STATE OF NEW JERSEY v. WARDELL MILES

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5372-10T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

WARDELL MILES, a/k/a WARDEL MILES,

Defendant-Appellant.

_______________________________________

December 19, 2012

Submitted December 5, 2012 - Decided

Before Judges Axelrad and Nugent.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 10-11-1151.

Joseph E. Krakora, Public Defender, attorney for appellant (Monique Moyse, Designated Counsel, on the brief).

Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Marc A. Festa, Senior Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Following defendant's guilty plea to violating a condition of his special sentence of parole supervision for life, the court sentenced him to a one-year prison term and imposed mandatory assessments and penalties. In this appeal, defendant submits the following contention for our consideration:

POINT.

THIS MATTER MUST BE REMANDED FOR A HEARING TO DETERMINE IF [DEFENDANT] ENTERED INTO HIS PLEA KNOWINGLY AND VOLUNTARILY.

After considering the record in light of defendant's contention, we affirm.

Defendant pled guilty to the sole count of an indictment charging him with "Violation [of] Community Supervision for Life [(CSL)]," N.J.S.A. 2C:43-6.4(d). When the plea hearing began, defense counsel informed the court that defendant had been incarcerated for five months and was "looking for an outpatient with a continuation[,]" because "[e]very violation had to do with having . . . a beer or two and . . . it's just going to go on and on and on." Following further negotiations between defendant and the State that took place while the court heard other matters, the parties returned and reported that they had reached an agreement. In exchange for defendant pleading guilty to the sole count in the indictment, the State agreed to recommend a one-year prison term.

During the plea colloquy, in response to his attorney's questions, defendant recounted that he had been placed in CSL in 2007 and knew that he "had to follow their rules"; and on August 31, 2010, he had two bottles of beer in the refrigerator and was using cocaine. In response to questioning by the court, defendant also acknowledged that as a condition of his CSL, he was not supposed to have any alcohol. Defendant wanted to provide an explanation, but his attorney prevented him from doing so and informed the court that the "explanation" was "not relevant to this plea."

When he returned for sentencing, defendant was represented by new counsel. After discussions about other matters, the following colloquy occurred:

[DEFENSE COUNSEL]: And finally, the defendant claims to me today -- I don't know if this was ever raised to [previous counsel], but his reading of Jamgochian[1] is that he can't be prohibited from drinking alcohol, which is I believe the violation, the substantive violation, for which he pled guilty.

THE COURT: And how does he feel Jamgochian reaches that conclusion?

DEFENDANT MILES: Ma'am, from what I understand, the State Supreme Court said that a parole officer or a supervisor cannot issue additional restrictions without due process. They have to have a hearing to do that. I was never accorded a hearing, and that's in violation of Jamgochian, Your Honor.

THE COURT: Sir, the community supervision for life, we tell defendants, is extremely restrictive, and always prohibits the use of controlled dangerous substances and almost always prohibits the use of alcohol.

When a person pleads guilty, we have them sign off on a sheet that lists many, many conditions. I do not agree that this would violate any [S]upreme [C]ourt case. If alcohol was an issue with you, then it's perfectly appropriate.

All right, I'm going to proceed with sentence.

[DEFENSE COUNSEL]: I have nothing further to add, Your Honor.

Defendant did not request to withdraw his guilty plea. The court sentenced defendant in accordance with the negotiated plea.

Defendant now requests that we "remand [this] matter for a hearing" on whether he understood the charges against him when he entered into his plea -- "the inquiry that should have taken place when [defendant] indicated that he thought his violation was invalid" -- so that he can make a record on this issue. Defendant asserts that the plea and sentencing records "raise questions about the knowing nature of his plea as they indicate that he did not understand the charges because of his concerns about possible defenses to them." He also suggests that when he expressed his concerns about possible defenses, the court should have adjourned the hearing to permit him to speak with an attorney about such possible defenses.

The "concern" defendant expressed at sentencing about the condition of CSL was one of several issues that he raised. He also raised issues about his arrest warrant and whether the grand jury proceedings superseded it; questioned the accuracy of references in the pre-sentence report to his criminal record; and asserted that he had previously violated the conditions of CSL not three times, but only twice. Despite raising those "concerns," he never requested to withdraw his plea.

Rule 3:21-1 authorizes a defendant to withdraw a guilty plea, but requires that "[a] motion to withdraw a plea . . . be made before sentencing." The court may permit the motion to be made "thereafter to correct a manifest injustice." Ibid. Regardless of the timing, a defendant seeking to withdraw a guilty plea must make the motion. When a defendant makes such a motion, "'the burden rests on the defendant, in the first instance, to present some plausible basis for his request, and his good faith in asserting a defense on the merits.'" State v. Slater, 198 N.J. 145, 156 (2009) (quoting State v. Smullen, 118 N.J. 408, 416 (1990)). Here, defendant did not make a motion to withdraw his plea. Significantly, defendant did not even make a bare assertion of innocence. See id. at 158 ("[a] bare assertion of innocence is insufficient to justify withdrawal of a plea.").

We reject defendant's argument that because he expressed at sentencing a concern about who imposed the no-alcohol condition of CSL, the court should have either adjourned the sentencing hearing or taken some other measure to assure that he had knowingly and voluntarily pled guilty. The court had previously satisfied itself that defendant's plea was knowing and voluntary. It was not required to repeat that process or speculate about defendant's state of mind at sentencing. Defendant demonstrated that he was quite capable of speaking for himself. He voiced concerns about legal concepts and cited legal cases to the court. He was clearly capable of saying, "I want to withdraw my guilty plea." Even if he was somehow incapable of articulating that request, he was represented at the sentencing by counsel who could have easily informed the court that defendant wanted to withdraw his plea -- if that was defendant's desire.

Defendant, as do other defendants, expressed several concerns during his sentencing proceeding. He expressed concerns about an arrest warrant, the pre-sentence report, his prior criminal record, and the number of times he had violated conditions of CSL. None of those concerns was an assertion of innocence or a request to withdraw his plea. Thus, contrary to defendant's argument, the court had no reason to adjourn the hearing so that defendant could further reflect upon his decision to plead guilty.

Significantly, the court was aware from the plea colloquy that defendant had violated the conditions of CSL, not only by consuming alcohol, but also by using cocaine. Thus, defendant could hardly have been considered innocent of violating CSL conditions, even if consuming alcohol had not been such a condition.

Further, defendant had informed the court that his previous CSL violations were based on consuming alcohol or using drugs. That is why he initially requested that his sentence include an outpatient rehabilitation program. Considering in that context the "concerns" he expressed about the no-alcohol CSL condition, the court can hardly be deemed to have understood his concerns as a request to withdraw his plea.

We also reject defendant's request that we remand this matter for a hearing. As previously discussed, defendant was required by Rule 3:21-1 to make a motion to withdraw a plea, and required by Slater to present some plausible basis for his request. Defendant neither filed a motion nor presented a plausible basis to support it.

In summary, we conclude that under the circumstances of this case -- defendant admitting to consuming alcohol, using cocaine in violation of the conditions of CSL, and voicing vague and unsubstantiated concerns at sentencing about numerous issues, but never making a motion to withdraw his guilty plea -- the trial court had no obligation to conduct yet another colloquy or hearing to determine whether defendant had knowingly and voluntarily accepted the State's plea offer.

Affirmed.

1 Jamgochian v. N.J. State Parole Bd., 196 N.J. 222 (2008).