STATE OF NEW JERSEY VS. BRENDON M. JAMES (17-02-0065, MERCER COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-0656-17T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
BRENDON M. JAMES, a/k/a
BRANDON M. JAMES, JAMES
SENU, and BRANDON SENU,
Defendant-Appellant.
____________________________
Submitted October 31, 2018 – Decided December 17, 2019
Before Judges Fuentes and Accurso.
On appeal from the Superior Court of New Jersey, Law
Division, Mercer County, Accusation No.17-02-0065.
Joseph E. Krakora, Public Defender, attorney for
appellant (Ruth Elizabeth Hunter, Designated Counsel,
on the brief).
Gurbir S. Grewal, Attorney General, attorney for
respondent (Regina M. Oberholzer, Deputy Attorney
General, of counsel and on the brief).
The opinion of the court was delivered by
FUENTES, P.J.A.D.
Pursuant to a negotiated plea agreement with the State, defendant Brendon
M. James pled guilty to second degree unlawful possession of a handgun and
third degree possession of marijuana with intent to distribute. More than a
month after the plea hearing, defendant moved to withdraw his guilty plea under
State v. Slater, 198 N.J. 145 (2007). The Criminal Part judge who presided over
the plea hearing denied defendant's motion and sentenced him in accordance
with the plea agreement. Defendant originally appealed the trial court's decision
under the summary proceeding provided in Rule 2:9-11. The matter was
thereafter transferred to the regular appellate calendar.
Defendant argues the trial court erred in denying his motion to withdraw
his guilty plea because he did not provide a valid factual basis. Alternatively,
defendant argues we should remand the matter for resentencing because the
sentencing judge "incorrectly believed" he was not eligible for a waiver of the
mandatory period of parole ineligibility under the Graves Act, N.J.S.A. 2C:43-
6. We reject these arguments and affirm.
In Count Three of a Mercer County indictment returned on May 25, 2016,
the grand jury charged defendant and codefendants Darnel Biggs and Shawn
Reid with third degree possession of marijuana with intent to distribute, in a
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quantity of no less than one ounce but no more than five pounds, N.J.S.A. 2C:
35-5a(1) and N.J.S.A. 2C:35-5b(11). Count Four charged defendant and his
codefendants with second degree possession of marijuana with intent to
distribute within 500 feet of a public park, N.J.S.A. 2C:35-5 and N.J.S.A. 2C:35-
7.1; and Count Five charged defendant and his codefendants with fourth degree
possession of marijuana in a quantity of more than fifty grams, N.J.S.A. 2C:35 -
5-10a(3).
Counts One, Two, and Six only involved charges against Biggs. Count
One charged Biggs with second degree unlawful possession of a Taurus "Ultra
Lite" .38 caliber revolver, N.J.S.A. 2C:39-5b and N.J.S.A. 2C:58-4; Count Two
charged Biggs with second degree unlawful possession of a Taurus "Ultra Lite"
.38 caliber revolver, while in the course of committing or attempting to commit
a drug-related offense, N.J.S.A. 2C:35-5 and N.J.S.A. 2C:39-4.1a. Count Six,
the last count of the indictment, charged Biggs with second degree possession
of a Taurus "Ultra Lite" .38 caliber revolver, while having been previously
convicted of third degree distribution of a controlled dangerous substance,
N.J.S.A. 2C:39-7b.
On February 3, 2017, defendant appeared before the Law Division,
Criminal Part at a hearing to prosecute a motion to suppress the evidence seized
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by law enforcement authorities that formed the basis of the charges against him
and codefendant Biggs. At this hearing, defendant's counsel addressed the
motion judge as follows:
DEFENSE COUNSEL: Mr. James has indicated that he
wants to resolve this matter for unlawful possession of
a handgun second degree, five over three-and-a-half.
The DAG [(Deputy Attorney General)] informed me
that he would also have to plead to possession with
intent to distribute, a third degree offense, because it is
marijuana over an ounce and that would be a three flat
concurrent. I should indicate on the record that Mr.
James, since he's not charged with any handgun
offenses, he is not charged with unlawful possession,
he's also not charged with certain persons which, in
fact, Mr. James is because he does have a prior burglary
conviction. As --
THE COURT: [Is] . . . the three flat that the State was
offering concurrent or consecutive?
DEFENSE COUNSEL: It's concurrent, Your Honor.
THE COURT: Okay.
Defense counsel explained to the judge that she had discussed with
defendant the possibility of a plea agreement for over two hours that day and on
several other occasions. Defense Counsel made clear on the record that
defendant "was very adamant in the fact that he wanted to resolve this matter in
this fashion." Defense counsel also represented to the judge that she had spoken
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with the attorney who represented codefendant Biggs to confirm Biggs was
willing to accept the terms of the plea agreement. Defense counsel stated:
[W]e have a resolution on the table if the parties are
willing to enter it where Mr. James will plead to the
handgun and the drugs recovered together upstairs in
the bedroom and that Mr. Biggs will be pleading to the
drugs that were recovered downstairs on the first floor.
If that is, in fact, a -- and Mr. Reid would receive a
dismissal. If that is, in fact, a plea agreement that Mr.
Biggs and Mr. James are willing to enter into today, that
is what is presently on the table.
....
I just want to also indicate on the record it's my
understanding that if this matter is not resolved today,
the offer of five with a three-and-a-half with a
concurrent three flat for Mr. James would no longer be
available to him from the Deputy Attorney General's
Office.
As these discussions continued, the DAG confirmed he had the
authorization from his superiors to enter into this plea agreement. At this point,
defendant addressed the judge directly and stated:
I've been trying to resolve this from day one. You know,
when they came to my house, you know, I'm the owner
. . . I went in the house. I've been acknowledging the
gun and the drugs being mine, not even the drugs
downstairs. They're really his. Everything there was
mine.
....
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I want to plead guilty today.
The DAG prepared an Accusation charging defendant with second degree
unlawful possession of a handgun. The terms of the plea agreement required
defendant to plead guilty to the second degree charge in the Accusation and to
Count Three in the indictment, which charged him with third degree possession
of marijuana with intent to distribute. In exchange, the State would recommend
that the court sentence defendant to a term of five years, with forty-two months
of parole ineligibility pursuant to the Graves Act, N.J.S.A. 2C:43-6c, on the
second degree unlawful possession of a handgun charge and impose a term of
three years flat on the marijuana charge. Both sentences were to run
concurrently. The State would also dismiss the remaining counts in the
indictment related to defendant.
Defense counsel confirmed these were the terms of the plea agreement
and stated defendant was "prepared to provide a factual basis." Defense counsel
also noted for the record that the DAG had agreed to "an extended sentencing
date" of July 14, 2017, more than five months later. The judge stated: "I'm okay
with it subject to the defendant remaining offense free." The judge then asked
defendant a series of questions to ensure he understood the ramifications of his
decision to plead guilty.
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In response to the judge's questions, defendant stated under oath that he
was twenty-three years old, had graduated from high school, and attended "some
college classes" in Criminal Justice. Defendant acknowledged that he had
reviewed and answered the questions on the plea form with the assistance of his
attorney. He was in good physical and mental health and was not under the
influence of any substance or medication that impaired his judgment. Defendant
told the judge that he understood the terms of the plea agreement, was aware of
his constitutional rights, and was pleading guilty voluntarily. Defendant also
indicated he was satisfied with the services provided by his attorney.
Defense counsel also questioned defendant to establish a factual basis for
his guilty plea to second degree unlawful possession of a handgun. The record
shows defendant admitted that police officers entered his residence looking for
someone else. In the process of searching for this person, the officers found a
.38 caliber handgun in defendant's bedroom.1 Defendant admitted he acquired
this handgun without the permit required by law.
The only issue defendant contested in the course of providing the factual
basis concerned whether he ever possessed the handgun outside of his residence.
1
Defendant stipulated the handgun the police recovered from his bedroom was
the .38 caliber Taurus revolver identified in the Accusation.
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This controversy was finally resolved when defendant admitted he carried the
handgun outside of his residence at the time he purchased it. The following
colloquy illustrates this point:
THE COURT: -- because there's no doubt that it was --
while it might not have been outside of the house that
day or the day before, it had to have been outside of the
house at some point.
DEPUTY ATTORNEY GENERAL: That was my line
of questioning. It had to have been somewhere prior to
that date to be brought into the house.
DEFENDANT: Yes, that's true.
DEFENSE COUNSEL: Okay, so prior to July 1st, 2015
it was brought into the house?
DEFENDANT: Yes.
DEFENSE COUNSEL: And you did not have a license
to carry that gun outside of the house?
DEFENDANT: No.
DEFENSE COUNSEL: And you brought it into the
house?
DEFENDANT: Yes.
THE COURT: How long had you lived there?
DEFENDANT: I lived there since November of
2014.
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THE COURT: Okay, so some time during that time
period you brought it into the house?
DEFENDANT: Yes.
THE COURT: Okay.
DEFENSE COUNSEL: And you knew what you were
doing when you were carrying it that you did not have
a license to carry it?
DEFENDANT: Yes.
The DAG also argued that since defendant had been convicted of burglary
at the time the police found the handgun in his bedroom, it was unlawful for him
to possess a handgun anywhere under N.J.S.A. 2C:39-7(b). Defendant also
provided a factual basis for his guilty plea to third degree possession of
marijuana with intent to distribute. We will not describe the factual basis for
this crime since defendant is not challenging this conviction on appeal.
On March 10, 2017, defendant and the attorneys returned before the judge
to correct a data entry problem. Because Biggs was the only person charged
under the indictment with the second degree offense of unlawful possession of
the handgun, the judiciary's computer system for criminal cases known as
Promis/Gavel did not accept defendant's guilty plea to the same offense as part
of an Accusation. Defense counsel explained that to correct this "technical
glitch in the system," defendant had to sign a new waiver of indictment form.
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The record shows the judge thoroughly explained to defendant the technical
nature of the problem and reassured him this was intended to avoid any potential
future misunderstanding or unintentional prejudice. In the judge's words: "you
can't have an accusation number and an indictment number under the same case
number[.]"
Despite acknowledging everything that the judge and the attorneys
explained to him on the record, defendant unexpectedly told the judge: "I
understand that. I just don't -- I feel like I don't want to sign anything." The
judge explained to defendant that if he did not sign these documents, it would
be treated by the court as a request to withdraw the guilty plea he entered on
February 3, 2017. This prompted the following exchange between defendant
and the judge:
DEFENDANT: This is my reason for pleading guilt[y].
On the day of the motion [defense counsel] was
supposed to subpoena my witness. She didn't subpoena
my witness. I was stuck between a rock and a hard
place.
THE COURT: You weren't stuck in any place. Let's
stop with that right now.
DEFENDANT: All right. Well, then, that's where I was
at. Where's my witness?
THE COURT: You came out of nowhere, volunteered -
- no, no, stop. You came out of nowhere. We were
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getting ready to do a testimonial suppression hearing
and volunteered to plead guilty to a gun charge that you
weren't even charged with.
DEFENDANT: That's because it belonged to me.
It's not about whether I'm charged with --
THE COURT: Okay. But -- so let's not get into [defense
counsel] didn't do the things [defense counsel was]
supposed to do. You volunteered to plead guilty to a
gun charge, a second degree charge that was
substantially more serious in terms of what your
custodial exposure was than this drug charge.
I don't know anything about any witnesses but it's --
you have to make some sort of a decision about where
you're going with this. If you want to file a motion to
get your plea back I have no choice but to let you do
that. You don't want your plea back, we have to fix the
technical problems that are here.
DEFENDANT: I want my plea back. I want to go to
trial.
THE COURT: All right. Well, you're going to have to
file that motion.
....
THE COURT: He wants to go to trial on what, on the
gun charge or the drug charge?
DEFENDANT: Anything. It don't matter. I don't want
to take this plea. Unless they give me a better plea –
THE COURT: All right. Well --
DEFENDANT: -- then I want to go to trial.
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[(Emphasis added).]
Represented by different counsel, defendant appeared before the trial
court on July 25, 2017 to argue his motion to withdraw his guilty plea. Defense
counsel argued that defendant did not provide an adequate factual basis to
support his guilty plea to second degree unlawful possession of a handgun under
N.J.S.A. 2C:39-5b. Defense counsel noted: "He stated he brought the . . . gun
in some time before July 1st. That was the extent of it." Defense counsel argued
the court failed to consider defendant's right to possess a handgun in his own
home pursuant to N.J.S.A. 2C:39-6(e), which provides, in relevant part:
"[n]othing in subsections b., c., and d. of N.J.S.2C:39-5 shall be construed to
prevent a person keeping or carrying about his . . . residence[.]" Finally, defense
counsel argued the State's fallback position concerning defendant's prior
burglary conviction was unavailing. According to defense counsel, defendant's
prior criminal record only applies if he had been charged with the offense
codified in N.J.S.A. 2C:39-7(b), which makes a person previously convicted of
burglary or any other of the offenses listed therein, guilty of second degree
unlawful possession of a handgun, regardless of the circumstances.
The State argued that defendant's burglary conviction rendered him per se
ineligible to invoke the statutory defense under N.J.S.A. 2C:39-6(e). Thus, the
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State argued that defendant's admission that he acquired a handgun without a
license while being legally prohibited from having a handgun was a sufficient
factual basis to support his plea.
The judge reviewed the transcripts of the plea hearing held on February 3,
2017 as well as defendant's impromptu request to withdraw his guilty plea on
March 10, 2017. The judge first summarized the factors the Supreme Court
established in Slater for deciding a defendant's motion to withdraw a guilty plea:
"(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 150. The judge then made
the following findings:
Defendant says, anything, it don't matter, I don't want
to take this plea unless they give me a better plea. A
clear, unequivocal statement that unless he got a better
plea offer, he wanted to go to trial. Direct, honest, clear
statement as to what his true motivation was; that he
wanted a better number. And that comes on the heels of
extensive colloquy during the plea hearing where he
was advised not just what the State's recommendation
was but the near inevitability of the five-year sentence
with the three-and-a-half year stipulation of parole
ineligibility.
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The judge concluded defendant did not raise a colorable claim of
innocence. He proactively sought to plead guilty to second degree unlawful
possession of a handgun, a crime he had not been charged with committing, to
absolve Biggs. Defendant's criminal history rendered him per se ineligible to
lawfully possess a handgun. The record reflects defendant was fully apprised
of the penal consequences of his guilty plea, including the mandatory period of
parole ineligibility required by the Graves Act. The judge thus denied
defendant's motion to withdraw his guilty plea.
Defendant appeared for sentencing before the court on August 11, 2017.
The court found defendant had two prior convictions for burglary, committed on
May 30, 2012 and June 1, 2013, respectively. He was sentenced on September
16, 2013, to two three-year terms of probation to run concurrently, with 226
days of jail time credits. At the time, defendant resided with his girlfriend, her
daughter, and defendant's son. The judge noted that the sentence related to the
unlawful possession of a handgun was mandatory under the Graves Act, and
sentenced defendant to a term of five years, with three-and-one-half years of
parole ineligibility. On the charge of third degree possession of marijuana with
intent to distribute, the judge sentenced defendant to a flat three-year term of
imprisonment to run concurrently with the Graves Act sentence. The court
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found aggravating factors N.J.S.A. 2C:44-1(a)(3) and (9), and no mitigating
factors.
Against this record, defendant now raises the following arguments.
POINT I
THE TRIAL COURT ERRED IN DENYING
DEFENDANT'S MOTION TO WITHDRAW HIS
GUILTY PLEA.
A. Defendant Did Not Provide an
Adequate Factual Basis For His Guilty
Plea, and the Trial Court Erred in Relying
Upon an Offense That Defendant Was
Neither Charged With Nor Pled Guilty To.
B. Defendant's Motion To Withdraw His
Plea Should Have Been Granted under
State v. Slater, 198 N.J. 145 (2009).
POINT II
ALTERNATIVELY, DEFENDANT SEEKS A
REMAND FOR RESENTENCING BECAUSE THE
TRIAL COURT INCORRECTLY BELIEVED THAT
DEFENDANT WAS SUBJECT TO A MANDATORY
THREE-AND-A-HALF YEAR PAROLE
INELIGIBILTY PERIOD, WHEN IN FACT,
DEFENDANT WAS ELIGIBLE FOR A GRAVES
ACT WAIVER.
We reject these arguments and affirm. The argument challenging the trial
court's decision to deny defendant's motion to withdraw his guilty plea based on
the Slater factors lacks sufficient merit to warrant discussion in a written
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opinion. R. 2:11-3(e)(2). The record shows the judge correctly found that
defendant did not establish a colorable claim of innocence. The argument
challenging the sentence imposed by the court is equally without merit. As the
State correctly points out in its brief before this court, defendant did not seek a
waiver of the Graves Act from the vicinage's Assignment Judge, as provided in
N.J.S.A. 2C:43-6.2. Defendant raised the issue with his attorney for the first
time after entering into a negotiated plea.
Finally, although N.J.S.A. 2C:43-6.2 authorizes the prosecutor to refer a
case to the Assignment Judge for a waiver of the mandatory sentence in a Graves
Act offense, State v. Nance, 228 N.J. 378, 394 (2017), in this case the prosecutor
did not make such a referral. More importantly, defendant did not request one.
As an appellate court, we review defendant's sentence "in accordance with a
deferential standard," State v. Fuentes, 217 N.J. 57, 70 (2014). We are not
permitted to substitute our judgment for that of the sentencing judge. State v.
Case, 220 N.J. 49, 65 (2014). We discern no legal basis to disturb the sentence
imposed by the trial judge in this case.
Affirmed.
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