STATE OF NEW JERSEY VS. CHARLIE HARRISON (13-01-0328, ATLANTIC COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE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-3919-19
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
CHARLIE HARRISON,
Defendant-Appellant.
________________________
Submitted November 17, 2021 – Decided December 13, 2021
Before Judges Hoffman and Whipple.
On appeal from the Superior Court of New Jersey,
Law Division, Atlantic County, Indictment No. 13-01-
0328.
Bonjean Law Group, PLLC, attorneys for appellant
(Ashley Cohen and Jennifer Bonjean, on the briefs).
Cary Shill, Acting Atlantic County Prosecutor,
attorney for respondent (John J. Santoliquido, Special
Deputy Attorney General/Acting Assistant Prosecutor,
of counsel and on the brief).
PER CURIAM
Defendant appeals from the June 24, 2020 order denying his motion to
vacate his guilty plea. We reverse and remand.
On November 14, 2012, defendant was arrested in Atlantic City,
following a motor vehicle traffic stop. On January 29, 2013, a grand jury
indicted defendant, charging him with one count of fourth-degree aggravated
assault, one count of third-degree resisting arrest, one count of third-degree
aggravated assault on a police officer, and one count of second-degree eluding
police.
Officer Michael Oldroyd, the arresting Atlantic City police officer,
testified before the grand jury that he noticed a black mini-van swerving
several times, and that he decided to stop the vehicle and check the driver.
Officer Oldroyd, while driving in a marked police vehicle, subsequently turned
on his lights and sirens, but the mini-van continued driving for several blocks
at approximately ten miles per hour. Officer Oldroyd testified that "[defendant]
appeared not to notice me at all." Eventually, the vehicle stopped at Virginia
and Pacific Avenues, where Officer Oldroyd ultimately arrested the defendant.
On April 30, 2013, defendant pled guilty to third-degree eluding; the
remaining charges were dismissed. During his plea allocution, defendant
provided the following testimony:
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Q: All right. Sir, on November 14, 2012 were you in
Atlantic City?
A: Yes, sir.
Q: Were you operating a motor vehicle?
A: Yes, sir.
Q: At some point during that operation did you get a
signal or see a signal from a law enforcement officer
to stop?
A: Yes, sir.
Q: And did you stop or avoid that?
A: No, sir.
Q: Kept going?
A: Yes, sir.
Q: Was the vehicle a marked car?
A: Yes, sir.
After pleading guilty, defendant was sentenced to two years of probation
on the third-degree eluding charge. However, in defendant's pre-sentence
report (PSR) completed on or around May 10, 2013, defendant stated, "I was
driving. I saw flashing lights on a police car. I did not realize they wanted me
to pull over." Furthermore, the PSR provided a case summary, stating that
"[t]he driver of the black mini-van continued driving apparently oblivious to
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the officer behind him." In the PSR's case analysis section, the reporting
probation officer wrote, "the defendant was driving a vehicle carelessly when
an Atlantic City Police Officer attempted to pull him over. The defendant
failed to pull over, citing he was unaware the officer was attempting to pull his
vehicle over."
After the court sentenced defendant, he filed a civil rights lawsuit in the
United States District Court for the District of New Jersey against Officer
Oldroyd, other Atlantic City police officers, and the City of Atlantic City. He
alleged he was the victim of excessive force and that on the night of his arrest,
he was not aware that he was being pulled over by the police. After five days
of testimony, the case settled for $700,000. Prior to trial, the City of Atlantic
City disclosed a memo authored by Officer Oldroyd's supervising sergeant,
Frank Timek; the memo was prepared subsequent to defendant's guilty plea,
but never produced to defendant at any time during his criminal proceedings.
Sergeant Timek was the on-scene supervisor on the night of defendant's arrest.
He wrote:
On 11/14/12, at approximately 0230hrs, I responded to
the area of [Virginia] & Pacific Avenues for a K-9
apprehension of a suspect. Once on scene, I spoke
with arresting Officers Oldroyd, Clark and Seabrook.
Based on the facts of this incident, I determined this
had not been a pursuit as per our departmental policy
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and/or the NJ Attorney General Guidelines and
ordered the [officers] not to complete a pursuit
report(s).
Sergeant Timek continued stating, "[d]espite whatever plea was
offered/accepted by the Prosecutor[']s Office, there was no probable cause to
charge the suspect with eluding arrest (N.J.S.A. 2C:29-2b) at the time of arrest
as the driver clearly was unaware police had been attempting to pull him over."
Furthermore, Sergeant Timek wrote, "this was not a motor vehicle pursuit; it
was simply an attempt[ed] motor vehicle stop on an unaware suspected
[driving while intoxicated] driver."
On May 17, 2019, Sergeant Timek testified in a deposition that "[he]
determined it was not a pursuit because the suspect driver did not demonstrate
awareness that he was being pulled over, and [Timek] felt that based on the
fact that he had no awareness[,] it didn't meet the elements of an eluding
statute[.]" Sergeant Timek further clarified that
the elements of eluding, is knowingly, and in order for
you to know that you're eluding somebody you would
have to know that you were being pulled over.
Clearly by his intoxication level and his actions and
the direct observations of the officers, he was not
aware that they were behind him, at least for the
majority of the duration of the attempted stop.
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Following the civil litigation, defendant's attorneys met with the Atlantic
County Prosecutor, Damon Tyner, to inform him of the newly discovered
evidence obtained in the civil trial, which supported defendant's assertion that
he was not guilty of the eluding charge and that the officers lacked probable
cause to charge defendant with it in the first place. On January 3, 2020,
defendant moved to withdraw his guilty plea, which the Atlantic County
Prosecutor's Office did not oppose.
On June 24, 2020, the parties appeared via Zoom before the trial judge
who denied defendant's motion and made the following ruling:
All right. The matter[]s in front of me on Mr.
Harrison's application to withdraw his plea, which was
entered with regard to an eluding charge. He points to
after acquired information, specifically a memo and
deposition testimony of law enforcement with regard
to the propriety of the charge and with regard to the
necessary probable cause and as to whether Mr.
Harrison knew or not that he was being pulled over by
law enforcement. I've reviewed the transcript of the
plea. I've reviewed the pleadings as well as the
attachment and Mr. Harrison put forth a valid factual
basis when he entered his plea. And Sergeant [Timek]
after stated opinion with regard to the propriety of the
charge and whether there was probable cause or not in
my view doesn't change. So I'm denying the
application.
Defendant appealed this ruling. On July 16, 2020, the court supplemented the
June 24 ruling stating:
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[D]efendant argues there is no factual basis for the
plea. However, a fair reading of the plea colloquy
indicates that defendant was operating a motor vehicle,
was signaled to pull over, and did not. Defendant's
argument that knowing disregard of the signal was not
established, is contradicted by defendant's own words
that he got a signal to pull over and did not.
Defendant also argues the Slater factors (State v.
Slater, 198 N.J. 145 (2009)). First, defendant asserts a
colorable claim of [i]nnocence. He points to the
[Timek] deposition and memo. However, [Timek's]
opinion, proffered some years after the incident, and
the plea do not, in my view, give rise to a colorable
claim of innocence. The case, as evidenced by the
plea colloquy, is simple: Mr. Harrison was signaled to
pull over and did not. The grand jury testimony does
not contradict this. Although the officer indicated he
"appeared" not to notice, this only evidences
defendant's disregard of the officer's signal that he
pull over.
The second Slater factor is the strength of the
reason for withdrawal. Again, defendant asserts his
innocence, which for the reasons indicated, I did not
find persuasive. He also indicates that he did not
realize he was pleading to a felony. He pleaded guilty
to a [third-]degree eluding. . . .
Both the plea and sentence are old. The
standard after sentencing is manifest injustice. There
is none here. Mr. Harrison set forth a valid basis. The
grand jury presentation was sufficient for an
indictment. The long after recollected net opinions of
[Timek] do not contradict this. Although counsel's
certification protests Mr. Harrison's innocence,
nothing on the record in this case supports a
conclusion that he is innocent of the charge.
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On appeal, defendant raises the following arguments:
POINT I
The [Trial] Court Erred When It Denied Defendant's
Motion to Withdraw His Guilty Plea After Concluding
That Defendant Set Forth a Valid Factual Basis When
Entering His Plea.
POINT II
The [Trial] Court Ignored Credible Evidence that the
Defendant is Actually Innocent and the Slater Factors
Weigh in Favor of Vacating His Plea.
Our review of a "trial court's denial of a motion to vacate a guilty plea
for lack of an adequate basis is de novo." State v. Tate, 22 N.J. 393, 403-04
(2015) (citing Manalapan Realty, L.P. v. Twp. Comm., 14 N.J. 366, 378
(1995)). "An appellate court is in the same position as the trial court in
assessing whether the factual admissions during a plea colloquy satisfy the
essential elements of an offense." Id. at 404. If a factual basis to support the
guilty plea has not been provided, the "analysis ends and the plea must be
vacated." Ibid.The New Jersey Supreme Court has instructed that
when accepting a guilty plea, the trial court should
inquire "among other things, (1) whether anyone had
forced, threatened, or put [defendant] under pressure
to plead guilty, (2) whether the defendant understood
that he was relinquishing certain constitutional rights,
(3) whether the defendant understood the nature of the
charge and content of the sentencing recommendation,
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and (4) whether the defendant was in fact guilty of the
specific charge[.]"
[State v. Campfield, 213 N.J. 218, 230-31 (2013)
(alterations in original) (quoting State ex rel. T.M.,
166 N.J. 319, 336 (2001)).]
Thus, "our law requires that each element of the offense be addressed in
the plea colloquy." Id. at 231. The trial judge "must be satisfied from the lips
of the defendant that he committed the acts which constitute the crime." Ibid.(quoting State v. Sainz, 107 N.J. 283, 293 (1987)). However, the "factual
foundation may take one of two forms; defendant may either explicitly admit
guilt with respect to the elements or may 'acknowledge[ ] . . . facts constituting
the essential elements of the crime.'" Ibid. (alterations in original) (quoting
Sainz, 107 N.J. at 293).
Additionally, "[t]he trial court's inquiry need not follow a 'prescribed or
artificial ritual[,]' [as] 'different criminal charges and different defendants
require courts to act flexibly to achieve constitutional ends.'" Ibid. (quoting
T.M., 166 N.J. at 327). In some cases, a "judge's leading questions may be
necessary to ensure an adequate factual basis for the guilty plea." Ibid. A
defendant's admissions "should be examined in light of all surrounding
circumstances and in the context of an entire plea colloquy." Id. at 231-32(quoting T.M., 166 N.J. at 327). Overall, the "trial court's task is to ensure that
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the defendant has articulated a factual basis for each element of the offense to
which he pleads guilty." Id. at 232.
Notably, we recognized in State v. Belton that
an inadequate factual basis does not necessarily entitle
a defendant to relief upon a collateral attack of a
conviction. "As long as a guilty plea is knowing and
voluntary . . . a 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 basis."
[452 N.J. Super. 528, 540 (App. Div. 2017) (quoting
State v. Mitchell, 126 N.J. 565, 577 (1992)).]
However, we also stated, "a contemporaneous claim of innocence alters
the legal significance of the lack of factual basis[,]" ibid., and that a "factual
basis is constitutionally required . . . when there are indicia, such as a
contemporaneous claim of innocence, that the defendant does not understand
enough about the nature of the law as it applies to the facts of the case to make
a truly 'voluntary' decision on his own." Id. at 540-41 (quoting Mitchell, 126
N.J. at 577).
Moreover, as the Court in Campfield instructed, "[t]he remedy for an
inadequate factual basis is an order vacating the guilty plea and restoring both
parties to their positions prior to the trial court's acceptance of the plea."
Campfield, 213 N.J. at 232. Consequently, "the plea, the judgment of
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conviction, and the sentence must be vacated, the dismissed charges [must be]
reinstated, and defendant [must be] allowed to re-plead or proceed to trial."
Ibid. (quoting State v. Barboza, 115 N.J. 415, 420 (1989)).
Defendant contends that his guilty plea for eluding lacked a factual basis
and that the trial court erred in denying his motion to withdraw the plea. We
agree. Pursuant to N.J.S.A. 2C:29-2:
Any person, while operating a motor vehicle on any
street or highway in this State . . . who knowingly
flees or attempts to elude any police or law
enforcement officer after having received any signal
from such officer to bring the vehicle . . . to a full stop
commits a crime of the third degree[.]
For third-degree eluding, the requisite mens rea is "knowingly."
Therefore, in order to establish a factual basis, the plea allocution must elicit
from defendant an awareness that he knowingly fled or eluded the police. As
defendant stated at the plea allocution, he saw a signal to stop from a law
enforcement officer in a marked car, did not stop, and kept going.
The trial judge, however, failed to specifically question whether
defendant, at the time of the incident, knew that he continued driving despite
being signaled to pull over. The plea allocution could be reasonably
interpreted as defendant's admission to "get[ting] a signal to stop[,]" not
knowing at the time that the signal was for him, and thus continuing to drive.
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Put another way, defendant's responses can be construed as an admission that
he continued to drive, while not necessarily knowing that the police were
attempting to pull him over. Unlike the plea colloquy in Campfield, where the
defendant "acknowledged that his conduct was reckless," the plea colloquy
here fails to prove that defendant knowingly eluded the police. 213 N.J. at 224.
Instead, this leaves open the possibility that defendant was admitting to
reckless or negligent behavior, but not necessarily to knowing behavior;
without specifying that defendant's actions were knowing, the guilty plea lacks
a factual basis. In addition, a factual basis can exist where defendant, in the
absence of an explicit admission, acknowledges facts constituting the essential
elements of the crime. Id. at 231. Here, however, that is not the case.
Defendant's plea allocution fails to establish an explicit admission that
he knowingly eluded the police, and it likewise fails to establish that he
implicitly acknowledged the essential elements of the crime. As stated,
defendant's responses to the trial judge's questions could very well be
construed as an admission to a recklessly or negligently eluding the police,
while not being aware of it at the time. In sum, the plea allocution supports
defendant's argument that his guilty plea lacked a factual basis.
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Furthermore, defendant provided a contemporaneous claim of innocence
in the PSR, where he stated, "I was driving. I saw flashing lights on a police
car. I did not realize they wanted me to pull over." As we expressed in Belton,
where there is a lack of factual basis coupled with a contemporaneous claim of
innocence, defendant is entitled to relief "upon a collateral attack of a
conviction." 452 N.J. Super. at 540.
As the Court set forth in Campfield, the ordinary remedy under the
circumstances requires vacating defendant's guilty plea and conviction,
reinstating any dismissed claims by the State in accordance with the plea
agreement, and restoring the State and defendant to their respective positions
prior to the guilty plea. 213 N.J. at 232 (citing Barboza, 115 N.J. at 420).
Thus, because we conclude that defendant's guilty plea lacked a factual
basis, we vacate defendant's guilty plea, reinstate his indictment, and remand
the matter for further proceedings consistent with this opinion.
Reversed and remanded. We do not retain jurisdiction.
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