STATE OF NEW JERSEY v. ROGER PAUL FRYE Before Judges Carchman, Baxter and Nugent On appeal from the Superior Court of New Jersey, Law Division, Camden County, Municipal Appeal No. 43-09 Roger Paul Frye, ,

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4290-10T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ROGER PAUL FRYE,

Defendant-Appellant.

______________________________

T

May 16, 2012

elephonically argued January 18, 2012 - Decided

 

Before Judges Carchman, Baxter and Nugent.

 

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Municipal Appeal No. 43-09.

 

Roger Paul Frye, appellant, argued the cause pro se.

 

Jason Magid, Assistant Prosecutor, argued the cause for respondent (Warren W. Faulk, Camden County Prosecutor, attorney; Mr. Magid, of counsel and on the brief).

PER CURIAM

In this appeal from an order of the Law Division on a trial de novo from the Borough of Haddon Heights Municipal Court, affirming defendant Roger Paul Frye's conviction for Refusal to Submit to a Chemical Test, N.J.S.A. 39:4-50.4a (the refusal), the narrow issue presented in the Law Division was whether defendant could withdraw his guilty plea. The Law Division judge answered the question in the negative. While we agree that there were procedural defects in the various proceedings before the municipal court, we conclude that any errors were harmless, defendant was aware of the consequences of his plea, and the Law Division judge properly denied his motion to withdraw his plea, as well as his petition for post-conviction relief (PCR). Accordingly, we affirm.

These are facts relevant to the issues before us. On December 19, 2008, defendant, an attorney, was arrested and charged with Driving While Intoxicated (DWI), N.J.S.A. 39:4-50; the refusal statute; and Reckless Driving, N.J.S.A. 39:4-97. Following an unsuccessful motion to suppress, defendant, who was represented by counsel, entered into a plea agreement whereby the State agreed to dismiss the DWI and reckless driving offenses in exchange for defendant entering a guilty plea as to the refusal offense.

During the plea colloquy, defendant acknowledged his right to plead not guilty, his right to a trial, and the State's obligation to prove the charges beyond a reasonable doubt. He also indicated that he was waiving these rights.

The following colloquy ensued. Defendant confirmed that he had been stopped by a police officer, but then denied any recollection with respect to his subsequent interaction with police at the time of the motor vehicle stop under the premise that his poor memory was due to a medical condition. With respect to the administration of the Alcotest, defendant, once again, clearly recalled certain aspects and then claimed no recollection when questioned by the municipal court:

[Court]: . . . . At some point in time you were taken back to the police station on that evening?

 

[Defendant]: Yes, Your Honor.

 

[Court]: Okay. And were you asked to submit to a breath test, sir?

 

[Defendant]: Yes, Your Honor.

 

[Court]: . . . . And do you remember the officer reading to you a statement about the breath test?

 

[Defendant]: Yes, Your Honor.

 

[Court]: And advising you of what your obligation was under the law?

 

[Defendant]: Yes, Your Honor.

 

[Court]: And when he read that statement to you, Mr. Frye, what was your reply to that?

 

[Defendant]: I don't recall, but apparently I refused to take the test.

 

[Court]: Okay. And do you recall being read a second part of the statement after you did not agree to take the test the first time?

 

[Defendant]: Yes, Your Honor.

 

[Court]: Okay. And was there any change in . . . your position? That is, did you agree or not agree to take the test after that second statement was read?

 

[Defendant]: Apparently I did not agree to take the test.

 

[Court]: Okay. You're telling me that you don't have a clear recollection of this?

 

[Defendant]: Not . . . a hundred percent crystal clear recollection, no.

 

[Court]: Sir, do you feel that at the time the officer was reading this statement to you, and when he asked you to submit to the breath test that you understood what he was saying?

 

[Defendant]: Possibly, possibly I didn't. Probably, probably I didn't.

 

Based upon defendant's responses to the municipal court's questions with regard to his performance or lack thereof with respect to the Alcotest, plea counsel then inquired of defendant:

[Plea Counsel]: Mr. Frye, did you [] even though you indicated to the [c]ourt that you refused to take the test, did you eventually attempt to take the test?

 

[Defendant]: Apparently I did, yes.

 

[Plea Counsel]: You recall attempting to take the test?

 

[Defendant]: Yes.

 

[Plea Counsel]: Did you follow the officer's instructions as he gave them to you?

 

[Defendant]: Apparently I did not.

 

[Plea Counsel]: Do you recall not following the officer's instructions?

 

[Defendant]: Yes.

 

[Plea Counsel]: And do you recall . . . the officer asking you to try again, at least on two occasions?

 

[Defendant]: Okay, yes.

 

[Plea Counsel]: And on both of those occasions do you recall not following the officer's instructions?

 

[Defendant]: Yes, sir.

As a result of defendant's equivocation and lack of direct responsiveness to counsel's inquiries, the judge had both the arresting officer and testing officer sworn. They then proceeded to describe the circumstances leading to defendant's arrest. The officers presented extensive testimony regarding defendant's conduct, including information that defendant agreed to take the test but on three occasions failed to provide an adequate breath sample, and on the fourth attempt, he sucked inward rather than blowing into the tube. Critically, after the officers testified, defense counsel was afforded an opportunity to cross-examine the various witnesses. Ultimately, the judge accepted the plea, found that the State had established beyond a reasonable doubt that defendant had refused to take the test, and because this was defendant's third alcohol-related offense, among other terms of the sentence, suspended defendant's driving privileges for a period of ten years.

Defendant, thereafter, filed a motion for reconsideration of the sentence. The judge denied defendant's motion, concluding that defendant's two prior DWI convictions could be considered in imposing the sentence. The judge rejected defendant's reliance on our decisions in Statev. Tekel, 281 N.J. Super. 502 (App. Div. 1995), as well as State v.DiSomma, 262 N.J. Super. 375 (App. Div. 1993).

The judge also, at a later time, denied defendant's motion to withdraw his guilty plea based on defendant's assertion that he was unaware of the ten-year loss of driving privileges when he entered his guilty plea. The municipal judge denied that application based on the facts that had been elicited at the plea hearing.

At the trial de novo in the Law Division, defendant asserted, among other things, that he had been coerced into a guilty plea. He further claimed that if he had been aware of the ten-year loss of driving privileges, he would not have pled guilty. In his decision denying defendant's motion as to the voluntariness of defendant's plea, the Law Division judge found that defendant was aware of the ten-year suspension before the imposition of sentence. He observed that defendant stated at the sentencing: "I realize that rules are rules, and you have certain obligations under the law that you have to follow . . . . but to lose my license for ten years is a very harsh thing . . . . if there was any way . . . to make it less [of] a license suspension, I would appreciate it." The judge concluded that defendant was aware of the suspension, and the result would not have changed even if the municipal judge had "spelled out the consequences of receiving a ten-year license suspension."

Finally, the judge denied defendant's motion to withdraw his plea, concluding that defendant had failed to meet the four-prong test enunciated in State v. Slater, 198 N.J. 145 (2009). The judge found defendant guilty and imposed the same sentence as that imposed in the municipal court.

Following his trial de novo, defendant again appeared in the Law Division seeking PCR1 in part, not only asserting that the sentence was contrary to the Supreme Court's decision in State v.Ciancaglini, 204 N.J. 597 (2011), but also alluding to ineffective assistance of counsel. The Law Division judge denied that relief.

On appeal, defendant raises the following issues:

POINT I

THE SUPERIOR COURT, LAW DIVISION, HON. RONALD J. FREEMAN, J.S.C., IMPOSED AN ILLEGAL SENTENCE WHEN HE SENTENCED DEFENDANT TO A TEN[-]YEAR LOSS OF DRIVING PRIVILEGES, UNDER THE RECENT SUPREME COURT CASE OF [STATEv. CIANCAGLINI], 204 [N.J.] 597, 10 [A.3d] 870 (2011), WHICH HELD THAT THE PENALTY PROVISIONS IN [N.J.S.A.] 39:4- 50 AND 39:4-50.4a ARE NOT INTERCHANGEABLE.

 

POINT II

 

THE COURT ACCEPTED A GUILTY PLEA ON THE CHARGE OF REFUSAL TO TAKE A BREATHALYZER FOR WHICH THERE WAS NO FACTUAL BASIS AND WHICH WAS OTHERWISE INCONSISTENT WITH THE LAW OF THIS STATE AS ENUNCIATED BY THE SUPREME COURT; THIS ERROR CONSTITUTES A "MANIFEST INJUSTICE" AND DEFENDANT MUST BE ALLOWED TO WITHDRAW THIS ILLEGAL PLEA.

 

POINT III

 

THE COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS EVIDENCE BASED ON SPOLIATION.

 

POINT IV

 

THE SENTENCE IMPOSED BY THE COURT WAS CONTRARY TO LAW EVEN PRIOR TO THE SUPREME COURT'S DECISION IN [CIANCAGLINI, SUPRA.,]ANDITSHOULDBESETASIDEACCORDINGLY.

 

POINT V

 

THEDEFENDANTWASREPRESENTEDBYINEFFECTIVECOUNSEL WHO FAILED TO ZEALOUSLY REPRESENT DEFENDANT'S INTERESTS AND WHO DID NOT PROPERLY ADVISE DEFENDANT OF THE CONSEQUENCES OF HIS PLEA.

 

POINTVI

 

DUE TO THE "SERIOUS CONSEQUENCES" OF THE PENALTIES ULTIMATELY IMPOSED AGAINST DEFENDANT, NAMELY, TEN[-]YEAR LOSS OF LICENSE TO A [FIFTY-EIGHT-YEAR-OLD] MAN, THIS CASE SHOULD BE HEARD BY A JURY OF DEFENDANT'S PEERS.

 

POINTVII

 

UNDER [STATE v. MARQUEZ], 202 [N.J.] 485, 998 [A.2d] 421 (2010), A REFUSAL CONVICTION CANNOT BE SUSTAINED IF THE DEFENDANT DOES NOT UNDERSTAND THE INSTRUCTIONS FOR THE TAKING OF THE BREATHALYZER.

 

We have reviewed the record as well as defendant's arguments, and with the exception of the withdrawal of the plea and the claim of ineffective assistance of counsel, we conclude that the claims raised in Points I, III, IV, VI and VII are without merit and do not require any further discussion. R. 2:11-3(e)(2).

We focus our attention on the two extant issues. Both the consideration of a withdrawal of a plea, as well as the guarantee of assistance of counsel, implicate discrete, yet related, principles. We first address the issue of the withdrawal of the plea.

The Supreme Court recently reiterated the principles enunciated in Slater and said:

Slater, supra, sets forth a four-prong test by which to gauge a defendant's motion to withdraw a guilty plea. It provides that

 

trial 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.

 

[198 N.J. at 157-58 (citation omitted).]

 

It also explains that although "[t]he same factors are to be used for motions filed either before or after sentencing," whether the motion is made pre- or post-sentencing, "will trigger different burdens of proof for the movant[.]" Id. at 158. It underscores that "pre-sentence motions to withdraw a plea are governed by the 'interest of justice' standard in Rule 3:9-3(e), while post-sentence motions are subject to the 'manifest injustice' standard in Rule 3:21-1." Ibid.

 

[Statev. Hayes, 205 N.J. 522, 534-35 (2011).]

 

In considering defendant's motion to withdraw his plea, the Law Division judge carefully considered the Slater factors. In his findings, the judge noted:

The defendant must satisfy a four[-] prong test in order to withdraw his guilty plea. The [c]ourt has the discretion to determine whether the defendant has met his burden for relief in satisfying the four[-] prong test explained in State [v.] Slater.

 

The defendant must establish: [1)] . . . the defendant has asserted a [colorable] claim of [innocence; 2)] the nature and strength of the defendant's reason for withdraw[al; 3)] the existence [of] a plea bargain[; 4)] [whether] the withdraw[al] would result in unfair prejudice to the State, or unfair advantage to the defendant. That language as I indicated a moment ago, is set forth in State[v.] Slater.

 

Here[,] the defendant's contention that he wasn't aware of his penalty that it would ultimately be imposed is without merit in this [c]ourt's opinion. The [c]ourt has reviewed the transcript of the defendant's plea. There is ample evidence in the municipal court record that the decision of the defendant would not have changed had the [c]ourt spelled out the consequences of receiving a ten[-]year license suspension.

 

While the [c]ourt did not inform the defendant of consequences specifically, the defendant was fully aware of the consequences associated with his guilty plea as required pursuant to [Rule] 7:6-2(b) . . . . The defendant fails to recognize that he asked for lenience from the statutory requirement of an imposition of a ten-year license suspension prior to the [c]ourt imposing and advising the defendant of that sentence.

 

Clearly, the record shows the defendant's allegation that he was uninformed by his attorney . . . and was unaware is simply not the case. It's stated by the defendant I am a [fifty]-year[-]old man, and there's probably nothing you can do but [to] lose my license for ten years is a very harsh thing. I think maybe a little cruel and unusual punishment.

 

Now, that language is set forth in the transcript T3[:]19, lines 18 through 21. It was only after the statement that Judge Zane imposed a ten-year license suspension. The record is clear that the defendant was aware of the ten-year license suspension prior to pleading guilty, and thus even considered it prior to pleading guilty and ultimately being . . . sentenced.

 

Further, after a review of the municipal court, in light [of] [Rules] 7:6-2(b) and 3:21-1, State [v.] Johnson, State [v.] Howard, State[v.] Marzolf, State [v.]Slater, the [c]ourt finds the following. The [c]ourt finds that the first Slater factor to weigh against the defendant as he has not asserted a culpable claim of [innocence] with respect to refusal to submit to a chemical testing.

 

All the medical testimony the defendant wishes to pursue and present to the municipal court below may only be a defense to the charge of driving while under the influence charge. The admissibility of the proposed medical testimony even for the DWI charge is a separate issue not raised in this appeal.

 

. . . [T]he [second] Slater factor also weighs against the defendant as the nature and strength of the defendant's reason for withdraw[al] are not sufficient.

 

The defendant's reasons in this case are[: 1)] he would have nothing more to lose in terms of sentencing if going through trial and if the [c]ourt would have informed him of the ten-year suspension of driving privileges, he would have gone to trial in hopes of being acquitted[; and 2)] he was unaware of the ten-year suspension.

 

As indicated above, the record is clear the defendant was aware of the consequences even if not stated chapter and verse by the [c]ourt.

 

. . . [T]he [third] Slater factor is not helpful in this particular case as it takes into consideration the existence [of] the plea bargain.

 

The fourth Slater factor takes into consideration the prejudice to the State and the unfair advantage to the defendant. The defendant argues here [there is] no prejudice to the State in allowing him to withdraw his guilty plea. However, the State argues they relied upon the finality of the plea agreement and the assurance that a repeat drunk driver would be removed from the [S]tate's roadways. . . .

 

In balancing the interest[s] presented in Slater, the [c]ourt finds the defendant has not met his burden for relief and has not demonstrated that the failure to allow the defendant to withdraw his plea would have resulted in manifest injustice.

 

As a result, after reviewing the record of the municipal court, it is clear that [defendant] did knowingly, and I find as a fact he did knowingly and intelligently in [] his plea of guilty as to the refusal charge. The [c]ourt notes that the defendant was present at every stage of the proceedings.

 

Also, he is a practicing attorney. He was represented by counsel as well prior to entering his guilty plea, and was represented during the plea proceedings.

 

In addition, the defendant is not new to proceedings in municipal court for driving while intoxicated, as represented by his two prior convictions. One being in the year 2001, and the second in the year 2004.

 

Further, the [c]ourt engaged in full colloquy advising the defendant of his rights he would waive as a result of his entry of the guilty plea. The defendant answered every question in the affirmative.

 

. . . . [F]or the foregoing reasons this [c]ourt finds the defendant guilty of refusal to submit to a chemical testing as required pursuant to [N.J.S.A.] 39:4-50.2. Pursuant to [Rule] 3:23-8(e)[,] the [c]ourt sentences the defendant anew.

Although we do note that the first discussion of the ten-year suspension occurred just prior to sentencing, defendant did demonstrate an awareness of the mandatory nature of the suspension, and most importantly, did not pause or hesitate to proceed forward with the sentencing process. Within a short time after the sentence had been imposed, defendant first raised the issue of the withdrawal of the plea.

We are satisfied that the judge properly weighed the Slater factors in denying the motion to withdraw the plea of guilty. We also note the unusual nature of the plea proceedings, namely, that the municipal judge properly utilized the procedure sanctioned by Rule 7:6-2(a)(1), and considered the testimony of the relevant officers as well as the cross-examination by defense counsel in determining a factual basis for the plea.

We now address the issue of the ineffective assistance of counsel, an issue raised by defendant and recognized by State v.Hayes, 205 N.J. 522, 535 (2011), as critical to navigating through the plea and withdrawal process.

To establish a prima facie claim of ineffective assistance of counsel, a defendant must establish a reasonable likelihood of success under the test set forth in Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2063, 2068, 80 L. Ed. 2d 657, 698 (1984). Statev. Preciose, 129 N.J. 451, 463 (1992). Pursuant to this two-part test, a defendant must not only demonstrate his attorney's performance was deficient, but must also demonstrate there existed a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. at 463-64.

In State v. Fritz, 105 N.J. 42, 58 (1987), our Supreme Court adopted the Strickland test, as defined under the federal constitutional standard, and recognized the two-prong test as defining the state constitutional guarantee of effective assistance of counsel. Simply put, a defendant is entitled to the assistance of reasonably competent counsel, and that constitutional right is violated if counsel's performance was so deficient as to create a reasonable probability that the deficiencies materially contributed to the defendant's conviction. Id. at 58. See also State v.Echols, 199 N.J. 344, 357-58 (2009) and Statev. Castagna, 187 N.J. 293, 313-15 (2006) (reiterating the two-prong standard enunciated in Strickland and followed in Fritz).

An attorney who fails to adequately inform his client of the implications of a plea prior to the entry of a guilty plea fails to adequately represent his interests in an objectively reasonable fashion. State v. Bellamy, 178 N.J. 127, 137 (2003). Cf. United Statesv. Loughery, 908 F.2d 1014, 1018-19 (D.C. Cir. 1990).

However, a guilty plea should not generally be vacated "'in the absence of some plausible showing of a valid defense against the charges.'" State v. Simon, 161 N.J. 416, 444 (1999) (quoting State v. Gonzalez, 254 N.J. Super. 300, 303 (App. Div. 1992)). As recently noted by our Supreme Court, in order to set aside a guilty plea based upon ineffective assistance of counsel, a defendant must demonstrate: (1) counsel's assistance was outside the range of competence demanded of attorneys in criminal cases; and (2) a reasonable probability existed that, but for counsel's errors, the defendant would not have pled guilty, but rather would have insisted on proceeding to trial. State v.Nunez-Valdez, 200 N.J. 129, 139 (2009) (citing State v. DiFrisco, 137 N.J. 434, 457 (1994)).

The significance of counsel at all stages of a prosecution including the plea stage cannot be understated.2 In a recent case, the United States Supreme Court reiterated the need for effective counsel at the plea stage of a criminal proceeding. See Lafler v. Cooper, 566 U.S. ___, ___ (slip op. at 3); ___ S. Ct. ___; ___ L. Ed.2d ___ (2012). Seealso Missouri v. Frye, 566 U.S. ___, ___ (slip op. at 3-4); ___ S. Ct. ___; ___ L. Ed.2d ____(2012).

Defendant does not meaningfully challenge the merits of his culpability to the refusal offense. His challenge is to the imposition of the ten-year suspension. That challenge is unavailing. The revocation of driving privileges for a third-time offender under N.J.S.A. 39:4-50.4a is mandatory. The judge could not exercise discretion in sentencing defendant, and nothing short of a finding of not guilty would lead to a different outcome.

Defendant's various legal challenges as to the court's consideration of his prior convictions were unsuccessful; his proffered expert as to his medical condition had been rejected. In sum, the outcome of this proceeding would not have changed regardless of the efforts of counsel. We conclude that defendant did not meet the second prong of Strickland.

We determine that the Law Division judge properly denied defendant's motion to withdraw his plea, as well as his PCR.

Affirmed.

1 Apparently, defendant never filed a PCR petition in the municipal court.

2 We recognize that this was a motor vehicle violation and not a criminal prosecution, but defendant was still entitled to counsel. See State v. Hrycak, 184 N.J. 351, 362 (2005).