STATE OF NEW JERSEY v. CARMEN FLORES (05-04-0009, ESSEX 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NOT FOR PUBLICATION WITHOUT THE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-3726-20
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
CARMEN FLORES,
Defendant-Appellant.
________________________
Submitted September 14, 2022 – Decided September 27, 2022
Before Judges Accurso and Vernoia.
On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Indictment No. 05-04-0009.
Joseph S. Scura, attorney for appellant.
Matthew J. Platkin, Acting Attorney General, attorney
for respondent (Boris Moczula, Deputy Attorney
General, of counsel and on the brief.)
PER CURIAM
Following her 2005 indictment for arson, theft, and conspiracy to commit
arson and theft, defendant Carmen Flores pleaded guilty to the conspiracy
charge. Pursuant to the plea agreement, the State agreed to withdraw its
objection to defendant's application for admission into the pretrial intervention
program (PTI) and recommend a non-custodial probationary sentence if
defendant's PTI application was denied. Defendant was accepted into PTI and
successfully completed the program in 2007, at which time all charges against
her were dismissed. In 2021, defendant moved to withdraw her guilty plea.
Defendant appeals from an order denying her motion, claiming the plea
was not supported by an adequate factual basis as required under R. 3:9-2 and
the court erred in its application of the standard for considering a plea
withdrawal motion under State v. Slater, 198 N.J. 145, 157-58 (2009).
Unpersuaded by defendant's arguments, we affirm.
I.
Defendant's plea withdrawal motion is supported solely by the transcript
of her plea proceeding and her certification detailing the claims upon which her
motion is based. In her certification, defendant explained she sought to
withdraw her plea but she did not seek to vacate her successful completion of
the PTI program and resulting dismissal of all the charges.
Defendant further asserted that when she entered her plea she "believed"
she committed the offense – conspiracy to commit arson and theft – but "upon
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reflection . . . [she] did not fully understand the legal definition of
[c]onspiracy." Defendant stated that after learning the definition of conspiracy,
she "realized," she did not engage in a criminal conspiracy. Defendant also
claimed she "did not provide an adequate factual basis for the crime of
[c]onspiracy to [c]ommit [a]rson" and she was "unaware [the] guilty plea could
result in collateral consequences, even after [the] charges were dismissed."
Defendant requested an order permitting withdrawal of her plea "while leaving
[the] successful completion of [PTI] and resulting [d]ismissal in place. "
In a detailed written decision, the court denied defendant's motion, finding
there was an adequate factual basis for defendant's plea to the conspiracy charge.
The court determined defendant provided an adequate factual basis for the guilty
plea to conspiracy to commit arson "and/or" theft. The court noted that during
the plea proceeding defendant admitted she agreed with her brother he would
illegally dispose of a vehicle because she could no longer afford the payments
on it, and, after learning her brother and another individual disposed of the
vehicle by setting it on fire, she reported it stolen.
The court also found it appropriate to apply the post-sentence "manifest
injustice" standard for plea withdrawals under Rule 3:21-1 because, although
defendant was never sentenced, her motion was filed long after the charges were
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dismissed in 2007. The court found the manifest injustice standard applied
because "the guilty plea will disturb the finality [of the] events which occurred
over a decade and a half ago."
The court also considered defendant's motion under the four-factor
analytical paradigm established in Slater, 198 N.J. at 157-58. As correctly
detailed by the motion court, under Slater the proper determination of a plea
withdrawal motion requires consideration and balancing of the following four
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." Id. at 157-58.
The court found defendant failed to present evidence establishing that the
four factors weighed in favor of a plea withdrawal. More particularly, the court
found defendant did not satisfy the first factor because she did not offer a
colorable claim of innocence. See id. at 157. The court also determined
defendant did not offer any fair and just reasons supporting a plea withdrawal
under Slater's second factor.1 See id. at 157-58.
1
In State v. Randall, we determined the State may not condition admission into
PTI on a defendant's entry of a guilty plea. 414 N.J. Super. 414, 421 (App. Div.
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The court further found defendant's plea was made pursuant to a plea
bargain and thus the third Slater factor weighed against granting defendant's
motion. See id. at 160. As to the fourth factor – whether granting the plea
withdrawal would result in prejudice to the State – the court found the State was
not required to establish prejudice because defendant did not establish the first
three factors. See id. at 162 (explaining a showing of prejudice is not required
"if a defendant fails to offer proof of other factors in support of the withdrawal
of the plea."). In any event, the court found the State would be unfairly
prejudiced by a plea withdrawal because sixteen years had passed since
defendant was first charged and the State would be compelled to rely on the
memories of witnesses that may or may not be available and police records that
may no longer exist.
2010). There is no evidence that occurred here. The record shows defendant's
plea agreement contemplated the possible rejection of defendant's PTI
application by providing the State would recommend defendant receive a
probationary sentence if the PTI application was denied. Unlike in Randall,
there is no evidence the State conditioned defendant's admission into PTI on
entry of a guilty plea, the State did not commit to admitting defendant into PTI
in exchange for the plea, and defendant's plea agreement provided for the State's
recommendation of an alternate sentence in the event defendant was not
admitted into PTI. In addition, defendant makes no argument on appeal based
on Randall, which was decided three years after entry of the plea. See
Sklodowsky v. Lushis, 417 N.J. Super. 648, 657 (App. Div. 2011) ("An issue
not briefed on appeal is deemed waived.").
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The court concluded defendant failed to satisfy any of the Slater factors
and made no showing it would be a manifest injustice to deny the plea
withdrawal motion. The court further found "it would be contrary to the
interests of justice to allow [d]efendant to withdraw her plea [sixteen] years after
its entry." The court entered an order denying defendant's motion. This appeal
followed.
On appeal, defendant presents the following arguments:
POINT I
THE TRIAL COURT ERR[]ED AS THERE WAS AN
INADEQUATE FACTUAL BASIS PROVIDED AS
REQUIRED BY R. 3:9-2.
POINT II
THE TRIAL COURT ERRED AS THE
APPELLANT'S MATTER SH[OU]LD HAVE BEEN
VACATED PU[R]SUANT TO R. 3:9-3(e) and State v.
Slater[.]
II.
Defendant argues the court erred by denying her plea withdrawal motion
because it was not supported by an adequate factual basis. More particularly,
defendant claims that although she entered a plea of guilty to conspiracy to
commit arson and theft, the factual basis she offered in support of the plea was
inadequate to establish she committed the crime of conspiracy to commit arson.
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To properly accept a guilty plea, a court must be satisfied "the defendant
has articulated a factual basis for each element of the offense to which he [or
she] pleads guilty." State v. Campfield, 213 N.J. 218, 232 (2013); see also R.
3:9-2 ("The court . . . shall not accept [a plea of guilty]
without . . . determining . . . there is a factual basis for the plea"). "Simply put,
a defendant must acknowledge facts that constitute the essential elements of the
crime." State v. Gregory, 220 N.J. 413, 420 (2015). The trial court's inquiry
during a plea colloquy need not follow a "'prescribed or artificial ritual[,]'"
Campfield, 213 N.J. at 231, and "the 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 State ex rel. T.M., 166 N.J. 319, 327
(2001)).
Prior to addressing the merits of defendant's claim an adequate factual
basis did not support her plea to conspiracy to commit arson, we note her motion
sought withdrawal of the plea but without a return to the position she and the
State were in prior to entry of the plea. That is, defendant sought the benefit of
the plea withdrawal but without the reinstatement of the charges that were
dismissed following her entry of the plea and completion of the PTI program.
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The motion court could not properly grant the relief sought in defendant's
motion because, even assuming there was an inadequate factual basis for the
plea, the available remedy for an inadequate factual basis for a plea is limited to
"an order vacating the guilty plea and restoring both parties to their positions
prior to the trial court's acceptance of the plea." Id. at 232. Where it is
determined "'a plea has been accepted without an adequate factual basis, the
plea, judgment of conviction, and the sentence must be vacated, the dismissed
charges reinstated, and [the] defendant allowed to re-plead or to proceed to
trial.'" Ibid. (quoting State v. Barboza, 115 N.J. 415, 420 (1989)).
Defendant did not seek such relief and instead expressly limited the relief
sought in her motion to the withdrawal of her plea without the reinstatement of
the charges and return of the parties to their pre-plea positions. Defendant
renews the argument on appeal, contending there is no need to return the parties
to their pre-plea positions because the charges were dismissed following her
guilty plea and completion of PTI. In other words, defendant seeks the benefit
of her plea agreement – including the State's withdrawal of its objection to her
admission into PTI and the later dismissal of the charges – while depriving the
State of whatever benefit it negotiated and received when the plea bargain was
struck. Because defendant's motion sought a remedy not authorized for a plea
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withdrawal motion, see id. (explaining the remedy for a plea withdrawal requires
reinstatement of dismissed charges); Barboza, 115 N.J. at 420 (explaining "[t]he
cornerstone of the plea-bargaining system is the 'mutuality of advantage' it
affords to both the defendant and the State"), we affirm the order denying
defendant's motion for that reason alone.
We also affirm the court's order because defendant's plea to conspiracy to
commit arson and theft is supported by an adequate factual basis. As we have
explained, an adequate factual basis supporting a guilty plea required
defendant's articulation of "a factual basis for each element of the offense to
which he pleads guilty." Campfield, 213 N.J. at 232. She satisfied that
requirement here.
Defendant pleaded guilty to count one of the indictment, which charged
her and her co-defendants, one of whom is her brother, with purposely
promoting and facilitating the commission of the crimes of arson, N.J.S.A.
2C:17-1(b), and theft, N.J.S.A. 2C:20-4, by conspiring and agreeing that one or
more of them would purposely engage in conduct that would constitute those
crimes and would aid in the planning and commission of the crimes. The
indictment further alleged defendants conspired to set a vehicle on fire with the
purpose of collecting insurance proceeds in violation of N.J.S.A. 2C:17-1b, and
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by purposely obtaining the property of another by deception in violation of
N.J.S.A. 2C:20-4.
N.J.S.A. 2C:5-2 defines the elements of the crime of conspiracy under our
Criminal Code. See generally State v. Samuels, 189 N.J. 236, 245 (2007)
(outlining and interpreting the elements of a conspiracy). In pertinent part, to
establish the crime of conspiracy it must be proven: the defendant "agreed with
[another] person or persons that they or one or more of them would engage in
conduct which constitutes a crime or an attempt or solicitation to commit such
crime;" "the defendant's purpose was to promote or facilitate the commission
of" the intended crimes; and "the defendant or a person with whom [defendant]
conspired did an overt act in furtherance of the conspiracy." Model Jury Charges
(Criminal), "Conspiracy (N.J.S.A. 2C:5-2) (rev. Apr. 12, 2010); see also
Samuels, 189 N.J. at 245 (listing the elements of a conspiracy under N.J.S.A.
2C:5-2).
"[T]he agreement to commit a specific crime is at the heart of a conspiracy
charge." Id. "A conspiracy requires an 'actual agreement [with another] for the
commission of the substantive crime.'" State v. Campione, 462 N.J. Super. 466,
493 (App. Div. 2020) (alteration in original) (quoting State v. Kamienski, 254
N.J. Super. 75, 93 (App. Div. 1992)). However, "[b]ecause the conduct and
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words of co-conspirators is generally shrouded in silence, furtiveness and
secrecy, the conspiracy may be proven circumstantially." Samuels, 189 N.J. at
246 (internal quotation marks omitted). Thus, "[a]n implicit or tacit agreement
may be inferred from the facts and circumstances." Kamienski, 254 N.J. Super.
at 94; see also United States v. Fullmer, 584 F.3d 132, 160 (3d. Cir. 2009)
(citations omitted) (explaining the agreement to commit another crime required
to establish a conspiracy can be proven "with circumstantial evidence, 'based on
reasonable inferences drawn from actions and statements of the conspirators or
from the circumstances surrounding the scheme.'").
Here, the State charged defendant with a conspiracy to commit the crime
of arson "by purposely starting a fire . . . whether on [her] property or
another's . . . with the purpose of collecting insurance for the destruction or
damage to such property." N.J.S.A. 2C:17-1(b)(3). The State also charged
defendant with conspiracy to commit the crime of theft by deception by
"purposely obtain[ing] property of another by deception." N.J.S.A. 2C:20-4. In
part, a person deceives by purposely "[c]reat[ing] or reinforc[ing] a false
impression[.]" N.J.S.A. 2C:20-4(a).
Defendant presents a focused argument challenging the adequacy of the
factual basis for her guilty plea to conspiracy to commit arson and theft. Her
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singular claim is her plea colloquy failed to directly establish one of the essential
elements of the conspiracy to which she pleaded – an agreement between she
and her co-defendant brother to commit the crimes of arson and theft. The
argument ignores a plain and reasoned interpretation of her plea testimony.
During the plea proceeding, defendant testified she was responsible for
making the payments for a vehicle she controlled but which was purchased in
her aunt's name. Defendant admitted she spoke to her brother "regarding
financial difficulties [she] was having with respect to" the vehicle, and that she
relayed that information to her brother because she was not "able to financially
afford the vehicle."
Defendant testified her brother "indicated he'd take care of this problem
for her," and she "knew the means and how he'd have the car disposed of in a
non-legal manner." She later found the vehicle missing from the location where
it had been parked, it had been "burned," and her brother and another co-
defendant had "taken part in that act." She further admitted that although she
knew her brother and the other co-defendant burned the vehicle, she reported to
the police the vehicle was "missing" and she filed a claim with her insurance
carrier for a "stolen vehicle." She testified the value of the vehicle was greater
than $500.
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In our view, those admissions establish a factual basis supporting a
finding, based on reasonable inferences, that defendant and her brother entered
into an implicit or tacit agreement he would address defendant's inability to
make the payments on the vehicle by disposing of it illegally – by setting it on
fire in violation of N.J.S.A. 2C:17-1(b) – to facilitate defendant's submission of
a false claim to her insurance carrier and obtain compensation as a result in
violation of N.J.S.A. 2C:20-4. See Kamienski, 254 N.J. Super. at 94 (explaining
the agreement required to establish a conspiracy may be tacit or implicit).
Defendant's claim her testimony did not establish an agreement her brother
would commit arson is undermined by her admission that when she spoke with
her brother, she "knew the means and how he'd have the car disposed of in a
non-legal manner." The "means" her brother employed to dispose of the vehicle
was arson, and defendant testified she "knew" of the "means" he would employ
when she first spoke with him. Stated differently, defendant admitted that based
on her discussion with her brother, she knew he would resolve her financial
difficulties by setting the vehicle on fire.
Moreover, her conduct following the burning of the vehicle is consistent
with a determination she and her brother agreed he would set the vehicle on fire
for the purpose of assisting her in resolving her financial obligations. Defendant
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admitted that following the burning of the vehicle, she falsely reported to the
insurance carrier the car had been missing and stolen and did so to obtain
insurance benefits. Those admissions confirm her and her brother's agreement
– conspiracy – at the outset that he would commit the arson of the vehicle to
allow her to commit theft of insurance proceeds by deception.
In sum, based on our consideration of defendant's admissions during the
plea proceeding, we are satisfied the court correctly determined she offered facts
sufficient to support a finding she and her brother purposely entered into an
agreement to commit the crimes of arson and theft. We therefore affirm the
court's order rejecting defendant's claim she is entitled to withdraw her plea
because it was not supported by an adequate factual basis.
Defendant also claims the court erred by considering and weighing the
four factors for assessing a plea withdrawal motion under Slater. We review a
decision denying a motion to withdraw a guilty plea under Slater for an abuse
of discretion. State v. Tate, 220 N.J. 393, 404 (2015). We find defendant's
arguments under Slater without sufficient merit to warrant a detailed discussion
in a written opinion and affirm substantially for the reason set forth in the motion
court's decision. R. 2:11-3(e)(2). We add only the following brief comments.
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A defendant seeking to withdraw a guilty plea bears the burden of
establishing the Slater factors weigh in support of the requested relief. Slater,
198 N.J. at 156. A defendant "must present specific credible facts and, where
possible, point to facts in the record that buttress their claim." Id. at 158. Here,
defendant's withdrawal motion was supported only by her certification, which
offered few facts and no citations to the record supporting her request for relief.
For example, defendant's certification did not provide any facts addressing
Slater's first factor – a colorable claim of innocence. Id. at 158-59. Instead,
defendant vaguely asserted only that "[u]pon learning the legal definition" of
conspiracy," she "realized [she] did not in fact engage in a criminal conspiracy."
Defendant's "bald assertion . . . is insufficient to justify withdrawal of a plea."
Id. at 158.
Similarly, defendant's certification does not offer any evidence or facts
establishing "fair and just reasons" for the requested withdrawal. See id. at 159(explaining that under Slater's second factor a defendant must "present fair and
just reasons for withdrawal, and whether those reasons have any force.").
Instead, defendant's proffered reasons for seeking withdrawal of her plea include
conclusory assertions she was confused as to the elements of the offense of
conspiracy to which she pleaded, she did not provide an adequate factual basi s
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for her plea to conspiracy to commit arson, 2 and she was unaware her plea could
result in collateral consequences. The assertions are untethered to any facts or
evidence describing her alleged confusion, demonstrating how it allegedly
affected her decision to plead guilty, or explaining the purported collateral
consequences of which she claims she was unaware. Moreover, as we have
explained, her plea to conspiracy to commit arson and theft is supported by an
adequate factual basis.
Moreover, because her plea was entered pursuant to a plea agreement, the
third Slater factor – "[w]as the plea entered as part of a plea bargain" – although
generally not a weighty factor, does not fall in her favor. Id. at 160-61. Finally,
under the fourth factor – would allowing the plea withdrawal result in unfair
prejudice to the State or unfair advantage to defendant – the State is not required
to show prejudice because "defendant fails to offer proof of other factors in
support of the withdrawal of a plea." Id. at 162. In any event, we agree with
the motion court's determination that the passage of sixteen years between
defendant's commission of the crime to which she pleaded and the filing of her
2
Defendant's certification does not assert she failed to provide an adequate basis
for her plea to conspiracy to commit theft by deception.
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plea withdrawal motion will most certainly result in prejudice to the State's
ability to prosecute its case.
For those reasons, as well as those explained by the motion court, we find
no basis in the record to conclude the court abused its discretion in denying
defendant's motion under the required analysis in Slater. See Tate, 220 N.J. at
404 ("In a Slater scenario, the appellate standard of review is abuse of
discretion."). We are also convinced defendant failed to demonstrate the
requested plea withdrawal is warranted under both the pre-sentencing "interests
of justice" standard under Rule 3:9-3(e), and the post-sentencing "manifest
injustice" standard under Rule 3:21-1.3 See Slater, 198 N.J. at 156-57 ("In
meeting their burden, defendants must show more than a change of heart.") .
Any arguments presented by defendant we have not expressly addressed
are without sufficient merit to warrant discussion in a written opinion. R. 2:11-
3(e)(2).
3
It is therefore unnecessary to determine the appropriate standard to be applied
where, as here, defendant's plea withdrawal motion is from a plea entered prior
to the submission of an application for PTI, the later dismissal of all charges,
and without the imposition of a sentence as contemplated by Rule 3:21-1. We
note the motion court applied the post-sentencing "manifest injustice" standard
under Rule 3:21-1, but, as noted, it is unnecessary that we decide the issue
because defendant's submissions failed to satisfy the standards under both Rule
3:9-3(e) and Rule 3:21-1.
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Affirmed.
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