided

Before Judges Harris and Hoffman.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 07-08-0858.

Joseph E. Krakora, Public Defender, attorney for appellant (Jacqueline E. Turner, Assistant Deputy Public Defender, of counsel and on the brief).

Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney for respondent (Stacey M. Geurds, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Charles Welch appeals from the October 22, 2009 judgment of conviction that imposed a sentence of twenty-two years imprisonment subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. We affirm.

After being indicted for the murder of Robert DeLoach and two weapons offenses, Welch pled guilty to first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a). In exchange, the State promised that it would recommend a term of imprisonment not to exceed twenty-two years, subject to the NERA.

During the sworn plea allocution, the issue of self-defense was examined. After Welch answered affirmatively that he was acting in self-defense, the following colloquy occurred:

Q. Well, you shot [the victim] once, right?

A. Once?

Q. You shot him you started out by shooting him one time, right?

A. Yes.

Q. What happened after that?

A. I kept shooting.

Q. You kept shooting. Okay. And how many shots did you fire?

A. Six.

Q. Okay. So, after the first shot hit him, what happened to him?

A. He ran.

Q. Okay. And he started running away from you?

A. Yes.

Q. And what happened, did the second shot hit him?

A. I don't know.

Q. Okay. And did he eventually fall?

A. No. He kept running.

Q. After you shot him?

A. Yes.

Q. Did he run away from you entirely?

A. Yes.

Q. So, while he was running away, you shot him in the back?

A. Yes.

THE COURT: Okay. It would seem to me that the defendant was no longer acting in self-defense if he was shooting the victim while he was fleeing.

[ASSISTANT PROSECUTOR]: That's correct.

Prior to sentencing, Welch moved pursuant to Rule 3:21-1 to withdraw the plea of guilty. In support of his motion, Welch claimed that his multiple gunshot attack upon a rival gang member was, notwithstanding the plea allocution, animated by self-defense. The Law Division found that Welch "shot a man who had no gun, who did nothing to him, didn't see a gun, didn't see him do anything threatening, didn't hear him say anything threatening. And then when the victim started to run away, he shot him in the back."1 Consequently, the motion to withdraw the plea was denied and sentence was imposed pursuant to the plea arrangement. This appeal followed.

Welch presents the following two arguments for our consideration:

POINT I: THE TRIAL JUDGE ERRED IN DENYING THE DEFENDANT'S PRE-SENTENCING MOTION TO WITHDRAW FROM HIS GUILTY PLEA.

POINT II: THE DEFENDANT'S SENTENCE IS EXCESSIVE.

Our review of the record convinces us that the Law Division acted properly in both denying Welch's motion and in imposing the twenty-two-year NERA sentence. Welch's arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We nevertheless add these brief comments.

To assure that justice is served, a trial court must consider and balance four factors when evaluating a motion 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. Munroe, 210 N.J. 429, 442 (2012) (citing State v. Slater, 198 N.J. 145, 157-58 (2009)). "No single Slater factor is dispositive; 'if one is missing, that does not automatically disqualify or dictate relief.'" State v. McDonald, 211 N.J. 4, 16-17 (2012) (quoting Slater, supra, 198 N.J. at 162).

We are satisfied that the Law Division properly weighed these factors, taking special note that, unlike in Slater and Munroe, Welch's statements of his conduct negated self-defense as an issue that should be reserved for a jury.

Appellate review of a sentence is limited. State v. Miller, 205 N.J. 109, 127 (2011). Our basic responsibility is to assure that the aggravating and mitigating factors found by the Law Division are supported by competent, credible evidence in the record. State v. Bieniek, 200 N.J. 601, 608 (2010). As directed by the Court, we must (1) "require that an exercise of discretion be based upon findings of fact that are grounded in competent, reasonably credible evidence[;]" (2) "require that the factfinder apply correct legal principles in exercising its discretion[;]" and (3) "modify sentences [only] when the application of the facts to the law is such a clear error of judgment that it shocks the judicial conscience." State v. Roth, 95 N.J. 334, 363-64 (1984).

The record supports aggravating factors one, three and nine,2 as well as the conclusion that those aggravating factors substantially outweighed mitigating factors twelve and thirteen.3 The Law Division applied the correct legal principles in sentencing Welch, and the mid-range sentence for a first-degree crime that resulted in the death of the fleeing victim does not shock our judicial conscience.

Affirmed.

1 At sentencing, which occurred on the same day that the plea withdrawal motion was argued and decided, Welch exhorted the court with the following statement:

And oh, my victim, you kept saying my victim got shot in his back. He never got shot in his back. He only got shot in his chest. He got shot three times in his chest; he never got shot in his back, so he never got shot while he was running.

2 N.J.S.A. 2C:44-1(a)(1) (nature and circumstances of the crime); -1(a)(3) (the risk defendant will commit another offense); -1(a)(9) (the need to deter defendant and others from violating the law).

3 N.J.S.A. 2C:44-1(b)(12) (willingness to cooperate with law enforcement authorities); -1(b)(13) (a youthful defendant was substantially influenced by another person more mature than defendant).