STATE OF NEW JERSEY v. TRAVIS DANIELS

NOT FOR PUBLICATION WITHOUT THE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-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TRAVIS DANIELS,

Defendant-Appellant.

________________________________

January 9, 2017

Submitted December 19, 2016 Decided

Before Judges Sabatino and Haas.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 13-11-2839, 13-11-2835, and 13-11-2840.

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

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Kayla E. Rowe, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Travis Daniels, who pled guilty to multiple charges set forth in three separate Essex County indictments, appeals from three May 5, 2015 Judgments of Conviction that imposed an aggregate eighteen-year term of imprisonment, subject to the 85% parole ineligibility provisions of the No Early Release Act (NERA), with a five-year period of parole supervision following his release. Defendant argues that the trial judge: (1) erred in denying his pre-sentence motion to withdraw his plea, and (2) failed to consider an applicable mitigating factor when determining the sentence. We affirm.

On November 8, 2013, an Essex County grand jury returned three indictments against defendant. In Indictment No. 13-11-02835, defendant was charged with six counts of first-degree robbery, N.J.S.A. 2C:15-1; one count of first-degree carjacking, N.J.S.A. 2C:15-2; two counts of second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1); two counts of second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1(a)(1); two counts of second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b); two counts of second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); and one count of second-degree conspiracy to commit carjacking, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-2.

Indictment No. 13-11-02839 charged defendant with four counts of first-degree robbery, N.J.S.A. 2C:15-1; two counts of first-degree carjacking, N.J.S.A. 2C:15-2; two counts of second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b); two counts of second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); and two counts of second-degree conspiracy to commit carjacking, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-2. Finally, Indictment No. 13-11-02840 charged defendant with one count of third-degree conspiracy to commit aggravated assault, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:12-1(b)(1); and one count of second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1).

On January 15, 2015, defendant and his attorney appeared before Judge Robert Gardner, and defendant entered pleas of guilty under Indictment No. 13-11-02835 to six counts of first-degree robbery; one count of first-degree carjacking; two counts of second-degree aggravated assault; two counts of second-degree conspiracy to commit robbery; and one count of second-degree conspiracy to commit carjacking. Under Indictment No. 13-11-02839, defendant pled guilty to two counts of first-degree robbery; two counts of first-degree carjacking; and two counts of second-degree conspiracy to commit carjacking. In addition, defendant pled guilty under Indictment No. 13-11-02840 to one count of third-degree conspiracy to commit aggravated assault.

The terms of the plea agreement were placed on the record. In return for defendant's guilty pleas, the State agreed to recommend that the court sentence him to an aggregate eighteen-year term, subject to NERA. The State also agreed to dismiss all of the remaining charges.

Judge Gardner conducted a thorough plea colloquy. In response to the judge's questions, defendant acknowledged that he completed the plea agreement forms, understood the terms of the plea, and was aware of his sentencing exposure. Through his questioning, the judge confirmed that defendant knew he had the right to go to trial; the prosecutor had the responsibility to prove him guilty of each offense beyond a reasonable doubt; and he had the right to remain silent at trial or testify on his own behalf. Defendant testified that he was pleading guilty because he was "in fact, guilty" of the charges; no one had forced or threatened him to plead guilty; he was "thinking straight and clear" at the time of the plea; and he had sufficient time to speak with his attorney about the matter.

Under extensive questioning by defense counsel, defendant provided a factual basis for each of the offenses. Defendant confirmed the date, location, victim, and his actions during the course of each separate incident. At the conclusion of the proceeding, Judge Gardner accepted the pleas, finding an adequate factual basis had been provided and the pleas were made knowingly and voluntarily.

On January 27, 2015, a probation officer interviewed defendant for the Presentence Report ("PSR"). The PSR states that, when the probation officer asked defendant to provide his version of the offenses, defendant replied, "'I don't recall. I received the charges while in custody on [another] offense.'"

On January 29, 2015, Judge Gardner received a letter from defendant. In the letter, defendant stated he "was wondering if [the judge] could have some leniency towards [him] and downgrade the amount of prison time that" he was facing in connection with "the Car Jacking and multiple Robbery charges that [he] had [pled] guilty to [on] January 15, 2015[.]" Defendant stated that he "realize[d] that no sin goes without punish [sic]" and that he was "willing to take responsibil[ity] of [his] ways and actions, that [he] must suffer the cons[e]quences for."

Judge Gardner scheduled sentencing for March 20, 2015. On that date, however, defendant told his attorney he wanted to attempt to withdraw his plea. Sentencing was postponed until May 4, 2015 to permit the attorney to file a formal motion on defendant's behalf.

On April 7, 2015, defendant's attorney filed a motion to withdraw defendant's plea. Defendant did not supply an affidavit in support of the motion, but his attorney stated that defendant wanted to withdraw the plea because, as indicated in the PSR, "he didn't recall the instant offenses." The State opposed defendant's motion.

On May 4, 2015, Judge Gardner rendered a thorough oral, decision, denying defendant's motion. In considering a defendant's motion to withdraw a plea, the trial court must consider and balance 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. Munroe, 210 N.J. 429, 442 (2012) (citing State v. Slater, 198 N.J. 145, 157-58 (2009)). "No single Slater factor is dispositive; 'if one is missing, that does not automatically disqualify or dictate relief.'" State v. McDonald, 211 N.J. 4, 16-17 (2012) (quoting Slater, supra, 198 N.J. at 162). The decision on a motion to withdraw a guilty plea rests within the sound discretion of the trial judge. State v. Simon, 161 N.J. 416 (1999).

In his oral decision, Judge Gardner reviewed each of the four Slater factors. The judge found that defendant did not assert a claim of innocence, but "merely assert[ed] he can't recall some of the events." The judge found that this claim was "undermine[d]" by defendant's January 29, 2015 letter in which he acknowledged his crimes and asked for leniency for his actions. In addition, the judge noted that defendant previously gave a two-hour statement to the police concerning the offenses, which "detail[ed] [his] criminal activity."

The judge next concluded that defendant did not "present a valid reason for withdrawal" of his plea, which he had "entered knowingly and voluntarily, under oath." As to the third Slater factor, the judge found that the plea was entered following "a long and extensive negotiation that occurred between counsel, with regard to the resolution of the matter by a plea agreement."

Finally, Judge Gardner noted that the plea was entered on January 15, 2015, and almost four months had already passed since that date.1 The judge found that "[t]he passage of time, with memories fading . . . , prejudice[d] . . . the State[.]"

After denying defendant's motion to withdraw his plea, the judge followed the terms of the negotiated plea and sentenced defendant to an aggregate eighteen-year term, subject to NERA.2 This appeal followed.

On appeal, defendant presents the following arguments for our consideration

POINT I

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S PRE-SENTENCING MOTION TO WITHDRAW FROM HIS GUILTY PLEA.

POINT II

THE MATTER SHOULD BE REMANDED FOR RESENTENCING BECAUSE THE SENTENCING JUDGE FAILED TO CONSIDER A MITIGATING FACTOR CLEARLY PRESENT IN THE RECORD.

Our review of the record convinces us that Judge Gardner acted properly in denying defendant's motion and determining the sentence. Defendant's arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add only the following brief comments.

We are satisfied that the trial judge properly evaluated the Slater factors, all of which weighed heavily against allowing a withdrawal of the plea. First, defendant did not make a colorable claim of innocence. He provided a factual basis for each of the charges to which he pled. Second, the record fully supports the judge's determination under the second Slater factor that defendant did not present a strong reason for seeking to withdraw his plea. Although defendant told the probation officer that he did not recall the offenses when asked for his version of events, this claim was completely refuted by defendant's clear recollection at the plea hearing, his subsequent letter to the judge acknowledging his participation in the offenses, and his earlier two-hour statement to the police further detailing his actions.

Third, the plea was made pursuant to a negotiated plea agreement. Finally, the record amply supports the trial judge's finding that the State would be prejudiced if defendant were permitted to withdraw the plea. Because the judge did not abuse his discretion in making these findings, we discern no basis for disturbing them.

Finally, defendant contends that the trial judge failed to consider and apply mitigating factor eleven, N.J.S.A. 2C:44-1(b)(11), in determining the sentence. This argument also lacks merit.

It is well established that, "[i]n fixing a sentence within the statutory range, a judge must determine whether specific aggravating or mitigating factors are grounded in credible evidence in the record and then weigh those factors." State v. Case, 220 N.J. 49, 54 (2014). The trial court must also explain how it conducted the weighing process. Id. at 65; State v. Fuentes, 217 N.J. 57, 73-74 (2014). The Court has also emphasized that

[m]itigating factors that "are called to the court's attention" should not be ignored, State v. Blackmon, 202 N.J. 283, 297 (2010), and when "amply based in the record . . . , they must be found," State v. Dalziel, 182 N.J. 494, 504 (2005). In short, mitigating factors "supported by credible evidence" are required to "be part of the deliberative process." Dalziel, supra, 182 N.J. at 505.

[Case, supra, 220 N.J. at 64.]

Mitigating factor eleven applies where "imprisonment of the defendant would entail excessive hardship to himself or his dependents." N.J.S.A. 2C:44-1(b)(11). However, our Supreme Court has made clear that the mere fact that a defendant has children does not require a trial court to find mitigating factor eleven. Dalziel, supra, 182 N.J. at 505. Instead, a defendant must demonstrate that the children are dependents who will suffer an excessive hardship if the defendant is incarcerated. Ibid.

Here, defendant's attorney did not specifically ask the trial judge to consider mitigating factor eleven at the sentencing hearing. However, the attorney advised the judge that defendant had three young children, and that the children's mother was present in court. The judge asked the mother whether she wanted to speak, but she declined to do so. The PSR indicated that defendant did not live with the children or their mother, and did not provide them with any financial support. Although defendant testified at the sentencing hearing, he did not mention his children or their mother, and did not assert that he provided any emotional support to them.

Under these circumstances, mitigating factor eleven was clearly not applicable. Dalziel, supra, 182 N.J. at 505. Therefore, we discern no basis to second-guess the sentence.

Affirmed.

1 The offenses in the three indictments occurred between January 26, 2013 and February 17, 2013.

2 The judge signed the three judgments of conviction on May 5, 2015.