STATE OF NEW JERSEY v. THOMAS G. LAHART

NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-4993-15T1

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

V.

THOMAS G. LAHART,

        Defendant-Appellant.

____________________________

              Submitted October 24, 2017 – Decided December 18, 2017

              Before Judges Sumners and Moynihan.

              On appeal from Superior Court of New Jersey,
              Law Division, Atlantic County, Indictment No.
              12-11-2614.

              Nino V. Tinari, attorney for appellant (Omid
              T. Force, of counsel and on the brief).

              Damon G. Tyner, Atlantic County Prosecutor,
              attorney for respondent (Nicole L. Campellone,
              Assistant Prosecutor, of counsel and on the
              brief).

PER CURIAM

        Defendant appeals from the sentencing judge's October 2, 2015

order denying his application for a Graves Act waiver, 
N.J.S.A.
2C:43-6.2,1 and from the same judge's order of June 28, 2016,

denying defendant's motion to withdraw his guilty plea, arguing:

           POINT I

           THE TRIAL COURT ERRED IN DENYING THOMAS
           LAHART'S APPLICATION FOR A GRAVES ACT WAIVER,
           BECAUSE THE TRIAL COURT'S DECISION DID NOT
           GIVE SUFFICIENT WEIGHT TO ALL MATERIAL TERMS
           OF THE NEGOTIATED PLEA AND [THE] AMENDED OFFER
           FROM THE STATE TENDERED IN ITS MAY 26, 2015,
           DENIAL OF THOMAS LAHART'S FOURTH GRAVES WAIVER
           PETITION (WHICH WAS THE SUBJECT OF THOMAS
           LAHART'S APPLICATION FOR A GRAVES ACT WAIVER
           BEFORE THE TRIAL COURT AND INCORPORATED INTO
           THE TERMS OF THOMAS LAHART'S NEGOTIATED PLEA
           ON AUGUST 26, 2015) THAT THOMAS LAHART[ ]BE
           SENTENCED AS A "THIRD-DEGREE" OFFENDER-A
           DESIGNATION PER THE NEGOTIATED PLEA THAT
           ENTITLED THOMAS LAHART AT SENTENCING TO A


1 N.J.S.A. 2C:43-6.2 provides:

           On a motion by the prosecutor made to the
           assignment judge that the imposition of a
           mandatory minimum term of imprisonment under
           [the Graves Act] for a defendant who has not
           previously   been    convicted    of    [certain
           enumerated offenses], does not serve the
           interests of justice, the assignment judge
           shall place the defendant on probation . . .
           or reduce to one year the mandatory minimum
           term   of  imprisonment    during    which   the
           defendant will be ineligible for parole. The
           sentencing court may . . . refer a case of a
           defendant   who   has   not   previously    been
           convicted of an offense under [the Graves Act]
           to the assignment judge, with the approval of
           the prosecutor, if the sentencing court
           believes that the interests of justice would
           not be served by the imposition of a mandatory
           minimum term.



                                   2                          A-4993-15T1
          PRESUMPTION   OF   NON-IMPRISONMENT   UNDER
          
N.J.S.A. 2C:44-1e (JUDGMENT OF CONVICTION
          [AND] ORDER FOR COMMITMENT DATED OCTOBER 2,
          2015).

          POINT II

          THE TRIAL COURT ERRED IN DENYING THOMAS
          LAHART'S MOTION TO WITHDRAW GUILTY PLEA (ORDER
          DENYING MOTION TO WITHDRAW PLEA OF GUILTY
          DATED JUNE 28, 2016).

We agree that the sentencing judge erred by denying defendant's

motion to withdraw his plea on procedural grounds and reverse.

     Defendant was charged in a one-count indictment handed down

on November 29, 2012, with second-degree unlawful possession of a

handgun, 
N.J.S.A. 2C:39-5(b), a Graves Act offense.2 He petitioned

the Atlantic County Prosecutor to move for a waiver of the Graves

Act mandatory minimum term of incarceration,3 and although the

prosecutor denied that request, he concluded

          that it is appropriate in this case to offer
          to allow your client to plead guilty to the
          single count of second[-]degree unlawful
          possession of a handgun . . . contained in the
          indictment,   in   return  for   the   State's
          recommendation that he be sentenced as a

2
    The Graves Act, 
N.J.S.A. 2C:43-6(c), requires a mandatory
minimum term of imprisonment be imposed on an offender who commits
one of the crimes designated in the Act – including unlawful
possession of a handgun – "who, while in the course of committing
. . . the crime . . . was in possession of a firearm."
3
   The minimum term for a second-degree Graves Act offense at the
time defendant was indicted was between one-third and one-half of
the sentence imposed, or three years, whichever was longer.

N.J.S.A. 2C:43-6(c) (2007).

                                3                          A-4993-15T1
            third[-]degree offender to a term of three
            years in New Jersey State Prison with a one[-
            ]year period of parole ineligibility.

     After further negotiation, a plea agreement was finalized:

in return for defendant's plea of guilty to the indictment, the

State would recommend a three-year prison sentence with one year

of parole ineligibility.       The agreement contained the provision,

"Defendant reserves [the] right to withdraw his plea if he is

sentenced to a term of incarceration per the court."

     After the plea was entered, but before sentencing, defendant

filed a motion for relief from the Graves Act mandatory sentence,

arguing that it would not serve the interests of justice if

defendant   received     a   custodial   sentence,   and   requesting   the

sentencing court to impose a non-custodial probationary sentence.

     The sentencing judge found defendant "failed to show that the

prosecutor's decision to recommend a partial waiver rather than a

recommendation for probationary treatment was an arbitrary denial

amounting to a patent and gross abuse of discretion," and denied

defendant's    motion.         The   judge,   however,     "granted"    the

"Prosecutor's application[4] to sentence the [d]efendant under a

'partial waiver.'"     Although the judge issued a written decision,



4
   We did not receive copies of an application "for a partial
Graves waiver" referenced by the sentencing judge during the pre-
sentencing proceedings on October 2, 2015.

                                     4                             A-4993-15T1
he orally explained that he found the mitigating factors were

"sufficient to warrant sentencing a degree lower, [but] they are

not sufficient to show a manifest denial of justice" so as to

warrant a probationary sentence.     The judge stated his intention

to release defendant on his own recognizance pending an apparently

anticipated appeal, and to have the defendant return for status

conferences every sixty days "or so."      He thereafter sentenced

defendant to three years in prison with a one-year period of parole

ineligibility.

     Defendant obtained new counsel who was admitted pro hac vice

on April 11, 2016; he filed a motion to withdraw defendant's plea.5

The sentencing judge decided the motion without a hearing.     In a

June 28, 2016 letter opinion, he recognized defendant reserved the

right to withdraw his plea, but said that at defendant's sentencing

in October 2015

          the [c]ourt noted that "[d]efendant reserved
          the right to withdraw his guilty plea based
          on the outcome.     Defendant has decided to
          accept the [P]rosecutor's recommendation for
          partial waiver."     Thereafter, the [c]ourt
          imposed the negotiated sentence, but stayed
          execution of such pending appeal. It appears,
          however, [d]efendant did not file a timely
          appeal with the Appellate Division. Because
          [d]efendant failed to exercise his right to

5
   We received an unfiled copy of the motion dated April 6, 2016.
We do not know when it was filed.



                                 5                          A-4993-15T1
            withdraw his plea at sentencing, and following
            imposition of sentence failed to perfect an
            appeal,[6] the [c]ourt determines that sentence
            should now be ordered into effect.

      The State now argues that defendant did not file his motion

within the time frame set by the sentencing judge.              In the last

two sentences of the sentencing judge's eleven-page single-spaced

decision regarding the Graves Act waiver application, he wrote:

            The [d]efendant should notify the [c]ourt and
            the Prosecutor by October 16, 2015[,] whether
            he intends to abide by the plea agreement and
            be sentenced accordingly or whether he intends
            to withdraw his retraxit plea and proceed to
            trial.   The State will prepare an [o]rder
            consistent with this letter decision under the
            [f]ive[-][d]ay [r]ule.

      The language in the judge's decision, acknowledging defendant

had to advise the court if he accepted the plea or intended to

withdraw it, contradicts that part of his decision on the motion

to   retract       that   announced     defendant   accepted   the    State's

recommended sentence.            Further, there is no indication in the

record that defendant accepted the State's prison offer; the plea,

as   the   judge    noted   in    his   plea-retraction   decision,   clearly

provided he did not.         Further, the judge denied the motion to

withdraw because defendant had not filed a timely appeal, not




6 On September 15, 2015, we granted defendant's motion to file a
notice of appeal as within time. The notice of appeal was filed
on July 21, 2016, by defendant's most recent counsel.

                                         6                            A-4993-15T1
because he failed to file his motion within the time frame set

forth    in       the   judge's   written       decision.      And,    although   the

sentencing record indicates the judge handed out his written

decision to counsel just after placing his oral decision on the

record and just prior to sentencing, there was no pause in the

proceedings, or any indication that defendant was apprised of the

scheduling deadline imposed by the judge in his written decision.

Nor is there any indication defendant received a copy of the order

prepared by the State memorializing the judge's decision.

     We recognize a motion to withdraw a guilty plea is committed

to the judge's sound discretion. State v. Slater, 
198 N.J. 145,

156 (2009); State v. Phillips, 
133 N.J. Super. 515, 518 (App. Div.

1975).    We will only overturn a judge's decision if there was an

abuse of discretion causing the decision to be clearly erroneous.

The Court finds an abuse of discretion when a decision is "made

without       a    rational     explanation,       inexplicably       departed    from

established         policies,     or    rested   on   an    impermissible    basis."

Iliadis v. Wal-Mart Stores, Inc., 
191 N.J. 88, 123 (2007).

     Inasmuch as it was anticipated all along that defendant would

be able to retract his plea if he was "sentenced to a term of

incarceration," we conclude the sentencing judge erred by denying

the motion to withdraw.                There is no record that defendant was



                                            7                                A-4993-15T1
advised directly of any deadline for filing.7     He expected to be

brought back to court periodically pending appeal; we have no

record that any such proceedings were held.   And the judge denied

the application based on defendant's failure to file an appeal,

which was never a condition imposed by the judge.

     Although the State contends defendant would not be entitled

to relief under Slater,8 we will not entertain that argument

because it was not addressed by the sentencing judge.     State v.

Robinson, 
200 N.J. 1, 18-22 (2009).

     This is not a case where defendant's reasons for withdrawal

were unknown prior to the filing of his motion.    All parties were



7
    Defendant now contends his sentencing counsel was relieved
following the sentencing, and failed to communicate any deadlines
to him. This is a factual contention that was not considered by
the sentencing judge.    We leave that issue to be explored on
remand.
8
   The Slater Court instructed trial courts to utilize a four-
factor balancing test in determining a defendant's motion to
withdraw a plea. A court is to consider: (1) whether the defendant
has asserted a colorable claim of innocence; (2) the nature and
strength of defendant's reasons for withdrawing the plea; (3) the
existence of a plea bargain; and (4) whether any prejudice would
result to the State if the withdrawal is permitted. Slater, 
198 N.J. at 157-58.    Different weight may be given to each of the
factors, and the court should assess them all to achieve a just
result.   Id. at 158.    The timing of the motion determines the
standard to be applied to the court's review.      A pre-sentence
motion is governed by the "interest of justice" standard in R.
3:9-3(e), while a post-sentence motion is viewed under a "manifest
injustice" standard pursuant to R. 3:21-1. Slater, 
198 N.J. at 158.

                                8                           A-4993-15T1
aware of his desire to withdraw the plea if a custodial sentence

was imposed.       We reverse the denial of defendant's motion to

withdraw and remand the case for the judge to consider the motion

anew, utilizing an evidentiary hearing if deemed necessary.                    We

do not retain jurisdiction.

      In light of our remand, we need not address defendant's

contentions    with    regard       to   the   sentencing   judge's   decision

regarding the Graves Act waiver.               We note, however, our Supreme

Court's recent holding in State v. Nance, 
228 N.J. 378 (2017),

that provides guidance to the parties if the Graves-waiver issue

is   raised.      We   see   no    provision     in   
N.J.S.A.   2C:43-6.2,    as

interpreted by the Nance Court, that allows "partial waivers."                 If

the prosecutor moves before the assignment judge or the assignment

judge's designee, the judge has the authority to choose to impose

a probationary sentence or a one-year mandatory prison term.

Nance, 
228 N.J. at 394.           The prosecutor may argue in favor of one

sentence recommendation or another, but the judge need not accept

that recommendation.         Ibid.       Further, contrary to defendant's

argument, the acceptance of a Graves Act waiver does not exempt

defendant – on a second-degree crime – from the presumption of

incarceration.     Id. at 395-96.

      Reversed.



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