STATEOF NEW JERSEY v. SYREE HAKINS a/k/a ROBERT TAYLOR and TAYLOR RASHEED
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APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1529-16T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
SYREE HAKINS,
a/k/a ROBERT TAYLOR,
and TAYLOR RASHEED,
Defendant-Appellant.
___________________________________
Submitted February 6, 2018 – Decided February 23, 2018
Before Judges Leone and Mawla.
On appeal from Superior Court of New Jersey,
Law Division, Hudson County, Indictment No.
10-11-0154.
Joseph E. Krakora, Public Defender, attorney
for appellant (Michele A. Adubato, Designated
Counsel, on the brief).
Gurbir S. Grewal, Attorney General, attorney
for respondent (Sarah D. Brigham, Deputy
Attorney General, Of Counsel and on the
brief).
PER CURIAM
Defendant Syree Hakins appeals from an August 31, 2016 order
denying his petition for post-conviction relief (PCR). We affirm.
On November 4, 2010, a State grand jury returned a forty-two
count superseding indictment, charging nineteen defendants with
various offenses, including racketeering, murder, weapons
offenses, and drug-related crimes. Under this indictment,
defendant was charged with the following crimes: first-degree
racketeering,
N.J.S.A. 2C:41-2(c) and (d) (count one); first-
degree promoting organized street crime,
N.J.S.A. 2C:33-30 (count
three); first-degree conspiracy to murder Devin Thompson,
N.J.S.A.
2C:5-2 and 2C:11-3(a) (count four); first-degree murder of
Thompson,
N.J.S.A. 2C:11-3(a)(1) and (2) (count five); first-
degree attempted murder of C.W.,
N.J.S.A. 2C:5-1 and 2C:11-3 (count
six); and second-degree aggravated assault of C.W.,
N.J.S.A.
2C:13-1(b)(1) (count seven).
The facts underlying defendant's indictment were as follows.
The New Jersey State Police conducted an investigation into the
"Headbusta" set of the 9-3 Bloods gang, which operated in northern
New Jersey. Pursuant to the investigation, defendant was
implicated in a controlled dangerous substance (CDS) distribution
scheme and the shooting death of Thompson. The investigation
revealed defendant, was a high-ranking member of the gang.
Defendant held the rank of "Triple OG," and was therefore second
2 A-1529-16T3
in command of the gang after co-defendant Michael Anderson, who
held the rank of "Godfather." At the time of Thompson's murder,
defendant was first in command because Anderson was incarcerated.
While in prison, Anderson continued to handle various gang
matters by communicating with members telephonically. As a result,
the State Police monitored and recorded Anderson's phone
conversations from prison pursuant to a wiretap.
In late spring of 2008, a dispute arose in the Headbusta set
concerning gang operations and control of certain territory in New
Jersey. Defendant wanted to split the gang membership and have
his own Blood set separate from Anderson, thereby making Anderson
and himself the same rank. Anderson did not authorize the split,
and informed defendant he would maintain his "Triple OG" rank.
Defendant expressed dissatisfaction with maintenance of the gang's
"kitty,"1 and advised Anderson in a May 21, 2008 call that if the
kitty was not maintained properly, "[h]e would start eliminating
niggers one by one."
The day before this call, Anderson had appointed Thompson in
charge of the gang's "kitty." Thompson was a "Five-Star General"
1
According to the grand jury testimony, a "kitty" is a gang term
for a pool of money saved for members and given to them once
released from jail. The purpose of the kitty is to financially
rehabilitate recently incarcerated members, or pay for their
attorney fees.
3 A-1529-16T3
of the Headbusta set, a lower rank than "Triple OG" or "Godfather."
As a Five-Star General, Thompson was responsible for overseeing
gang operations in New Brunswick.
Although Anderson did not sanction defendant's proposed
split, some members of the "Headbusta" set believed the split had
officially occurred and, therefore, reported directly to defendant
while others continued to report to Anderson. As part of his
dispute with Anderson, defendant sought to obtain more control in
areas located near New Brunswick and Plainfield by placing his own
leadership structures in these locations. Defendant installed
another gang member, Davon Parker, as Five-Star General of New
Brunswick without Anderson's consent, and stripped Thompson of his
rank.
In a call on June 1, 2008, a day before Thompson's murder,
Anderson reassured Thompson that he was still the Five-Star General
over New Brunswick. Anderson told Thompson not to listen to
Parker, who had instructed other gang members not to report to
Thompson.
On June 2, 2008, at 6:20 p.m. and 6:32 p.m., a few hours
before Thompson's murder, Anderson held two three-way calls with
Parker and co-defendant Dorean Wheeler, who held the rank of "OG."
Wheeler told Anderson that Thompson was scared because defendant
was holding a gang meeting to collect dues and discuss other Blood
4 A-1529-16T3
business that evening. Parker advised Anderson that he and co-
defendant Tyrane Mathis were on their way "to whoop [Thompson's]
ass."
A few hours later, Parker and Mathis met with Thompson and
C.W., the attempted-murder victim, to drive Thompson and C.W. to
the gang meeting. When they arrived at the park where the meeting
would be held and exited the vehicle, Parker shot Thompson and
C.W. Thompson succumbed to his gunshot wounds, but C.W. was
wounded in the shoulder and survived. C.W. later identified Parker
as the shooter to police.
In a call on June 3, 2008, Wheeler informed Anderson that
Thompson got "popped." In a call later that day, Anderson told
defendant "that shit is bringing mad heat," in reference to the
police involvement as a result of the shooting. In response,
defendant stated: "It's too late. That little nigger got what he
got." Defendant then stated: "These little niggers are going to
feel me. They are going to get down with what I am trying to do
or I am going to lay them. And if they don't listen then it is
going to be over for them."
Prior to the start of defendant's joint trial with co-
defendant Mathis, both defendant and Mathis agreed to plead guilty
to first-degree racketeering. In exchange for defendant's guilty
plea, the State agreed to recommend a sentence of sixteen years
5 A-1529-16T3
subject to an eighty-five percent parole disqualifier under the
No Early Release Act (NERA),
N.J.S.A. 2C:43-7.2, dismiss the
remaining counts under the superseding indictment, and dismiss a
separate Middlesex County indictment.
At defendant's plea hearing, he admitted the following facts.
Between July 28, 2005 and November 22, 2009, defendant was part
of a criminal enterprise that included co-defendants Parker and
Mathis. Defendant admitted the criminal enterprise included the
distribution of drugs that affected trade and commerce in New
Jersey, and at least two counts of murder. Specifically, defendant
admitted that on June 2, 2008, while in New Brunswick, he ordered
the shooting death of Thompson on behalf of and for the benefit
of his gang. As such, defendant acknowledged that he was involved
in an agreement to aid in the planning, solicitation, and
commission of the purposeful death of Thompson.
Defendant testified he was not forced, threatened, or coerced
to enter into the plea agreement, that he did so freely and
voluntarily, and that no other promises had been made to him other
than the ones contained on his plea form. Defendant confirmed he
reviewed his plea form with his counsel and affirmed he was
satisfied with counsel's advice and services. At his sentencing,
defendant again confirmed he pleaded guilty under oath, and was
6 A-1529-16T3
neither forced nor threatened to do so. Defendant was sentenced
in accordance with the plea agreement.
Defendant appealed his sentence. We considered the appeal
on our excessive sentencing oral argument (ESOA) calendar and
affirmed defendant's sentence. Defendant's petition for
certification to the Supreme Court was subsequently denied. State
v. Hakins,
217 N.J. 53 (2014).
Defendant filed a pro se post-sentencing motion to withdraw
his guilty plea based on newly discovered evidence. He also filed
a pro se PCR petition. The PCR judge heard oral argument and
denied the petition and the motion. Specifically, the judge found
defendant failed to make a prima facie case that his trial
counsel's assistance was ineffective and failed to show that it
would be a manifest injustice to allow his guilty plea to stand.
This appeal followed.
Defendant raises the following arguments on appeal:
I. FAILURE OF THE PCR COURT TO GRANT DEFENDANT
AN EVIDENTIARY HEARING ON HIS CLAIM OF
INEFFECTIVE ASSISTANCE OF COUNSEL WAS ERROR.
A. FAILURE TO INVESTIGATE AND RAISE AN
ALIBI DEFENSE.
B. FAILURE TO FILE PRE-TRIAL MOTION.
C. FAILURE OF COUNSEL TO PREVENT
DEFENDANT FROM PLEADING GUILTY WHERE THE
PLEA WAS INVOLUNTARY.
7 A-1529-16T3
D. FAILURE TO ARGUE ANY RELEVANT
MITIGATING FACTORS AT SENTENCING.
II. IT WAS ERROR FOR THE PCR COURT TO DENY
DEFENDANT'S MOTION TO VACATE HIS GUILTY PLEA.
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). "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.; 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).
Rule 3:22-10(b) states:
A defendant shall be entitled to an
evidentiary hearing only upon the
establishment of a prima facie case in support
of post-conviction relief, a determination by
the court that there are material issues of
disputed fact that cannot be resolved by
reference to the existing record, and a
determination that an evidentiary hearing is
necessary to resolve the claims for relief.
To establish a prima facie case, defendant
must demonstrate a reasonable likelihood that
his or her claim, viewing the facts alleged
8 A-1529-16T3
in the light most favorable to the defendant,
will ultimately succeed on the merits.
[See State v. Marshall,
148 N.J. 89, 157-58
(1997); see also State v. Preciose,
129 N.J.
451, 462 (1992).]
Rule 3:22-10(e) states:
A court shall not grant an evidentiary
hearing:
(1) if an evidentiary hearing will not aid the
court's analysis of the defendant's
entitlement to post-conviction relief;
(2) if the defendant's allegations are too
vague, conclusory or speculative; or
(3) for the purpose of permitting a defendant
to investigate whether additional claims for
relief exist for which defendant has not
demonstrated a reasonable likelihood of
success as required by R[ule] 3:22-10(b).
The decision of whether to hold an evidentiary hearing on a
PCR petition is committed to the sound discretion of the PCR judge.
State v. Cummings,
321 N.J. Super. 154, 170 (App. Div. 1999). The
judge should grant an evidentiary hearing and make a determination
on the merits of a defendant's claim, only if the defendant has
presented a prima facie claim of ineffective assistance. Preciose,
129 N.J. at 462.
In determining whether a prima facie claim has been
established, the facts should be viewed "in the light most
favorable to a defendant . . . ." Id. at 462-63. "To sustain
9 A-1529-16T3
that burden, specific facts must be alleged and articulated" to
"provide the court with an adequate basis on which to rest its
decision." State v. Mitchell,
126 N.J. 565, 579 (1992).
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.
[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. 10 A-1529-16T3
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,
[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).]
On appeal, defendant contends he was denied the effective
assistance of counsel who represented him in the racketeering
prosecution, and that the denial of his PCR petition was error.
He contends counsel failed to: investigate and raise an alibi
defense on his behalf; file a pre-trial motion to suppress his
11 A-1529-16T3
statements to police; prevent defendant from pleading guilty
involuntarily; and argue any relevant mitigating factors at
sentencing. Defendant's claims regarding his guilty plea and
sentencing are raised for the first time on appeal.
II.
The PCR judge rejected defendant's claim his counsel failed
to investigate his alleged alibi and call witnesses at trial to
establish the alibi. The judge found:
[Defendant] makes no mention as to which
witnesses were available, the nature of their
testimony or that trial counsel was aware of
the supposed alibi witnesses prior to pleading
guilty. [Defendant] does not point to any
specific facts in support of this claim, which
amounts to a bald assertion of ineffective
assistance. A bald assertion does not suffice
to establish a prima facie showing that trial
counsel's performance was ineffective. See
State v. Porter,
216 N.J. 343, 355 (2013).
[Defendant] has failed to establish prima
facie evidence that trial counsel's
performance was ineffective based on the
alleged existence of alibi witnesses.
We agree that defendant failed to establish a prima facie
showing regarding an alibi defense. More importantly, given
defendant's admission he was a gang member, and the basis of the
charge was he ordered Thompson's murder, the State would not have
to show he was present at the shooting. Thus, defendant failed
to demonstrate the lack of an alibi defense prejudiced him.
12 A-1529-16T3
The PCR judge also rejected defendant's claim his trial
counsel should have filed a motion to suppress his statement to
police. The judge held it was not unreasonable that counsel did
not file a motion because the State did not seek to admit the
statement or otherwise use it at trial. The judge also found:
[Defendant] was the subject of a custodial
interrogation and the officers were required
to inform [defendant] of his Miranda2 rights
prior to questioning him about the offense.
[Defendant] was adequately advised of his
Miranda rights . . . . When the officers
advised [defendant] of said rights,
[defendant] verbally indicated that he
understood each right and initialed a waiver
of rights form after each individual right was
administered to him by the interrogating
officers. [Defendant] signed at the bottom
of the waiver of rights form after all of the
rights were read to him.
[Defendant] was adequately advised of his
Miranda rights and his acknowledgement of
understanding the rights both verbally and in
writing sufficed as a voluntary, knowing and
intelligent waiver of said rights. After
waiving the right to remain silent and the
right to counsel, [defendant] told the
officers that he was a member of the "9-3"
Bloods street gang. [Defendant] denied
knowing his codefendant and made no direct
admission as to whether he was responsible for
the shooting death of Thompson or carried out
the murder himself. [Defendant] has failed
to point to specific facts that establish why
trial counsel's decision not to file a motion
to suppress his statement was prejudicial.
[Defendant] merely claims that trial counsel
was ineffective on a per se basis due to trial
2
Miranda v. Arizona,
384 U.S. 436 (1966).
13 A-1529-16T3
counsel's decision not to file a motion to
suppress [defendant's] statement. Without
more, [defendant] cannot establish a prima
facie case of ineffective assistance of
counsel on this particular ground.
Notwithstanding, defendant notes that when he was asked by
police whether he understood he was charged with conspiracy to
commit first-degree murder, he responded "not at all." Defendant
posits this is evidence the Miranda warning was improper.
Where a defendant asserts his or her attorney was ineffective
by failing to file a motion, he or she must establish that the
motion would have been successful. "It is not ineffective
assistance of counsel for defense counsel not to file a meritless
motion[.]" State v. O'Neal,
190 N.J. 601, 619 (2007).
The "prohibition against compelled self-incrimination
require[s] that custodial interrogation be preceded 'by advice to
the putative defendant that he has the right to remain silent and
also the right to the presence of an attorney.'" State v. Kennedy,
97 N.J. 278, 284 (1984) (quoting Edwards v. Arizona,
451 U.S. 477,
482 (1981)). "After being advised of his Miranda rights, an
accused may himself validly waive those rights and respond to
interrogation." Id. at 284-85. The United States Supreme Court
has held the following inquiry should occur to determine whether
a defendant's waiver of Miranda rights "is made voluntarily,
knowingly and intelligently":
14 A-1529-16T3
First, the relinquishment of the right must
have been voluntary in the sense that it was
the product of a free and deliberate choice
rather than intimidation, coercion, or
deception. Second, the waiver must have been
made with a full awareness of both the nature
of the right being abandoned and the
consequences of the decision to abandon it.
Only if the "totality of the circumstances
surrounding the interrogation" reveals both an
uncoerced choice and the requisite level of
comprehension may a court properly conclude
that the Miranda rights have been waived.
[Moran v. Burbine,
475 U.S. 412, 421 (1986).]
We see no basis to disturb the PCR judge's findings.
Investigator Scott Crocco of the Middlesex County Prosecutor's
Office (MCPO) properly administered defendant's Miranda warnings
and explained defendant's rights in clear and unequivocal terms,
before he and Detective Mark Pappas questioned defendant about
Thompson's murder. Defendant initialed and signed each of the
warnings on his Miranda form. He then made uncoerced statements
thereby waiving his rights. See Berghuis v. Thompkins,
560 U.S. 370, 388-89 (2010) ("[A] suspect who has received and understood
the Miranda warnings, and has not invoked his Miranda rights,
waives the right to remain silent by making an uncoerced statement
to the police.")
Also, defendant's "not at all" statement is taken out of
context. The following colloquy illustrates defendant's knowing
and voluntary waiver of his rights:
15 A-1529-16T3
[INV. CROCCO:] Okay. Alright Syree. I gotta'
read you a complaint here. Alright? This is
a complaint that was signed against you . . .
charging you with murder.
[DEFENDANT:] Charging me with murder?
[INV. CROCCO:] Yes. I'm gonna' read it to
you. I'll give you a copy of it. . . .
[W]ithin the jurisdiction of the court,
purposely or knowingly did cause [the] death
of Devin Thompson or did purposely or
knowingly [inflict] serious bodily injury upon
Devin Thompson, resulting in the death of
Devin, Devin Thompson. Okay? Sec . . .
[DEFENDANT:] Um . . .
[INV. CROCCO:] . . . okay. Second charge is
Conspiracy. Okay? Conspiracy to commit
murder. Within the jurisdiction of this
Court, conspire with Devon Parker to commit
First Degree Murder in violation of, and it
lists the statute there. Okay? There's
gonna' be a copy in yours. A copy for you.
Okay. Do you understand that?
[DEFENDANT:] No. Not at all.
[INV. CROCCO:] Well, you might not agree with
me but do you understand the charge or, if you
want to read it.
[DEFENDANT:] When did all this incidence
suppose to have happened.
[INV. CROCCO:] I tell you what. Before we
even get into that, I just gotta' read you
your rights. Okay?
[DEFENDANT:] Uh-huh.
[INV. CROCCO:] [A]nd that's your choice. If
you want to . . . . let me get into some of
the details of it.
16 A-1529-16T3
[DET. PAPPAS:] Alright? Listen to what he has
to say here[.]
[DEFENDANT:] Okay. I'm listening.
Defendant was then informed of his rights. Immediately after
signing the Miranda form, further colloquy ensued:
[DEFENDANT:] Now what was this suppose to
happen.
[INV. CROCCO:] This was here . . . in New
Brunswick on June 2nd of this year, 2008.
Okay?
[DEFENDANT:] Uh-huh.
[INV. CROCCO:] Um, so, . . . obviously Syree,
. . . it's been two months since it happened,
so we didn't just, you know, wake up this
morning and say we're gonna' arrest you. So
we do have some evidence . . . and the
investigation, you know, led us in your
direction here. Um, you want to talk about
it?
This colloquy demonstrates defendant's "not at all" statement
signaled his disagreement with the charge, not a misunderstanding
of the charge. The record demonstrates defendant understood he
had been charged with Thompson's murder, and that he knowingly,
voluntarily and intelligently waived his Miranda rights before
giving uncoerced statements to police. Therefore, a suppression
motion filed on defendant's behalf would lack merit. Moreover,
the State did not seek to admit defendant's statement or use it
17 A-1529-16T3
at the joint trial. For these reasons, defendant's contention
fails to meet both prongs of Strickland.
Defendant contends he pleaded guilty "out of fear that his
defense attorney [had] not properly represented him and [would]
continue in the same vein at trial." Therefore he argues his
guilty plea was not voluntary and his counsel was ineffective for
permitting him to enter into the plea. We find this argument
lacks merit.
As noted by the State, defendant affirmed on his plea form
and during his plea colloquy that he was satisfied with his
attorney's services and the advice he received from counsel.
Defendant admitted he was involved in a criminal enterprise and
he gave the order for Thompson's murder for the benefit of the
criminal enterprise. This testimony provided an adequate factual
basis for racketeering under
N.J.S.A. 2C:41-2(c) and (d).
Defendant further testified he was not forced, threatened, or
coerced to enter into the plea agreement, that he did so freely
and voluntarily, and that no other promises had been made to him
other than the ones contained on his plea form. Furthermore, the
sentencing judge informed defendant of his rights and the
consequences of pleading guilty, including the plea-negotiated
sentence and potential penalties and defendant acknowledged he
18 A-1529-16T3
understood. Therefore, defendant's contention fails the first
prong of Strickland.
Moreover, defendant fails to demonstrate a reasonable
probability that he would have gone to trial had he not pled
guilty. Therefore, defendant's contention fails the second prong
of Strickland. See State v. O'Donnell,
435 N.J. Super. 351, 371
(App. Div. 2014) (quoting Padilla v. Kentucky,
559 U.S. 356, 372
(2010)) ("In the PCR context, to obtain relief from a conviction
following a plea, 'a petitioner must convince the court that a
decision to reject the plea bargain would have been rational under
the circumstances.'").
We decline to address defendant's claim his attorney failed
to argue relevant mitigating factors during his sentencing
proceeding because these claims were not raised before the PCR
judge and are thus waived. See State v. Robinson,
200 N.J. 1, 18-
22 (2009). Additionally, this claim is also procedurally barred
because defendant could have presented this argument when he
appealed from his sentence, but failed to do so. R. 3:22-4.
Had we addressed this claim, defendant still would not
prevail. The sentencing judge found aggravating factors three,
six, and nine applied, and defendant has not demonstrated
otherwise. Aggravating factors three and six related to
defendant's lengthy and uninterrupted prior record of criminality
19 A-1529-16T3
that spanned over twenty years, and included five indictable
convictions for homicide, distribution of CDS, burglary, receipt
of stolen property, and reckless endangerment. Also, the evidence
supports the sentencing judge's application of aggravating factor
nine, namely, the need to deter defendant and others from engaging
in gang activity, which the judge noted was a major societal
problem. The sentencing judge applied mitigating factor fourteen
because defendant expressed remorse for Thompson's death.
Defendant has failed to demonstrate how aggravating factors
three, six, and nine do not apply to him, and how any further
mitigating factors should have applied to him. Therefore, setting
aside the procedural bar, defendant's contention fails the second
prong of Strickland.
III.
Lastly, we address defendant's argument the PCR judge erred
by not granting his motion to withdraw the plea. Defendant
contends he met the factors set forth in State v. Slater,
198 N.J.
145, 157 (2009), to vacate the plea. We disagree.
"[A] plea may only be set aside in the exercise of the court's
discretion." Slater,
198 N.J. at 156 (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
20 A-1529-16T3
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)). "In meeting their burden,
defendants must show more than a change of heart. A 'whimsical
change of mind,' by the defendant . . . is not an adequate basis
to set aside a plea." Id. at 157 (quoting State v. Huntley,
129 N.J. Super. 13, 18 (App. Div. 1974)).
"[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
State v. Smullen,
118 N.J. 408, 416 (1990)). "[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.
"A motion to withdraw a plea of guilty . . . shall be made
before sentencing, but the court may permit it to be made
thereafter to correct a manifest injustice." Id. at 156 (quoting
R. 3:21-1). "[E]fforts to withdraw a plea after sentencing must
be substantiated by strong, compelling reasons." Id. at 160.
"Thus, if a defendant wishes to withdraw a guilty plea after
21 A-1529-16T3
sentencing has occurred, 'the court weighs more heavily the State's
interest in finality and applies a more stringent standard' than
that which is applied to a withdrawal application made before
sentencing has occurred." State v. Johnson,
182 N.J. 232, 237
(2005) (quoting State v. McQuaid,
147 N.J. 464, 487 (1997)).
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 of a plea bargain; and (4) whether withdrawal would
result in unfair prejudice to the State or unfair advantage to the
accused." Slater,
198 N.J. 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.
As to the first Slater factor, the PCR judge stated:
[Defendant] points to a statement he made at
sentencing in support of his claim of
innocence: "Yes. First of all I'd like to
speak to all the Thompson family. I'd like
to say I also have a son and I never knew
Devin Thompson and the thing that happened to
Devin Thompson wasn't my fault. I never had
anything to do with your son's death. I'm
sorry about your son's death, but I had
nothing to do with your son's death. That's
basically all I want to say, Your Honor."
22 A-1529-16T3
Despite [defendant's] contention that he is
innocent and the statement that he made to the
court at sentencing, [defendant] entered his
plea knowingly, voluntarily and
intelligently. [Defendant] provided a factual
basis to support the charge, admitting his
involvement in the shooting death of Thompson.
[Defendant's] assertion that he is now
innocent is unsupported by the facts elicited
at sentencing and [defendant] has not provided
any additional evidence to establish a
colorable claim of innocence. [Defendant's]
contention that he is innocent amounts to a
mere change of heart. This factor does not
weigh in favor of allowing [defendant] to
withdraw his guilty plea.
The PCR judge adjudicated the second Slater factor as follows:
[Defendant] contends that the newly discovered
evidence consists of a three page affidavit
executed by Davon Parker, a co-defendant in
the 2008 shooting death of Thompson, which
allegedly exonerates [defendant] of any
involvement in the shooting. . . . Parker
allegedly states in his affidavit that he was
ordered by leaders of his gang to implicate
[defendant] in the shooting and that he did
not want to implicate [defendant] or anyone
else in the shooting death of Thompson. . . .
Parker allegedly stated in his affidavit that
he implicated [defendant] in the shooting of
Thompson out of fear for the safety of his
family, that he would not have otherwise
implicated [defendant] and that he would be
willing to testify as to the information
contained in the affidavit. [Defendant] has
not provided the [c]ourt with a copy of the
alleged affidavit prepared by Parker, nor is
there any indication that it was provided to
the State. [Defendant's] unsupported
assertion that an affidavit exists which
exculpates him of the offense, without
providing it to the [c]ourt, is insufficient
23 A-1529-16T3
to establish that the nature and strength of
the reason for withdrawal weighs in favor of
allowing [defendant] to withdraw his guilty
plea.
Regarding the third Slater factor, the PCR judge stated "the
existence of a plea agreement plays minimal weight in deciding
whether to allow [defendant] to withdraw a guilty plea." As to
the fourth Slater factor, the judge stated:
[Defendant] does not put forth anything in
support of the fourth Slater factor, other
than that the withdrawal of his guilty plea
would not result in unfair prejudice to the
State or unfair advantage to [defendant].
[Defendant] entered a plea of guilty to the
offense in 2011. Approximately five years
have transpired since [defendant] entered his
guilty plea and eight years have passed since
the murder of Thompson in 2008. The State
asserts that it would be unfairly prejudiced
by the length of time since the offense if
[defendant] were to be allowed to withdraw his
guilty plea. As time passes witness
availability becomes increasingly difficult
and the State has raised this concern if it
were to be forced to retry [defendant's] case
eight years after the offense was committed.
In light of the fact that [defendant] has not
pointed to any specific facts to support his
contention that the State would not be
unfairly prejudiced, combined with the
substantial length of time since the offense,
allowing [defendant] to withdraw his plea
would undoubtedly create unfair prejudice to
the State. This Slater factor does not weigh
in favor of allowing [defendant] to withdraw
his guilty plea.
We agree with the PCR judge's thorough findings and address
them in turn. "A colorable claim of innocence is one that rests
24 A-1529-16T3
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 159.) "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). The
Supreme Court has held:
When evaluating a defendant's claim of
innocence, courts may look to
evidence that was available to the
prosecutor and to the defendant
through our discovery practices at
the time the defendant entered the
plea of guilt. In some cases, the
proffered evidence may serve to
rebut the assertion of innocence; in
others, it may move a court to
vacate the plea to the end that
justice be done.
[Slater,
198 N.J. at 158-159 (quoting Smullen,
118 N.J. at 418.]
Here, despite the alleged existence of Parker's affidavit,
Anderson's prison calls, which were available to both the State
and the defense at the time of defendant's plea, demonstrate
Parker's contentions in his affidavit were false. These calls
25 A-1529-16T3
also show defendant made incriminating statements, which the judge
found demonstrated defendant had a motive for and in fact ordered
Thompson's murder. Therefore, the PCR judge properly found the
first Slater factor weighed against granting defendant's motion.
Inquiry as to the nature and strength of defendant's reasons
for withdrawal "requires trial courts to ascertain not only the
existence of a valid defense but to determine whether . . .
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). "Timing matters as
to the strength of the reasons proffered in favor of withdrawal."
Slater,
198 N.J. at 160. "[T]he longer the delay in raising a
reason for withdrawal, or asserting one's innocence, the greater
the level of scrutiny needed to evaluate the claim." Ibid.
Here, defendant failed to provide the PCR judge with a copy
of Parker's alleged affidavit. Moreover, as the State argues,
"Parker's affidavit must be greatly scrutinized in light of the
fact that defendant waited four years after his plea to file a
motion to withdraw it post-sentencing." We agree with the PCR
judge that the second Slater factor weighed in favor of denying
defendant's motion.
We also agree with the PCR judge the existence of a plea
bargain did not support granting defendant's motion.
26 A-1529-16T3
"[D]efendants have a heavier burden in seeking to withdraw pleas
entered as part of a plea bargain." Slater,
198 N.J. at 160-61
(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 process[.]" Munroe,
210 N.J. at 443 (quoting
Slater,
198 N.J. at 161).
Defendant received the benefit of pleading guilty to first-
degree racketeering pursuant to a plea bargain, thereby facing a
definitive and shorter sentence than he could have faced following
trial. As the State notes, defendant's exposure to prison time
was potentially fifty-five years had the matter proceeded to trial.
Therefore, the PCR judge properly found the third Slater factor
would not support a motion to vacate the plea.
Finally, we agree with the PCR judge the State would be
unfairly prejudiced if the motion was granted. An inquiry as to
unfair prejudice to the State requires an assessment of "whether
the passage of time has hampered the State's ability to present
important evidence." Id. at 161. "[T]he passing of time after a
conviction increases the difficulties associated with a fair and
accurate reassessment of the events." State v. Murray,
162 N.J.
240, 249 (2000). "Certain facts readily demonstrate prejudice,
such as the loss of or inability to locate a needed witness, a
witness's faded memory on a contested point, or the loss or
27 A-1529-16T3
deterioration of key evidence." Slater,
198 N.J. at 161. "In
addition, courts may consider the State's efforts leading up to
the plea and whether it is fair to require the State to repeat
them." Ibid.
In Slater, also a racketeering case, the Supreme Court
recognized the "[e]xtensive pre-trial preparation for a complex
racketeering case, halted by a plea, might counsel against a plea
withdrawal[.]" Ibid. Indeed, "the longer a defendant delays in
seeking to withdraw a plea, the greater burden he or she will bear
in establishing 'manifest injustice,' because the prejudice to the
State under prong four will generally increase." O'Donnell,
435 N.J. Super. at 370. "The State is not required to show prejudice
if a defendant fails to offer proof of other factors in support
of the withdrawal of a plea." Slater,
198 N.J. at 162.
As the State argued, when defendant filed his motion five
years had passed since the plea and eight years since Thompson's
murder. Requiring the State to reassemble its evidence and find
witnesses whose memories could have faded and were willing to
testify was an unfair burden to place upon the State, especially
where it had prepared for trial and a jury had been empaneled.
Therefore, the PCR judge properly found the fourth Slater
factor did not favor granting the motion. We are satisfied there
was no basis to grant the motion as well.
28 A-1529-16T3
Affirmed.
29 A-1529-16T3
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