State v. Nichols , 136 N.J. Super. 200 ( 1975 )

The opinion of the court was delivered by

Morgan, J. A. D. Defendant was indicted, along with co-defendants Lawrence Pierce and William DeShields, Jr. for an armed robbery (N. J. S. A. 2A:141-1 and 2A:151-5) which occurred on November 15, 1971, and a first degree murder (N. J. S. A. 2A:113-1 and 2) which occurred during the course of the robbery. Defendant’s plea of guilty to the armed robbery charge and non vult to the murder count were entered pursuant to an agreement between defendant and the State in which the State offered to recommend concurrent sentences on all charges in exchange for defendant’s pleas of guilty and non vult. The promised recommendation was made, honored by the trial judge and defendant was sentenced to concurrent terms of 10 to 12 years for robbery, 2 to 3 years for being armed in the commission of the robbery, and life imprisonment on the murdeT charge.

On direct appeal, the Appellate Division, in an unreported opinion, held that the non vult plea was to a felony murder and the lesser included offenses of robbery and armed robbery merged therein. Accordingly, the conviction for murder was affirmed. The armed robbery conviction was vacated subject, however, to leave given defendant to apply to tlie trial court for a withdrawal of the non vult plea to the murder count of the indictment and the entry of a not guilty plea thereto. In the event defendant’s application was successful, then the entire plea bargain would be set aside and what was said concerning merger of the robbery and armed robbery offenses would not apply. In such an event (success in having the entire plea bargain set aside), defendant would be permitted to withdraw his non vult plea to the murder charge and to plead again to all counts of the indictment, including those relating to robbery and armed robbery.

Pursuant to the leave afforded him, defendant did apply to the trial judge for leave to withdraw his plea of non vult to murder. He contended that all participants to the plea, judge, prosecutor and counsel, had been unaware that the armed robbery conviction would merge in the murder conviction and that, consequently, defendant could not be sentenced, as he feared, to consecutive terms of life imprisonment and a custodial term for the armed robbery charge. The maximum term which could have been imposed was life imprisonment, and had defendant been made aware of this circumstance, he would not have pleaded non vult, since he had nothing to gain by entry of the plea. The instructions of the. Appellate Division, in the event defendant made an application for withdrawal of his non vult plea, were for the trial judge to conduct a hearing to determine (1) whether the plea to murder, in conjunction with the pleas to robbery and armed robbery, was entered pursuant to a meaningful bargain with a full appreciation by defendant of the legal consequences, and (2) whether the State would be prejudiced by permitting a withdrawal of the plea to murder.

In accordance with those instructions a testimonial hearing on defendant’s application was held during which defendant and the attorney who represented him at the plea and at the negotiations preceding the plea both testified that the primary inducement to plead was defendant’s concern as to a custodial term for the armed robbery conviction consecutive to a life term for murder. It was that concern which motivated the bargain for concurrent sentences in exchange for the plea.¹ At the conclusion of the hearing the trial judge found it unnecessary to make a finding concerning whether the plea to murder was entered pursuant to a “meaningful bargain with a full appreciation by the defendant of the legal consequences” because he concluded that the State would be prejudiced by permitting a withdrawal of the plea to murder. Accordingly, the motion to withdraw the plea was denied and defendant appeals.

In its opinion on the direct appeal the Appellate Division entertained “no doubt as to his (defendant’s) guilt of all of the charges.” A review of the factual basis for the plea defendant now seeks to have vacated persuades us to agree with that conclusion. Defendant admitted to the trial judge in connection with his plea that he was at the scene of the robbery on November 15, 1971 with Lawrence Pierce and William DeShields. “We were there to commit robbery.” They had come from Salem and defendant had first become aware that Pierce had a gun after they had already arrived at the scene and about five minutes before the robbery occurred. “As we entered the store, like I stood by the door and, you know, Pierce asked him to, he wanted to buy some cold cuts, and as he was getting the cold cuts and on his way back to the counter, Pierce went around the counter * * *. And he said: This is a stickup, you know. And Mr. Andras, his back was to Pierce. And as he turned around, he (Pierce) fired.” Defendant was standing by the door as a lookout, about 10 or 15 feet from where Andras was shot. After being shot, Andras “like he staggered to the left and he fell. And I ran over to him and looked at him. And I asked Pierce why he did it. He didn’t have to do that, I told him come on, let’s go.” They left after taking money from the register which was later divided among the three of them. Much of the same material was repeated by defendant immediately before the sentence was imposed. Even on this appeal from the denial of his application to withdraw his non vult plea to murder, defendant does not assert his innocence.

The Appellate Division further entertained “no doubt” but that the pleas were “voluntary, intelligently and understandingly made; that defendant fully understood their consequences including the life imprisonment sentence that the court would probably impose; and that he knowingly waived his right to jury trial and was satisfied with this counsel’s preparation and representation.” Here, again, a review of the plea and colloquy preceding imposition of sentence provides irrefutable support to the conclusion that defendant was fully aware that the trial judge would “probably” impose a term of life imprisonment.

This is not a case in which a trial judge failed to advise defendant of the maximum sentence which could be imposed and defendant claims surprise at the length of the custodial sentence ultimately imposed. See State v. Smith, 109 N. J. Super. 9, 12 (App. Div. 1970), certif. den. 56 N. J. 473 (1970)². Here, defendant is contending that the trial court and counsel incorrectly advised him that he could be sentenced to a longer period of confinement than was actually the case. Had he known that the maximum term to which he could have been sentenced was life imprisonment, he would not have pleaded guilty. We have concluded that defendant’s contentions in these circumstances lacks merit.

The standard governing disposition of motions to withdraw pleas of guilty or non vult following imposition of sentence is set forth in R. 3 :21-1, which provides:

A motion to withdraw a plea of guilty or non vult shall be made before sentencing, but the court may permit it to be made thereafter to correct a manifest injustice.

It is defendant who hears the “strict” burden of proving that a withdrawal of a plea of non vult and a trial of his guilt is necessary to correct a manifest injustice. The “strict” burden imposed upon a defendant is to establish Cfby a fair preponderance of the proofs, not just a doubt but a solid affirmative basis dictating the exercise of judicial discretion in his favor.” State v. Daniels, 38 N. J. 242, 250 (1962), cert. den. 374 U. S. 837, 83 S. Ct. 1885, 10 L. Ed. 2d 1057 (1963).

In exercising its discretion as to whether to vacate a plea of guilty or non vult, the trial judge is required to carefully consider and evaluate not only the submitted materials relevant to the manner in which the plea was entered but also material bearing on the “related pertinent issues,” such as guilt of defendant and prejudice to the State. State v. Tyson, 43 N. J. 411 (1964), cert. den. 380 U. S. 987, 85 S. Ct. 1359, 14 L. Ed. 2d 279 (1965); State v. Deutsch, 34 N. J. 190, 201 (1961); State v. Johnson, 131 N. J. Super. 252, 256 (App. Div. 1974). In this case defendant’s guilt of the offenses charged was so clearly established that he does not even bother to assert his innocence in this appeal. Not only did he admit his participation in open court during entry of the plea and again before sentencing, but the State had his signed confession and the confession of his codefendant clearly implicating him as a participant in the armed robbery which resulted in the murder. Defendant is, in substance, asking this court to require the State to prove his admitted guilt of the offenses, apparently in the hope that if the State fails, he will need serve no sentence at all.

Such relief is, in our view, well beyond the bounds of “fairness” to which defendant can legitimately claim to be entitled, particularly in the circumstances of this case. The plea was taken on May 8, 1972 and defendant was sentenced on June 9, 1972. The application to withdraw his plea was heard and decided on March 8, 1974 and the new trial which defendant seeks would first take place toward the end of 1975, over three years after entry of the plea. Aside from the fact that witnesses’ memory of the events of November 15, 1971, the date of the robbery-murder, would be dimmed by the passage of an approzimately four-year period of time, the State no longer has any means of insuring the testimony of defendant’s self-confessed accomplice, William DeShields, who has already served his sentence and is presently released on parole. Although the State has protection against DeShields’ actual perjury, it has no way of dealing with convenient lapses of memory, on the part of one who no longer has anything to gain by testifying fully and completely as to matters which can only serve to convict his friend and former accomplice. Defendant’s in-court confession made in connection with his plea would not be evidential at the trial. State v. Boone, 66 N. J. 38 (1974). DeShields’ confession inculpating defendant would not be admissible ezeept, possibly, for neutralization (but see Evict. B. 20), the sole purpose of which is to restore the status prevailing before the witness in question testified upon the particular matters under neutralization. State v. Gallicchio, 44 N. J. 540 (1965). The only eyewitness, Andras, the victim, was dead. Hence, the only hard evidence of guilt upon which the State could safely rely at this late date, almost four years after the event, would be defendant’s uncorroborated confession. In these circumstances we conclude that the trial judge’s finding that the State would be prejudiced by a new trial so far removed from the event to be tried has substantial support, and this consequent denial of defendant’s motion to vacate his non vult plea does not constitute a mistaken exercise of discretion.

We perceive nothing unfair, or even suggesting "manifest injustice,” in requiring one who has clearly admitted his guilt to a felony murder to serve a sentence he not only knew would probably be imposed as a result of his non vult plea, but which he affirmatively bargained for. The motion to vacate the non vult plea was properly rejected.

Affirmed.

1 Defendant’s attorney testified that he informed the defendant that even if the plea bargain was made on the basis of a life term, he would nonetheless attempt to induce the court to impose less than a life sentence since a co-defendant had been promised a less severe sentence. This was, in fact, attempted at sentencing.

2 In State v. Smith, the trial judge’s denial of defendant’s motion, interposed after sentence, to withdraw his plea was affirmed despite the judge’s failure to specify the maximum sentence which could be imposed.