Kenneth Vercammen & Associates, P.C.
2053 Woodbridge Avenue - Edison, NJ 08817
(732) 572-0500
Kenneth Vercammen was included in the “Super Lawyers” list published by Thomson Reuters

Tuesday, July 17, 2012

STATE v. MCMIllian

DOCKET NO.  A-2170-10T4



February 28, 2012

Submitted February 7, 2012 – Decided

Before Judges Reisner and Hayden.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment Nos. 08-10-1974 and 08-12-2136.

Joseph E. Krakora, Public Defender, attorney for appellant (Stephen P. Hunter, Assistant Deputy Public Defender, of counsel and on the brief).

Edward J. DeFazio, Hudson County Prosecutor, attorney for respondent (Monalisa Tawfik, Assistant Prosecutor, on the brief).

Defendant Dwayne C. McMillan appeals from a June 24, 2010 judgment of conviction, arising from his guilty plea to third-degree school zone drug distribution, N.J.S.A. 2C:35-7, and third-degree theft from the person, N.J.S.A. 2C:20-2d(2)(d).  He was sentenced to a term of seven years in prison with a forty-two month parole bar for the drug conviction, and a concurrent four-year term for the theft.  His appeal centers on a June 15, 2010 order denying his motion to withdraw his guilty plea.  We affirm the conviction. We remand to correct the judgments of conviction.
This case arises from two separate incidents.  On June 19, 2008, defendant was caught with several dozen individual vials of cocaine, and was charged with possession with intent to distribute cocaine in a school zone and other related third-degree drug offenses.  In the second incident, on July 19, 2008, defendant was apprehended while shoplifting groceries from a supermarket, and he resisted arrest; as a result, he was charged with second-degree robbery, third-degree assault on a police officer, third-degree resisting arrest, and third-degree terroristic threats. 
At a hearing on January 5, 2009, defense counsel and the prosecutor discussed the possibility of a plea agreement under which defendant would be permitted to plead guilty to one count of third-degree school zone drug distribution; the robbery would be downgraded to theft from the person, and the assorted crimes of violence with which he was charged would be dismissed; and defendant would be permitted to apply for admission to the Drug Court.  The prosecutor, however, indicated that she needed to check with the prosecutor’s Drug Court liaison, to be sure that was acceptable to her office.
Instead of having defendant apply to the Drug Court first to determine his actual eligibility, the parties appeared at a second hearing on January 13, 2009, at which defendant pled guilty to theft from the person and school zone drug distribution, and the case was scheduled for a February 29, 2010 hearing before the Drug Court judge.
The written plea form, which defendant signed on January 13, committed the prosecutor to recommend "9 years NJSP w/ 54 months parole disqualifier or Drug Court." Under "any other representations made" to defendant, the form specified: "[Defense] attorney promises to argue for a lesser sentence if [defendant] is not given drug court.  The State will cap at 8 years if [defendant] does not get drug court."  In other words, if defendant was admitted to Drug Court, the State wanted him to have a greater exposure to prison time if he flunked out, presumably as an incentive to defendant to persevere with the program.  If his Drug Court application was rejected, the State was amenable to a lesser prison term.
A February 10, 2009 pre-sentence report, prepared by Probation, indicated the following information.  Defendant was thirty-eight years old.  He had a heart condition, for which he was awaiting implantation of a pacemaker, and he was a heroin addict.  According to the pre-sentence report, he had never participated in a drug treatment program.  The pre-sentence report stated: "It appears that support of a three year old heroin habit is the prime motive for [defendant’s involvement] in the present pending cases."  The report recommended his admission to drug court:  "By all accounts the defendant appears to be a candidate for the drug court program.  The undersigned agrees with his enrollment therefore." 
Pursuant to the plea agreement, defendant applied to the Drug Court program.  However, he was rejected, apparently as the result of opposition by the prosecutor’s office.  A Drug Court Legal Eligibility Form, dated February 18, 2009, recited that his application was rejected for "Violence history" and noted that a juvenile adjudication for first-degree robbery made defendant "per se ineligible." The form also noted that defendant had four prior school zone drug convictions.[1]
The record does not reflect that defendant filed an appeal from his rejection from the Drug Court program.  However, he filed a motion to withdraw his plea agreement, claiming that his attorney misinformed him by promising him that he would be accepted into Drug Court.  At a testimonial hearing on June 3, 2010, at which new counsel represented defendant, he testified that his former attorney, Dwight Miller, Esq., told him that he would only be rejected from Drug Court if he told the evaluator that he did not use drugs.  However, Miller testified that, while he had no recollection of the specific advice he gave defendant, he would never guarantee a client admission to Drug Court or tell a client that he would definitely be accepted as long as he admitted to using drugs.
The motion judge (before whom defendant had earlier pled guilty) issued a written opinion on June 15, 2010, rejecting defendant’s application to withdraw the plea. Considering the four factors set forth in State v. Slater, 198 N.J. 145, 157-58 (2009)[2], the judge first found that defendant failed to present a colorable claim of innocence.  Id. at 158. In fact, defendant presented no claim of innocence.  Second, the judge rejected defendant’s claim that he pled guilty based on a promise that he would qualify for Drug Court. The judge credited Miller’s testimony that he would not have promised defendant admission to the program.  The judge also recalled communicating to defendant at the plea hearing that he might not be accepted into the program.  Considering the third factor, the judge found that the guilty plea arose from a plea bargain that was very favorable for defendant, who faced a potential twenty-year extended sentence for robbery if tried and convicted.  Fourth, the judge found that the State could be prejudiced by the passage of time, due to witnesses' memories fading.
Having reviewed the record, we find no basis to disturb the motion judge’s evaluation of the Slater factors.  Defendant made no claim of innocence, and he was certainly extended-term eligible and thus facing a potential twenty-year jail term if convicted.  It would not have been rational for him to insist on going to trial.  See Slater, supra, 198 N.J. at 157-58; State v. Maldon, 422 N.J. Super. 475, 486 (App. Div. 2011).  We find no basis to second-guess the judge’s credibility determinations.  State v. Locurto, 157 N.J. 463, 470-74 (1999). We therefore cannot fault the judge for rejecting defendant’s claim that he was promised admission to Drug Court.  On this record, clearly he was not.
On this appeal, however, defendant argues for the first time that the State’s offer to permit him to apply to Drug Court was illusory, because he was "per se ineligible" for Drug Court.  He now contends that he was misled into pleading guilty because his attorney, the judge and the prosecutor all withheld from him the crucial information that he did not qualify for Drug Court from the beginning.  He also argues that the procedure followed was inconsistent with the Drug Court Manual[3], which requires that a defendant be screened for Drug Court eligibility before being required to plead guilty. See Drug Court Manual at 23 ("Acceptance into Drug Court Program").
The State argues that the procedures followed here resulted from the defense strategy.  The State contends that defendant’s counsel asked that his client be given a chance to apply to Drug Court, in the middle of the plea bargaining process.  As part of that bargain, the attorney convinced the prosecutor to let defendant plead (as the attorney put it) to "just a theft from a person" instead of robbery and the associated violent offenses with which he was charged.  The latter charges would have disqualified him from Drug Court eligibility. See N.J.S.A. 2C:35-14; Drug Court Manual at 21; State v. Clarke, 203 N.J. 166, 174-77 (2010).  As a result, defendant, who was extended-term eligible due to his many prior indictable convictions, avoided a potential twenty-year sentence for robbery.
We ordinarily will not consider arguments raised for the first time on appeal, and there is good reason to follow that rule here.  See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). Holding out the illusory offer of a Drug Court application to a defendant known to be per se ineligible, in order to induce a guilty plea, would be fundamentally unfair.    But, there is an insufficient factual record concerning defendant’s appellate argument on that issue, because he did not raise the claim in the trial court.  We can only speculate as to why the prosecutor’s office agreed to allow defendant to apply to Drug Court and then apparently rejected him as "per se ineligible."  Perhaps his complete criminal and juvenile records were not available at the time of the plea negotiations. The record does not reflect that defendant appealed his rejection from Drug Court, which would have created a record as well.
Because the argument was not raised in the trial court and relies on facts outside this record, we decline to consider the argument without prejudice to defendant’s right to raise the issue in a petition for post-conviction relief.  See State v. Preciose, 129 N.J. 451, 462-63 (1992). We note that, notwithstanding his many school zone drug convictions, and his prior juvenile conviction for aggravated assault decades ago, defendant appears to be an offender severely (and perhaps primarily) in need of drug treatment. Unless that is made available to him, the State’s victory here will be pyrrhic indeed.
Finally, in reviewing the judgments of conviction (JOCS), we observe that although the judge stated at sentencing that defendant would be entitled to 742 days of jail credit, based on his pre-sentence incarceration from July 19, 2008 to the day before the June 15, 2010 sentencing date, the JOC for the theft conviction incorrectly lists the jail credit as "096."  Further, the JOC for the drug conviction only lists one day of jail credit.  Therefore, we remand this matter to the trial court to correct the theft JOC to reflect the proper amount of jail credit.  On defendant's application on remand, the court should also consider whether, in its discretion, the 742 days of jail credit should be applied to the drug sentence, so that if otherwise appropriate, defendant may become eligible for release to a drug treatment program or eligible for the Intensive Supervision Program at an earlier date.  See State v. Hernandez, 208 N.J. 24, 37 (2011) (recognizing that jail credit can reduce a term of parole ineligibility, and a court may award discretionary credit in the interests of justice).[4]
Affirmed in part, remanded in part.


[1] The form was signed by Dawn K. Scala, the same person the prosecutor told the judge she needed to check with before agreeing to the plea bargain.
[2] The Slater factors are: "(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." Ibid.
[3] Administrative  Office  of  the  Courts,  Manual  for Operation of  Adult  Drug  Courts in New  Jersey (July 2002), available  at (Drug Court Manual).

[4] We recognize that Hernandez has very limited pipeline retroactivity and would not, in this case, mandate that the jail credit apply to both sentences.  We construe Hernandez as leaving the judge discretion on that sentencing issue.