State v. Phillips

• Decision Date: 29 April 1975
• Citation: 133 N.J.Super. 515,337 A.2d 627
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Ronald PHILLIPS, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 515

133 N.J.Super. 515

337 A.2d 627

STATE of New Jersey, Plaintiff-Respondent, v. Ronald PHILLIPS, Defendant-Appellant.

Superior Court of New Jersey,

Appellate Division.

Submitted April 8, 1975.

Decided April 29, 1975.

Stanley C. Van Ness, Public Defender, for defendant-appellant (William E. Norris, Asst. Deputy Public Defender, of counsel and on the brief).

William F. Hyland, Atty. Gen., for plaintiff-respondent (William Welaj, Deputy Atty. Gen., of counsel and on the brief).

Before Judges MATTHEWS, FRITZ and BOTTER.

PER CURIAM.

This appeal is grounded in defendant's claims: first, that the trial judge erred in denying his motion to withdraw certain pleas entered in accordance with a plea bargain, and second, that the sentence he received was manifestly excessive. We find no merit in either argument.

The sentence entered on the plea bargain concluded a number of charges against this defendant. ¹ In addition to Indictment 1115--69 and Accusation 826--73 (see n. 1), defendant was charged with: atrocious assault and battery on one Paulette Watson on December 10, 1972 (Indictment 1521--72); Carnal abuse, assault with intent to rape and atrocious assault and battery on one Marsha Maddox on March 8, 1973 (Indictment 1470--72); assault with a dangerous weapon, assault with intent to kill, threatening to kill, atrocious assault and battery and kidnaping involving Ruth Thomas, together with illegal possession of a knife, all on August 19, 1973 (Indictment 510--73); felony murder while armed and a concomitant robbery while armed, the victim of which was one Francis Dougherty, on November 27, 1973 (Indictment 378--73), and possession of a controlled dangerous substance with intent to distribute on November 28, 1973 (Accusation 825--73).

Represented by manifestly competent counsel with whose services he was admittedly satisfied, defendant entered a Non vult plea to the felony murder ² and guilty pleas to the charges of atrocious assault and battery on each of the three women and to possession of a controlled dangerous substance with intent to distribute. In careful compliance with the terms of the plea bargain, he was sentenced to 25 to 30 years in State Prison for the murder, 5 to 7 years consecutively for the atrocious assault and battery upon Paulette Watson, 5 to 7 years concurrent with the prior assault sentence for each of the atrocious assaults and batteries on Ruth Thomas and Marsha Maddox, and 2 1/2 to 5 years concurrent with the assault sentences for the controlled dangerous substance offense. The net effect of the sentences was a minimum of 30 and a maximum of 37 years in prison.

Defendant chose the day set for his sentencing to move to be permitted to withdraw his pleas. The sentencing judge denied the motion and imposed the sentences set forth above. This denial is here challenged.

Once a plea is entered it may not be withdrawn without leave of court. A determination on such an application rests within the judge's discretion. State v. Deutsch, 34 N.J. 190, 168, A.2d 12 (1961). In exercising this discretion certain policy considerations are to be weighed against each other State v. Herman, 47 N.J. 73, 219 A.2d 413 (1966), and it has been said the discretion permitting a withdrawal of a guilty plea should be 'liberally' exercised where the motion is made before sentence and defendant protests his innocence. State v. Deutsch, Supra, 34 N.J. at 198, 168 A.2d 12. But such a protestation of innocence must be more than a mere assertion of nonguilt, and the apparent guilt of a defendant is a factor to be considered even when the motion precedes sentencing. State v. Johnson, 131 N.J.Super. 252, 329 A.2d 560 (App.Div.1974). Where, as here, the plea or pleas are entered as a matter of plea bargaining, the burden upon defendant to demonstrate 'a plausible basis' for his motion to retract is a heavy one. State v. Huntley, 129 N.J.Super. 13, 17, 322 A.2d 177 (App.Div.1974), certif. den. 66 N.J. 312, 331 A.2d 12 (1974). In such circumstance, and providing that there has been careful and diligent regard for the requirements of R. 3:9--2, the judge below has every reason to indulge in skepticism with respect to newly asserted defenses, particularly if they are factually unclothed. When the fact of commission of the criminal activity remains uncontested, the absence of new or additional facts which might reasonably have influenced defendant to a change of heart and his belated urging of such defenses as incompetency, self-defense, provocation or, as here, 'temporary insanity,' is a factor to be considered carefully on a motion to retract.

...