STATE OF NEW JERSEY v. JAY R. ARTZ
Annotate this CaseNOT 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-0955-16T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JAY R. ARTZ,
Defendant-Appellant.
___________________________________
Submitted February 13, 2018 – Decided March 5, 2018
Before Judges Carroll and Mawla.
On appeal from Superior Court of New Jersey,
Law Division, Atlantic County, Indictment No.
12-08-1998.
Joseph E. Krakora, Public Defender, attorney
for appellant (David J. Reich, Designated
Counsel, on the brief).
Damon G. Tyner, Atlantic County Prosecutor,
attorney for respondent (John J. Lafferty, IV,
Assistant Prosecutor, of counsel and on the
brief).
PER CURIAM
Defendant Jay R. Artz appeals from an August 18, 2016 order
denying his petition for post-conviction relief (PCR) without an
evidentiary hearing. We affirm.
On August 21, 2012, an Atlantic County grand jury returned a
five count indictment against defendant as follows: third-degree
aggravated assault against multiple police officers,
N.J.S.A.
2C:12-1(b)(2) (count one); third-degree resisting arrest,
N.J.S.A.
2C:29-2(a)(3)(2) (count two); third-degree possession of a weapon
for an unlawful purpose,
N.J.S.A. 2C:39-4(d) (count three);
fourth-degree infliction of harm on a law enforcement animal,
N.J.S.A. 2C:29-3.1 (count four); and third-degree terroristic
threats by threatening to commit a crime of violence and then
acting on that threat of violence,
N.J.S.A. 2C:12-3(a) (count
five).
The following facts are taken from the record. On June 21,
2012, officers from the Hamilton Township Police Department (HTPD)
were advised defendant had been making harassing telephone calls
to police dispatch. Defendant claimed there were people knocking
on his door and people were coming out of the woods to get him.
Defendant resided in an apartment complex, and police knew there
were no woods nearby.
Police then received a telephone call from the clinical
manager of Mobile Outreach advising defendant was enrolled in
2 A-0955-16T4
their outpatient program. The manager advised defendant had not
been cooperating with the program and stopped returning their
calls. She believed defendant had ceased taking his medication.
The manager also indicated defendant had threatened a staff member
who had been visiting him with a baseball bat. She expressed
concern for defendant's well-being and the safety of others.
Police also reviewed defendant's criminal record and learned
he had been adjudicated not guilty of homicide by reason of
insanity in 1981. Upon receiving the aforementioned information,
the police became concerned for the safety of others residing in
defendant's apartment complex, including children. Hamilton
Township police requested assistance from Human Services police
because they had prior experience responding to defendant's
residence and interacting with him. Both departments responded
to defendant's residence to attempt to speak with him, assure his
safety, and the safety of others.
Upon arrival at defendant's residence, Sergeant Christopher
Robell and other officers of the HTPD observed that Human Services
Police officers were already on the scene. Defendant repeatedly
refused requests to open the door and instead challenged police
to get him. Defendant also stated to another officer: "Lieutenant
you're gonna get hot water in your face if you come in here."
Sergeant Robell could hear defendant tapping on his front door
3 A-0955-16T4
with an object. Another officer peered into defendant's apartment,
observed it to be strewn with garbage, and observed defendant
holding a plastic ice scraper.
As a result of defendant's statements and the officers'
observations, Sergeant Robell became concerned for the safety of
the other residents in the apartment complex. Therefore, police
attempted to enter defendant's apartment, at first with a master
key from the property manager, but this was unsuccessful.
Therefore, police breached defendant's door with a battering ram
and noticed the door had been barricaded.
Robell attempted to speak with defendant, but he refused.
Robell then observed defendant remove a pot of boiling water from
his stove and throw it at him and the other officers. Defendant
then began throwing ceramic plates at the other officers and
advanced toward Robell with a clenched fist and an ice scraper.
Robell had entered defendant's residence with a police canine
in an effort to subdue defendant. Defendant kicked the canine and
also struck Robell with an object believed to be the ice scraper.
Eventually, with the aid of the other officers, defendant was
subdued and arrested.
Defendant pled guilty to aggravated assault, as charged in
count one. The State dismissed the remaining counts pursuant to
the plea agreement. Defendant was initially sentenced to three
4 A-0955-16T4
years of probation, but was resentenced to a three-year suspended
sentence with the condition that he continue to cooperate with
treatment, including all prescribed medications, and that he not
re-offend.
Defendant filed his PCR petition and argued his trial counsel
was ineffective for failing to seek a dismissal of the indictment,
and failing to file a motion to vacate the plea on the grounds
police had unlawfully entered his home to arrest him. In a written
opinion, the PCR judge denied the petition.
The judge found there was probable cause for police to enter
defendant's home. Specifically, the probable cause was grounded
in the following facts: defendant's harassing calls to police
dispatch; the concern for the safety of defendant and others
expressed by Mobile Outreach staff, and his threats to harm a
staff member with a baseball bat; defendant's prior homicide
charge; and the concern for the safety of others living near
defendant.
The PCR judge found there was probable cause to arrest
defendant based on his false report there were people coming to
his home from out of the woods. The judge found this constituted
a violation of
N.J.S.A. 2C:28-4(b)(1), namely, that he reported
to law enforcement "an offense or other incident within their
concern knowing it did not occur."
5 A-0955-16T4
The PCR judge also concluded police had probable cause to
arrest defendant pursuant to the emergency aid doctrine. The
judge found the circumstances demonstrated the emergency, namely,
defendant's threat to throw boiling water on an officer, his
possession of an ice scraper as a weapon, and that defendant had
barricaded himself in a garbage-strewn apartment. The judge
concluded: "Undoubtedly, these observations confirmed the
officers' suspicions that [defendant] was suffering from a mental
episode and that both himself and the community at large were in
danger."
The PCR judge further stated:
While [defendant] may argue that he was doing
nothing wrong in the confines of his own home,
the fact remains that he was displaying
extremely bizarre behavior and appeared not
to be compliant with his medication. He has
stopped responding to treatment, was ignoring
his medical supervisors and had even
threatened one with a bat. He was displaying
violent behavior towards the officers and had
a history of such behavior. All the while,
he was residing in a populated apartment
community. Thus, the need to have [defendant]
immediately evaluated in the interest of
preventing harm to himself and others clearly
presented a medical emergency whereby the
officers were justified in their intrusion
under the emergency-aid doctrine. The
subsequent assault of the officers clearly
established probable cause to arrest for the
various charges brought against [defendant].
6 A-0955-16T4
Thus, the judge concluded defendant failed to establish a
prima facie showing of ineffective assistance of counsel because
there were enough facts to support the grand jury indictment. As
a result, the judge rejected defendant's argument that a motion
to dismiss the indictment would have succeeded. The judge also
found there was no basis for defendant's counsel to file a motion
to vacate his plea. The judge stated:
[Defendant] received an extremely favorable
plea bargain which resulted in a suspended
sentence. Short of acquittal, a suspended
sentence is a most favorable sentencing
outcome. Given that [defendant] faced a
maximum exposure of sixteen and one half years
and also considering the evidence against him,
it would not be logical for him to reject the
plea and proceed to trial under these
circumstances.
On appeal defendant argues the following points:
POINT I – THE TRIAL COURT ERRED IN DENYING
[DEFENDANT'S] PETITION FOR POST-CONVICTION
RELIEF WITHOUT AN EVIDENTIARY HEARING
CONCERNING HIS CLAIM THAT HE WAS DEPRIVED OF
HIS CONSTITUTIONAL RIGHT TO THE EFFECTIVE
ASSISTANCE OF COUNSEL IN VIEW OF HIS COUNSEL'S
FAILURE TO FILE A MOTION TO DISMISS THE
INDICTMENT.
POINT II – THE TRIAL COURT ERRED IN SUMMARILY
REJECTING [DEFENDANT'S] CLAIM THAT HIS COUNSEL
WAS INEFFECTIVE IN FAILING TO MOVE TO WITHDRAW
[DEFENDANT'S] GUILTY PLEA BEFORE FINAL
SENTENCING.
POINT III – [DEFENDANT'S] GUILTY PLEA DID NOT
HAVE AN ADEQUATE FACTUAL BASIS (Not Raised
Below).
7 A-0955-16T4
I.
We begin by reciting our standard of review. A PCR court
need not grant an evidentiary hearing unless "a defendant has
presented a prima facie [case] in support of post-conviction
relief." State v. Marshall,
148 N.J. 89, 158 (1997) (alteration
in original) (quoting State v. Preciose,
129 N.J. 451, 462 (1992)).
"To establish such a prima facie case, the defendant must
demonstrate a reasonable likelihood that his or her claim will
ultimately succeed on the merits." Ibid. The court must view the
facts "in the light most favorable to defendant." Ibid. (quoting
Preciose,
129 N.J. at 462-63); accord R. 3:22-10(b). If the PCR
court has not held an evidentiary hearing, we "conduct a de novo
review . . . ." State v. Harris,
181 N.J. 391, 421 (2004).
To establish ineffective assistance of counsel, defendant
must satisfy a two-prong test:
First, the defendant must show that counsel's
performance was deficient. This requires
showing that counsel made errors so serious
that counsel was not functioning as the
"counsel" guaranteed the defendant by the
Sixth Amendment. Second, the defendant must
show that the deficient performance prejudiced
the defense. This requires showing that
counsel's errors were so serious as to deprive
the defendant of a fair trial, a trial whose
result is reliable. Unless a defendant makes
both showings, it cannot be said that the
conviction or death sentence resulted from a
breakdown in the adversary process that
renders the result unreliable.
8 A-0955-16T4
[Strickland v. Washington,
466 U.S. 668, 687
(1984); State v. Fritz,
105 N.J. 42, 52 (1987)
(quoting Strickland,
466 U.S. at 687).]
Counsel's performance is evaluated with extreme deference,
"requiring 'a strong presumption that counsel's conduct falls
within the wide range of reasonable professional assistance
. . . .'" Fritz,
105 N.J. at 52 (alteration in original) (quoting
Strickland,
466 U.S. at 688-89). "To rebut that strong
presumption, a [petitioner] must establish . . . trial counsel's
actions did not equate to 'sound trial strategy.'" State v.
Castagna,
187 N.J. 293, 314 (2006) (quoting Strickland,
466 U.S.
at 689). "Mere dissatisfaction with a 'counsel's exercise of
judgment' is insufficient to warrant overturning a conviction."
State v. Nash,
212 N.J. 518, 542 (2013) (quoting State v. Echols,
199 N.J. 344, 358 (2009)).
To demonstrate prejudice, "'actual ineffectiveness' . . .
must [generally] be proved[.]" Fritz,
105 N.J. at 52 (quoting
Strickland,
466 U.S. at 692-93). Defendant must show the existence
of "a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have
been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome." Ibid. (quoting
Strickland,
466 U.S. at 694). Indeed,
9 A-0955-16T4
[i]t is not enough for [a] defendant to show
that the errors had some conceivable effect
on the outcome of the proceeding. Virtually
every act or omission of counsel would meet
that test and not every error that conceivably
could have influenced the outcome undermines
the reliability of the result of the
proceeding.
[Strickland,
466 U.S. at 693 (citation
omitted).]
II.
Defendant contends the PCR judge erred by denying his petition
without an evidentiary hearing because his counsel was ineffective
for failing to challenge the legality of the police entry into his
home. Defendant argues he did not violate
N.J.S.A. 2C:28-4(b)(1)
because his statements to the dispatcher did not qualify as a
false report of criminal conduct. We find no basis to disturb the
PCR judge's findings.
N.J.S.A. 2C:28-4(b)(1) states "[a] person commits a crime of
the fourth degree if he . . . causes to be reported to law
enforcement authorities an offense or other incident within their
concern knowing that it did not occur[.]"
N.J.S.A. 2C:33-4(a)
states "a person commits a petty disorderly offense if, with
purpose to harass another, he: (a) Makes, or causes to be made, a
communication or communications [in] any other manner likely to
cause annoyance or alarm[.]"
N.J.S.A. 2C:12-1(a)(1) states "[a]
10 A-0955-16T4
person is guilty of assault if he: Attempts to cause . . . bodily
injury to another[.]"
It is clear from the facts presented that police were lawfully
present at defendant's home. As the State notes, defendant made
repeated telephone calls to the police in which he used
inflammatory and vulgar language. This alone provided adequate
probable cause to constitute harassment pursuant to
N.J.S.A.
2C:33-4(a). Also, defendant's calls violated
N.J.S.A. 2C:28-
4(b)(1) because by reporting that others were "coming to get him"
he falsely reported conduct that, if true, would constitute
harassment. Therefore, police clearly had the right to travel to
defendant's home to further investigate these calls and take
appropriate action.
We also reject defendant's assertion police did not have
probable cause to enter his residence. The United States
Constitution and the New Jersey Constitution both guarantee the
right of persons to be free from unreasonable searches and seizure
in their home. U.S. Const. amend. IV; N.J. Const. art. I, ¶7.
Warrantless searches are presumptively invalid unless, among other
exceptions, voluntary consent to the search, without coercion or
duress, is provided. Schneckloth v. Bustamonte,
412 U.S. 218, 219
(1973); State v. Domicz,
188 N.J. 285, 308 (2006).
11 A-0955-16T4
In Brigham City v. Stuart,
547 U.S. 398, 403-04 (2006), the
United States Supreme Court addressed the emergency aid exception
for warrantless searches and held:
"[W]arrants are generally required to search
a person's home or his person unless 'the
exigencies of the situation' make the needs
of law enforcement so compelling that the
warrantless search is objectively reasonable
under the Fourth Amendment." Mincey v.
Arizona,
437 U.S. 385, 393-394 (1978).
One exigency obviating the requirement of a
warrant is the need to assist persons who are
seriously injured or threatened with such
injury. "'The need to protect or preserve
life or avoid serious injury is justification
for what would be otherwise illegal absent an
exigency or emergency.'" Id. at 392 (quoting
Wayne v. United States,
318 F.2d 205, 212,
(D.C. Cir. 1963) (Burger, J.))[.]
Accordingly, law enforcement officers may
enter a home without a warrant to render
emergency assistance to an injured occupant
or to protect an occupant from imminent
injury. Mincey, [437 U.S.] at 392; see also
Georgia v. Randolph, [
547 U.S. 103,] 118
(2006) ("[I]t would be silly to suggest that
the police would commit a tort by entering
. . . to determine whether violence (or threat
of violence) has just occurred or is about to
(or soon will) occur").
[(citations omitted).]
The Brigham Court upheld the warrantless entry of a home
where officers were responding to complaints about a loud party
at three o'clock in the morning, and on arrival heard and saw two
individuals engaged in a fight inside the home. Id. at 406. The
12 A-0955-16T4
Court noted that the officers' entry without a warrant was
reasonable because they entered only after announcing their
presence and receiving no response. Ibid. The Court concluded
it was reasonable for the officers to enter without a warrant in
view of the exigency because "[t]he role of a peace officer
includes preventing violence and restoring order, not simply
rendering first aid to casualties[.]" Ibid.
In State v. Castro,
238 N.J. Super. 482 (App. Div. 1990), we
reversed the granting of a defendant's motion to suppress where
an officer entered a home without a warrant because he believed
one of its occupants had swallowed a package of cocaine. We
stated:
As former Chief Justice (then Judge) Burger
observed in Wayne v. United States, 318 F.2d 205, 212 (D.C. Cir. 1963), there is in cases
like this a "balancing of interests and
needs." "When policemen, firemen or other
public officers are confronted with evidence
which would lead a prudent and reasonable
official to see a need to act to protect life
or property, they are authorized to act on
that information, even if ultimately found
erroneous." Id. What gives rise to genuine
exigency is, "[t]he need to protect or
preserve life or avoid serious injury
. . . [.]" Id.
[Castro,
238 N.J. Super. at 488 (alterations
in original).]
Here, as we noted, police had credible reports defendant
could harm himself and harm others. This information came from
13 A-0955-16T4
more than one source, namely, the concerns reported by the Mobile
Outreach manager and defendant's violent criminal history.
Moreover, when police arrived, they observed defendant's behavior
and determined it constituted a threat to his safety and the safety
of the other residents of the apartment complex. Given this
information, police were not required to retreat and wait for
defendant to either harm himself or others while securing a
warrant. Thus, the warrantless entry of defendant's home was
justified under the emergency aid exception.
III.
Defendant argues the PCR judge erred by failing to find his
counsel was ineffective for failing to move to dismiss the
indictment. Primarily, defendant argues the PCR judge failed to
consider whether the State had established the requisite mens rea
for the five counts of the indictment. Defendant asserts the PCR
judge failed to consider the prosecutor's failure to instruct the
grand jury on his diminished mental state. Defendant argues the
failure to consider his diminished mental state made the indictment
defective, and if his counsel had filed a motion to dismiss the
indictment, it would have been successful contrary to the PCR
judge's finding.
The Supreme Court has explained the role of the grand jury.
14 A-0955-16T4
[T]he grand jury must determine whether the
State has established a prima facie case that
a crime has been committed and that the
accused has committed it.
The purposes of the grand jury extend beyond
bringing the guilty to trial. Equally
significant is its responsibility to
"protect[] the innocent from unfounded
prosecution."
[State v. Hogan,
144 N.J. 216, 227-28 (1996)
(citations omitted).]
The Hogan Court concluded:
We thus decline to adopt any rule that would
compel prosecutors generally to provide the
grand jury with evidence on behalf of the
accused. Such a rule would unduly alter the
traditional function of the grand jury by
changing the proceedings from an ex parte
inquest into a mini-trial.
The grand jury's role is not to weigh evidence
presented by each party, but rather to
investigate potential defendants and decide
whether a criminal proceeding should be
commenced. . . . In seeking an indictment,
the prosecutor's sole evidential obligation is
to present a prima facie case that the accused
has committed a crime.
Nevertheless, in establishing its prima facie
case against the accused, the State may not
deceive the grand jury or present its evidence
in a way that is tantamount to telling the
grand jury a "half-truth." . . .
[T]he grand jury cannot be denied access to
evidence that is credible, material, and so
clearly exculpatory as to induce a rational
grand juror to conclude that the State has not
made out a prima facie case against the
accused. . . .
15 A-0955-16T4
Our perception is that the routine
presentation of evidence by prosecutors to
grand juries only rarely will involve
significant questions about exculpatory
evidence. More often than not the evidence
accumulated by the prosecutor abundantly
demonstrates probable cause for return of an
indictment. . . . Hence, the standard we adopt
is intended to be applied only in the
exceptional case in which a prosecutor's file
includes not only evidence of guilt but also
evidence negating guilt that is genuinely
exculpatory.
For those unique cases, . . . the competing
concerns we have discussed are best reconciled
by imposing a limited duty on prosecutors, a
duty that is triggered only in the rare case
in which the prosecutor is informed of
evidence that both directly negates the guilt
of the accused and is clearly exculpatory.
[Id. at 235-37.]
Here, as the State notes, the prosecutor presented the grand
jury with ample evidence regarding defendant's alleged diminished
capacity. Our review of the grand jury proceedings reveals that
the prosecutor elicited testimony from Sergeant Robell that police
knew defendant had "psychological disorders," that he was admitted
into an outpatient program, and that he had not been taking his
medications. Thus, the prosecutor did not withhold any exculpatory
evidence.
Moreover, the grand jury fulfilled its independent role as
an accusatory body when its members inquired about defendant's
16 A-0955-16T4
mental state. Specifically, grand jury members asked the
prosecutor to provide the definition for purposely and knowingly,
and the prosecutor read the statutory definition of both. After
doing so, the prosecutor inquired whether his reading of the
statutory definitions had answered the grand jury's question, and
the grand jury responded affirmatively.
The record also does not reveal the prosecutor withheld
information from the grand jury in response to its inquiry
regarding defendant's diminished capacity. Rather, the prosecutor
explained the elements of each crime and the mens rea required to
establish a prima facie basis to charge the crime. The exchange
between the grand jury and the prosecutor does not indicate to us,
as defendant suggests, that the jury needed to be "informed they
could have determined, based on [defendant's] mental condition at
the time of the incident, that he lacked the state of mind required
to commit the crimes charged." The exchange between the prosecutor
and the grand jury confirms the grand jury understood its options
before it retired to deliberate.
A prima facie showing of the crimes charged and the requisite
mens rea were made in the grand jury proceedings. For these
reasons, we agree with the PCR judge that defendant's counsel was
not ineffective for failing to pursue a motion to dismiss the
indictment. Such a motion would not have been successful.
17 A-0955-16T4
IV.
Defendant contends plea counsel was ineffective in not moving
to withdraw defendant's guilty plea because he expressed confusion
during his resentencing. Also, for the first time on appeal,
defendant argues his guilty plea did not have an adequate factual
basis.
Defendant argues he was "seriously confused" at his final
sentencing hearing. He asserts that during his sentencing he
questioned whether the proceeding related to June or January and
whether the dog or police were present during the incident. Thus,
defendant argues he was confused because the incident for which
he was sentenced clearly involved both the police canine and
officers. Also, defendant argues his inquiry regarding the month
in which the incident occurred demonstrated he confused his guilty
plea, relating to a separate misdemeanor for kicking the police
canine, and not his plea to the aggravated assault.
Defendant argues his questions "should have raised a red flag
for his counsel concerning whether [defendant's] previous guilty
plea . . . was made knowingly and intelligently[.]" Thus,
defendant asserts his counsel was ineffective for failing to file
a motion to withdraw the guilty plea. We find these arguments
unpersuasive.
18 A-0955-16T4
"[A] plea may only be set aside in the exercise of the court's
discretion." State v. Slater,
198 N.J. 145, 156 (2009) (citing
State v. Simon,
161 N.J. 416, 444 (1999)). "Thus, the trial
court's denial of defendant's request to withdraw his guilty plea
will be reversed on appeal only if there was an abuse of discretion
which renders the lower court's decision clearly erroneous."
Simon,
161 N.J. at 444.
"[T]he burden rests on the defendant . . . to present some
plausible basis for his request, and his good faith in asserting
a defense on the merits." Slater,
198 N.J. at 156 (quoting State
v. Smullen,
118 N.J. 408, 416 (1990)). "[A] defendant carries a
heavier burden to succeed in withdrawing a plea 'when the plea is
entered pursuant to a plea bargain.'" State v. Means,
191 N.J.
610, 619 (2007) (quoting Smullen,
118 N.J. at 416). "[A]
defendant's representations and the trial court's findings during
a plea hearing create a 'formidable barrier' the defendant must
overcome in any subsequent proceeding." Slater,
198 N.J. at 156.
"[E]fforts to withdraw a plea after sentencing must be
substantiated by strong, compelling reasons." Id. at 160. The
Supreme Court established four factors for consideration regarding
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
19 A-0955-16T4
of a plea bargain; and (4) whether withdrawal would result in
unfair prejudice to the State or unfair advantage to the accused."
Id. at 150. "Trial courts should consider and balance all of the
factors . . . in assessing a motion for withdrawal of a plea. No
factor is mandatory; if one is missing, that does not automatically
disqualify or dictate relief." Id. at 162.
Defendant did not have a colorable claim of innocence relating
to the aggravated assault charge. "A colorable claim of innocence
is one that rests on 'particular, plausible facts' that, if proven
in court, would lead a reasonable factfinder to determine the
claim is meritorious." State v. Munroe,
210 N.J. 429, 442 (2012)
(quoting Slater,
198 N.J. at 158-59.) "It is more than '[a] bare
assertion of innocence[.]'" Ibid. (alteration in original)
(quoting Slater,
198 N.J. at 158). "Defendant must 'present
specific, credible facts and, where possible, point to facts in
the record that buttress [his] claim.'" State v. McDonald,
211 N.J. 4, 17 (2012) (alteration in original) (quoting Slater,
198 N.J. at 158).
Defendant's testimony during the plea colloquy demonstrates
there were no facts he could assert to disprove the aggravated
assault. He admitted he threw hot water at several police
officers, and knew it could be dangerous and cause them bodily
injury.
20 A-0955-16T4
Inquiry as to the nature and strength of a defendant's reasons
for withdrawal "requires trial courts to ascertain not only the
existence of a valid defense but to determine whether a defendant
has 'credibly demonstrated' why a 'defense was "forgotten or
missed" at the time of the plea.'" McDonald,
211 N.J. at 23
(quoting Slater,
198 N.J. at 160). Here, defendant's challenge
to the plea is not predicated on the existence of a defense per
se, but on his claim that he was confused during the plea
proceedings.
As we noted, the resentencing transcript does not demonstrate
defendant was confused. Instead, as the State argues, "defendant
has had contacts with law enforcement before and wanted
clarification as to which of these incidents he was going to be
sentenced on." We agree. The transcript of the resentencing
hearing, which took place with counsel who had represented
defendant in the plea and during the first sentencing, demonstrates
defendant was seeking clarification, not misunderstanding the
nature of his plea.
As to the third Slater factor, "defendants have a heavier
burden in seeking to withdraw pleas entered as part of a plea
bargain." Slater,
198 N.J. at 160 (citing Smullen,
118 N.J. at
416-17). This is because the criminal justice system "'rests on
the advantages both sides receive from' the plea-bargaining
21 A-0955-16T4
process[.]" Munroe,
210 N.J. at 443 (quoting Slater,
198 N.J. at
161).
Defendant received the benefit of pleading guilty to third-
degree aggravated assault pursuant to a plea bargain. As the PCR
judge found, defendant avoided exposure to a sentence of sixteen
plus years, and instead received a three-year suspended sentence.
Therefore, the PCR judge properly found the third Slater factor
would not support a motion to vacate the plea.
As to the fourth Slater factor, the State need not show
prejudice where, as here, "a defendant fails to offer proof of
other factors in support of the withdrawal of a plea." Slater,
198 N.J. at 162. In any event, even in the absence of prejudice
to the State, on balancing the remaining Slater factors we are
convinced a motion to vacate defendant's guilty plea would have
been unsuccessful.
Finally, defendant argues that his guilty plea lacked a
sufficient factual basis. We reject defendant's argument because
he failed to raise it before the PCR judge. Generally, an
appellate court will not consider issues, even constitutional
ones, which were not raised below. State v. Galicia,
210 N.J.
364, 383 (2012). Even if he had raised the argument, it would
have been procedurally barred because it could have been raised
on direct appeal. R. 3:22-4(a).
22 A-0955-16T4
Affirmed.
23 A-0955-16T4
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