Opinion
DOCKET NO. A-1765-14T3
07-19-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JASON W. MILLER, Defendant-Appellant.
Evan F. Nappen, P.C., attorneys for appellant (Louis P. Nappen, on the brief). Joseph D. Coronato, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Supervising Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges St. John and Guadagno. On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 14-02-0313. Evan F. Nappen, P.C., attorneys for appellant (Louis P. Nappen, on the brief). Joseph D. Coronato, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Supervising Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Jason W. Miller appeals his conviction, after entry of a negotiated guilty plea, for aggravated assault and possession of a weapon for an unlawful purpose. He was convicted of these charges following an incident in December 2013 involving two juveniles, T.H. and S.S., during which defendant was purportedly intoxicated. Defendant argues the factual basis for his plea was insufficient, and the court did not fully and directly advise him of his rights. Having reviewed the record in light of applicable law, we affirm.
I.
The record reveals the following facts and procedural history. On December 28, 2013, at approximately 6:54 p.m., Patrolman Albanese of the Brick Township Police Department (BTPD) responded to the area of Church Road and Drum Point in Brick Township, in response to reports of an aggravated assault. Upon arrival, Albanese located two juveniles, T.H. and S.S., sitting in the Baywood Pharmacy parking lot.
T.H. told Albanese that a male in his mid-forties, appearing to be intoxicated and wearing a baseball cap, dark sweatshirt and reading glasses, approached him and S.S. in the area of Church Road. The male, later identified as defendant, grabbed T.H. on the shoulder, raised a folding knife with a wooden handle with the blade open, approximately twelve inches from his face. In order to break free from defendant's grip, T.H. jumped backwards and ran away towards Drum Point Road. S.S. immediately ran away once he observed defendant to be in possession of the knife. Neither T.H. nor S.S. were harmed.
Albanese notified dispatch of the assailant's description and last known location, and other patrolmen starting searching the area for the subject. Meanwhile, at approximately 8:01 p.m., BTPD Patrolman Talty was advised by a resident of Church Road of a possible ongoing domestic dispute that was occurring at a neighbor's house on the same street. BTPD Patrolmen Matthew, Miller, Osborn, Donnelly, and Catalina arrived at that neighbor's house on Church Road to find defendant, who matched the description of the suspect involved in the earlier aggravated assault.
Defendant appeared intoxicated, and Catalina detected the smell of alcohol on his breath. Defendant advised Catalina that he was involved in a verbal argument with his aunt and mother and "flipped out."
Catalina spoke with defendant's mother and aunt, who stated that defendant came home from the store and instigated a verbal altercation with them over noise coming from their neighbor's house. Defendant then went into his room and returned with a machete in hand saying he was going to go next door to kill the neighbors. The women convinced defendant to not leave the house.
Defendant's mother told him if he did not like living with them he could move. Defendant became agitated and then threw the machete at his mother, who was sitting at the dining room table. The machete missed her, but damaged the wall. Defendant then threw a pocketknife up into the ceiling, damaging the ceiling. His mother subsequently hid the machete in the hallway closet to prevent defendant from retrieving it.
Catalina observed a pocket knife on the floor of the dining room and defendant's mother took him to the hallway closet to show him where she hid the machete. He also noticed a dark colored sweatshirt and baseball cap on a chair in the dining room matching the description of the suspect's clothing involved in the earlier aggravated assault Albanese was investigating.
All evidence (cap, sweatshirt, pocketknife, and machete) was seized and defendant was arrested and transported to BTPD headquarters. Afterwards, defendant's mother contacted headquarters and advised that she found three firearms in their residence belonging to defendant. A domestic violence search warrant was obtained and the weapons were seized. Defendant's mother was later granted a temporary restraining order.
The parents of T.H. and S.S. permitted both juveniles to attend a show-up to possibly identify defendant. T.H. stated defendant was "110 percent the man" who assaulted him, and S.S. indicated it could possibly be him, but defendant was not wearing a sweatshirt at the show-up. When shown the pocketknife, T.H. and S.S. responded, "that's definitely it," and they also identified the sweatshirt worn by defendant during the incident.
On February 18, 2014, an Ocean County grand jury returned Indictment No. 14-02-0313, charging defendant with two counts of third-degree aggravated assault, in violation of N.J.S.A. 2C:12-1b(2); two counts of third-degree possession of a weapon for an unlawful purpose, in violation of N.J.S.A. 2C:39-4d; and two counts of fourth-degree unlawful possession of a weapon, in violation of N.J.S.A. 2C:39-5d.
On August 4, 2014, defendant appeared before the trial judge for entry of his negotiated guilty plea to one count of third-degree aggravated assault and one count of third-degree possession of a weapon for an unlawful purpose, in exchange for the prosecutor's recommendation of a probationary term and dismissal of the remaining counts.
In response to questions from his counsel, defendant provided the following factual basis to his plea of guilty:
Q. Okay. Mr. Miller, I'm going to draw your attention to December 28th, 2013. Do you recall that date?
. . . .
A. Yes.
Q. And on that date, you were in Brick, New Jersey; correct?
. . . .
A. Yes.
Q. And at that time you were very intoxicated; correct?
A. Yes
Q. So you don't remember a lot of what happened that day?
A. No.
Q. At that point. But the discovery indicates that you approached two juveniles whose initials were T.H. and S.S.; correct?
A. Yes.
Q. And that you brandished a knife very close to I believe it's T.H.'s face?
A. Yes.
Q. And basically threatened him with that knife; correct?
A. I guess so. I don't even remember.
Q. And you're not disputing anything that's in the discovery, are you?
A. No.
Q. So you do understand those acts constitute aggravated assault?
A. Yes.
Q. And how do you plead to that charge?
A. Guilty
Q. And also on that date, the discovery indicates you were in possession of a knife; correct?
A. Yes.
Q. And that you used it for an unlawful purpose because you used it to attempt to harm someone; is that correct?
A. Yes.
Q. And you, so you don't remember that specific incident that day, you don't dispute the discovery; correct?
A. No.
Q. And so you understand that that's possession of a weapon for unlawful purpose?
A. Yes.
Q. And how do you plead to that charge?
A. Guilty.
. . . .
Court: All right. Thank you, sir. Based upon that, I do accept that as a proper factual basis for your plea and I find you're doing so freely and voluntarily.
On October 31, 2014, the judge sentenced defendant to 227 days in the Ocean County Jail, time served, and placed him on probation for two years. The court also imposed the requisite fines and penalties. This appeal follows.
On appeal, defendant presents the following issues for our consideration:
POINT 1
THE COURT BELOW ERRED BECAUSE THE FACTUAL BASIS FAILED TO INCLUDE ALL ELEMENTS OF THE OFFENSE.
POINT 2
THE COURT BELOW ERRED BY FINDING THAT A FACTUAL BASIS WAS SATISFACTORILY ENTERED WHEN DEFENDANT TESTIFIED THAT HE DOES NOT REMEMBER THE FACTS AT ISSUE, AND THE BASIS WAS THUS INSUFFICIENTLY CONFIRMED VIA A BROAD, UNSPECIFIED AFFIRMATION THAT "HE DOES NOT DISPUTE DISCOVERY."
POINT 3
THE COURT BELOW ERRED BY NOT FULLY OR DIRECTLY ADVISING DEFENDANT OF CERTAIN FUNDAMENTAL, CONSTITUTIONAL RIGHTS, AND THE PLEA SHOULD OTHERWISE BE VACATED AS FUNDAMENTALLY UNFAIR IN THE AGGREGATE.
II.
A defendant may challenge the sufficiency of a factual basis for his guilty plea on direct appeal. See State v. Urbina, 221 N.J. 509, 526-29 (2015). This court is "in the same position as the trial court is assessing whether the factual admissions during a plea colloquy satisfy the essential elements of an offense." State v. Tate, 220 N.J. 393, 404 (2015). Thus, we owe no deference to the trial court's determination that defendant presented an adequate factual basis for his plea. Ibid. If a factual basis does not exist to support the guilty plea, the plea must be vacated. Ibid. Our review of the law is plenary. Urbina, supra, 221 N.J. at 528 (citing Tate, supra, 220 N.J. at 404).
Defendant's primary contention is that his plea on the aggravated assault charge was not supported by an adequate factual basis. When the issue is solely whether an adequate factual basis supports a guilty plea, a Slater analysis is unnecessary. Tate, supra, 220 N.J. at 404 (citing State v. Campfield, 213 N.J. 218, 230-32, 235-37 (2013) (analyzing whether factual basis existed without discussing Slater factors) and State ex rel. T.M., 166 N.J. 319, 325-27, 332-37 (2001) (concluding there was inadequate factual basis for defendant's guilty plea without discussing factors for plea withdrawal)).
A judge must determine that there is "a factual basis for the [guilty] plea." R. 3:9-2. The factual basis for the plea can be established in either of two ways: "defendant may either explicitly admit guilt with respect to the elements or may 'acknowledge [underlying] facts constituting the essential elements of the crime.'" Campfield, supra, 213 N.J. at 231 (citation omitted); see State v. Gregory, 220 N.J. 413, 419-20 (2015) ("The factual basis for a guilty plea can be established by a defendant's explicit admission of guilt or by a defendant's acknowledgement of the underlying facts constituting essential elements of the crime."). As the Supreme Court stated in State v. Sainz, 107 N.J. 283 (1987), "[t]he essential thing is that the defendant is in fact guilty of the crime for which he is being sentenced." Id. at 292.
"[T]he defendant's admission or acknowledgement may be understood in light of all surrounding circumstances." Sainz, supra, 107 N.J. at 293.
As long as a guilty plea is knowing and voluntary, however, 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 a basis. A factual basis is constitutionally required only where 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.
[State v. D.D.M., 140 N.J. 83, 95 (1995) (citation omitted)].
Moreover, "[e]very alleged deficiency in the taking of a factual basis does not constitute reversible error. Only in those instances where the failure rises to constitutional dimensions is the sentence rendered illegal." State v. Pena, 301 N.J. Super. 158, 163 (1997) (citation omitted).
Our analysis of the sufficiency of the factual basis given with respect to each of the elements of the offenses charged begins with the recognition that trial courts need not follow a "'prescribed or artificial ritual'" when entering a defendant's guilty plea. Campfield, supra, 213 N.J. at 231 (quoting T.M., supra, 166 N.J. at 327). Indeed, in State v. Mitchell, 126 N.J. 565, 581 (1992), the Court held that when considering a guilty plea, trial courts are permitted to look at the "surrounding circumstances." As fully explained in Tate, supra, 220 N.J. at 407-09, the Court interpreted Mitchell to allow trial courts to consider at the plea hearing stipulations and facts admitted or adopted by the defendant when assessing the adequacy of a defendant's factual basis.
N.J.S.A. 2C:12-1b(2), to which defendant pleaded guilty states, "A person is guilty of aggravated assault if he: attempts to cause or purposely or knowingly causes bodily injury to another with a deadly weapon[.]" A deadly weapon is:
any firearm or other weapon . . . which in the manner it is used or is intended to be used, is known to be capable of producing death or serious bodily injury or which in the manner in which it is fashioned, would lead the victim reasonably to believe it to be capable of producing death or serious bodily injury.
[N. J.S.A. 2C:11-1(c)].
During defendant's plea colloquy, he freely and affirmatively acknowledged that he approached the two juveniles while in possession of a knife and brandished the knife close to T.H.'s face. When asked if he threatened T.H. with the knife, defendant responded, "I guess so. I don't even remember." However, when asked if he disputed anything from discovery, defendant indicated he did not. We note that as part of his plea colloquy, he admitted that he reviewed the discovery and affirmed its contents. Moreover, he affirmed that he used the knife for an unlawful purpose, in an attempt to harm someone. Notably, defendant failed to advance a claim of innocence at any point during the proceedings.
In the corresponding police reports which were part of discovery, Albanese and Catalina detail what transpired between defendant and the two juveniles. Defendant approached them with a folding knife with an open blade (matching the one seized from defendant during his arrest), grabbed T.H. by the shoulder, raised the knife within a foot of his face, and held him until T.H. could break free and run away. Thus, defendant's admissions amply support the conclusion that defendant's actions were an attempt to engage in conduct that would cause bodily harm to T.H.
Defendant's representations and the trial court's findings during a plea hearing create a "formidable barrier" that must be overcome by the defendant in any subsequent proceeding. Blackledge v. Allison, 431 U.S. 63, 74, 97 S. Ct. 1621, 1629, 52 L. Ed. 2d 136, 147 (1977); State v. Simon, 161 N.J. 416, 444 (1999). This is so because "[s]olemn declarations in open court carry a strong presumption of verity." Ibid.
Thus, an adequate factual basis existed for the court to accept defendant's guilty plea to the crimes of aggravated assault and possession of a weapon for an unlawful purpose. Urbina, supra, 221 N.J. at 526.
III.
Defendant next contends the court erred by failing to voir dire him as to his alleged intoxication because it may have been an affirmative defense to the crimes, if he did not know the nature or quality of his act.
Defendant relies on his TASC evaluation diagnosing him with severe alcohol use disorder in support of his claim that he did not have the requisite knowledge to commit the crime. Under N.J.S.A. 2C:2-8(a), self-intoxication permits evidence of intoxication as a defense to crimes requiring "purposeful" or "knowing" mental states. See State v. Cameron, 104 N.J. 42, 52 (1986). However, there must be a rational basis for the conclusion that defendant's faculties were so "prostrated" that he was incapable of forming an intent to commit the crime. State v. Mauricio, 117 N.J. 402, 418-420 (1990).
While the police report and T.H. and S.S.'s accounts of the incident indicate that defendant appeared intoxicated, he evidently had enough capacity to walk back to the house he shared with his mother and aunt, and was able to communicate with police. He was also able to be convinced by his family to not go to his next door neighbor's house to attack them. Based on these facts, defendant has not demonstrated that he lacked sufficient control over his faculties to form the requisite intent to commit aggravated assault.
Lastly, defendant contends that he was not directly and fully advised by the court with respect to his fundamental right to remain silent, the right to a jury trial, and the right to an attorney throughout the trial.
A defendant who elects to plead guilty to a criminal offense gives up fundamental constitutional rights. State v. McDonald, 211 N.J. 4, 15 (2012). As such, a plea may not be entered until the court satisfies itself that, not only is there a factual basis for the plea, but it is made voluntarily and intelligently. Sainz, supra, 107 N.J. at 293; R. 3:9-2. When accepting a guilty plea, a court should inquire "among other things . . . whether the defendant understood that he was relinquishing certain constitutional rights . . . ." Campfield, supra, 213 N.J. at 230 (citation omitted). The purpose of the plea forms is to set forth the "material aspects and consequences" of the plea. See State v. Williams, 342 N.J. Super. 83, 92 (App. Div. 2001).
Here, the plea form shows defendant circled "yes" and signed the form, indicating he acknowledged he was waiving the rights he now asserts he was not directly and fully advised of by the court. During his plea colloquy, defendant was asked by the judge, "[a]nd you understand that by pleading guilty to this, these two counts, that you're giving up your right to go to trial on all charges?" to which he responded "I do."
The court further confirmed, through direct questioning of the defendant, that he went through the plea form with his attorney, signed the form, initialed each page, and understood the content of the form. Therefore, the record clearly reveals that defendant was advised fully and directly of the constitutional rights he was waiving.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION
State v. Slater, 198 N.J. 145 (2009).