STATE OF NEW JERSEY v. L.W.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

L.W.,

Defendant-Appellant.

________________________________________________

October 15, 2013

Submitted April 30, 2013 Decided

Before Judges Yannotti and Hayden.

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 09-03-0561.

Joseph E. Krakora, Public Defender, attorney for appellant (Gilbert G. Miller, Designated Counsel, on the brief).

Gaetano T. Gregory, Acting Prosecutor of Hudson County for respondent (Brian Schreyer, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).

Appellant filed a pro se supplemental brief.

The opinion of the court was delivered by

HAYDEN, J.A.D.

In 2011, defendant, L.W., pled guilty to first-degree aggravated sexual assault of his daughter, A.C., then eleven years old, and second-degree sexual assault of a friend's daughter, G.G., then twelve years old. Following denial of defendant's motion to withdraw his plea, the judge sentenced him, pursuant to a plea agreement, on the first-degree conviction to ten years imprisonment with an eighty-five percent parole disqualifier under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and to a concurrent sentence of five years imprisonment with an eighty-five percent parole disqualifier on the second-degree conviction.

On appeal, defendant argues that the trial court erred in denying his motion to withdraw his guilty plea, failing to appoint him a new attorney, determining that his videotaped statements were admissible, and in imposing an excessive sentence. Additionally, in his pro se supplemental brief defendant argues that he was deprived of the effective assistance of counsel, and that he was detained without probable cause for his arrest. Having considered defendant's arguments in light of the applicable legal principles, we affirm defendant's convictions and sentence.

We discern the following facts from the record on appeal. On September 10, 2008, Detective Maria Dargan of the Special Victims Unit of the Prosecutor's Office interviewed then- twelve-years-old G.G. G.G. told Dargan that defendant had touched her private parts on several occasions while she and her mother were living with defendant.

On October 16, 2008, a Division of Youth and Family Services1 (the Division) worker informed A.C.'s mother, M.C., that she wanted to speak to A.C. and defendant's two other children regarding allegations concerning defendant and "a little girl." M.C. agreed, and an appointment was scheduled for October 20, 2008. That night, M.C. asked A.C. if she knew anything about defendant and a girl. A.C. said G.G. had told her that defendant had "bothered her," but told A.C. not to tell anyone. M.C. then asked if defendant had "ever touched her," and A.C. started crying, said yes, pointed to her vagina, and said "down there." M.C. reported the conversation to the Division worker that same night, who arranged for Dargan to interview A.C. on the following day.

On October 17, 2008, Dargan conducted a recorded interview with A.C., who said that G.G. told her that she had been hurt by defendant. A.C. also stated that defendant had touched her private parts with his penis and his mouth.

That evening, police officers arrested defendant at his home and transported him to the Special Victims Unit. Upon arrival, defendant waived his Miranda2 rights and agreed to give a recorded statement under oath. Two detectives questioned defendant over the course of approximately three hours. During the recorded interview, defendant admitted that he had put his mouth on A.C.'s vagina and had touched G.G. in a way that made her feel uncomfortable. As a result, the police charged defendant with aggravated sexual assault of A.C. and sexual assault by contact with G.G.

In February 2009, a grand jury charged defendant with first-degree aggravated sexual assault against A.C., N.J.S.A. 2C:14-2(a) (counts one and two); second-degree sexual assault against A.C. (count three) and G.G. (count eight), N.J.S.A. 2C:14-2(b); second-degree endangering the welfare of a child (A.C.), N.J.S.A. 2C:24-4(a) (counts four and five); third-degree endangering the welfare of a child (G.G.), N.J.S.A. 2C:24-4(a) (count nine); and fourth-degree abuse of A.C. (counts six and seven) and G.G. (count ten), N.J.S.A. 9:6-1, -3.

On February 18, 2011, defendant filed a pro se motion seeking the dismissal of his assigned veteran public defender, and appointment of new counsel not employed by the local Public Defender's Office. His most recent complaint against his attorney was due to having been transported from jail to court only to be informed at the end of the day that his case had not been reached. In a March 1, 2011 letter, the trial judge informed defendant that his application had been forwarded to the Public Defender. She also assured defendant that his attorney was not the cause of the delay and no proceedings were being held without him.

Before trial, the judge held a N.J.R.E. 104(c) hearing to determine the admissibility of defendant's video-recorded statement.3 The statement was on a DVD, authenticated by a detective who took the statement, and consisted of three separate segments. The first two segments were sixty minutes long and the third segment was fifty-three minutes long. The time counter on the video recorder reset to zero at the start of each of the three segments.

Defense counsel informed the judge that defendant suspected that the recording did not include his complete interrogation because the time counter had been reset each time a new segment began. The Public Defender's Office, however, had denied counsel's request for an expert examination of the recording, based both on the cost and the validity of the challenge. Defense counsel did not specify what, if anything, defendant claimed was missing or altered on the recorded statement, or identify any gap in the interrogation.

After viewing the entire recorded statement, the trial judge determined it contained nothing to suggest that defendant had been forced or coerced into making the statement. Instead, the judge found that defendant had leaned forward when he spoke to the detective and expressed his willingness to explain what had happened. When the detective suggested stopping after an hour, defendant insisted on continuing. Finding that the statement was voluntary and knowing, the judge determined that it was admissible.

On March 31, 2011, the judge scheduled a hearing to addressed defendant's motion to exclude his statement on the grounds that his arrest was not based upon probable cause and the State's motion to admit the children's recorded statements. Instead, defendant entered a plea of guilty to first-degree aggravated sexual assault against A.C. (count one) and second-degree sexual assault against G.G. (count eight) in exchange for the State's recommendation of an aggregate term of ten years of imprisonment with an eighty-five percent NERA parole disqualifier. Defendant, who was thirty-four years old and had completed some college, acknowledged that he understood the nature of the charges, the terms of the agreement, and the consequences of the plea, including the sentencing and supervision consequences of Megan's Law, N.J.S.A. 2C:7-12, and he agreed to waive his right to a jury trial.

Defendant also confirmed that he had not been forced or threatened to enter the plea; had not been promised anything else regarding the agreement; had discussed all of the terms of the plea agreement with his attorney; had voluntarily signed and initialed the written plea form; and was not under the influence of alcohol, medication, or drugs. He stated that he was not satisfied with the services of his attorney and had requested the attorney's supervisor to provide another attorney, but that request was denied.

Defendant stipulated to the ages of A.C. and G.G., and admitted that he committed an act of vaginal penetration on A.C. in his home between April 2007 and May 2008 and, during the same period, he committed an act of sexual contact with G.G. in his home. In accepting defendant's plea, the judge ruled that defendant provided a sufficient factual basis for it and found that defendant had experienced and competent counsel, and had entered the plea knowingly, voluntarily, and without coercion.

Six days later, defendant filed a pro se motion to remove his counsel, and, among other relief, to vacate his guilty plea based on his counsel's ineffective representation and misrepresentations. Thereafter, prior to sentencing, defendant's newly-appointed counsel filed a motion with the trial court to vacate defendant's plea. In a supporting certification, defendant alleged he was innocent of the charges and had admitted his guilt at the plea hearing only because he was coerced by his attorney, who had warned him that if he did not accept the plea he could spend the next thirty years in prison.

Defendant asserted that at the time of the hearing he was ill, suffered from anxiety, and was emotional because his mother and grandmother were present in court and "looked extremely upset." He also claimed he had received ineffective assistance of counsel because defense counsel failed to file necessary motions and request relevant discovery, and his attorney advised that he had no option but to accept the plea.

On October 14, 2011, the trial judge conducted a hearing on defendant's motion to vacate. Defendant repeated the reasons set forth in his certification, and testified that on the day of the plea hearing he felt pressured, was anxious, in shock, could not control his body, and experienced a "roller coaster . . . of emotions[.]"

In denying the motion, the judge found that defendant stated a factual basis for the charges and that the plea was knowingly and voluntarily given. Citing State v. Slater, 198 N.J. 145, 157-58 (2009), the judge found that defendant had not asserted a colorable claim of innocence, the reasons set forth for withdrawal were inadequate, the plea had been entered as a part of a plea bargain, and withdrawal would result in unfair prejudice to the State as a result of the children's young ages. The judge also found that although defendant's mother and grandmother were present at the hearing, "there was no crying and falling out. There was no pressure that the Court could see that was placed upon [defendant]." And, the judge noted, defendant stated his plea was voluntary.

On October 28, 2011, the court sentenced defendant in accordance with the plea agreement. On December 1, 2011, after a brief stay for defendant to consider having an assessment at Avenel Diagnostic and Treatment Center, the judge entered a judgment of conviction. This appeal followed.

Defendant raises the following contentions for our consideration:

POINT I: THE TRIAL COURT IMPROPERLY DENIED DEFENDANT'S APPLICATION TO WITHDRAW HIS GUILTY PLEA.

POINT II: THE FACTUAL BASIS FOR DEFENDANT'S PLEA WAS NOT ADEQUATE.

POINT III: DEFENDANT'S CONSTITUTIONAL RIGHTS TO THE EFFECTIVE ASSISTANCE OF COUNSEL UNDER THE FEDERAL AND STATE CONSTITUTION AND DUE PROCESS WERE VIOLATED WHEN THE COURT DID NOT APPOINT OUTSIDE COUNSEL TO LITIGATE DEFENDANT'S REQUEST FOR ANCILLARY SERVICES UNDER THE PUBLIC DEFENDER ACT AND DID NOT CONDUCT A HEARING TO DETERMINE WHETHER DEFENDANT WAS ENTITLED TO NEW COUNSEL OR DESIRED SELF-REPRESENTATION WITH THE ASSISTANCE OF STANDBY COUNSEL. (Partially Raised Below).

POINT IV: THE TRIAL COURT ERRONEOUSLY PRECLUDED LITIGATION OF THE TOTALITY OF THE CIRCUMSTANCES IN DETERMINING WHETHER TO ADMIT THE DVD PURPORTING TO DEPICT DEFENDANT'S ENTIRE INTERROGATION.

POINT V: DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE.

In considering defendant's contentions about his plea, we begin with a review of the applicable legal principles that guide our analysis. "A defendant who elects to plead guilty to a criminal offense gives up fundamental constitutional rights, including the right to be presumed innocent until determined guilty beyond a reasonable doubt, the guarantee against self-incrimination and the right to confront one's accusers." State v. McDonald, 211 N.J. 4, 15 (2012) (citing Slater, supra, 198 N.J. at 154). In order to ensure that those rights are not relinquished involuntarily or unknowingly, a judge must determine that there is "a factual basis for the plea and that the plea is made voluntarily, not as a result of any threats or of any promises or inducements not disclosed on the record, and with an understanding of the nature of the charge and the consequences of the plea." R. 3:9-2.

The factual foundation for the plea "may take one of two forms[:] defendant may either explicitly admit guilt with respect to the elements or may 'acknowledge[] . . . facts constituting the essential elements of the crime.'" State v. Campfield, 213 N.J. 218, 231 (2013) (quoting State v. Sainz, 107 N.J. 283, 293 (1987)). "The trial court 'must be satisfied from the lips of the defendant that he committed the acts which constitute the crime.'" Ibid. (quoting State ex rel. T.M., 166 N.J. 319, 327 (2001) (internal quotations marks and citation omitted)). Our review of the trial court's factual findings at a defendant's plea hearing is deferential. Id. at 229.

A motion to withdraw a guilty plea is addressed to the judge's sound discretion. State v. Munroe, 210 N.J. 429, 441-42 (2012). Motions filed at or before the time of sentencing, as in this case, will be granted in "the interests of justice[.]" R. 3:9-3(e). However, the defendant bears the burden, in the first instance, of demonstrating that fairness requires withdrawal of his plea, and he must make that showing upon a balancing of competing factors and "must show more than a change of heart." Slater, supra, 198 N.J. at 156-57.

In evaluating motions to withdraw a guilty plea, trial judges consider the following factors: "(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." Id. at 157-58. "No factor is mandatory; if one is missing, that does not automatically disqualify or dictate relief." Id. at 162.

Applying these principles to the facts in this case, we are satisfied that the trial judge properly denied defendant's application to withdraw his guilty plea. With respect to the first factor, "[a] core concern underlying motions to withdraw guilty pleas is to correct the injustice of depriving innocent people of their liberty." Id. at 158. "A bare assertion of innocence is insufficient to justify withdrawal of a plea." Ibid. "A colorable claim of innocence is one that rests on 'particular, plausible facts' that, if proven in court, would lead a reasonable factfinder to determine the claim is meritorious." Munroe, supra, 210 N.J. at 442 (quoting Slater, supra, 198 N.J. at 158).

Here, defendant claims he was innocent of the charges but has not provided any plausible facts to show that this bald assertion is meritorious. We find no abuse of the judge's discretion in finding that defendant failed to present a colorable claim of innocence.

The "second factor focuses on the basic fairness of enforcing a guilty plea by asking whether defendant has presented fair and just reasons for withdrawal, and whether those reasons have any force." Slater, supra, 198 N.J. at 159. Defendant does not contend that he was misinformed or did not understand the plea or its consequences. Instead, he claims that as a result of his frustration with his attorney and the "highly traumatic" reaction of his mother and grandmother at the plea hearing, he experienced a "cascade of emotions" and such a sense of helplessness that he was not acting voluntarily.

However, as the judge found, defendant testified at the plea hearing that he was freely and voluntarily entering into the plea, and he said nothing at the hearing to indicate otherwise. Further, the judge found that defendant's mother and grandmother had not been crying or in great distress at the hearing. There is no dispute that he received the benefit of the plea bargain. Under these circumstances, we find that the judge did not abuse her discretion in finding that defendant had not provided a fair and just reason to vacate the plea.

The judge also properly recognized that the third Slater factor "receives the least weight in the overall analysis." Munroe, supra, 210 N.J. at 443. However, the judge weighed this factor slightly against withdrawal because it was the product of a plea bargain.

The final factor is whether a plea withdrawal would unfairly prejudice the State. Slater, supra, 198 N.J. at 161. "There is no fixed formula to analyze the degree of unfair prejudice or advantage that should override withdrawal of a plea." Ibid. Courts must look "closely at the particulars of each case." Ibid.

Here, defendant moved pro se to vacate the plea within a week of entering into it. Any prejudice to the State is properly measured as of the October 14, 2011 hearing date. See Slater, supra, 198 N.J. at 164. Generally, a delay of several months would not unduly prejudice the State. However, as the trial judge found, given the young age of the victims at the time of the offense, the passage of additional time from the date of the plea could result in some additional prejudice to the State other than that normally associated with the timely motion to withdraw a guilty plea.

After considering the Slater factors, particularly the first two factors, which weigh heavily against defendant, we find defendant has failed to establish that the withdrawal of the plea was required in the interest of justice. Accordingly, we conclude that the judge did not abuse her discretion in denying defendant's motion to vacate his plea.

We also are satisfied that defendant provided an adequate factual basis for his guilty plea to the offense of first-degree aggravated sexual assault against A.C. and second-degree sexual assault against G.G. Defendant does not argue that the elements of each offense were not addressed during the plea colloquy, and we find that they were. Instead, he argues that the factual basis for the plea was inadequate because he supplied it in response to his attorney's leading questions.

We reject this contention as leading questions are permitted at a plea hearing and can establish a factual basis for a plea. See Campfield, supra, 213 N.J. at 231 ("judge's leading questions may be necessary to ensure an adequate factual basis for the guilty plea"); State v. Smullen, 118 N.J. 408, 415 (1990) (a plea will be valid even if factual basis for it is result of leading questions).

Next, defendant argues that he was deprived of the effective assistance of counsel because the trial judge failed to appoint outside counsel to represent him after the Public Defender's Office refused to provide him with "necessary" ancillary services. We find the court did not err in failing to remove trial counsel and replace him with counsel of defendant's choice.

"While an indigent defendant must be afforded counsel, he has no right 'to select counsel who will completely satisfy a defendant's fancy as to how he is to be represented.'" State v. Williams, 404 N.J. Super. 147, 170 (App. Div. 2008) (quoting State v. Rinaldi, 58 N.J. Super. 209, 214 (App. Div. 1959), cert. denied, 366 U.S. 914, 81 S. Ct. 1089, 6 L. Ed. 2d 238 (1961)), certif. denied, 201 N.J. 440 (2010). An accused has a New Jersey constitutional right to counsel, but "'[o]ur organic law does not command . . . that he be given the attorney of his choice. Nor does it require that his legal representation be changed at his whim.'" State v. Miller, __ N.J. __, __ (2013) (slip op. at 27) (quoting State v. Wiggins, 291 N.J. Super. 441, 451-52 (App. Div.), certif. denied, 146 N.J. 568 (1996)).

Additionally, defendant argues he was deprived of the effective assistance of counsel because his counsel, among other things, failed to file a motion to have an expert appointed to test the DVD for gaps, to obtain relevant discovery, to file certain motions, to investigate the record, and to inform him of the status of the case and the applicable law.

To determine whether a defendant has established a prima facie claim of ineffective assistance, New Jersey follows the standard established in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), under which

[a] reviewing court first must determine whether counsel's performance "fell below an objective standard of reasonableness," Strickland, supra, 466 U.S. at 688, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693, and second, whether there exists a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different," id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.

[State v. Chew, 179 N.J. 186, 203 (2004).]

"The test is not whether defense counsel could have done better, but whether he met the constitutional threshold for effectiveness." State v. Nash, 212 N.J. 518, 543 (2013).

Generally, an ineffective-assistance-of-counsel claim "'cannot be raised on direct appeal,'" because a hearing must be held to develop a record whereby trial counsel may "'explain the reasons for his conduct and inaction,'" and a trial judge is afforded the opportunity to rule on the claims and assess the likely prejudice. State v. Preciose, 129 N.J. 451, 462 (1992) (quoting State v. Sparano, 249 N.J. Super. 411, 419 (App. Div. 1991)). We decline to consider defendant's ineffective assistance of counsel arguments on direct appeal because the issues are more appropriate for post-conviction relief.

Further, defendant argues that the trial court erred in failing to consider during the N.J.R.E. 104(c) hearing on the voluntariness of his confession "the entirety of the circumstances surrounding defendant's arrest and consequent interrogation." Defendant's plea was unconditional. He did not preserve the right to appeal from that ruling. See R. 3:9-3(f). We thus conclude he waived his right to challenge the admissibility of his confession. State v. Knight, 183 N.J. 449, 470-71 (2005).

That said, we reject defendant's contention that his recorded statement was not admissible as there was sufficient credible evidence for the trial judge to find beyond a reasonable doubt that defendant voluntarily waived his right against self-incrimination and freely gave his statement to the detectives.

"[T]he Fifth Amendment to the United States Constitution, applicable to the States through the Fourteenth Amendment,[] guarantees the right against self-incrimination[.]" State v. W.B., 205 N.J. 588, 604-05 (2011) (citations omitted). "Inherent in every Fifth Amendment analysis is the question of whether the statement was voluntary, and, independently, whether the law enforcement officers taking it complied with Miranda." Id. at 605. "The State must prove beyond a reasonable doubt that a defendant's confession was voluntary and was not made because the defendant's will was overborne." Knight, supra, 183 N.J. at 462.

In determining whether a statement was made voluntarily, "[a] court must look at the totality of the circumstances[.]" State v. Galloway, 133 N.J. 631, 654 (1993). We apply a deferential standard in reviewing the court's findings at a hearing on the voluntariness of a defendant's statement, and reverse only if they are not supported by substantial credible evidence in the record. State v. J.A.C., 210 N.J. 281, 295 (2012); Knight, supra, 183 N.J. at 468.

In this case, the trial judge properly considered the totality of the circumstances as portrayed on the DVD, and in determining voluntariness, looked at the nature of the interrogation, defendant's responses to the detectives' questions, and defendant's physical affect throughout the interrogation.

Defendant argues that the judge improperly limited the scope of the voluntariness hearing and should have considered the circumstances surrounding his arrest, notably, whether there was sufficient probable cause for issuance of the arrest warrant. He does not argue that he was mistreated or coerced prior to giving the statement, and identifies no specific part of the interrogation missing from the segments of the DVD.

We are satisfied that the trial judge properly limited the scope of the hearing to the circumstances surrounding defendant's interrogation. The validity of the arrest warrant was a separate issue that defendant had not formally raised before the hearing, and thus the judge did not err in failing to consider it. We note that after the hearing, defendant filed a motion to exclude his confession from evidence based on a lack of probable cause for arrest, but he chose to plead guilty prior to that motion being heard.

Lastly, defendant challenges his sentence as excessive. We disagree. "While the sentence imposed must be a lawful one, the court's decision to impose a sentence in accordance with the plea agreement should be given great respect, since a 'presumption of reasonableness . . . attaches to criminal sentences imposed on plea bargain defendants.'" State v. S.C., 289 N.J. Super. 61, 71 (App. Div.) (quoting Sainz, supra, 107 N.J. at 294), cert. denied, 145 N.J. 373 (1996).

In sentencing defendant, the judge found three aggravating factors, the risk that defendant will commit another offense, the extent of defendant's criminal record, and the need to deter defendant and others from violating the law, N.J.S.A. 2C:44-1(a)(3), (6), (9), and found no mitigating factors. N.J.S.A. 2C:44-1(b). She determined that the aggravating factors outweighed the nonexistent mitigating factors. The ordinary term of imprisonment for a crime of the first degree is between ten and twenty years, and for a crime of the second degree shall be between five and ten years. N.J.S.A. 2C:43-6(a). The court properly applied the sentencing guidelines and criteria, and the sentences imposed in accordance with the plea bargain are not manifestly excessive, nor do they shock our judicial conscience. State v. Ghertler, 114 N.J. 383, 387-89 (1989); State v. Roth, 95 N.J. 334, 362-64 (1984).

We have carefully considered defendant's other arguments, including those in his supplemental brief, and find them without sufficient merit to warrant discussion. R. 2:11-3(e)(2).

Affirmed.

1 A reorganization of the Department of Children and Families under L. 2012, c. 16, effective June 29, 2012, changed the name of the Division of Youth and Family Services to the Division of Child Protection and Permanency.

2 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

3 We have not been provided with a copy of the video-recording on appeal.