STATE OF NEW JERSEY v. PHILIP BOUCHET

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NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6269-10T2



STATE OF NEW JERSEY,


Plaintiff-Respondent,


v.


PHILIP BOUCHET,


Defendant-Appellant.


________________________________


October 28, 2013

 

Submitted October 7, 2013 Decided

 

Before Judges Parrillo and Kennedy.

 

On appeal from the Superior Court of New

Jersey, Law Division, Union County, Indictment No. 10-04-003261.

 

Joseph E. Krakora, Public Defender, attorney for appellant (Peter B. Meadow, Designated Counsel, on the brief).

 

GraceH. Park,Acting UnionCounty Prosecutor,

attorney for respondent (Sara B. Liebman, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).


PER CURIAM


Defendant Philip Bouchet appeals from the Law Division's February 10, 2011 denial of his motion to withdraw his guilty plea. We affirm.

Police arrested defendant and his girlfriend at his home, and an ensuing indictment charged them with several drug-related offenses, including second-degree possession of more than one ounce of marijuana with the intent to distribute within 500 feet of a public park, N.J.S.A. 2C:35-7.1.

On June 7, 2010, defendant pled guilty to third-degree possession of marijuana with intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(11), in exchange for the State's dismissal of the remaining counts and a recommendation that he be sentenced to a three-year prison term, which was below the statutory maximum of five years. The State also agreed that the sentence would not be subject to any period of parole ineligibility, and that defendant would be permitted to exculpate his co-defendant.

On the plea form, defendant acknowledged that he understood the pending charges and the offense to which he was pleading. He also confirmed that he was satisfied with the advice of plea counsel, and that he had no further questions. During the plea colloquy, defendant reiterated that he understood his rights, had reviewed the indictment and discovery with his attorney, had answered the questions on the plea form truthfully, and that no one had forced him to sign the form. As to a factual basis for his plea, defendant admitted that when police arrested him, he possessed over fifty grams of marijuana, which he had intended to distribute.

Months after pleading guilty, but before sentencing, defendant filed a pro se motion to retract his plea. He was assigned new counsel for the hearing, and accused his prior plea attorney of having lied to him about the possibility of an extended sentence. Defendant also claimed that there was a conflict of interest because both he and his co-defendant had been represented by attorneys from the Office of the Public Defender. He denied selling drugs on the day of his arrest, and alleged that he had not been given a chance to review the discovery evidence until after he pled guilty.

However, defendant also conceded that he told a probation officer that he sold drugs to support his own drug habit, and acknowledged that during the plea colloquy, he represented that his plea was voluntary and that he was satisfied with his attorney.

Defendant's plea counsel also testified, asserting that he had reviewed the discovery evidence with defendant before the guilty plea. He had also explained to defendant that he could receive a lengthier sentence because of his prior distribution record.

The court denied defendant's motion, and on February 10, 2011, sentenced defendant in accordance with the plea agreement. Defendant appeals, maintaining that the court erred in evaluating the merits of his motion.

The decision to grant or deny a motion to retract a guilty plea is discretionary, and is governed by four 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." State v. Slater, 198 N.J. 145, 157-58 (2009). Because defendant filed his motion before sentencing, he must show that enforcement of the plea agreement would be contrary to the interests of justice. R. 3:9-3(e). See also State v. Hayes, 205 N.J. 522, 535 (2011) (explaining that, in contrast, motions filed after sentencing must establish a "manifest injustice"). He has failed to make such a showing.

The court first found no colorable claim of defendant's innocence. This was proper, because despite defendant's belated claim that he had never intended to sell the marijuana found in his possession, he identified no corroborating evidence. This "bare assertion of innocence is insufficient to justify withdrawal. . . ." Slater, supra, 198 N.J. at 158.

The court also concluded that plea counsel did not mislead defendant, and that defendant had entered his plea knowingly and voluntarily. Thus, it found no compelling reason to allow withdrawal. Indeed, the testimony of defendant's plea counsel provided sufficient credible evidence to support the court's conclusions with regard to this second factor. State v. Locurto, 157 N.J. 463, 470-71 (1999).

As to the third factor, the court noted that the plea had been negotiated, but did not give it significant weight. However, defendant, himself, concedes that this prong favored the denial of his motion. See State v. Means, 191 N.J. 610, 619 (2007) (negotiated pleas are entitled to a higher degree of finality).

Finally, because it found that defendant had failed to establish the first three Slater factors, the court correctly did not address what prejudice, if any, a withdrawal would have upon the State because the "State is not required to show prejudice if a defendant fails to offer proof of other factors in support of the withdrawal of a plea." Slater, supra, 198 N.J. at 162. The court's denial is consistent with Slater and the record.

 

Affirmed.



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