Opinion
DOCKET NO. A-4036-10T1
02-09-2012
STATE OF NEW JERSEY, Plaintiff-Respondent, v. E.M., Defendant-Appellant.
Michael W. Kahn, attorney for appellant. Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Linda A. Shashoua, Assistant Prosecutor, of counsel and on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Graves and Harris.
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 09-10-03715.
Michael W. Kahn, attorney for appellant.
Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Linda A. Shashoua, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
The sole issue presented by this appeal is whether, pursuant to State v. Slater, 198 N.J. 145 (2009), the Law Division erred when it denied defendant Edwin Machado's pre- sentence motion to withdraw his guilty plea to second-degree sexual assault, N.J.S.A. 2C:14-2(b). Accused of engaging in multiple instances of sexual intercourse with his step-daughter when she was between the ages of eight and thirteen, Machado pled guilty to touching her breast for his own sexual gratification. Relying upon three post-plea recantations by the victim, Machado claims he is entitled to withdraw his plea.
The following two contentions are presented for our consideration:
POINT I: THE TRIAL COURT ERRED IN REFUSING TO ALLOW DEFENDANT TO WITHDRAW HIS PRE-SENTENCE GUILTY PLEA.
A. THE FACTORS SET FORTH BY THE NEW JERSEY SUPREME COURT IN STATE V. SLATER WEIGH IN DEFENDANT'S FAVOR SUCH THAT HE SHOULD HAVE BEEN PERMITTED TO WITHDRAW HIS PRE-SENTENCE GUILTY PLEA.
B. THE TRIAL COURT PLACED UNDUE WEIGHT ON THE FACT THAT, WHEN DEFENDANT PLEAD GUILTY, HE DID SO UNDER OATH AND PROVIDED A FACTUAL BASIS FOR THE PLEA.
After reviewing the record, we find that Judge Richard F. Wells properly applied the Slater jurisprudence and appropriately exercised his judicial discretion in denying Machado's motion. We affirm.
I.
Pursuant to the plea agreement, Machado pled guilty in exchange for the State's recommendation that he be sentenced to five years incarceration subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. At the plea allocution on June 21, 2010, after Machado was sworn in, the following exchange occurred:
THE COURT: All right. Thank you, sir. I'm going to ask your counsel . . . if you would please establish a factual basis for the plea.In order to accommodate Machado's required interview at the Adult Diagnostic Treatment Center (ADTC) in Avenel, the court scheduled a tentative sentencing date for August 21, 2010, which was later changed to September 24, 2010.
[DEFENSE COUNSEL]: Yes, thank you. [Edwin], as you know, originally . . . we were going to plead to Count 1. Now, we've changed it to Count 7[,] . . . the difference being the Pennsauken address, not the Belmar address. Do you understand that?
MR. [MACHADO]: Okay.
[DEFENSE COUNSEL]: Okay. So, . . . between December 1st, 2005, and February 16 of 2008, did you reside in Pennsauken Township?
MR. [MACHADO]: Yes.
[DEFENSE COUNSEL]: And it's in the County of Camden?
MR. [MACHADO]: Yes.
[DEFENSE COUNSEL]: Okay. And in residing in that house with you, as a stepdaughter, was there . . . a juvenile with the initials, S.R.?
MR. [MACHADO]: Yes, sir.
[DEFENSE COUNSEL]: And . . . is her date of birth in 1995?
MR. [MACHADO]: Yes, sir.
[DEFENSE COUNSEL]: Okay. And while you were living under the same roof with S.R., did you have occasion, multiple occasions during that time period we just spoke about, to touch S.R.'s breast?
MR. [MACHADO]: Yes.
[DEFENSE COUNSEL]: And was your purpose in touching her breast for your own sexual gratification or arousal?
MR. [MACHADO]: Yes.
[DEFENSE COUNSEL]: Okay. And do you know that while this was going on, the time period we've just spoke[n] about, December 1st, 2005 to February 16th, 2008, that she was less than [thirteen] years old?
MR. [MACHADO]: Yes.
[DEFENSE COUNSEL]: And you're clear about that?
MR. [MACHADO]: Yes.
[DEFENSE COUNSEL]: And in all of those times you were always more than four years older than her, correct?
MR. [MACHADO]: Yes.
[DEFENSE COUNSEL]: I believe that's sufficient?
[THE PROSECUTOR]: The State is satisfied with that.
THE COURT: That's sufficient. Thank you. All right, sir. Do you have any questions for the Court?
MR. [MACHADO]: No, sir.
. . . .
THE COURT: All right. Mr. [Machado], I accept your statements under oath. I'm satisfied and so find that this defendant has, after advice of competent counsel with whom the defendant is satisfied, entered a plea of guilty freely, voluntarily and intelligently. I find this defendant admitted the offense on the date and place complained of in the Indictment and committed the offense alleged.
I find the defendant has been very alert and comprehending throughout the entire proceeding. I am satisfied the defendant is not under the influence of any medicines, drugs or alcohol. I am satisfied this defendant has signed the plea form which the Court incorporates into its findings. I am satisfied this defendant has not been threatened to plead guilty nor promised anything other than what we discussed on this record. I am satisfied this defendant understands the range of sentence that may be imposed and has acknowledged signing the plea form and the Court adopts that form by reference. I accept the plea of guilty.
In rapid succession, the following events followed the plea allocution. On July 8, 2010, the Adult Presentence Report was prepared. It reported that "Mr. [Machado] did not make a comment." Two weeks later, Machado was interviewed by a psychologist at the ADTC, who reported that "Mr. [Machado] denied that he engaged in sexually motivated behavior with the young victim. . . . Throughout the interview, Mr. [Machado] maintained he was an innocent man who was wrongfully accused." On August 17, 2010, the prosecutor received a letter written by the victim recanting her earlier account of events and asking him "to drop all charges of [sic] [Edwin Machado]." The then-fifteen-year-old step-daughter wrote, "I have made a mistake in telling a lie and changing the story. Well I understand that I'm changing the story again but everyone told me to stick to the truth right [sic]. Well the truth is that he's ignescent [sic] and never touched me." Several weeks later, on September 28, 2010, a licensed private investigator interviewed Machado's step-daughter, who told him that she wrote the letter to the prosecutor voluntarily, without coercion, and that "[Machado] never touched [her] or sexually abused [her] in no type of way." Lastly, on October 8, 2010, a prosecutor's investigator met with the victim and was told that the letter was authentic. The investigator's Interview Report indicated the following:
[The victim] blurted out "he's guilty and I just don't want him to go to jail." When questioned about her statement she stated she meant to say that he was innocent and she didn't want him to go to jail. [The victim] advised no one asked her to write the letter and that she wrote it herself. [The victim] advised if [Edwin Machado] were to be released and move back in with her mother she would leave the residence and
live somewhere else. When asked about her decision she stated he ([Edwin]) causes to[o] much drama in the house and she wouldn't want to live with him.
The Law Division was advised of the victim's recantation and an informal application to withdraw the plea was presented for the court's consideration. Neither Machado nor the victim provided certifications to the court. On February 25 and March 11, 2011 — after permitting the parties to submit legal memoranda and orally argue their positions — the court treated the matter as an application pursuant to Rules 3:9-3(e) and 3:21-1.
If Machado filed a formal motion to withdraw his plea, a copy of same was not provided to us in his appellate appendix. Although we have copies of several unauthenticated documents that were reviewed by the motion court, the motion record contains very little competent evidence. See R. 1:6-6.
The motion court was not only presented with the three post-plea recantations from the victim, but it was also made aware that the victim had, approximately three months after Machado's arrest, recanted and then immediately retracted her recantation. It also learned that at the time of his arrest, Machado had given the police incriminating statements outlining in detail his conduct with the victim.
Judge Wells carefully analyzed the jurisprudence that touches and concerns motions to vacate guilty pleas before sentencing. He fully surveyed the legal landscape, focusing his attention on the New Jersey Supreme Court's then-two-year-old pronouncement in Slater. After addressing and balancing all of the appropriate factors that comprise the Slater paradigm, Judge Wells denied Machado's motion. This appeal followed.
II.
When examining the Law Division's denial of a defendant's request to withdraw a guilty plea, we reverse "only if there was an abuse of discretion which renders the lower court's decision clearly erroneous." State v. Simon, 161 N.J. 416, 444 (1999) (citing State v. Smullen, 118 N.J. 408, 416 (1990)). Furthermore, we have said:
[I]t is clear that the burden rests on defendant, in the first instance, to present some plausible basis for his request, and his good faith in asserting a defense on the merits, so the trial judge is able to determine whether fundamental fairness requires a granting of the motion. Any other approach would automatically require a trial judge to grant such motions, and strip him of any discretion in the matter. Liberality in exercising discretion does not mean an abdication of all discretion.
[State v. Luckey, 366 N.J. Super. 79, 86-87 (App. Div. 2004) (quoting State v. Huntley, 129 N.J. Super. 13, 17 (App. Div.), certif. denied, 66 N.J. 312 (1974)).]
A motion to withdraw made before sentencing requires a liberal consideration of a defendant's application. Slater, supra, 198 N.J. at 156 (citing Smullen, supra, 118 N.J. at 416). However, a defendant "carries a heavier burden" when seeking to withdraw a plea entered pursuant to a plea bargain. State v. Means, 191 N.J. 610, 619 (2007).
While there are procedural safeguards in place to protect Machado's liberty interests, the burden still remains with him "'to present some plausible basis for his request [to withdraw a plea], and his good faith in asserting a defense on the merits . . . .'" Smullen, supra, 118 N.J. at 416 (quoting Huntley, supra, 129 N.J. Super. at 17). "That approach logically flows from the entry of a guilty plea because 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, supra, 198 N.J. at 156. A "whimsical change of mind" by a defendant is not an adequate basis to set aside a plea. Huntley, supra, 129 N.J. Super. at 18.
In considering such a motion, the motion court is required to consider whether a defendant has satisfied the "interest of justice" standard of Rule 3:9-3(e) and the following four factors: "(1) whether defendant has asserted a colorable claim of innocence; (2) the nature and strength of defendant's reason for withdrawal; (3) the existence of a plea bargain; and (4) whether withdrawal would result in unfair prejudice to the State or unfair advantage to the accused." Slater, supra, 198 N.J. 157-58. No single factor is dispositive; accordingly, relief is not disqualified or dictated based on their presence or absence. Id. at 162.
As to the first factor, Judge Wells found Machado had failed to present any colorable claim of innocence, noting the strength of his vague claim of an alleged exculpatory witness — the victim — was undermined by his failure to assert any specific claim of innocence in submissions to the court in support of the motion to withdraw. Clearly, the presentation of the motion alone is not, as argued by Machado, a claim of innocence. Moreover, the State apparently had a strong case based on Machado's post-apprehension statement and its congruence with the earliest statements made by the victim. Additionally, Machado had not even submitted a certification from his alleged exculpatory witness.
A defendant asserting a claim of innocence must present "specific, credible facts" and, where possible, point to facts in the record in support of that claim. Ibid; see also State v. Phillips, 133 N.J. Super. 515, 519 (App. Div. 1975) (explaining that "a protestation of innocence must be more than a mere assertion of non-guilt" and newly-asserted defenses may invite skepticism if "factually unclothed"). "Courts are not to conduct a mini-trial at this juncture[;]" however, "[t]hey should simply consider whether a defendant's assertion of innocence is more than a blanket, bald statement and rests instead on particular, plausible facts." Slater, supra, 198 N.J. at 159. We agree with Judge Wells that Machado's presentation, even liberally construed, fell far short of a colorable claim of innocence.
The second factor focuses on the basic fairness of enforcing a guilty plea. It requires that the court ask whether the defendant has presented "fair and just reasons for withdrawal," and considers the effectiveness of those reasons. Ibid. Decisional law has identified a number of reasons that warrant withdrawal of a plea. Those reasons include: (1) whether "the court and prosecutor misinformed the defendant about a material element of the plea negotiation, which the defendant relied on in entering his plea;" (2) "the defendant was not informed and, thus, did not understand material terms and relevant consequences of the guilty plea, namely, the direct, penal consequences of the plea;" (3) the "defendant's reasonable expectations under the plea agreement were not met;" and (4) "the defendant has not only made a plausible showing of a valid defense against the charges, but also credibly demonstrated why that defense 'was forgotten or missed' at the time of the plea." Id. at 159-60 (internal quotations omitted).
The nature and strength of Machado's reasons for withdrawal were found inadequate in the Law Division, and we concur. At his plea allocution, Machado, under oath, unequivocally explained his culpability. He knew at that time that his step-daughter had already once done an about-face concerning the charges. The court found this circumstance an important component in its rejection of Machado's reasons for withdrawal. The court did not, contrary to Machado's argument on appeal, treat the plea allocution as dispositive. Rather, it was simply one aspect, albeit an important one, that informed the court's analysis and ultimate exercise of discretion.
We further note that the age of the victim, her familial relationship with Machado, the number of times she was questioned, her prior vacillations, and her retraction of an earlier recantation significantly erode the potential reliability of her post-plea exculpations. See, e.g., State v. W.B., 205 N.J. 588, 609-10 (2011) (noting the recurrent problems encountered in sexual abuse cases involving child victims, including those associated with reporting abuse and later recanting allegations of same). The Law Division was right to question the true value Machado placed on the victim's most recent exclamations of innocence.
The third factor focuses on the existence of a plea bargain. "We recognize that the vast majority of criminal cases are resolved through plea bargains and do not suggest that this factor be given great weight in the balancing process." Slater, supra, 198 N.J. at 161. Nevertheless, Machado did negotiate the dismissal of fourteen counts in the indictment — including several first-degree charges — when he agreed to plead guilty to a second-degree crime for which the State promised to recommend no more than a five-year NERA (and Megan's Law) sentence.
N.J.S.A. 2C:7-1 to -19.
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The fourth factor focuses on whether withdrawal would result in unfair prejudice to the State or unfair advantage to the accused. Id. at 164. Judge Wells concluded, and we agree, that the State would not be prejudiced if he vacated the plea agreement because the relatively short passage of time would not likely impact on the ability of the State to produce witnesses and evidence relevant to the indictment.
In reaching his ultimate determination, Judge Wells found the following:
[A]fter balancing and considering the factors outlined in the Slater case, the Court finds that the defendant's Motion to Withdraw a guilty plea should be denied. The Court relies most heavily, as already said, with regard to the Factor One analysis.We conclude that the judge engaged in the required mode of analysis, correctly understood and applied the law, and fully explained his reasoning. This is the essence of principled discretion. The record does not present a "'clear error of judgment.'" Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 383-84 (2010) (quoting State v. Koedatich, 112 N.J. 225, 313 (1988), cert. denied, 488 U.S. 1017, 109 S. Ct. 813, 102 L. Ed. 2d 803 (1989)). Accordingly, we have no basis to disturb the motion court's disposition.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
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CLERK OF THE APPELLATE DIVISION