NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0815-18T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JERMAINE J. OLIVER, a/k/a OLIVER JERMAINE, HILL, OLIVER JEROME, OLIVER JERMAINE, OLIVER JERMAINE J., OLIVER JACKIE J., and OLIVER JACKIE,
Defendant-Appellant. ______________________________
Submitted June 3, 2020 – Decided July 1, 2020
Before Judges Whipple and Gooden Brown.
On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 14-10-1212.
Joseph E. Krakora, Public Defender, attorney for appellant (Al Glimis, Designated Counsel, on the brief). Angelo J. Onofri, Mercer County Prosecutor, attorney for respondent (Laura Sunyak, Assistant Prosecutor, of counsel and on the brief).
PER CURIAM
Following the denial of his pre-sentence motion to withdraw his guilty
pleas, defendant was sentenced in accordance with a plea agreement to an
aggregate seven-year term of imprisonment, subject to an eighty-five percent
period of parole ineligibility pursuant to the No Early Release Act (NERA),
N.J.S.A. 2C:43-7.2. He now appeals from the October 4, 2018 judgments of
conviction, raising the following point for our consideration:
POINT I
THE COURT ABUSED ITS DISCRETION BY IGNORING EVIDENCE OF [DEFENDANT'S] COLORABLE CLAIM OF INNOCENCE AND BY DENYING HIS PRE-SENTENCING PLEA- WITHDRAWAL MOTION.
A. [DEFENDANT] ASSERTED A COLORABLE CLAIM OF INNOCENCE BY PRESENTING "SPECIFIC POTENTIALLY PLAUSIBLE FACTS, AND NOT SIMPLY A BALD ASSERTION."
B. [DEFENDANT] ASSERTED STRONG REASONS FOR WITHDRAWAL.
C. THE EXISTENCE OF A PLEA BARGAIN SHOULD NOT OUTWEIGH THE OTHER FACTORS.
A-0815-18T4 2 D. WITHDRAWAL WOULD NOT RESULT IN UNFAIR PREJUDICE TO THE STATE OR ADVANTAGE TO THE DEFENDANT.
E. [DEFENDANT] HAS MET ALL OF THE SLATER[1] REQUIREMENTS FOR PLEA WITHDRAWAL, AND THE TRIAL JUDGE'S REFUSAL TO HONOR HIS REQUEST WAS AN ERROR REQUIRING REVERSAL.
We reject defendant's contentions and affirm.
On February 4, 2016, defendant was charged in a twelve-count Mercer
County indictment with second-degree eluding, N.J.S.A. 2C:29-2(b) (count
one); four counts of second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(6)
(counts two through five); fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a)(2)
(count six); four counts of third-degree assault by auto, N.J.S.A. 2C:12-1(c)(2)
(counts seven through ten); second-degree assault by auto, N.J.S.A. 2C:12-
1(c)(2) (count eleven); and fourth-degree assault by auto, N.J.S.A. 2C:12-
1(c)(2) (count twelve). The indictment stemmed from allegations that while
attempting to elude police during a high-speed pursuit, defendant rear-ended one
vehicle and crashed head-on into another, injuring the occupants of both
vehicles. After the crash, defendant was arrested when he tried to flee on foot.
1 State v. Slater, 198 N.J. 145 (2009). A-0815-18T4 3 Richard Nelson, a passenger in defendant's vehicle at the time of the crash, gave
a statement to police identifying defendant as the driver.
On November 14, 2016, defendant entered a negotiated guilty plea to
count two of the indictment, as well as a one-count accusation charging him with
third-degree possession of a sawed-off shotgun, N.J.S.A. 2C:39-3(b).
Defendant also pled guilty to violations of probation on two earlier convictions.
During the plea colloquy, as to the indictment, defendant admitted causing
bodily injury to the victim on June 22, 2015, when he attempted to elude police
in the motor vehicle he was operating and caused an accident. Regarding the
accusation, defendant admitted that on January 22, 2016, he was in possession
of "a Springfield 67F 12[-]gauge shotgun" in the City of Trenton. Additionally,
defendant admitted violating his probation by incurring the new charges. In
accordance with Rule 3:9-2, the judge accepted the guilty pleas, finding that
"defendant [was] competent," and that "[t]he pleas [were] being made freely,
knowingly, intelligently and voluntarily" with "sufficient factual bases " to
support the charges.
On June 7, 2017, prior to sentencing, defendant moved to withdraw his
guilty pleas. In a supporting certification, defendant averred that when he
entered the guilty pleas, he "had been diagnosed with and suffered from Bipolar
A-0815-18T4 4 Disorder and Schizophrenia" and was "prescribed [twenty-eight] medications
for various mental and physical ailments," but "had not been provided Seroquil,
Zofran, Percocet, and Xanax." Additionally, according to defendant, he
"indicated to [his then attorney] that there were witnesses" who "would
exonerate [him] and provide statements to that effect." Defendant submitted an
"attorney ethics grievance form" he had filed against his plea counsel on April
27, 2017, alleging "[s]he misled [him] on the case" and "held onto information
about the case that [would] prove [his] innocence." Defendant also submitted a
report of a psychiatric evaluation conducted on October 2, 2015, at an outpatient
facility, as well as a certification prepared on May 31, 2016, by Nelson.
In the certification, Nelson averred that "[c]ontrary to the police report,
[he] did not tell police that [defendant] was the driver." He explained that the
driver was an unidentified "third person" who was driving them "to buy
synthetic marijuana." According to Nelson, after the crash, "[he] was briefly
knocked out" and "[w]hen [he] regained consciousness[,] the driver was gone."
Nelson claimed that before the police pulled them out of the car, he "pulled"
defendant from the backseat "into the front passenger seat" while he (Nelson)
"scooted over to the driver side."
A-0815-18T4 5 On August 22, 2018, following oral argument, the trial judge denied
defendant's motion. In an oral opinion, the judge analyzed each of the four
Slater 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." 198 N.J. at
157-58. Because the judge determined defendant failed to meet his burden in
establishing "even one of the Slater factors," the judge concluded "the interests
of justice [did] not support the . . . motion."
Regarding the first Slater factor, the judge determined that rather than
asserting a colorable claim of innocence, "defendant's assertion [was] exactly
the type that the Slater [C]ourt" rejected.2 As to the second Slater factor, the
judge determined defendant failed to advance "a good faith basis for asserting a
defense on the merits." The judge also dismissed as "baseless" defendant's
purported reasons for withdrawal, namely his "ineffective . . . counsel" and
failure to "fully understand the nature of the guilty plea[s]" due to "mental
2 In Slater, the Court catalogued "examples" of cases in which withdrawal of a plea was warranted, including where "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 (citations omitted). A-0815-18T4 6 instability." As to the former assertion, because plea counsel was aware of
Nelson's certification, which was obtained prior to the plea hearing during an
interview by an investigator for the Office of the Public Defender (OPD), the
judge determined defendant "fail[ed] to assert facts that would have been
revealed" through counsel's further investigation or facts that "potentially would
have exonerated him."
As to defendant's latter assertion, the judge stated:
While [defendant] was previously diagnosed with bipolar disorder and other psychotic [dis]order not due to a substance or known psychological condition by an advanced practice nurse at Oaks Integrated on October 2, 2015, the State is correct that the more recent mental evaluation is relevant to his mental stability at the time of the plea on November [14, 2016].
That being said, on December [7], 2016, [defendant] was seen at his request for a mental health evaluation which reported that he was alert, aware and oriented. . . . Thereafter, on December [9], 2016, [defendant] was evaluated by Dr. Edward Hume. Dr. Hume reported that he had first seen [defendant] earlier in February of 2016 and his impression at that time was that [defendant] was malingering. . . .
Dr. Hume noted next that he saw [defendant] on April [8], 2016, and concluded that [defendant] had no active psychiatric disorder. . . . Dr. Hume then saw [defendant] on March [6], 2017, and reported that his medications, specifically Seroquel, Depakote, Xanax, [and] Gabapentin are either drugs of abuse, drugs with
A-0815-18T4 7 no psychiatric indications or both with the exception of the Depakote. . . .
Dr. Hume concluded that [defendant] has no treatable psychiatric illness, and that while he could continue to take Depakote for seizures, no psychiatric meds were needed at his evaluation. . . .
Thereafter, on May [9], 2017, a psychologist, Dr. Melissa M. Detora evaluated [defendant]. Dr. Detora concluded that [defendant] does not present with any acute mental health issues at this time other than ADHD. He appears to be feigning and exaggerating symptoms to obtain medications.
Further, based on his review of the November 14, 2016 plea colloquy, the
judge was "satisfied" that defendant "underst[ood] the questions posed by the
[c]ourt" and "answered each question without hesitation." The judge found "that
defendant knowingly, intelligently and voluntarily entered into the plea
agreement," and "testified under oath that he was satisfied with defense counsel,
he had the opportunity to review the discovery, and he understood the charges
against him."
Turning to the third Slater factor, while the judge acknowledged that
defendant had "a heavier burden" because he pled guilty "pursuant to a plea
bargain," the judge did "not give great weight to this factor in the overall
analysis," notwithstanding the fact that defendant benefited from the dismissal
of numerous charges and reduced sentencing exposure. Finally, the judge
A-0815-18T4 8 determined that the fourth Slater factor did "not weigh in favor of defendant" in
"light of the fact that the three preceding factors" weighed against him. The
judge entered a memorializing order and set a sentencing date for the following
month. Thereafter, on September 21, 2018, defendant was sentenced in
accordance with the plea agreement, and this appeal followed.
On appeal, defendant focuses solely on his guilty plea to the eluding
indictment, asserting that "[s]ince the conviction . . . was a substantial part of
the plea agreement, the entire plea agreement should be vacated" because the
judge failed to "proper[ly] balanc[e] . . . the Slater factors under the more liberal
pre-sentence standard for plea withdrawals." Specifically, defendant argues the
judge abused his discretion "in failing to consider Nelson's certification" to
satisfy the first Slater factor, in finding that "the lack of prescribed psychiatric
medications" failed to satisfy the second Slater factor, and in evaluating "the
fourth Slater factor . . . based on an erroneous assessment" of the other factors.
We disagree.
"A more relaxed standard applies to plea-withdrawal motions made before
sentencing" than after sentencing. State v. Munroe, 210 N.J. 429, 441 (2012).
"Before sentencing, a 'defendant shall be permitted to withdraw' a guilty plea if
'the interests of justice would not be served by effectuating the [plea]
A-0815-18T4 9 agreement.'" Ibid. (alteration in original) (quoting R. 3:9-3(e)). "In such cases,
'courts are to exercise their discretion liberally to allow plea withdrawals ,'" and
"[i]n a close case, the 'scales should usually tip in favor of defendant.'" Ibid.
(quoting Slater, 198 N.J. at 156). "However, '[l]iberality in exercising discretion
does not mean an abdication of all discretion.'" Id. at 441-42 (quoting Slater,
198 N.J. at 157). Thus, "[o]n appellate review, the issue is whether the trial
court properly exercised its discretion at the time it denied the withdrawal
motion." Id. at 443. A trial court abuses its discretion "when 'there has been a
clear error of judgment.'" Id. at 448 (quoting State v. Koedatich, 112 N.J. 225,
313 (1988)).
"In moving to withdraw a guilty plea, the defendant bears the burden of
presenting a 'plausible basis for his request' and a good-faith basis for 'asserting
a defense on the merits.'" Id. at 442 (quoting Slater, 198 N.J. at 156). In turn,
in deciding a plea withdrawal motion, "courts should 'consider and balance'" the
four factors identified in Slater. Munroe, 210 N.J. at 442 (quoting Slater, 198
N.J. at 157-58).
As to the first Slater factor, "[a] colorable claim of innocence is one that
rests on 'particular, plausible facts' that, if proven in court, would lead a
reasonable factfinder to determine the claim is meritorious." Ibid. (quoting
A-0815-18T4 10 Slater, 198 N.J. at 158-59). While "[i]t is more than '[a] bare assertion of
innocence,' . . . the motion judge need not be convinced that it is a winning
argument because, in the end, legitimate factual disputes must be resolved by
the jury." Ibid. (quoting Slater, 198 N.J. at 158). However, the trial judge must
still distinguish between "a colorable claim of innocence" and a "bald assertion."
State v. Lipa, 219 N.J. 323, 333-34 (2014). Doing so requires a judge to engage
in some weighing of evidence to determine whether facts are "credible" or
"plausible." Ibid.
As to the second Slater factor, "[t]he nature and strength of a defendant's
reasons for withdrawal of a plea will necessarily depend on the circumstances
peculiar to the case." Munroe, 210 N.J. at 442. "A defendant will likely satisfy
this factor if he can make a 'plausible showing of a valid defense against the
charges' and credibly explain why an otherwise legitimate defense was
overlooked during the plea colloquy." Id. at 443 (quoting Slater, 198 N.J. at
159-60).
A court should evaluate the validity of the reasons given for a plea withdrawal with realism, understanding that some defendants will be attempting to game the system, but not with skepticism, for the ultimate goal is to ensure that legitimate disputes about the guilt or innocence of a criminal defendant are decided by a jury.
[Ibid.]
A-0815-18T4 11 The third Slater factor "receives the least weight in the overall analysis."
Munroe, 210 N.J. at 443. "Although this factor should not be discounted, for
our system 'rests on the advantages both sides receive from' the plea-bargaining
process, '[courts] recognize that the vast majority of criminal cases are resolved
through plea bargains.'" Ibid. (quoting Slater, 198 N.J. at 161). The critical
inquiry in evaluating the fourth and final Slater factor "is whether the passage
of time has hampered the State's ability to present important evidence." Munroe,
210 N.J. at 443 (quoting Slater, 198 N.J. at 161). "Thus, the trial court must
consider the delay to the State in presenting its case to the jury because of the
plea-withdrawal motion." Ibid.
Applying these factors, our Supreme Court held that the trial court erred
in denying the defendants' respective pre-sentence motions to withdraw their
guilty pleas in Slater, Munroe, and Lipa. In Slater, the defendant pled guilty to
possession with intent to distribute cocaine after police discovered drugs and a
scale in a motel room he occupied. Id. at 151. Less than two weeks later, Slater
sought to withdraw his plea, asserting that he had not rented the motel room; he
was just visiting; he was unaware the drugs were in the room; and the drugs did
not belong to him. Id. at 152-53. Slater's account was supported by the record
evidence that the police approached the motel room in search of two white men
A-0815-18T4 12 who allegedly possessed cocaine; but, Slater was African-American. Id. at 151-
52, 163. Also, the State failed to disprove Slater's claim that he did not rent the
room and was only visiting. Additionally, Slater asserted his innocence claim
both in his pro se plea withdrawal motion and in remarks he made for inclusion
in the presentence report. Id. at 163.
In Munroe, the defendant pled guilty to aggravated manslaughter, but
supported a self-defense claim with evidence that the victim, "who had robbed
him in the past," threatened him with a knife and a parked car blocked the
defendant's retreat. Id. at 445. A police report confirmed that the deceased
victim was found with a box cutter in his hand, and the State presented no
witness statements contradicting Munroe's claim he had no room to retreat. Id.
at 445-47. The Court found Munroe's admission in his initial plea colloquy that
he shot the victim at close range was not inconsistent with his later claim of self -
defense. Id. at 445. "[N]ot a word that defendant uttered in court during his
plea colloquy was inconsistent with either the account that he gave to the
probation officer who prepared his presentence report or his sworn testimony
when he moved to withdraw his guilty plea." Ibid.
In Lipa, the defendant pled guilty to first-degree aggravated sexual
assault. Id. at 326. To support his plea withdrawal motion, he presented
A-0815-18T4 13 photographic evidence of his knee, which was operated on around the time in
question, as well as the exterior of the subject building, to establish that it was
impossible for him to climb into the victim's second-floor bedroom window, as
she had alleged. Id. at 333. The Court noted that because the victim asserted
that Lipa "was inebriated" when he committed the offenses, "[h]is condition thus
would have further hampered his ability to commit the assault in the manner [the
victim] described." Ibid. Lipa also presented evidence that "a [Division of
Youth & Family Services] investigation found that [the victim's] previous
accusations of sexual assault against [the] defendant and a family friend lacked
merit." Ibid.
"[M]indful that the admissibility and veracity of [the] defendant's
evidence ha[d] not been tested," the Court determined "the specific facts that
[the] defendant asserted could provide a plausible basis to impeach [the victim's]
testimony and cause a reasonable jury to find reasonable doubt as to [the]
defendant's guilt." Id. at 334. Further, the Court found that the defendant
"presented sufficient reasons to support his request for withdrawal" by
"claim[ing] that his counsel induced him to plead guilty" and by "offer[ing]
some evidence that contradicts the State's charges." Id. at 335.
A-0815-18T4 14 We draw from these cases the principle that evidence corroborating a
defendant's claim of innocence supports the claim's plausibility, as does the
State's failure to present evidence on easily verifiable facts that would
undermine the defendant's innocence claims. Here, as to the first Slater factor,
defendant relies on a certification in which Nelson recants his earlier statement
to police incriminating defendant, in order to establish a colorable claim of
innocence. Notably, defendant was aware of the certification, which was
prepared during an OPD investigator's interview conducted almost six months
before defendant pled guilty.
"[C]ourts 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.'" Slater, 198 N.J. at 158-59 (quoting State v. Smullen,
118 N.J. 408, 418 (1990)). Through this lens, we are satisfied defendant's
proffer fails to establish the "colorable claim of innocence" standard
countenanced in Slater, Munroe, and Lipa. Defendant failed to either "present
specific, credible facts" or "point to facts in the record that buttress [his] claim."
Id. at 158 (citations omitted). On the contrary, nothing in the record supports
defendant's account. Indeed, the presentence report indicated that after the
crash, "[t]he driver of the suspect auto," identified as defendant, "exited the auto
A-0815-18T4 15 and began to run from the scene" before "[p]olice tackled him to the ground and
placed him under arrest." Additionally, during his presentence interview,
defendant admitted that "he was driving" when "police began chasing him."
Defendant also failed to establish the second Slater factor, which
"dovetails with his assertion of innocence," id. at 163, and requires a "showing
of a valid defense against the charges." Id. at 159-60. Thus, this factor likewise
finds no support in the record. Additionally, we are convinced the judge
properly rejected as belied by the record defendant's claim that his mental
impairment resulting from the lack of prescribed psychiatric medications
prevented him from entering a knowing, voluntary, and intelligent guilty plea.
See R. 3:9-2.
Further, the third Slater factor, "[t]he presence of a plea agreement, weighs
against defendant," albeit not heavily. Lipa, 219 N.J. at 335. Defendant entered
his plea as part of a plea agreement that involved the dismissal of related charges
that could have resulted in consecutive sentences. Finally, as to the fourth Slater
factor, "[t]he 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." 198 N.J. at 162.
In sum, after balancing the evidence and arguments, we agree with the judge
A-0815-18T4 16 that defendant failed to meet his burden, and we discern no abuse of discretion
in the judge's denial of defendant's pre-sentence plea withdrawal motion.
Affirmed.
A-0815-18T4 17