STATE OF NEW JERSEY v. JEROME J. CLEMENTE

NOT FOR PUBLICATION WITHOUT THE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.

JEROME J. CLEMENTE,

Defendant-Appellant.

__________________________________

April 13, 2016

 

Argued February 3, 2016 Decided

Before Judges Ostrer and Haas.

On appeal from the Superior Court of New Jersey, Law Division, Morris County, Municipal Appeal No. 12-061.

Rudy S. Randazzo argued the cause for appellant (Riker Danzig Scherer Hyland & Perretti LLP, attorneys; Stuart M. Lederman, of counsel; Michele J. Glass and Mr. Randazzo, on the briefs).

Paula Jordao, Assistant Prosecutor, argued the cause for respondent (Fredric M. Knapp, Morris County Prosecutor, attorney; Ms. Jordao, on the brief).

PER CURIAM

Defendant Jerome Clemente appeals from the Law Division's order, after a trial de novo, denying post-conviction relief and a motion to withdraw his guilty plea to driving under the influence of intoxicating liquors (DUI), N.J.S.A. 39:4-50. Defendant argues that the court erred in applying Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) to the PCR petition, and State v. Slater, 198 N.J. 145 (2009) to the withdrawal motion. We reverse for a different reason: defendant entered his plea pursuant to an agreement with the judge regarding sentencing, which contravenes the policy against plea agreements in DUI cases and the rule generally prohibiting judges from participating in plea negotiations. We conclude that enforcement of these important policies requires setting aside the plea.

I.

Given our disposition, we briefly recite the facts, and focus on the procedural history. Defendant was arrested outside his home on February 22, 2011 at 4:22 p.m. Police officers suspected that defendant's vehicle was in a hit and run accident. The first officer on the scene contended he saw defendant attempt to parallel park. Upon questioning, defendant exhibited physical signs of intoxication. He allegedly admitted that he had just come from a market and a liquor store, and had consumed a pint of vodka that day. He performed poorly on field sobriety tests. A post-arrest chemical breath test indicated a .22 blood alcohol content (BAC).

Represented by counsel, defendant entered his plea on August 18, 2011 in municipal court. According to the transcript, the municipal prosecutor did not appear at the plea hearing. In his allocution, defendant admitted he had consumed a pint of vodka before driving and that this impaired his ability to drive. He did not challenge his BAC test result. The judge accepted defendant's factual basis and sua sponte dismissed related motor vehicle violations. Because this was defendant's third DUI offense, he faced a mandatory 180-day sentence, although the court was authorized to allow defendant to serve ninety days in inpatient treatment. N.J.S.A. 39:4-50(a)(3). His counsel asked the court to sentence defendant to serve the first ninety days in a long-term inpatient program and the remainder in jail. The judge responded, "I know we've conferenced this . . . in chambers. And I said while it's unusual as to what we're supposed to do, I would go along with it." The record does not reflect whether the prosecutor attended the conference.

The court then sentenced defendant in accord with the agreement: 180 days jail time, the first ninety days of which could be served in an inpatient program; ten-year driver's license suspension; three-year ignition interlock requirement; and mandatory monetary sanctions.

On November 15, 2011, defendant wrote to the court seeking to withdraw his guilty plea, alleging his defense attorney was ineffective. No action was apparently taken on his request until defendant filed a motion for post-conviction relief in October 2012.1 On January 24, 2013, the same municipal judge heard the motion. Defendant appeared pro se; his prior counsel had been noticed to appear but failed to appear. The judge stated on the record, "The prosecutor's not participating in this either."

Defendant asserted his attorney was ineffective by failing to investigate his defense that he had been drinking at home and had only gone outside to retrieve items from his car. Defendant also claimed his attorney pressured him to plea, stating, "[Counsel] informed me that if I did not plead guilty . . . the Court would not allow me the choice to go into a rehabilitation facility for ninety days first, prior to being sent to jail." Defendant explained he had entered the plea so that his gravely ill mother would not die while he was in jail.

The judge denied relief, finding that defendant's claim of innocence was belied by statements in his allocution. The judge acknowledged he had made "an exception" with regard to sentencing by allowing defendant to complete rehabilitation before serving the jail sentence.

Upon de novo review, the Law Division denied the motion to withdraw the plea after applying the four Slater factors.2 With regard to the third factor, the court acknowledged the plea agreement, but did not place "undue weight" on it. In applying the two-pronged Strickland test to the ineffective assistance of counsel claim,3 the court held the deficiency prong was not met, partly because of the "favorable plea deal" counsel secured, which allowed defendant to complete the rehabilitation portion of the sentence first.

This appeal followed. Defendant presents the following points on appeal

I. THE COURT BELOW ERRED BY FAILING TO PROPERLY APPLY THE INEFFECTIVE ASSISTANCE OF COUNSEL STANDARD ESTABLISHED BY THE NEW JERSEY SUPREME COURT IN STATE V. DIFRISCO.4

II. THE COURT BELOW ERRED BY FOCUSING SOLELY ON THE PLEA ALLOCUTION AND FAILING TO CONSIDER THE TOTALITY OF THE CIRCUMSTANCES THAT GAVE LIFE TO THAT PLEA.

III. THE LAW DIVISION INCORRECTLY OVER-EMPHASIZED THE SIGNIFICANCE OF DEFENDANT'S PRIOR TESTIMONY AND THEREFORE ERRED IN ITS APPLICATION OF THE SLATER STANDARD.

II.

We reverse the trial court's order and vacate the plea based on an issue of law, over which we exercise de novo review. See Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). It is undisputed that defendant pleaded guilty to violating N.J.S.A. 39:4-50 pursuant to an agreement with the court regarding sentencing. The agreement violated the prohibition of plea bargaining DUI cases in municipal court, and the prohibition of judges participating in plea negotiations. To vindicate these two important rules, the plea shall be vacated.

Both prohibitions are well-settled. A judge may not initiate plea negotiations, and generally may not participate in them. See State v. Warren, 115 N.J. 433, 441-42 (1989) ("the judge can take 'no part'" in plea negotiations between prosecutor and defense counsel) (quoting R. 3:9-3(a)); State v. Thomas, 61 N.J. 314, 321 (1972) (same); State v. Williams, 277 N.J. Super. 40, 48 (App. Div. 1994) ("Because a judge may not participate in plea negotiations, a judge may not tender a plea offer, especially over the objection of the prosecutor."). The court's involvement in plea negotiations may encroach on the executive power of the prosecutor and therefore violate the separation of powers. Williams, supra, 277 N.J. Super. at 48.

The Court has allowed one narrowly circumscribed exception to this rule when both the prosecutor and defense request the judge's participation. R. 3:9-3(c). Upon such joint request, the court "may permit the disclosure to it of [a] tentative [plea] agreement . . . or . . . the status of negotiations" if no agreement has been reached. Ibid. The court may then indicate whether it would concur in the tentative agreement or the maximum sentence it would impose if the defendant pleads guilty absent an agreement. Ibid.; see also Warren, supra, 115 N.J. at 442 n.7; Williams, supra, 277 N.J. Super. at 47-48; State v. Salentre, 275 N.J. Super. 410, 417-18 (App. Div. 1994) (discussing background of Rule 3:9-3(c)). However, this exception applies only to proceedings governed by Part III of the Court Rules, which do not include motor vehicle violation trials. See R. 3:1-1.5

Putting aside the prohibition of a judge's participation, even a prosecutor and defense counsel may not plea bargain DUI cases in municipal court. When the Court lifted a general ban on plea agreements in municipal court in 1988, it retained the ban in DUI cases. State v. Hessen, 145 N.J. 441, 446-48 (1996); see also R. 7:6-2(d) (generally permitting plea agreements in municipal court, pursuant to Guidelines and accompanying comment); Pressler, Current N.J. Court Rules, Appendix to Part VII "Guidelines for Operation of Plea Agreements in the Municipal Courts of New Jersey" (2016) (Guidelines). The Court preserved the prohibition of plea bargaining DUI cases "to support the policy decisions of the legislative and the executive branches, in their commitment to eradicate drunk driving." Hessen, supra, 145 N.J. at 454.

Guideline 4 of the Guidelines states "[n]o plea agreements whatsoever will be allowed in drunken driving or certain drug offenses." Under Guideline 2, the parties to a plea agreement are the prosecutor and the defense. Plea agreements include agreements pertaining to sentencing. Guideline 2(c). Notwithstanding this ban, Guideline 4 permits a judge to "consider[] a plea agreement as to the collateral charges arising out of the same factual transaction" connected to a DUI offense.

We interpret the Guidelines to bar plea agreements between a judge and a defense attorney in DUI cases. Although not stated expressly in the Guidelines, no other interpretation is reasonable, in light of the general prohibition of a judge's participation in plea negotiations. SeeHessen, supra, 115 N.J.at 456 ("The meaning of the scope of the ban on plea bargaining in drunk-driving cases is indicated by the considerations of public policy that motivated its promulgation.").

Applying these principles, we conclude the plea agreement between the court and defense counsel was unauthorized.6 It is apparent the judge conferred with defense counsel and reached an agreement regarding the sentence provided that defendant pleaded to the DUI charge. The judge was not permitted to negotiate a plea agreement of any kind, particularly a plea agreement of a DUI violation.

It is unclear whether the agreement with defense counsel included dismissal of the motor vehicle charges. Nonetheless, the court lacked the authority sua sponte to dismiss them simply because defendant entered a plea to the DUI charge.

Given the violation of the plea bargaining ban and the judge's participation in plea negotiations, we are constrained to vacate the plea agreement. Cf.State v. Eckert, 410 N.J. Super.389, 399 (App. Div. 2009) (refusing to enforce agreement regarding sentencing of refusal and DUI offense, noting it circumvented the prohibition on plea agreements in DUI cases). Vacating the plea is necessary to vindicate the policy underlying the ban on plea agreements in DUI cases. It is also essential to maintain the impartiality of the judiciary, which lies at the heart of the prohibition of a judge's participating in or negotiating plea agreements.

We therefore reverse the order of the trial court, vacate the conviction, and remand for a trial. We do not retain jurisdiction.

1 A copy of the motion is not included in the record.

2 The four factors are: "(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." Slater, supra, 198 N.J. at 157-58.

3 To prevail on a claim of ineffective assistance of counsel, a defendant must establish that (1) his counsel's performance was deficient and he made errors so serious that counsel was not functioning as guaranteed by the Sixth Amendment and (2) defendant was prejudiced such that there existed a reasonable probability that, but for counsel's unprofessional errors, the result would have been different. Strickland, supra, 466 U.S. at 687, 694, 104 S. Ct. at 2064, 2068, 80 L. Ed. 2d at 693, 698.

4 137 N.J. 434 (1993).

5 Furthermore, the Rule provides that the request for a tentative indication of sentence must come from both parties, and the judge must provide it in the presence of both counsel. R. 3:9-3(c). The Supreme Court rejected a proposal that would have allowed a defense attorney alone to request the indication, which, opponents argued, could result in bypassing the prosecutor in plea negotiations if the tentative indication were acceptable to a defendant. Cf. Report of the Comm. on Criminal Practice, 122 N.J.L.J. Index Page 97, 113 (July 14, 1988).

6 As noted above, the municipal prosecutor was absent from the plea hearing and there is no indication in the record that the municipal prosecutor participated in the conference in chambers where the agreement was reached. Nor does the record include a "Request to Approve Plea Agreement," which the Guidelines permit a prosecutor to submit to the court in lieu of appearing on the record. Guideline 3. If the prosecutor did not participate, that implicates Canon 3(A)(6) of the Code of Judicial Conduct, which prohibits ex parte communications concerning a pending matter.