STATE OF NEW JERSEY v. DEWAYNE J. JOHNSON

NOT FOR PUBLICATION WITHOUT THE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.

DEWAYNE J. JOHNSON,

Defendant-Appellant.

______________________________________

June 16, 2014

Submitted April 28, 2014 Decided

Before Judges Ashrafi and Manahan.

On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 09-05-00410.

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

Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Bethany L. Deal, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant DeWayne Johnson appeals from denial of his pre-sentence motion to withdraw his guilty plea. We affirm, having reviewed the record and concluded that the trial court correctly applied the standard established in State v. Slater, 198 N.J. 145 (2009), to defendant's motion.

On May 7, 2009, the Burlington County Grand Jury returned Indictment 09-05-0410, charging defendant, DeWayne Johnson, with Attempted Murder in violation of N.J.S.A. 2C:5-1(a)(3) and N.J.S.A. 2C:11-3(a)(1), a crime of the first degree; Aggravated Assault in violation of N.J.S.A. 2C:12-1(b)(1), a crime of the second degree; Robbery in violation of N.J.S.A. 2C:15-1(a)(1), a crime of the first degree; Endangering an Injured Victim in violation of N.J.S.A. 2C:12-1.2(a), a crime of the third degree; Possession of a Weapon for an Unlawful Purpose in violation of N.J.S.A. 2C:39-4(d), a crime of the third degree; Unlawful Possession of a Weapon in violation of N.J.S.A. 2C:39-5(d), a crime of the fourth degree; Theft by Unlawful Taking in violation of N.J.S.A. 2C:20-3(a), a crime of the fourth degree; and Tampering With or Fabricating Physical Evidence in violation of N.J.S.A. 2C:28-6(1), a crime of the fourth degree.

On September 23, 2009, the Camden County Grand Jury returned Indictment 09-09-3247 charging defendant with Murder in violation of N.J.S.A. 2C:11-3(a)(1), a crime of the first degree; Murder During the Commission of a Crime in violation of N.J.S.A. 2C:11-3(a)(3), a crime of the first degree; Robbery in violation of N.J.S.A. 2C:15-1, a crime of the first degree; Possession of a Weapon for an unlawful purpose in violation of N.J.S.A. 2C:39-4(d), a crime of the third degree; Unlawful Possession of a Weapon in violation of N.J.S.A. 2C:39-5(d), a crime of the fourth degree; Endangering an Impaired/Helpless Person in violation of N.J.S.A. 2C:12-1.2, a crime of the third degree; and Certain Persons Not to Have Weapons in violation of N.J.S.A. 2C:39-7(a), a crime of the fourth degree.

On August 13, 2010, defendant pled guilty in Camden County to an amended charge of first degree Aggravated Manslaughter under Indictment 09-09-3247. In return for the plea, defendant was sentenced on November 5, 2010, to twenty-five years in New Jersey State Prison, eighty-five percent to be served without parole eligibility. The Camden County plea form and Judgment of Conviction specified that defendant's sentence was to run concurrent to his sentence on his pending Burlington County charges.

Following an unsuccessful suppression motion on January 25, 2011, defendant pled guilty to Count Three of Burlington County Indictment 09-05-0410, first degree Robbery, pursuant to a negotiated plea agreement. In exchange for defendant's plea agreement, the State agreed to recommend a sentence of ten years in New Jersey State Prison, subject to the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2. The sentence was to run "consecutively," not "concurrently" to the sentence defendant was serving under the Camden County Indictment. During the plea, the State noted that imposition of consecutive terms of imprisonment would result in defendant serving a maximum term of thirty-five years in prison, eighty-five percent to be served without parole eligibility, and that defendant would be approximately seventy-eight years of age before becoming eligible for parole.

The Burlington County trial judge participated in an extensive plea colloquy with defendant. At the conclusion of the colloquy, the judge found that defendant was entering into the plea knowingly and voluntarily. As such, the court accepted the plea agreement.

On March 24, 2011, on the date set for sentence, the judge placed on the record that defendant communicated by letter to his counsel that his plea was not intelligently made because: he had been on depression medications, he had been coerced into pleading guilty by his lawyer, and he was under the impression that his ten-year Burlington County sentence would run concurrent to his twenty-five-year Camden County sentence. On that date, in lieu of the sentence, the judge heard oral argument on defendant's application to withdraw his plea. During this proceeding, the judge inquired whether defendant understood the proceedings. Defendant stated that he did because he had not taken his depression medications. According to defendant, the medications made him "drowsy and sleepy," which sometimes made him not understand what people were saying to him. Defendant also professed his innocence in that he did not commit the robbery since he "wasn't there," the clothing was never identified as his, and because police saw him in the area of the robbery did not necessarily mean he robbed someone. According to defendant, the details he provided in his factual plea narrative came from what he learned from discovery.

Both defense counsel and the State noted that defendant appeared lucid on the date of his plea hearing. Defense counsel also noted that defendant should not lose the benefit of his plea agreement without expert testimony about the effects of defendant's medication on his lucidity. The State also noted that defendant appeared coherent at his plea hearing and had been able to answer the judge's questions, both close-ended and open-ended, appropriately and with specificity. Moreover, the State argued that defendant was on medication when he asked to retract his plea. So defendant's argument that the medications created his impaired cognitive ability did not make logical sense.

The judge stated that defendant may be giving the court the "run around." The judge was demonstrably skeptical of defendant's claims but nonetheless ordered a competency hearing to evaluate defendant's medications and their effect on his cognitive ability.

Defendant was examined by Dr. Douglas Smith from the Ann Klein Forensic Center on December 29, 2011 for the purpose of determining defendant's fitness to proceed. In his report, Dr. Smith wrote that defendant was "unhappy about the outcome of his plea bargain in January and would like to retract it" and that while there was a possibility that defendant did not understand that his sentences would run consecutive, that element would be only one factor in assessing defendant's fitness. Dr. Smith noted, "Mr. Johnson expressed to me that he knew he was entering a plea, but had misunderstood the details of how the sentences would be served. A misunderstanding would not equate to being not fit to proceed."

Dr. Smith opined that there were no indications of any psychosis, depression, or cognitive impairments that would have adversely affected defendant's fitness to proceed at the time of his plea hearing and "observations by the judge and the prosecutor on the 1/25/11 proceeding did not suggest Mr. Johnson was experiencing psychosis or cognitive impairments." Dr. Smith found defendant currently was fit to proceed to trial and had been fit at both his January 25, 2011 plea hearing and his March 24, 2011 motion hearing.

On September 13, 2012, the motion to withdraw defendant's plea was resumed. Defendant argued on his own behalf that he took the plea agreement only because he believed the sentences in Camden and Burlington would run concurrent and was only aware of the consecutive aspect after he signed the plea form. Defendant reiterated his desire to retract his plea and take his case to trial.

The judge denied defendant's motion to withdraw his plea after finding that the plea agreement "clearly spelled out the terms of the plea agreement" and that the court had been very careful to go over the terms of the plea agreement with him. The judge found that the plea form stated defendant's Burlington County sentence would run consecutive to the sentence he was serving in Camden County and that defendant was aware for months that his sentence in Burlington County would be consecutive to his Camden County sentence.

The judge further found the proofs "overwhelming" and that defendant would likely be convicted of attempted murder if he had taken his case to trial. The court also noted the case was five years old and there existed the potential unavailability of the witness as an additional factor in his ruling.

In denying defendant's motion the judge held, "[W]ith all of it said, with all of the caution that this Court has exercised towards sentencing, it is satisfied that there is no reasonable basis to permit the defendant to retract his plea of guilty." Defendant was thereafter sentenced in accord with the plea agreement.

After making his findings as to the aggravating and mitigating factors, the judge noted that, under ordinary circumstances, he would impose the maximum sentence possible. However, he would not do so in this case because of the plea agreement and because defendant had already been sentenced to twenty-five years imprisonment in Camden. The judge sentenced defendant to ten years in prison, with eighty-five percent to be served without parole eligibility under NERA to run consecutive to defendant's Camden County sentence. Other mandatory parole disqualifications and penalties were imposed and the remaining counts were dismissed.

Thereafter, defendant appealed his Camden County sentence through this Court's excessive sentence oral argument calendar. After a remand, the matter was heard again on the excessive sentence calendar in February 2013. The Appellate Division panel rejected defendant's arguments and affirmed his sentence. Defendant subsequently filed this appeal of his Burlington County conviction.

On appeal, defendant argues:

THE COURT SHOULD ORDER A KOVACK REMAND TO ALLOW DEFENDANT TO WITHDRAW HIS GUILTY PLEA BECAUSE THE RECORD IS MISLEADING AND INCONSISTENT AS TO INFORMING DEFENDANT OF THE CONSECUTIVE-VERSUS-CONCURRENT NATURE OF THE PLEA DEAL, AND DOES NOT ALLOW FOR THE CONCLUSION THAT THE DEFENDANT UNDERSTOOD THAT ASPECT OF THE PENAL CONSEQUENCES OF HIS GUILTY PLEA, AND THAT THE JUDGE BELOW IMPROPERLY DENIED THE PRE-SENTENCING MOTION TO WITHDRAW THE GUILTY PLEA.

A guilty plea may not be entered by the trial court without the trial judge first addressing defendant personally and determining by inquiry of defendant and others, in the court's discretion, that there is a factual basis for the plea and that the plea is made voluntarily, with an understanding of the nature of the charges and consequences of the plea. R. 3:9-2; State v. Kovack, 91 N.J. 476, 484 (1982); accord State v. Simon, 161 N.J. 416, 443 (1999); State v. Barboza, 115 N.J. 415, 420-21 (1989); State v. Howard, 110 N.J. 113, 122 (1988); State v. Sainz, 107 N.J. 283, 292-93 (1987). The factual basis for a guilty plea must include defendant's admission of guilt of the crime or the acknowledgement of facts constituting the essential elements of the crime. Sainz, supra, 107 N.J. at 293. "The need to establish a sufficient factual basis for a guilty plea is not obviated by the fact that the plea is part of a negotiated plea agreement." Ibid.

A motion to withdraw a plea of guilty before sentencing is committed to the sound discretion of the trial judge. State v. Deutsch, 34 N.J. 190, 197 (1961); State v. Phillips, 133 N.J. Super. 515, 518 (App. Div. 1975). Here, a review of the plea proceedings which included the requisite judicial inquiry is probative that defendant was advised in the plea form and by the questions posed by the court that the Burlington County sentence would be consecutive. Paragraph 13 of the plea form, which defendant acknowledged he read and understood, specified that the sentence recommendation of the prosecutor would be "consecutive to sentence imposed in Camden County." The court reinforced the plain language of the plea form:

The Court has in its possession a four page plea agreement by the terms of which the defendant will enter a plea of guilty to a charge of first degree robbery. In exchange for that plea of guilty, the State agrees to a maximum sentence of 10 years of which the defendant must serve 85 percent without parole. That sentence to run consecutively and not concurrently to a sentence the defendant is presently serving on a Camden County indictment.

The prosecutor also confirmed that defendant's sentence would run consecutive to the Camden sentence by noting the aggregate length of the combined sentences.

Additionally the judge added:

The State has agreed to dismiss other charges, some of them equally serious, others almost as certain almost as serious and the State has agreed to dismiss lesser charges such as weapons violations and tampering with evidence. The State has agreed that you are to receive a 10 year sentence of which you must serve 85 percent without parole, that sentence to run consecutive to your present sentence. The State further and you, I'm sorry, you further agree that you waive your right to appeal. Are there any other agreements between you and the State?

The plea colloquy fully supports a finding that it was in compliance with R. 3:9-2 as well as Kovack and its progeny.

Although the discretion of the trial judge should ordinarily be construed liberally where the motion is made before sentencing, the apparent guilt or innocence of the defendant is also relevant to a motion to retract a guilty plea. State v. Smullen, 118 N.J. 408, 417 (1990); Deutsch, supra, 34 N.J. at 198; Phillips, supra, 33 N.J. Super. at 519. Of importance, a court's "liberality" in response to a motion to withdraw "is dependent upon a showing that the relief is required by fairness" and the burden is on the defendant to make that showing upon a balancing of competing factors. State v. Russo, 262 N.J. Super. 367, 372-73 (App. Div. 1993). Stated otherwise, "liberality in exercising discretion does not mean an abdication of all discretion." Id. at 373 (quoting State v. Huntley, 129 N.J. Super. 13, 17 (App. Div.), certif. denied, 66 N.J. 312 (1974)). "Fairness" in the context of a request to withdraw a plea must take into account the important interest of finality to pleas. Ibid. Hence, where there is no doubt that a plea has been entered truthfully, voluntarily, and understandingly, its truthfulness amply implies the defendant's guilt and furnishes reason enough not to permit retraction. Deutsch, supra, 34 N.J. at 198; Phillips, supra, 33 N.J. Super. at 519. Accordingly, our Supreme Court, faced with a claim that a plea was coerced, has issued the following admonition: "Generally, representations made by a defendant at plea hearings concerning the voluntariness of the decision to plea . . . constitute a 'formidable barrier' which defendant must overcome before he will be allowed to withdraw his plea . . . because '[s]olemn declarations in open court carry a strong presumption of verity.'" Simon, supra, 161 N.J. at 444 (quoting Blackledge v. Allison, 431 U.S. 63, 74, 97 S. Ct. 1621, 1629, 52 L. Ed. 2d 136, 147 (1977)).

Moreover, where the plea was entered pursuant to a plea agreement, the defendant's burden of establishing a plausible basis for vacation of his plea is heavier. State v. Rodriquez, 179 N.J. Super. 129, 136 (App. Div. 1981). Once the agreement is validly entered into by the defendant voluntarily and knowingly, he will not be permitted to withdraw the plea simply because of a whimsical change of mind or even a belated assertion of innocence. Huntley, supra, 129 N.J. Super. at 18. Again, a defendant's subsequent claim to be relieved of the consequences of his guilty plea must also be weighed against the strong interests of the State in its finality. State v. DiFrisco, 137 N.J. 434, 456 (1994); State v. Taylor, 80 N.J. 353, 362 (1979); State v. Heitzman, 209 N.J. Super. 617, 621 (App. Div. 1986), aff'd, 107 N.J. 603 (1987). "All plea-bargain jurisprudence recognizes the important interest of finality to plea." Smullen, supra, 118 N.J. at 416.

Rule 3:9-3(e) provides:

If at the time of sentencing the court determines that the interests of justice would not be served by effectuating the agreement reached by the prosecutor and defense counsel or by imposing sentence in accordance with the court's previous indications or sentence, the court may vacate the plea or the defendant shall be permitted to withdraw the plea.

Accordingly, in order to determine whether it would be in the interest of justice to allow defendant to withdraw his plea, the Court must examine his assertions in light of Slater, supra, 198 N.J. 145. "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." Id. at 157-58. "A bare assertion of innocence is insufficient to justify the withdrawal of the plea[,]" and a defendant must present "specific, credible facts, and, where possible, point to facts in the record that buttress [his] claim." Id. at 158.

Defendant has not presented specific, credible facts of his innocence. Rather, he claims that the sworn factual basis that he provided at the time of his plea was the product of what he culled from "discovery." The court rejected this claim. The trial judge found defendant's claim to be inconsistent with the court's opportunity to assess the credibility of defendant's sworn testimony when providing a factual basis as part of the plea. The court noted the strength of the proofs against defendant. There was forensic evidence that tied defendant to this crime that was both substantial and compelling. In addition, there was compelling circumstantial evidence as to defendant's whereabouts immediately subsequent to the robbery.

As the Slater Court recognized, in connection with its second factor, the nature and strength of the reasons for withdrawal, "trial judges must act with great care and realism because defendants often have little to lose in challenging a guilty plea" and such ruling may rest on the "view of the defendant's demeanor and candor at both the plea proceedings and at any later hearing on the withdrawal of the motion." Id. at 160. The trial judge could barely disguise his skepticism at the claims made by this defendant subsequent to the plea and his basis for seeking vacation of the plea. Nonetheless, in the exercise of both discretion and caution, the trial judge ordered a competency evaluation of defendant prior to making a determination. The proceedings conducted at the time of the plea, the record on the motion seeking to vacate the plea, and the report of competency evaluation of defendant singularly and jointly justify the court's rejection of defendant's reasons for withdrawal.

As to the third Slater factor, it is notable that a number of counts of the indictment against defendant were dismissed, and defendant received a more lenient sentence than had been offered earlier by the State. Moreover, the sentence for this first-degree crime was at the lowest end of the range. In every sense of the word, defendant benefitted from his "bargain."

Finally, as the Slater Court found, the State is only required to show prejudice if the defendant shows proofs of other factors in support of a withdrawal of a plea. The court below found there were no colorable reasons for withdrawal coupled with an appropriate assertion of innocence. Nonetheless, the court made findings that it would result in unfair prejudice to permit withdrawal of the guilty plea. The plea was accepted approximately three years after the robbery. The court noted that with the passage of time, the State's witness (victim), due to the injuries, might not be available, be alive, or be competent to testify. This finding is supported within the record.

Since we are not persuaded by any of the arguments made by defendant in support of this appeal, we affirm.