STATE OF NEW JERSEY v. HARRY K. FRYE

NOT FOR PUBLICATION WITHOUT THE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.

HARRY K. FRYE and

DANA FRYE, his wife,

Defendants-Appellants.

______________________________________________________________

April 9, 2014

 

Argued March 19, 2014 Decided

 

Before Judges Sapp-Peterson and Maven.

 

On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Municipal Appeal No. A-32-12.

 

James E. Gabel, attorney for appellants.

 

Richardson, Galella & Austermuhl, attorneys for respondent State of New Jersey/Township of Mantua (Linda A. Galella, on the brief).

 

PER CURIAM

In this appeal, defendant Harry K. Frye1 challenges the establishment of the factual basis upon which he entered a conditional guilty plea for violating a municipal ordinance. After a careful review of the record evidence, we determine a valid plea was not entered. Accordingly, we vacate the conviction and reverse.

The facts surrounding this matter are set forth in the Law Division judge's April 3, 2013 written opinion.

The Fryes obtained a Certificate of Occupancy for the trailer from the Mantua Township Zoning Board in 2003 with the understanding that the trailer was to serve as a temporary classroom while the owners received site plan approval from the Zoning Board for an expansion of the existing day care facility. The owners obtained preliminary site plan approval for the construction project on June 8, 2007. In that preliminary site approval[,] the Zoning Board noted that obtaining final site plan approval was contingent upon removal of the temporary trailer. Subsequently, the owners were unable to obtain the financing needed to continue with the construction project. The trailer remained on the property and continued to be used as a classroom.

The Certificate of Occupancy for the trailer was revoked on June 2, 2010. Subsequently, the owners received various summonses for, among other things, occupancy after the revocation of a certificate of occupancy. Defendant Harry K. Frye appeared in Mantua Township Municipal Court on January 20, 2011 in response to the summonses.[2] Defendant was represented by counsel and entered into a conditional guilty plea. It was represented that Brian D. Lozuke, Esquire represented the defendant and had discussed the removal of the trailer with the defendant over "many months." The terms of the conditional guilty plea required that defendant proceed in good faith with an application for final site plan approval and then proceed with the construction project. It was agreed that "under no circumstances will the defendant be permitted to maintain the trailer which exists at the site beyond September 15, 2011." A $5,000 fine was suspended and if the trailer remained after that date, the $5,000 fine would be due and an additional fine of $1,000 per day would accrue for every day the trailer remained on the property after the date agreed upon for removal.

Defendant did not remove the trailer by September 15. As a result, he was summoned to appear before the Mantua Township Municipal Court on July 12, 2012. At the hearing, the judge determined that defendant violated the terms of the January 20, 2011 conditional plea, and imposed the $5000 fine and a fine of $301,000, representing the $1000 per day penalty. Defendant appealed from the July 12, 2012 municipal court disposition and the imposition of the fines and penalties.

The matter went before a Law Division judge for a de novo trial on January 18, 2013. Initially, the court decided to limit the appeal to a review of the record of the July 12, 2012 proceeding imposing the fines. However, defense counsel persuasively argued the judge could not properly consider the imposition of the sentence without reviewing the plea which arguably lacked a factual basis. The court agreed and determined that "there may be no basis for the imposition of the fines if the plea underlying that was not properly done. . . . And although time has run to appeal[,] . . . I have to consider that issue."

The judge invited counsel to submit a written argument on whether there was a factual basis for defendant's conditional guilty plea and whether the plea was voluntarily given. In his April 3, 2013 written decision, the judge found that an adequate factual basis had been established and defendant entered into the conditional plea freely, voluntarily, knowingly, and without coercion. The judge further found defendant violated the terms and conditions of the plea agreement and, thereafter, imposed a $5000 fine. As for the $1000 accumulating fine, the court found $301,000 to be unreasonable in light of the municipality's delay in filing the violation notice. The judge vacated that portion of the fine and remanded for further consideration of an appropriate per diem penalty.

This appeal followed, where defendant raises the following arguments:

I. THE ZONING PERMIT ISSUED TO THE KIDDIE KORRAL KASTLE/DANA FRYE ON JUNE 3, 2003 WAS A USE PERMITTED BY ORDINANCE.

 

II. THE CERTIFICATE OF OCCUPANCY ISSUED TO APPELLANT HARRY K. FRYE ON NOVEMBER 5, 2003 FOR THE TRAILER (ACTUALLY A CUSTOM MADE "CUSTOM MODULAR CLASSROOM") WAS ISSUED WITHOUT CONDITIONS AND WAS NOT A TEMPORARY CERTIFICATE OF OCCUPANCY.

 

III. PRELIMINARY SITE PLAN APPROVAL WAS GRANTED TO THE APPELLANTS ON FEBRUARY 19, 2008 AND MEMORIALIZED, PURSUANT TO RESOLUTION 08-15 OF THE MANTUA TOWNSHIP PLANNING BOARD.

 

IV. THE JUNE 2, 2010 LETTER FROM TED BANFORD, THE MANTUA TOWNSHIP ZONING OFFICER, PURPORTING TO REVOKE THE CERTTIFICATE OF OCCUPANCY IN ERROR, FOR THE TRAILER/"CUSTOMIZED MODULAR CLASSROOM" WAS INEFFECTIVE AND UNLAWFUL FOR A VARIETY OF REASONS.

 

V. AS INDICATED IN THE COURT'S OPINION, AFTER HEARING THE ARGUMENTS OF COUNSEL ON JANUARY 18, 2013, IT WAS DECIDED THAT A DETERMINATION MUST BE MADE AS TO WHETHER AN ADEQUATE FACTUAL BASIS WAS PLACED ON THE RECORD AND WHETHER THE DEFENDANT ACTED KNOWINGLY AND VOLUNTARILY WHEN HE ENTERED INTO THE GUILTY PLEA ON JANUARY 20, 2011. FURTHER SUBMSSIONS WERE TO BE PROVIDED TO THE COURT AND REVIEWED.

 

IT IS APPELLANTS' POSITION THAT THERE WAS NEVER A FACTUAL BASIS PLACED UPON THE RECORD NOR WAS THE "CONDITIONAL" PLEA ENTERED INTO BY THE APPELLANT KNOWINGLY AND VOLUNTARILY; THEREFORE, SAME IS SUBJECT TO REVIEW AND POSSIBLE MODIFICATION OR REJECTION BY THIS COURT.

 

VI. IN ACCORDANCE WITH THE "CONDITIONAL PLEA" OF JANUARY 20, 2011, WHICH IS CONTESTED HEREIN, APPELLANTS DID APPLY FOR FINAL SITE PLAN APPROVAL BEFORE THE MANTUA TOWNSHIP PLANNING BOARD. SAID FINAL SITE PLAN APPROVAL WAS GRANTED PURSUANT TO MANTUA TOWNSHIP PLANNING BOARD RESOLUTION 11- 13 ON APRIL 19, 2011.

 

VII. THE FINES AND COSTS IMPOSED BY THE MUNICIPAL COURT EXCEEDED THE STATUTORY AUTHORITY GIVEN TO MUNICIPAL COURTS IN FIXING FINES, PENALTIES AND COSTS BY A MUNICIPAL COURT IN THE STATE OF NEW JERSEY.

 

We have reviewed the record as well as defendant's arguments and conclude that in light of our conclusion that defendant's conditional guilty plea must be vacated, we need not address Points I through IV, Point VI and Point VII. We take no position as to whether Points I through IV and Point VI, as the Law Division found, are issues that should have been presented to the planning board and, if not resolved to defendant's satisfaction, raised in an action in lieu of prerogative writs. We therefore limit our discussion to Point V.

On an appeal such as this, we "consider only the action of the Law Division and not that of the municipal court," State v. Oliveri, 336 N.J. Super. 244, 251 (App. Div. 2001), because the Law Division's determination is de novo on the record from the municipal court. R. 3:23-8(a). Our review of purely legal issues is plenary. State v. Goodman, 415 N.J. Super. 210, 225 (App. Div. 2010), certif. denied, 205 N.J. 78 (2011). We are limited to determining whether the Law Division's de novo factual findings "could reasonably have been reached on sufficient credible evidence present in the record." State v. Johnson, 42 N.J. 146, 162.

To review the lower court's assessment of defendant's conditional plea, we start with the premise that proceedings in municipal courts prosecuting violations of municipal ordinances are essentially criminal in nature. State v. Barnes, 168 N.J. Super. 311, 314 (App. Div. 1979) (citing State v. Yaccarino, 3 N.J. 291, 295 (1949)). Consequently, the judge taking a plea to a violation of a municipal ordinance must satisfy the same requirements for taking a guilty plea as an offense governed by our criminal code. See State v. Stafford, 365 N.J. Super. 6, 11, 14 (App. Div. 2003) (noting that although the defendant was charged with violating municipal ordinances "the practice mandated in the New Jersey Criminal Code . . . should also be followed" and guilt "must be established beyond a reasonable doubt"); see also State v. Martin, 335 N.J. Super. 447, 450-51 (App. Div. 2000) (reiterating the necessity to ensure the voluntariness of a defendant's plea as well as the consequences of the plea).

It is clear that for a plea of guilty to be accepted, there must be a factual basis for the plea. State v. Smullen, 118 N.J. 408, 414 (1990). A "factual basis for a guilty plea must obviously include defendant's admission of guilt of the [offense] or the acknowledgment of facts constituting the essential elements of the [offense]." State v. Pineiro, 385 N.J. Super. 129, 137 (App. Div. 2006) (quoting State v. Sainz, 107 N.J. 283, 293 (1987)). A judge must be "satisfied from the lips of the defendant that he committed the acts which constitute the [offense]." State v. Slater, 198 N.J. 145, 155 (2009). Therefore, "[e]ven if a defendant wished to plead guilty to [an offense] he or she did not commit, he or she may not do so. No court may accept such a plea." Smullen, supra, 118 N.J. at 415. "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." Sainz, supra, 107 N.J. at 293; see also State v. Butler, 89 N.J. 220, 224-25 (1982).

In reviewing a trial court's decision on a motion to vacate a plea, we will reverse only if the decision is "clearly erroneous." State v. Mustaro, 411 N.J. Super. 91, 99 (App. Div. 2009). To resolve the motion, the court must 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 of the plea; (3) whether the plea was entered as part of a plea bargain; and (4) whether withdrawal of the plea would result in unfair prejudice to the State or unfair advantage to the accused. Slater, supra, 198 N.J. at 158-61.

We recite the relevant portion of the January 20, 2011 plea hearing to put defendant's claim in its proper context. As noted above, defendant was charged with violating Municipal Ordinance 230-92(a)(3) for continuing "the use of [a] temporary trailer without [an] issued construction permit," after the revocation of the Certificate of Occupancy (CO) by the Zoning officer. The following individuals appeared in the municipal court proceeding: defendant with his attorney, Brian Lozuke; Kelly Conroy, the Municipal Prosecutor; and Samuel Ragonese, the municipal planning board solicitor, who served as special prosecutor for the State. The municipal court judge reviewed the negotiated plea agreement that called for defendant to enter a conditional guilty plea to a violation of Municipal Ordinance 230-92(a)(3), "occupancy beyond the date by which a Certificate of Occupancy was revoked by the Zoning officer of this town."

After the judge recited the agreement, he asked defendant,

Court: Is that correct? Sir, do you understand that?"

 

Defendant: Yeah, I understand what was said.

 

Court: Do you agree to this?

 

Defendant: Not entirely

 

Court: What is it that you don't agree to?

 

Defendant: The guilty plea on the particular summons for operating without a CO. I have a CO.

Defendant continued to question whether there should be a guilty plea or a fine. Mr. Ragonese conducted the colloquy with respect to defendant's understanding of the settlement and voluntariness of his plea:

Mr. Ragonese: Mr. Frye, you have been represented in this matter throughout by Mr. Lozuke; is that correct?

 

A Correct.

 

Q And, you understand the terms of the settlement require that you will be required to have an application filed with the Mantua Township Planning Board by March 10, 2011 seeking final site plan approval for an addition should you so decide; is that fair to say?

 

A Correct.

 

Q And, you understand that if you proceed and obtain final site plan approval that you must obtain a building permit from the Township of Mantua by June 1; correct?

 

A Correct.

 

Q And, that under no circumstances shall the trailer on-site remain there beyond September 15; right?

 

A I have a question for you.

 

Q No, just answer my questions, okay. I'm asking the questions. So, you understand or do you not that the trailer must be removed by September 15 under all circumstances?

 

A Yes, I understand.

 

Q Okay. Now, do you understand that if you do not meet any one of those three benchmark dates that the town will be entitled to hold you in contempt for failure to make payment of the $5000 fine and to also seek the imposition of an additional fine of $1000 per day for each day of noncompliance with the terms of this conditional plea. Do you understand that?

 

A Right, that's what we talked about earlier that I was questioning.

 

Q Right. So do you understand the terms of the settlement in full; correct?

 

A Correct.

 

Q All right. Now, you're not presently under the influence of any medications; correct?

 

A Correct.

 

Q You don't take any medications that would affect your ability to exercise clear judgment in deciding what to do in this case; correct?

 

A Correct.

 

Q And, today you have entered into this conditional plea freely and voluntarily; correct?

 

A Yeah, I have no choice.

 

Q And, in making this decision to accept the conditional plea, you decided that you could have gone to trial and tried this case, you're aware of that; right?

 

A Yeah, my attorney advised me that we should make a resolution.

 

Q And, you have agreed to make a resolution; correct?

 

A Yes, we're doing so now.

 

Q And, you understand that the terms of this conditional plea are in the place of a guilty finding or a finding of not guilty. Do you understand that?

 

A No, now I'm confused about what you just said.

 

Q Okay. What we're doing here today replaces a trial and a finding of guilt or not guilt. You understand that?

 

A Right.

 

Q Okay. And, you're entering this plea after having received the advice that you just referred to by your counsel; right?

 

A Right.

 

Q And, you've had an opportunity to speak to Mr. Lozuke at length about this case?

 

A Correct.

 

Q Over many months now; right?

 

A Correct.

 

Q And, you're reaching this -- and you've reached this plea today with your own free accord; correct?

 

A Correct.

 

Q Do you understand that the other charges will be held in abeyance and so long as you comply with the terms of the conditional plea they will be dismissed? Do you understand that?

 

A I thought they were dismissed?

 

Q No, they will be dismissed if you comply with the terms of the benchmarks that we've established, otherwise you could be subject to prosecution. Do you understand that now?

 

A I don't necessarily agree.

 

THE COURT: [W]hat I have marked . . . is that I am holding these three remaining charges with the intent to dismiss on full compliance and ultimately if there is full compliance all charges will be dismissed.

 

MR. FRYE: Well, what I don't understand, Your Honor, is [Ragonese] said that I'm entering -- I'm not entering a guilty or a not guilty plea today, but yet there's one particular summons that you're stating that I am guilty of, if I do not make the terms of the three dates that will be prosecuted.

 

THE COURT: No, that's -- essentially that's correct, under summons #005908 I have marked --

 

MR. FRYE: So, that means I am entering a guilty plea of that and [Ragonese] said I'm not.

 

THE COURT: -- and I marked it "conditional".

 

MR. LOZUKE: Okay. It means provided there's full compliance it will be dismissed as well as the other charges.

 

THE COURT: All right. It is a provisional or conditional plea and if you comply with what you've agreed to, this conditional or provisional plea of guilty will be marked "dismissed".

 

MR. FRYE: I understand, Your Honor. I --

 

THE COURT: The other three charges I have not marked any plea to --

 

MR. FRYE: Okay.

THE COURT: Okay, other than a plea of not guilty, and with the -- and I marked it "hold" with the intent to dismiss on condition of compliance with the requirements under this summons.

 

MR. FRYE: And, that particular summons, what does that state again what the charges are?

 

THE COURT: That's a summons, continued use of a trailer without a Certificate of Occupancy in violation of Local Ordinance #230-92(a)(3).

 

MR. FRYE: But, Your Honor, that's what I'm saying is I do have a CO -- a current CO presently.

 

MR. LOZUKE: But, that is what is being disputed. The charge will be dismissed upon compliance with the settlement agreement.

 

MR. FRYE: Well, I understand, but what I'm saying is how can I plead guilty to something that I know that I have.

 

MR. LOZUKE: That is what is in dispute and that is already resolved. So, that charge will be dismissed along with the other three upon compliance with the terms that were just read.

 

MR. FRYE: All right, I have no choice.

 

MR. CONROY: Your Honor, --

 

MR. RAGONESE: If I could just follow along, Your Honor.

 

THE COURT: Yes.

 

BY MR. RAGONESE:

 

Q You are aware that you received a certified letter revoking the CO; correct?

 

A Yeah, I did receive a letter, yes.

Q And, you are aware that the charge for occupying without the CO followed the revocation of that earlier CO . . . by certified letter. Do you recall that, right?

 

A Yeah. But, what was the reason why . . . revocation was set?

 

Q Well, the letter explains that it was revoked and your attorney has explained to you that trailers are not allowed generally; correct?

 

A Yes, . . . it's a nonconformity.

 

Q Now, also sir, today I would like to ask you, has anyone offered to pay you money to make this plea?

 

A Offered to pay me money?

 

Q Yes.

 

A No.

 

Q Have you been offered anything of value to enter into this plea?

 

A No.

 

Q Have you been forced or threatened with harm in any way to make this conditional plea of guilty? Yes or no?

 

A. No.

 

MR. RAGONESE: I have nothing further, Your Honor.

 

BY MR. RAGONESE:

 

Q Last -- one last question. Are you satisfied with the services of Mr. Lozuke and his office?

 

A Absolutely.

 

[(Emphasis added).]

 

As stated above, defendant appealed from the order of July 2012, in which the court imposed a financial penalty. Defendant did not appeal the January 2011 conviction for violating the ordinance. Yet at the trial de novo, the judge, sua sponte,found it necessary to review the sufficiency of defendant's plea as a preliminary matter to reviewing the propriety of the fines and penalties imposed. The judge found the plea to be sufficient to establish a violation of the Municipal Ordinance. However, we cannot accept that ruling when the plain reading of the transcript lays bare defendant's confusion with respect to the possession of the CO, an essential element of the offense.

The subsequent efforts by the court and counsel to salvage the plea were unavailing. Defendant's eventual acknowledgement of his understanding of the negotiated plea agreement is not tantamount to establishing a factual basis for the plea. See 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.") We discern that defendant understood the plea agreement, namely, he had to apply for final site plan approvals in March 2011 to receive a construction permit by June 2011 and remove the temporary trailer by September 15, 2011. However, when defendant attempted to inform the court of his possession of a CO and other exculpatory information, he was prevented from speaking by opposing counsel. The record clearly demonstrates defendant did not understand how he could be guilty of having a trailer in the property "after revocation of a certificate of occupancy." In order to have established a factual basis, defendant must have admitted to guilt of all the essential elements of the offense. In our view, defendant did not do so here.

While we understand the municipality's goal is to have defendant remove the "temporary" trailer that has been on defendant's property from 2003 up to the present day, the record does not satisfy us that defendant acknowledged the most essential criteria of a guilty plea: "that the defendant is in fact guilty of the [offense] for which he is being sentenced." Id. at 292. Unlike many defendants who, in their plea colloquy may provide only stilted, monosyllabic responses to counsel's and the court's questions, here, defendant's responses are sufficiently clear to convince us that his plea lacks the requisite voluntariness, and acknowledgment of guilt.

Consequently, we vacate defendant's guilty plea and the sentence imposed. We remand the matter to the Mantua Township Municipal Court for trial or further proceedings. Martin, supra, 335 N.J. Super. at 452.

Reverse and remanded. We do not retain jurisdiction.

1 Defendant Dana Frye did not participate in this appeal. Therefore, reference to defendant pertains solely to Harry K. Frye.

2 The summons references an incorrect Ordinance section number, Ordinance 230-55, rather than 230-92(a)(3). The parties acknowledged the error below.