SUPERIOR
COURT OF NEW JERSEY
APPELLATE
DIVISION
STATE
v.
DWAYNE C. McMILLAN a/k/a
DWAYNE McMILLEN and
DWAYNE McMILLIAN,
___________________________
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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).
PER CURIAM
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.
I
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.
II
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.
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[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 http://www.judiciary.state.nj.us/directive/dctman.pdf.
(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.
