Opinion
DOCKET NO. A-59PP-10T1
04-08-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. KENNETH J. EDWARDS, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief). Bruce J. Kaplan, Middlesex County Prosecutor, attorney for respondent (Joie Piderit, Assistant Prosecutor, of counsel and on the brief). Appellant filed a pro se supplemental brief.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Alvarez, Waugh and St. John.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 10-03-0390.
Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief).
Bruce J. Kaplan, Middlesex County Prosecutor, attorney for respondent (Joie Piderit, Assistant Prosecutor, of counsel and on the brief).
Appellant filed a pro se supplemental brief. PER CURIAM
On October 28, 2010, the suppression motions filed by defendant Kenneth J. Edwards and co-defendant David Cuthbert were denied. Immediately thereafter, defendant entered a guilty plea to count one of Middlesex County Indictment No. 10-03-0390, charging him with third-degree receiving stolen property, N.J.S.A. 2C:20-7, and count two of Monmouth County Indictment No. 10-04-0520, charging him with third-degree fraudulent use of a credit card, N.J.S.A. 2C:21-6(h). Earlier, a consolidation order had been entered and the Monmouth County indictment transferred to Middlesex County for disposition.
The remaining counts of both indictments, together with certain complaints then pending in Camden County, were to be dismissed as part of the negotiated plea agreement. On April 7, 2011, after denying defendant's application to withdraw his guilty plea, the court sentenced defendant in accordance with the agreement to three years imprisonment, subject to one and one-half years of parole ineligibility on the Middlesex County charge, to be followed by a consecutive term of three years subject to one and one-half years of parole ineligibility on the Monmouth County indictment, for an aggregate of six years in state prison, subject to three years of parole ineligibility. This appeal followed. We affirm.
The State's only witness during the suppression hearing was New Jersey State Trooper Kiian T. Wilson. He testified that on November 17, 2009, at approximately 10:30 p.m., while patrolling the Molly Pitcher Service Area off the New Jersey Turnpike, he ran the Pennsylvania license plate of a Dodge Intrepid through his computer. The plate "came back not on file." When the car's three occupants returned, he explained that the license plate was not properly registered. Defendant said he owned the vehicle and that he had the proper paperwork inside. Cuthbert opened the door with the keys he was holding, and defendant reached in. At that juncture, the trooper smelled marijuana emanating from the car. He instructed everyone, including co-defendant Nicole Snyder, to step towards the rear of the vehicle and called for backup. The trooper placed them under arrest, and when defendant was searched, a bag of marijuana was found in his front shirt pocket.
During the stop, defendant told Wilson that there was a temporary tag on the rear of the vehicle. Wilson testified, however, that he did not see the temporary tag because his primary concern was his own safety since he was outnumbered until the other troopers arrived.
Throughout Wilson's testimony at the suppression hearing, the videotape taken from his vehicle camera was played to the court. Defendant was handcuffed, seated in the rear of a patrol car, and asked if he would consent to a search of the Dodge Intrepid. He agreed, although he did not sign the written form read aloud to him by the trooper because he was in handcuffs. Later, at the station, he refused to sign it.
Although requested, no copy of the tape was ever received as part of the record on this appeal.
Wilson also presented Cuthbert with a written consent to search, explaining that he wanted to search the suitcases located in the vehicle's trunk for narcotics. Cuthbert responded "okay," but stated that he did not want the trooper searching his "personals." Wilson reiterated that he wanted full consent. Cuthbert called out to Snyder, asking if she objected to a search of her suitcase as well. She consented, at which point Cuthbert told the trooper to "[d]o what you got to do." Wilson responded by saying the question required a yes or no answer. Cuthbert then responded yes. Cuthbert also refused to sign the written consent form when presented to him back at the station.
The search of defendant's person and the vehicle, including suitcases belonging to both co-defendants, revealed various identification cards not belonging to defendant, Cuthbert, or Snyder, along with gift cards and merchandise from the Short Hills Mall.
The trial court found, pursuant to State v. Segars, 172 N.J. 481 (2002), that the act of running the license plate through the computer was not a search, as it did not intrude upon any legitimate privacy interest of defendant. Since the plate could not be verified, the officer had a reasonable and articulable suspicion that a motor vehicle violation had been committed. The judge found Wilson to be a credible witness based on "his demeanor, his testimony, the consistency of his testimony, especially with regard to his report and the videotape that the Court observed." The judge said that he credibly testified that he never saw the temporary tag on the vehicle.
Moreover, once Cuthbert opened the driver's side door and Wilson smelled the odor of burnt marijuana, the trooper then had an objective basis for concluding that the vehicle contained evidence of the commission of a crime, and reason to obtain defendant's consent to a search. The judge opined it was reasonable for Wilson to suspect that additional drugs or contraband would be found in the vehicle given the marijuana in defendant's shirt pocket as well as the odor emanating from the car. When Wilson told defendant he had the right to refuse consent, but would be transported to the station while his vehicle remained at the service area, defendant consented to the search.
The court also found that the consent was valid because defendant understood he had the right to refuse. Having been told that police intended to obtain a warrant, defendant then made an informed decision. By informing defendant that a warrant would be sought if he refused consent, Wilson was not acting in a coercive manner, but merely providing accurate information.
The court also determined that Cuthbert voluntarily gave his consent to search without limitations. He understood the scope of the search and that he had the right to refuse. The search and seizure was lawful, and consequently, the motions to suppress were denied.
Defendant raises the following points of error on appeal for our consideration:
POINT I
SINCE THE TEMPORARY REGISTRATION TAG THAT WAS AFFIXED ON THE REAR WINDOW OF THE VEHICLE WAS PRIMA FACIE EVIDENCE THAT THE VEHICLE WAS PROPERLY REGISTERED, AND SINCE THE ARTICULATED REASON FOR THE MOTOR VEHICLE STOP - THE "NOT ON FILE" REPORT - DID NOT RESULT IN A REASONABLE SUSPICION THAT A MOTOR VEHICLE VIOLATION HAD OCCURRED, THE MOTOR VEHICLE STOP WAS UNREASONABLE UNDER FOURTH AMENDMENT CRITERIA
POINT II
THE ORDER DENYING DEFENDANT'S MOTION TO WITHDRAW HIS GUILTY PLEA SHOULD BE REVERSED BECAUSE THE TRIAL COURT FAILED TO APPLY R. 3:9-3, R. 3:21-1, AND R. 3:25A-1 CORRECTLY
(A)
THE TRIAL COURT LACKED JURISDICTION TO ACCEPT THE CONSOLIDATED GUILTY PLEAS
(B)
A DEFENDANT SHOULD BE PERMITTED TO WITHDRAW A GUILTY PLEA THAT WAS INDUCED BY HIS RELIANCE ON ASSUMPTIONS OF FACT BY THE PROSECUTOR THAT PROVED TO BE INCORRECT
(C)
THE TRIAL COURT MISAPPLIED THE STATE V. SLATER TEST IN DENYING DEFENDANT'S MOTION TO WITHDRAW HIS GUILTY PLEA
POINT III
THE TRIAL COURT ERRED IN IMPOSING CONSECUTIVE SENTENCES, AND ON MONMOUTH COUNTY INDICTMENT NO. 10-04-0520, THE TRIAL COURT MISAPPLIED ITS DISCRETION IN FAILING TO GIVE DEFENDANT CREDIT FOR TIME SERVED
By way of a supplemental pro se submission, defendant challenges the initial stop as a violation of the Fourth Amendment, and additionally, that the subsequent detention also violated constitutional principles. No actual point headings as required by Rule 2:6-2 were set forth. Given the nature of the material contained in the supplemental submission, we will not separately discuss the issues as they are addressed in Point I of the counseled brief.
I
The State bears "'the burden of proving the validity of the [warrantless] search'" in this case. State v. Moore, 181 N.J. 40, 44-45 (2004) (quoting State v. Maryland, 167 N.J. 471, 489 (2001)). It is the State's obligation to demonstrate that the search "'falls within one of the few well-delineated exceptions to the warrant requirement.'" Maryland, supra, 167 N.J. at 482 (quoting State v. Citarella, 154 N.J. 272, 278 (1998)).
The stop of a motor vehicle is lawful if the authorities have a reasonable and articulable suspicion that a violation of motor vehicle or other laws has been or is being committed. State v. Carty, 170 N.J. 632, 639-40, modified on other grounds, 174 N.J. 351 (2002). The basis for assessing reasonable and articulable suspicion is objective. United States v. Sokolow, 490 U.S. 1, 7, 109 S. Ct. 1581, 1585, 104 L. Ed. 2d 1, 10 (1989); State v. Golotta, 178 N.J. 205, 213 (2003). Any determination of the existence of a reasonable and articulable suspicion to support a stop is highly fact-sensitive. State v. Nishina, 175 N.J. 502, 511 (2003). It must be based on more than an officer's suspicion or hunch. Sokolow, supra, 490 U.S. at 7, 109 S. Ct. at 1585, 104 L. Ed. 2d at 10. It is undisputed that pursuant to Segars, the officer's computer check of defendant's license plate was proper. Such a search is not considered to "intrude on any legitimate privacy interest" of defendant's. Segars, supra, 172 N.J. at 490.
Wilson, whom the judge found to be a credible witness, said he did not see a temporary tag on the vehicle at the time of the incident. Even if the car had a temporary tag, its presence did not vitiate the legitimate basis for his approaching the occupants of the car — that the license plate he did see was not registered.
Once he approached the vehicle and smelled the marijuana odor emanating from the passenger compartment, Wilson had the right to investigate further and to make an arrest. Ordinarily, Rule 3:3-1(c) would require the issuance of a summons for the disorderly persons offense of the use of marijuana, N.J.S.A. 2C:35-10. Since defendant's vehicle was from Pennsylvania, and the stop on the New Jersey Turnpike, there was "reason to believe that the defendant w[ould] not appear in response to a summons." R. 3:3-1(c)(6). The arrest, as opposed to the issuance of a summons, was therefore lawful.
The bag of marijuana discovered in defendant's pocket, when joined with the smell from the car, supported a reasonable and articulable suspicion that the vehicle might have contained additional evidence of the crime of consumption or possession of marijuana. That Wilson informed defendant that if he did not consent to a search of the car additional investigative measures would be taken, was not coercive but merely factual.
In sum, the alleged existence of the temporary registration tag in the back did not make the initial questioning illegitimate. The trial judge found Wilson to be a credible witness; Wilson simply did not see the tag. See State v. Galicia, 210 N.J. 364, 397 (2012) (deferring to the fact findings of the trial court because it had the opportunity to assess the credibility of the witnesses); Segars, supra, 172 N.J. at 500-01 (following the "deeply rooted principle" of according deference to the credibility findings of a trial court). From the trooper's initial check of the tag through the consent search, no illegality occurred. The motion to suppress was properly denied.
II
Defendant contends that he should have been permitted to withdraw his guilty plea on the basis that: (1) the court lacked jurisdiction to accept consolidated guilty pleas; (2) he relied on an assumption that proved to be false in negotiations, namely, that he, along with Cuthbert and Snyder, was being charged in Camden County with additional credit card fraud-type offenses; and (3) met the standard for withdrawal as set forth in State v. Slater, 198 N.J. 145 (2009).
The denial of a motion to vacate a guilty plea will be affirmed unless the decision was the product of an abuse of discretion rendering the denial "clearly erroneous." State v. Mustaro, 411 N.J. Super. 91, 99 (App. Div. 2009). Such denials are clearly erroneous "if the evidence presented on the motion, considered in light of the controlling legal standards, warrants a grant of that relief." Ibid. (citing Slater, supra, 198 N.J. at 164).
Defendant does not explain how the consolidation prejudiced him. The negotiated plea called for minimal terms of imprisonment, albeit consecutive, for multiple-count indictments from two counties. This despite the fact he was an extended-term eligible persistent offender. See N.J.S.A. 2C:44-3(a). Although defendant had earlier indicated to counsel that he objected to consolidation, defendant entered his guilty pleas based on the consolidation order, and did not challenge the consolidation until after he had second thoughts regarding the plea bargain agreement. He has not established that his objection should have permitted him to withdraw. No fact, circumstance, or relevant case law establishes the principle.
Both sides to the agreement, the State and defendant, assumed in good faith that Camden County was going to issue complaints against this defendant as it had against Cuthbert and Snyder, defendant's co-defendants in an ongoing conspiracy related to credit card fraud. "Notions of fairness apply to each party in the [plea] bargaining process." State v. Warren, 115 N.J. 433, 443 (1989). A defendant has the right not to be "misinformed" about a "material element" of a plea agreement, State v. Nichols, 71 N.J. 358, 361 (1976), "and to have his or her 'reasonable expectations' fulfilled," State v. Bellamy, 178 N.J. 127, 134 (2003) (quoting State v. Howard, 110 N.J. 113, 122 (1988)). "Where the accused's reasonable expectations are defeated, the plea bargain has failed one of its essential purposes, fairness, and a defendant should be permitted to withdraw the plea." State v. Marzolf, 79 N.J. 167, 183 (1979). Defendant had the reasonable expectation that he gained the benefit of dismissal of the Camden charges. But it is not clear what benefit he would have gained in the absence of that circumstance given the very favorable plea he did receive. After all, despite being sentenced to consecutive sentences arising from similar conduct in two counties, defendant received the minimum term for the offenses even though he was a persistent offender.
Defendant also contends that he satisfied the Slater factors. Defendant must "present [a] plausible basis" for the request to withdraw a guilty plea and to establish "good faith in asserting a defense on the merits." Slater, supra, 198 N.J. at 156. In rendering a decision, a court assesses four factors: "(1) whether the defendant has asserted a colorable claim of innocence; (2) the nature and strength of defendant's reasons for withdrawal; (3) the existence of a plea bargain; and (4) whether withdrawal would result in unfair prejudice to the State or unfair advantage to the accused." Id. at 157-58 (citing United States v. Jones, 336 F.3d 245, 252 (3d Cir. 2003). Since some of the cards were found on defendant's person, defendant would have some difficulty in establishing a colorable claim of innocence. Defendant's reasons for withdrawal, his objection to jurisdiction and the lack of complaints from Camden, are not meritorious and substantial reasons for withdrawal. The State would be prejudiced if defendant were permitted to withdraw, as Snyder, who inculpated defendant when she entered her guilty plea, has already been sentenced. Her cooperation is therefore uncertain.
The only fact advanced in support of a claim of innocence is Cuthbert's typewritten and Snyder's handwritten statements, in which both stated that defendant was simply giving him and Snyder a ride. That contradicted not only defendant's own statement but also Cuthbert's sworn factual basis for his guilty plea; Cuthbert acknowledged that this was a "group effort."
The judge stated that defendant did not demonstrate a "strong reason" for the withdrawal of his guilty plea, was not misinformed about any material element of the negotiations, and understood the direct penal consequences. We agree.
III
Finally, defendant appeals his sentence, claiming the trial court erred by imposing consecutive sentences, and misapplied its discretion by failing to give him credit for time served on each of the Monmouth County and Middlesex County offenses for the time spent in jail. These were crimes committed in different counties on different dates involving multiple victims. Therefore the court did not err in considering the Yarbough factors and imposing the agreed-upon consecutive sentences.
State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986).
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Based on defendant's prior criminal history, which included three prior indictable offenses, the court found aggravating factors three, six, nine, and eleven. See N.J.S.A. 2C:44-1(a)(3), (6), (9), (11). Defendant's prior criminal history was a sufficient basis for the factors.
Defendant also challenges the calculation of credits. The court awarded defendant's 505 days of county jail credit solely against the Middlesex County charge but not the Monmouth County charge. Defendant now asserts that when he said: "So, what happened to the Monmouth County?," he was challenging the award of credits, such that the matter comes within the purview of State v. Hernandez, 208 N.J. 24, 28 (2011), which he contends would entitle him to those day-for-day jail credits against both matters. We do not agree.
In Hernandez, the Court explicitly stated: "this opinion shall apply only prospectively to sentences imposed as of tomorrow, except for those matters still on direct appeal in which the amount of jail credits was actually questioned or challenged by defendant at sentencing." Id. at 51. Defendant's statement was not the equivalent of a challenge to the legal justification to the award of credits. Accordingly, we believe since Hernandez was prospective only, it did not apply.
We review sentencing decisions not to substitute our own judgment for that of the trial court, but to assess whether the aggravating and mitigating factors found by the trial court are supported by the record. State v. Bieniek, 200 N.J. 601, 608 (2010). If a trial court's findings of aggravating and mitigating factors are supported by the record, the overall sentence complies with the Code, and the individual sentence does not shock our conscience, the result will be upheld. Ibid. For the reasons that we have stated, we consider the sentence in this case to be appropriate, well within the code, and one which does not shock our conscience.
Affirmed
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELATE DIVISION