STATE OF NEW JERSEY VS. ALLISTAIR MINGO (01-08-3566 AND 06-08-2354, ESSEX COUNTY AND STATEWIDE) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE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-4762-17T4
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
ALLISTAIR MINGO, a/k/a
ALLISTARR MINGO,
Defendant-Respondent.
Submitted December 19, 2018 – Decided January 16, 2019
Before Judges Alvarez and Nugent.
On appeal from Superior Court of New Jersey, Law
Division, Essex County, Indictment Nos. 01-08-3566
and 06-08-2354.
Theodore N. Stephens II, Acting Essex County
Prosecutor, attorney for appellant (Frank J. Ducoat,
Special Deputy Attorney General/Acting Assistant
Prosecutor, of counsel and on the briefs).
Scott A. Gorman, attorney for respondent.
PER CURIAM
Defendant Allistair Mingo, a Guyana-born resident of this country,
entered a guilty plea to third-degree conspiracy to possess a controlled
dangerous substance (CDS) with the intent to distribute, N.J.S.A. 2C:5-2 and
2C:35-5(a)(1), in 2001. On September 28, 2007, defendant was sentenced after
pleading guilty to probation on an amended charge of third-degree eluding,
N.J.S.A. 2C:29-2(b). The United States Immigration and Customs Enforcement
Agency (ICE) detained him on June 7, 2017. He subsequently filed a post-
conviction relief (PCR) petition, 1 granted on January 19, 2018. Both matters
were restored to the trial list, as the judge concluded no adequate factual basis
was established as to either plea. We reverse.
The issue the State raises, by way of interlocutory appeal on remand by
the Supreme Court, is that the petition should have been time-barred under Rule
3:22-12(a)(1), which requires filing within five years of the date of entry of a
judgment of conviction. The State further argues on appeal that the factual bases
were adequate on both guilty pleas.
1
Defendant's verified petition for PCR included a jurat by counsel, who stated
in the body of the petition that he had "personal knowledge of the facts as set
forth in this certification." That appears to violate Rule 1:6-6, which prohibits
attorneys from filing certifications not based on firsthand knowledge. A number
of the paragraphs included in the petition involve material about which counsel
could not have had personal knowledge. Defendant's certification was also
attached, verifying the petition.
A-4762-17T4
2
The Law Division judge concluded that excusable neglect warranted
consideration of the petition, despite the rule's prohibition, because defendant
had not been advised by anyone during the entry of these pleas that his legal
resident status would be jeopardized by the convictions. She also found that
defendant had established a fundamental injustice such that the five-year time
bar should be relaxed. The fundamental injustice stems from the devastating
effect deportation will have on defendant, who has been law abiding since his
2007 conviction, and his family. He is married with two children, including a
two-year-old.
During the 2007 plea colloquy, defendant and his counsel engaged in the
following exchange:
Q. And at a certain point after you had turned on
Ellis Avenue, the police officer who was in plain
clothes tried to get you to stop. You were backing up
the street; is that correct.
A. Yes.
Q. And at a certain point, there was a police officer
who tried to get you -- who was [waving] you down
trying to get you to stop backing up back up Ellis
Avenue. And you continued to drive even though he
was attempting to stop you; is that correct?
A. Yes.
A-4762-17T4
3
The judge found the factual basis inadequate because the allocution did not
establish that defendant knew that the person who was signaling him to stop was
a police officer, and knowledge is a required statutory element.
The 2001 transcript indicates as follows:
THE COURT: And with the assistance of your
lawyer, tell us what makes you guilty of this . . .
particular charge.
[DEFENDANT]: I was guilty.
THE COURT: With [defense counsel's] --
[DEFENSE COUNSEL]: Yes.
THE COURT: -- assistance, tell us what it is that
makes you guilty of this particular charge.
DIRECT EXAMINATION BY [DEFENSE
COUNSEL]:
Q Mr. Mingo, on July 8th, 2001, did you agree with
a Mohammed Barnes (phonetic) and Corey Robinson to
distribute controlled dangerous substance, specifically
heroin and cocaine?
A. (indiscernible) that we had -- I won't say that
contribute, that I did know drugs was sold around the
area, but like I won't say I -- that I was contribute to
what -- what was going on around there.
THE COURT: You didn't -- you didn't -- he's not --
- what he's saying is, did you have a discussion or an
agreement with regard to that, not that you did anything
-- actually did anything, didn't have to --
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THE WITNESS: Did I have agreement with
Mohammad Barnes or Corey Robinson about
transaction --
THE COURT: Yeah.
[DEFENSE COUNSEL]: Your -- your Honor --
your Honor, may -- may I consult my client --
THE COURT: Sure.
[DEFENSE COUNSEL]: -- for one second please?
(Tape off)
THE COURT: Would you continue with the factual
basis please.
BY [DEFENSE COUNSEL]:
Q Now Mr. Mingo, did you on July 8th, 2001, agree
with a Mohammad Barnes and a Corey Robinson to
distribute cocaine and heroin in the City of Irvington in
the County of Essex, State of New Jersey.
A Yes.
[DEFENSE COUNSEL]: No further questions
your --- did you at the time know that it was illegal to
distribute cocaine and heroin?
THE WITNESS: Yes.
[DEFENSE COUNSEL]: No further questions.
A-4762-17T4
5
As to the 2001 plea, the Law Division judge concluded that since no evidence
of an overt act was provided, that plea was also fatally flawed.
This petition is somewhat of an anomaly, as no claim of ineffective
assistance of counsel is being raised. Rather, the PCR petition presented a
straightforward attack on the foundation for the convictions—the entry of the
guilty plea. The trigger for the petition is undisputed, ICE's deportation of
defendant.
The State asserts the following points of error:
Point I
Defendant's PCR petition was time-barred. The Law
Division should have dismissed it on that basis.
Point II
Defendant gave adequate factual bases for both of his
convictions. Defendant's plea colloquies show
defendant admitted to every element of each of the
offenses for which he was convicted.
A. The 2001 CDS Conspiracy Conviction
B. The 2007 Eluding Conviction
Prior law would lead us to conclude that defendant's convictions are not
subject to collateral attack by way of a PCR petition solely because of the
alleged inadequacy of the factual basis. Defendant made no assertion regarding
his innocence or the lack of voluntariness of the plea. See State v. Mitchell, 126
N.J. 565, 577 (1992) ("[a]s long as a guilty plea is knowing and voluntary . . . a
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6
court's failure to elicit a factual basis for the plea is not necessarily of
constitutional dimension and thus does not render illegal a sentence imposed
without such a basis[]"); State v. Barboza, 115 N.J. 415, 421 n.1 (1989) ("a
factual basis is not constitutionally required unless the defendant accompan ies
the plea with a claim of innocence.").
However, the issue is no longer as clear given State v. Tate, 220 N.J. 393(2015), and State v. Gregory, 220 N.J. 422 (2015). In Tate and Gregory,
admittedly in the context of motions to vacate guilty pleas, the Court held no
Slater2 analysis is necessary if an inadequate factual basis is alleged. In other
words, the requirement that a defendant establish "a comprehensive factual
basis, addressing each element of the offense in substantial detail . . ." is so
significant that even Slater's requirement that a colorable claim of innocence be
made does not figure in to the calculus. See Gregory, 220 N.J. at 422; Tate, 220
N.J. at 404. A sufficient factual basis is essentially a matter of due process. We
therefore only address the allegedly insufficient factual basis, and do not reach
the issue of the time bar found in Rule 3:22-12(a)(1).
2
State v. Slater, 198 N.J. 145, 157-58 (2009) (setting forth the factors trial
judges should consider in evaluating motions to withdraw a guilty plea).
A-4762-17T4
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Our review of the Law Division judge's decision with regard to the
adequacy of the factual basis is made de novo. See Tate, 220 N.J. at 403-04.
Clearly, with regard to the eluding conviction, defendant did not specifically
state that he knew the person who was attempting to stop him as he backed up
the street was a police officer. Rather, it was a premise buried in the leading
question. Defense counsel asked defendant if a police officer tried to get him to
stop and if a police officer was waving him down to try to get him to stop
driving. Given the facts included in the question, there was neither a need for
defendant to specifically state a police officer wanted to stop him, nor the
opportunity for him to confirm that it indeed was an officer. Thus, we are
satisfied that an adequate factual basis has been established.
Although our Court has approved the practice of posing leading questions
to defendants "to ensure an adequate factual basis for the guilty plea[,]" State v.
Campfield, 213 N.J. 218, 231 (2013)), lengthy, multi-part leading questions,
including many facts and details, is problematic. "[I]t is essential to elicit from
the defendant a comprehensive factual basis, addressing each element of a given
offense in substantial detail, when a defendant is pleading guilty to that offense."
Id. at 236; see also State v. Smullen, 118 N.J. 408, 415 (1990). It seems too
obvious to require mention, but understandable one-part questions should be
A-4762-17T4
8
asked, broken down with the necessary statutory elements in mind. The Court
continues to require "substantial detail." See Gregory, 220 N.J. at 422. But here
defendant's "yes" responses to the two questions sufficed.
The Law Division judge concluded that the conspiracy conviction was
improper because defendant did not testify as to an overt act. However, N.J.S.A.
2C:5-2(d) specifies that a distribution or possession with intent to distribute a
CDS conspiracy does not require an overt act. This exception to the general
requirement that conspiracies require an overt act is of long standing. See
N.J.S.A. 2C:5-2(d); State v. Roldan, 314 N.J. Super. 173, 189 n.6 (App. Div.
1998) ("Under N.J.S.A. 2C:5-2(d), the State is not required to show any overt
act if an alleged conspiracy involves a crime of the first or second degree or the
distribution or possession with the intent to distribute a controlled dangero us
substance."); see also State v. LeFurge, 101 N.J. 404, 413 n.6 (1986).
The initial question posed in the 2001 colloquy was virtually
incomprehensible. Defendant's response was equally incomprehensible, that he
did not know that drugs were sold in his area but did not "contribute to what --
what was going on around there." Only after his attorney took a break, conferred
the matter with him, and then came back on the record did defendant
acknowledge, by a "yes" response to a less confusing leading question, that he
A-4762-17T4
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agreed with others to distribute cocaine and heroin. Since no overt act was
necessary, and an adequate factual basis was presented, that plea should not have
been vacated.
Reversed.
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