Opinion
DOCKET NO. A-3951-11T3
06-10-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. EUGENE REINSALU, a/k/a JEVGENI REINSALU, Defendant-Appellant.
Al Glimis, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Glimis, of counsel and on the brief). Joie D. Piderit, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Andrew C. Carey, Acting Middlesex County Prosecutor, attorney; Nancy A. Hulett, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Waugh and Nugent.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 09-12-2153.
Al Glimis, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Glimis, of counsel and on the brief).
Joie D. Piderit, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Andrew C. Carey, Acting Middlesex County Prosecutor, attorney; Nancy A. Hulett, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Eugene Reinsalu appeals his conviction, following a guilty plea, for second-degree aggravated assault, contrary to N.J.S.A. 2C:12-1(b)(1). Reinsalu contends that the trial judge erred in denying his motion to suppress his statements to the police and his pre-sentence motion to withdraw his plea. He also appeals his sentence, which he contends was excessive. We affirm the denial of the motions to suppress and to withdraw the guilty plea, but remand for resentencing.
I.
We discern the following facts and procedural history from the record on appeal.
On the afternoon of August 19, 2009, Reinsalu was caring for his seven-month-old daughter at the family's home. At approximately 3:20 p.m., the baby began having breathing problems and her face became "red." Reinsalu carried the baby to a neighbor's house and asked her to call 9-1-1. While they were waiting for the ambulance, the neighbor performed cardiopulmonary resuscitation.
At the hospital, the pediatric-intensive-care doctor diagnosed the baby with a brain injury resulting in internal bleeding, which he described as consistent with some form of trauma to the brain. A caseworker from the Division of Youth and Family Services, as it was then known, contacted the Middlesex County Prosecutor's Office to report the incident.
The baby remained in a coma and on life support until her death on July 25, 2011, ten days after Reinsalu's guilty plea.
Reinsalu gave two statements to investigators from the Edison Police Department and the Prosecutor's Office. The first interview began at 9:30 p.m. on the same day as the hospitalization. It lasted for more than three hours. Because Reinsalu was born and raised in Russia, the investigators first sought to establish that he could speak and understand English. When they were satisfied that he could, they explained his Miranda rights and asked him to sign the form acknowledging that he understood his rights and was willing to speak with them.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
At the beginning of the interview, Reinsalu told the two detectives that his daughter had been sick with a cold, but that he had done nothing to cause any injury. He eventually admitted that, when she persisted in crying, he may have shook the baby over his head while saying "what do you need?" He also stated "Maybe I lift her up, up too fast, I don't know."
Reinsalu was interviewed again the next evening, August 20. In response to a question asking whether he raised his voice or was "frustrated" when asking what the baby wanted, he responded "[y]eah" and then "[m]aybe yeah." With reference to the shaking, he told the detectives that "[m]aybe it was too fast you know." At another time he said: "I think it was too fast."
In December, Reinsalu was indicted for the second-degree aggravated assault to which he subsequently pled guilty, as well as one count of second-degree endangering the welfare of a child, contrary to N.J.S.A. 2C:24-4(a). In July 2010, he moved to suppress his statements to the police, arguing that he did not make a knowing and intelligent waiver of his Miranda rights because he was not sufficiently proficient in English and the police failed to supply him with a Russian interpreter.
The trial judge held a six-day suppression hearing that took place between September 28, 2010, and June 14, 2011. In addition to testimony from one of the detectives who had conducted the interviews, the judge heard testimony from Reinsalu himself, his wife, and Robert A. Leonard, Ph.D., who was qualified as an expert in forensic linguistics.
Reinsalu testified that he did not understand his Miranda rights because his English was insufficient. He also testified that he had repeatedly maintained during the interview that he did not know what happened to the baby, but that the detectives repeatedly told him that he must have shaken her. He finally responded to them that he may have lifted her up and shaken her. Reinsalu's wife testified that he was not proficient in English.
Leonard testified that Reinsalu's English skills were limited. He opined that Reinsalu's "limited ability in English would not be adequate to understand the Miranda warnings" or the legal concepts contained in them. Based on his review of the interviews, Leonard also opined that Reinsalu followed the known tendency of single-language speakers to "over-agree" by indicating an understanding of something they do not truly comprehend when listening to an authority figure speaking in another language. In summary, Leonard's opinion was that Reinsalu did not make a knowing and intelligent waiver of his Miranda rights.
In an oral decision delivered at the end of the Miranda hearing, the judge determined that Reinsalu made a knowing, voluntary, and intelligent waiver of his Miranda rights. He disagreed with Leonard's opinion that the wording of the Miranda warning was "complex or difficult to understand." The judge also found that there was "nothing oppressive about the setting" of the interviews. He further concluded that the interviews, albeit lengthy, could not be "characterized as a berating or questioning that would be so oppressive as to lead to false statements or confessions" to avoid continued interrogation. In reaching his conclusions, the judge relied primarily on his own review of the videotape of Reinsalu's questioning in determining that he understood his rights and the questions asked of him during the interrogations.
On July 15, 2011, Reinsalu accepted a plea offer from the State, under which he would plead guilty to the second-degree aggravated assault with the understanding that the other charge would be dismissed and that he would be sentenced to no more than incarceration for eight years, subject to an eighty-five-percent period of parole ineligibility. In addition, the State agreed that no further charges would be brought against Reinsalu in the event his daughter died, which, as noted, she did.
There was some difficulty in obtaining a factual basis for the plea. The following exchange took place between defense counsel and Reinsalu at the start of the plea hearing:
A Russian interpreter was used during the plea hearing.
Q. At the time that she was in your care, did you act in such a way . . . recklessly disregarding the impact on her life, causing her such injury that makes you guilty of aggravated assault?At that point, the judge intervened because he did not find the factual basis given by Reinsalu to be adequate.
A. Yes.
Q. And as a result, you're pleading guilty to the first count of Indictment No.
09-12-02153?
A. Yes.
Q. Which is a second-degree crime?
A. Yes.
Q. And you're pleading guilty to that because you are guilty?
A. Yes.
CROSS-EXAMINATION BY [PROSECUTOR]:
Q. Mr. Reinsalu, what did you do to your child?
A. Well, as far as I understand, I see that what I did was resulted in what we have now.
The judge reminded Reinsalu of the nature of the plea offer, including the State's agreement not to pursue further charges if the child died. The judge advised Reinsalu that he could not accept the plea unless Reinsalu put on the record "what [he] physically did that caused the child's condition" and that it was "not a factual acceptance of responsibility simply to say I [plead] guilty because I recklessly caused the infant's condition." The judge also reminded Reinsalu that the State's position was that he "shook the child violently, strongly in the manner which caused what we call shaken baby syndrome." He emphasized the fact that the choice to plead guilty or go to trial was Reinsalu's alone, and gave him an opportunity to discuss the matter further with his attorney.
Following the break, Reinsalu proceeded with the plea.
DIRECT EXAMINATION BY [DEFENSE COUNSEL]: (Continued)After establishing that the plea was entered into freely and voluntarily and following consultation with an attorney with whom Reinsalu was satisfied, the judge accepted the plea.
Q. Mr. Reinsalu, on the 19th of August, while you had [V.R.] in your care, did there come a time when you picked her up with great force?
A. Yes.
Q. And violently picked her up into the air?
A. Yes.
Q. In an attempt to sooth her and get her to stop crying?
A. Yes.
Q. At the time, you had no idea that this kind of violent picking up of the child into the air could cause such serious injury to a small child?
A. I didn't know about that.
Q. But now you do understand that?
A. Yes.
Q. And it's your statement that you did, in fact, cause this injury?
A. Yes.
Q. And you weren't thinking about how seriously she could be injured by your violent handling of the child?
A. I didn't think about it.
CROSS-EXAMINATION BY [PROSECUTOR]:
Q. Mr. Reinsaulu, . . . your daughter was suffering from a cold that day. Is that correct?
A. It was the Tuesday. She started suffering on Friday.
Q. And . . . she was a little bit fussy. Is that correct?
A. Yes.
Q. And . . . that's what caused you to violently pick her up, and ask what was wrong with her, correct?
A. Yes.
Q. And by picking her up with such force, you caused brain injury to her. Is that correct?
A. Yes.
Q. And, in fact, the brain injury that you caused has left her on life support for the past two years. Is that correct?
A. Yes.
[PROSECUTOR]: I'm satisfied.
THE COURT: While we have a statement by the defendant that he acknowledges factually he picked her up violently, and the Court accepts that it wasn't his intention to harm her, but, rather, the act was sufficiently wanton and reckless, and resulted in the injuries that put the child on life support, I think that is a factual basis.
In October, Reinsalu's attorney, Tina Frost, sought to be relieved as counsel on the grounds that, because Reinsalu now wanted to withdraw his guilty plea, there was a conflict between them. The judge deferred decision pending a hearing. New counsel filed a motion to vacate the plea in December. On January 4, 2012, the trial judge relieved Frost based on an apparent conflict between her and Reinsalu on how to defend the indictment.
The judge then turned to the motion to vacate the plea. New defense counsel, Gregory Jordan, explained that Reinsalu wanted to withdraw his guilty plea on the basis of an opinion from Harold E. Buttram, M.D., that the baby's injuries were "due to the interactions of adverse vaccine reactions and the late-onset hemorrhagic disease of the newborn rather than parental child abuse."
The judge took testimony from Frost. She testified to her recollection that the Buttram report had been obtained by Reinsalu's wife, but she definitely recalled seeing it and discussing it with Reinsalu. Frost testified that she consulted a medical examiner from New York state, whose assistance she did not pursue after he gave her an oral report of the conclusions he reached after reviewing the medical evidence. She also spoke to another doctor, who had authored an article in the New York Times. She did not follow through with him.
Frost further testified that, in the summer of 2011, Reinsalu and his wife were eager to resolve the case. After consultation between attorney and client, the decision was made not to pursue the medical issue but rather to accept the plea offer.
The hearing was continued on February 10, at which time Jordan confirmed that the Buttram report had been obtained by the Reinsalus rather than Frost. The judge denied the motion, finding that Reinsalu had not satisfied the four-prong requirements of State v. Slater, 198 N.J. 145 (2009), for withdrawal of a plea.
On March 1, a different judge sentenced Reinsalu to eight years of incarceration subject to the required eighty-five-percent period of parole ineligibility, plus required fines, penalties, and three years of post-incarceration parole supervision should he be released into the United States rather than deported. The other count of the indictment was dismissed. This appeal followed.
II.
Reinsalu raises the following issues on appeal:
POINT I: THE TRIAL COURT ERRED IN DENYING DEFENDANT'S PRE-SENTENCING MOTION TO WITHDRAW FROM HIS GUILTY PLEA.
POINT II: THE TRIAL COURT ERRED IN DENYING DEFENDANT'S CLAIM THAT HIS LACK OF PROFICIENCY IN ENGLISH PRECLUDED HIM FROM MAKING THE REQUISITE KNOWING AND INTELLIGENT WAIVER OF HIS MIRANDA RIGHTS. (U.S. CONST., AMENDS. V, XIV; N.J. CONST., ART. 1, PARS. 1, 7, 10.)
POINT III: DEFENDANT'S SENTENCE IS EXCESSIVE.
A.
We start our analysis with Reinsalu's argument that the trial judge erred in denying his motion to suppress his statements to the police because he did not make a knowing and intelligent waiver of his Miranda rights.
The Supreme Court has explained the standard of review applicable to an appellate court's consideration of a trial judge's fact-finding on a motion to suppress as follows:
[A]n appellate court reviewing a motion to suppress must uphold the factual findings underlying the trial court's decision so long as those findings are "supported by sufficient credible evidence in the record." [State v. Elders, 386 N.J. Super. 208, 228 (App. Div. 2006)] (citing State v. Locurto, 157 N.J. 463, 474 (1999)); see also State v. Slockbower, 79 N.J. 1, 13 (1979) (concluding that "there was substantial credible evidence to support the findings of theIf, however, the judge's decision on a motion to suppress a statement is based primarily on the motion judge's review of a video of the interrogation, a reviewing court does not owe the same level of deference. State v. Diaz-Bridges, 208 N.J. 544, 566 (2011). Our review of the motion judge's legal conclusions is plenary. State v. Harris, 181 N.J. 391, 420-21 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005); State v. Goodman, 415 N.J. Super. 210, 225 (App. Div. 2010), certif. denied, 205 N.J. 78 (2011).
motion judge that the . . . investigatory search [was] not based on probable cause"); State v. Alvarez, 238 N.J. Super. 560, 562-64 (App. Div. 1990) (stating that standard of review on appeal from motion to suppress is whether "the findings made by the judge could reasonably have been reached on sufficient credible evidence present in the record" (citing State v. Johnson, 42 N.J. 146, 164 (1964))).
An appellate court "should give deference to those findings of the trial judge which are substantially influenced by his opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." Johnson, supra, 42 N.J. at 161. An appellate court should not disturb the trial court's findings merely because "it might have reached a different conclusion were it the trial tribunal" or because "the trial court decided all evidence or inference conflicts in favor of one side" in a close case. Id. at 162. A trial court's findings should be disturbed only if they are so clearly mistaken "that the interests of justice demand intervention and correction." Ibid. In those circumstances solely should an appellate court "appraise the record as if it were deciding the matter at inception and make its own findings and conclusions." Ibid.
[State v. Elders, 192 N.J. 224, 243-44 (2007) (third alteration in original).]
In reviewing a trial judge's ruling on a Miranda motion, we analyze police-obtained statements using a "searching and critical" standard of review to ensure that constitutional rights have not been trampled upon. State v. Patton, 362 N.J. Super. 16, 43 (App. Div.) (citations and internal quotation marks omitted), certif. denied, 178 N.J. 35 (2003). Subject to Diaz-Bridges, we generally will not "engage in an independent assessment of the evidence as if [we] were the court of first instance," State v. Locurto, 157 N.J. 463, 471 (1999), nor will we make conclusions regarding witness credibility, State v. Barone, 147 N.J. 599, 615 (1997). Instead, we generally defer to the trial judge's credibility findings. State v. Cerefice, 335 N.J. Super. 374, 383 (App. Div. 2000).
A suspect's confession during a custodial interrogation can only be obtained if that suspect was supplied with his or her Miranda rights. Miranda, supra, 384 U.S. at 461, 86 S. Ct. at 1620-21, 16 L. Ed. 2d at 716. Before considering the validity of a waiver of Miranda rights, it must be established that the police scrupulously honored the suspect's right to remain silent. State v. Burno-Taylor, 400 N.J. Super. 581, 589 (App. Div. 2008). If the suspect's words or conduct, upon being advised of his or her rights, "could not reasonably be viewed as invoking the right to remain silent," this requirement is satisfied and the police may continue their questioning. Id. at 590 (citing State v. Bey, 112 N.J. 123, 136-38 (1988)).
In Diaz-Bridges, the Supreme Court reiterated the considerations applicable to determining whether a defendant has invoked the right to remain silent.
If that invocation is clear and unambiguous, we have required that it be scrupulously honored. State v. Johnson, 120 N.J. 263, 281 (1990) (citing Michigan v. Mosley, 423 U.S. 96, 96 S. Ct. 321, 46 L. Ed. 2d 313 (1975)). If, however, the invocation is equivocal or ambiguous, leaving the investigating officer "reasonably unsure whether the suspect was asserting that right," id. at 283, we have not required that the interrogation immediately cease, but have instead permitted officers to clarify the otherwise ambiguous words or acts. Ibid.
As it relates to the invocation of the right to remain silent, both the words used and the suspect's actions or behaviors form part of the inquiry into whether the investigating officer should have reasonably believed that the right was being asserted. As a result, the court's inquiry necessarily demands a fact-sensitive analysis to discern from the totality of the circumstances whether the officer could have reasonably concluded that the right had been invoked. For this reason, it may be inadequate to confine appellate review to the transcript
of the interrogation. Instead, as this appeal demonstrates, if the trial court has based its findings on conduct or behaviors that defendant exhibited during a videotaped interrogation that may be observed and analyzed with equal precision by an appellate court, a review of the videotape of the interrogation is appropriate.
We do not suggest that we have altered our admonition to appellate courts that they give due deference to the fact-finding role of the trial courts. See [Locurto, supra, 157 N.J. at 471] (concluding that reviewing court should defer to factual findings of trial judge as long as they can reasonably be reached on sufficient credible evidence present in the record). Indeed, as we have recently reiterated, if the trial court has had the benefit of and has relied upon testimony of witnesses, appellate courts must give due deference to those findings because it is the trial court that had the opportunity to evaluate the credibility of the witnesses who appeared and testified. Elders, supra, 192 N.J. at 245 (observing that trial court based its evaluation on police testimony because patrol car's videotape showed only part of interaction with individuals involved in traffic stop).
However, when the trial court's sole basis for its findings and conclusions is its evaluation of a videotaped interrogation, there is little, if anything, to be gained from deference. In that circumstance, as we have observed, appellate courts are not confined to a review of a transcript nor obliged to defer to the trial court's findings, but may consider the recording of the event itself. [State v. Alston, 204 N.J. 614, 626 n.2 (2011)] (citing [Harris, supra, 181 N.J. at 415-16, 419]). When the trial court's factual findings are based only on its
viewing of a recorded interrogation that is equally available to the appellate court and are not dependent on any testimony uniquely available to the trial court, deference to the trial court's interpretation is not required. Appellate courts need not, and we will not, close our eyes to the evidence that we can observe in the form of the videotaped interrogation itself.
. . . .
We have considered whether defendants invoked the right to silence in a variety of contexts, and have established principles that can be summarized without great detail. A suspect who repeatedly responded to questions by saying "I can't talk about it" and who engaged in a persistent pattern of refusal to answer was not "obligat[ed] to state his position more clearly" in order to invoke the right to silence. Johnson, supra, 120 N.J. at 284. A suspect who told the investigator "I don't believe that I want to make a statement at this time" sufficiently invoked the right to silence that the failure to honor the request required suppression. [State v. Hartley, 103 N.J. 252, 255-58 (1986)] (requiring re-administration of Miranda warnings during renewed attempt to initiate questioning).
On the other hand, we deemed a suspect's statement that he wanted an opportunity to "lie down and think about it" before responding, although arguably far less ambiguous a reference to the right to remain silent, to be simply a request for some time and not an assertion that police terminate questioning through the invocation of the right to remain silent. [Bey], supra, 112 N.J. at 136-37 ("law enforcement officials . . . are not obligated to accept any words or conduct, no matter how ambiguous, as a conclusive indication that a suspect desires to terminate questioning").
Similarly, as our Appellate Division has concluded, a suspect who refused eleven separate times to sign a form waiving his rights, which refusal he explained in terms of his desire not to make a statement, has made the desire to invoke the right to silence sufficiently plain that it must be honored. [Burno-Taylor, supra, 400 N.J. Super. at 604].
[Diaz-Bridges, supra, 208 N.J. at 564-67 (fourth alteration in original).]
A trial judge will admit a confession into evidence only if the State has proven beyond a reasonable doubt, based on the totality of the circumstances, that the suspect's waiver of those rights was knowing, intelligent, and voluntary. Patton, supra, 362 N.J. Super. at 42. The trial judge must specifically consider the defendant's "characteristics . . . and the nature of the interrogation," and may include consideration of the defendant's "age, education and intelligence, advice concerning constitutional rights, length of detention, whether . . . questioning was repeated and prolonged in nature, and whether physical punishment [or] mental exhaustion were involved." State v. Galloway, 133 N.J. 631, 654 (1993) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S. Ct. 2041, 2047-48, 36 L. Ed. 2d 854, 862 (1973); State v. Miller, 76 N.J. 392, 402 (1978)).
Courts analyze whether police conduct coerced a confession by first determining whether the conduct violated the suspect's due process rights. See State v. Smith, 32 N.J. 501, 544 (1960), cert. denied, 364 U.S. 936, 81 S. Ct. 383, 5 L. Ed. 2d 367 (1961). New Jersey thus places a "mandatory burden on all courts to test the admissibility of confessions not only by the ordinary rules of evidence but by the deeper constitutional requirement of fundamental fairness." State v. Driver, 38 N.J. 255, 282 (1962) (citing Smith, supra, 32 N.J. at 544).
A suspect's confession is not considered voluntary if it is the product of psychological or physical coercion. Galloway, supra, 133 N.J. at 654. Unlike cases of physical coercion, however, the use of psychological techniques is not in and of itself coercive; rather, courts must analyze whether the confession was the result of the defendant's change of mind and not a broken will. Id. at 654-55. A confession is voluntary if it is "'the product of an essentially free and unconstrained choice'" where the defendant's will has not been "'overborne and his capacity for self-determination [has not been] critically impaired.'" State v. P.Z., 152 N.J. 86, 113 (1997) (quoting Schneckloth, supra, 412 U.S. at 225-26, 93 S. Ct. at 2047, 36 L. Ed. 2d at 862). Cases which hold that a defendant's will has been overborne typically require the defendant to demonstrate a showing of "very substantial psychological pressure." Galloway, supra, 133 N.J. at 656.
Our review of the interview videos convinces us that the judge did not err in concluding that the State met its burden to prove a knowing, intelligent, and voluntary waiver beyond a reasonable doubt. The detectives spent sufficient time verifying Reinsalu's ability to understand and speak English. Although there were occasions when both sides sought clarification, they were the exception rather than the rule. There is nothing on the videos to suggest that Reinsalu did not understand what he was being told or what he was being asked to waive. As the judge noted, the language of the Miranda warnings is not complicated. The detectives did not pressure Reinsalu into signing the waiver form.
We are also satisfied that the interrogation was not badgering or otherwise coercive. While it appears that he was understandably reluctant to acknowledge his role in the injuries suffered by his child, we find no basis to conclude that Reinsalu's incriminating statements were the result of "very substantial psychological pressure," or otherwise coerced.
B.
We now turn to Reinsalu's contention that the trial judge erred in denying his pre-sentencing motion to withdraw his guilty plea.
A motion to withdraw a guilty plea is committed to the judge's sound discretion. State v. Slater, 198 N.J. 145, 156 (2009); State v. Phillips, 133 N.J. Super. 515, 518 (App. Div. 1975). That discretion should ordinarily be exercised liberally where the motion is made before sentencing. Ibid. (citations omitted). "In a close case, the 'scales should usually tip in favor of defendant.'" Ibid. (quoting State v. Taylor, 80 N.J. 353, 365 (1979)).
A defendant bears the burden to demonstrate that fairness requires withdrawal of his plea, and he must make that showing upon a balance of competing factors. State v. Russo, 262 N.J. Super. 367, 373 (App. Div. 1993) (quoting State v. Huntley, 129 N.J. Super. 13, 17 (App. Div.), certif. denied, 66 N.J. 312 (1974)). Although a motion to withdraw a plea after sentencing must be supported by "strong, compelling reasons," "a lesser showing is required for motions raised before sentencing." Slater, supra, 198 N.J. at 160.
The applicable factors are: "(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." Id. at 157-58 (citation omitted). While all factors must be considered and balanced, "[n]o factor is mandatory; if one is missing, that does not automatically disqualify or dictate relief." Id. at 162.
With respect to the first factor, "[a] bare assertion of innocence is insufficient to justify withdrawal of a plea." Id. at 158. Instead, a defendant must "present specific, credible facts and, where possible, point to facts in the record that buttress [his] claim." Ibid. (citations omitted). There must be more than just a "change of heart" to warrant leave to withdraw a guilty plea once entered. Id. at 157.
According to Slater, the second factor, the nature and strength of defendant's reasons for withdrawal, "focuses on the basic fairness of enforcing a guilty plea by asking whether defendant has presented fair and just reasons for withdrawal, and whether those reasons have any force." Id. at 159. Although we are not to approach the reasons for withdrawal with "skepticism," we "must act with 'great care and realism' because defendants often have little to lose in challenging a guilty plea." Id. at 160 (citing Taylor, supra, 80 N.J. at 365).
With respect to the third Slater factor, whether the plea was entered as the result of a plea bargain, the Court noted that "defendants have a heavier burden in seeking to withdraw pleas entered as part of a plea bargain." Id. at 160. However, the Court did "not suggest" that the third factor "be given great weight in the balancing process." Id. at 161.
As to the fourth factor, unfair prejudice to the State or unfair advantage to the accused, the Court stated that there was "no fixed formula to analyze the degree of unfair prejudice or advantage that should override withdrawal of a plea" and that "courts must examine this factor by looking closely at the particulars of each case." Ibid. The "critical inquiry . . . is whether the passage of time has hampered the State's ability to present important evidence." Ibid. The State need not show prejudice "if a defendant fails to offer proof of other factors in support of the withdrawal of a plea." Id. at 162.
The disposition of this appeal turns largely on the issue of whether Reinsalu has put forward the "colorable claim of innocence" required by Slater. The judge held that he had not, explaining his reasons as follows:
The reality is that it's not a colorable claim of innocence. It is a decision made with full advice of counsel knowing that this report existed and [c]ounsel deciding, with consultation of defendant, that it was simply insufficient to raise a defense. And under those circumstances the creation in the defendant's mind that it's now somehow sufficient to create a defense is not a claim of innocence. It's a claim of I have a defense. And it isn't a defense. It is exactly the same information that was gone over with counsel prior to the plea and
exactly the same information that was gone over in detail with this defendant.
. . . .
In the case at bar, defendant argues that he constantly maintained his innocence, but felt pressure to plead guilty because then counsel said that the doctor's report would not provide a defense. The Court notes that defendant provided various articles that questioned the frequent usage of shaken baby syndrome by medical personnel and the courts. But there's been no case law supported -- suggested or given that has any plausible defense or colorable claim of innocence.
So his claim that he now has some information that would provide for a defense fails. He clearly acknowledged what he did at the time of the plea.
He argues he demonstrated his belief in his own innocence because he responded at one point, "Well, as far as I understand, I see that what I did resulted in what we have now." The defendant never claimed innocence. The Court, in fact, was unsatisfied with the response and asked him to go more specifically into it, that he fully accepted by giving a factual basis that the conduct that he engaged in caused the death. And he did that, and it is on the record with specificity.
Reinsalu pled guilty to aggravated assault based on his having, "under circumstances manifesting extreme indifference to the value of human life[,] recklessly" caused serious bodily injury to his daughter. N.J.S.A. 2C:12-1(b)(1). If, in fact, the baby's catastrophic brain injury's resulted from "the interactions of adverse vaccine reactions and the late-onset hemorrhagic disease of the newborn rather than parental child abuse," as the Buttram report suggests, then Reinsalu would not have been guilty of aggravated assault because the causation element of the offense would not have been satisfied. That Reinsalu knew about the report prior to the plea is not determinative.
Because we understand the first Slater factor to require some minimal weighing of the viability of the colorable claim of innocence, we conclude that Reinsalu did not present sufficient "specific, credible facts" to support what might otherwise have been a colorable claim. As the judge noted, the Buttram report was known to Frost, who performed her own investigation of the issue of causation. Following that investigation, she advised her client that he should plead guilty. Our understanding of her testimony is that she was unable to locate a viable expert witness to rebut the conclusions of the State's expert that the child's injuries were the result of shaken baby syndrome. At the time, Reinsalu agreed with her advice and accepted the State's plea offer. Consequently, his effort to withdraw his plea is essentially the type of "change of heart" that ordinarily warrants little weight in terms of the first Slater prong.
We reiterate that it was an extremely favorable offer, especially in light of the child's death and Reinsalu's consequent exposure to homicide charges, such as aggravated manslaughter, which would expose him to a sentence of incarceration for ten to thirty years. N.J.S.A. 2C:11-4(a)(1) and -4(c).
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As to the second prong, our reading of the Buttram report, with the required "great care and realism" and in light of Frost's testimony, suggests that it does not provide a viable or credible basis for Reinsalu's request to withdraw the plea. It purports to ascribe the baby's condition to causes unrelated to the conduct, shaking the baby while he was agitated by her constant crying, that Reinsalu admitted in his statement to the police and at the plea hearing. Whatever value the Buttram report might have in undercutting the attribution of similar symptoms to shaken baby syndrome in the abstract, we conclude it has little, if any, value in the context of a case in which those symptoms followed immediately after an acknowledged incident of shaking the baby.
Although the plea was the result of a plea offer, we do not accord that fact great weight in assessing the third and fourth factors because we discern no particular prejudice to the State if the plea were withdrawn. Reinsalu would certainly not gain an unfair advantage in light of the fact that withdrawal of the plea would expose him to homicide charges.
Having balanced the Slater factors, we find no error in the judge's exercise of his "sound discretion" in denying the motion. We do not consider this the type of "close case" in which the balance should tip in favor of a defendant. Reinsalu made a counseled and knowing decision to plead guilty, his change of mind, absent viable support for his theoretically colorable claim of innocence, did not warrant leave to withdraw his plea.
C.
Finally, we address Reinsalu's contention that his sentence was excessive. He argues that the judge failed to articulate his weighing of the sentencing factors and to consider mitigating factors that should have been applied.
"[Our] review of sentencing decisions is relatively narrow and is governed by an abuse of discretion standard." State v. Blackmon, 202 N.J. 283, 297 (2010) (citing State v. Jarbath, 114 N.J. 394, 401 (1989)). "In conducting the review of any sentence, appellate courts always consider whether the trial court has made findings of fact that are grounded in competent, reasonably credible evidence and whether 'the factfinder [has] appl[ied] correct legal principles in exercising its discretion.'" Ibid. (alterations in original) (quoting State v. Roth, 95 N.J. 334, 363 (1984)). The traditional articulation of this standard limits a reviewing court's scope of review to situations in which the application of the facts to law has resulted in a clear error of judgment and to sentences that "shock the judicial conscience." Roth, supra, 95 N.J. at 36365. If the sentencing court has not demonstrated a clear error of judgment or the sentence does not shock the judicial conscience, appellate courts are not permitted to substitute their judgment for that of the trial judge. Id. at 364-65.
"In exercising its authority to impose [a] sentence, the trial court must identify and weigh all of the relevant aggravating factors that bear upon the appropriate sentence as well as those mitigating factors that are 'fully supported by the evidence.'" Blackmon, supra, 202 N.J. at 296-97 (quoting State v. Dalziel, 182 N.J. 494, 504-05 (2005)).
Although the sentence imposed was consistent with the terms of the plea agreement, in that it did not exceed eight years of incarceration, we must remand for resentencing. First, it appears that the sentencing judge, who was substituting for the judge who had handled all of the prior proceedings and had been scheduled to handle the sentencing, did not have defense counsel's sentencing memorandum prior to or at the sentencing. Second, the judge failed to provide any explanation of why he chose aggravating factors two and nine, N.J.S.A. 2C:44-1(a)(2) and (9), and why he rejected mitigating factors sought by Reinsalu. Finally, the judge did not explain how he weighed the various factors as required by State v. Cancel, 256 N.J. Super. 430, 437 (App. Div. 1992), certif. denied, 134 N.J. 484 (1993). We cannot be expected to discern the judge's reasons on such a bare record. State v. Miller, 205 N.J. 109, 129 (2011).
Consequently, we vacate the sentence and remand to the Law Division for resentencing. If at all possible, sentence should be imposed by the judge who held the Miranda hearing and took the plea because that judge has the most familiarity with the case.
Affirmed in part; remanded in part.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION