NOT FOR PUBLICATION WITHOUT THE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-4957-15T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DONALD A. ALLEN,
Defendant-Appellant.
___________________________
Submitted September 19, 2017 – Decided October 11, 2017
Before Judges Reisner and Gilson.
On appeal from Superior Court of New Jersey,
Law Division, Essex County, Indictment No.
03-08-0041.
Donald A. Allen, appellant pro se.
Christopher S. Porrino, Attorney General,
attorney for respondent (Arielle E. Katz,
Deputy Attorney General, of counsel and on the
brief).
PER CURIAM
Defendant Donald A. Allen appeals from a March 17, 2016 order
denying his motion to withdraw his guilty plea. We affirm because
defendant failed to show any basis for his requested relief.
I.
In August 2003, defendant was indicted for first-degree
distribution of marijuana, N.J.S.A. 2C:35-5(a)(1), N.J.S.A. 2C:35-
5(b)(10)(a), N.J.S.A. 2C:35-5(c), and N.J.S.A. 2C:2-6, and second-
degree conspiracy to distribute marijuana, N.J.S.A. 2C:5-2,
N.J.S.A. 2C:35-5(a)(1), N.J.S.A. 2C:35-5(b)(10)(a), and N.J.S.A.
2C:35-10(a)(3). While those charges were pending, deportation
proceedings were initiated against defendant, who is a Jamaican
citizen, after he was convicted of violating probation in New York
for separate charges.
Thereafter, on May 1, 2006, defendant pled guilty to first-
degree distribution of marijuana. In the negotiated plea
agreement, the State agreed to recommend a sentence of ten years
in prison with thirty-six months of parole ineligibility.
On June 1, 2006, defendant was deported before he was
sentenced. Accordingly, when defendant failed to appear for
sentencing in July 2006, a bench warrant issued for his arrest.
In 2009, defendant re-entered this country illegally.
Eventually he was arrested and convicted of other crimes in
Arizona. After serving his sentence in Arizona, defendant was
extradited to New Jersey in 2012. On October 3, 2012, defendant
was sentenced for his 2006 New Jersey conviction. In accordance
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with the plea agreement, defendant was sentenced to ten years in
prison with thirty-six months of parole ineligibility.
In December 2012, defendant, representing himself, filed a
motion to withdraw his guilty plea. Shortly thereafter, defendant,
again representing himself, filed a petition for post-conviction
relief (PCR). In his PCR petition, defendant alleged ineffective
assistance of counsel for failing to advise him of the possibility
of deportation, violations of due process for the delay in his
sentencing, and related issues.
On May 5, 2014, the trial court denied defendant's PCR
petition. On appeal, we affirmed and the Supreme Court denied
certification. State v. Allen, Docket No. A-5472-13 (App. Div.
Apr. 20, 2015), certif. denied, 223 N.J. 283 (2015).
On March 17, 2016, the trial court entered an order denying
defendant's motion to withdraw his guilty plea. In support of
that ruling, the trial court issued a comprehensive written
opinion.
II.
Defendant now appeals from the March 17, 2016 order denying
his motion to withdraw his guilty plea. Defendant makes two
arguments on appeal, which he articulates as follows:
POINT I – TRIAL COUNSEL['S] ACTIONS [TO]
UNDERMINE[] DEFENDANT[']S ATTEMPT TO RETRACT
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HIS PLEA DEPRIVED HIM OF THE EFFECTIVE
ASSISTANCE OF COUNSEL.
POINT II – THE TRIAL COURT WAS PREJUDICE AND
ABUSED ITS DISCRETION IN DENYING THE
DEFENDANT[']S MOTION IN VIOLATION OF HIS DUE
PROCESS RIGHTS UNDER THE SPEEDY TRIAL ACT OF
THE SIXTH AMENDMENT.
Having reviewed the record, we conclude that all of
defendant's arguments are without sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(2). We add a few
additional comments.
Defendant's arguments concerning the grounds for withdrawing
his guilty plea all relate to events that happened after he pled
guilty. In particular, defendant focuses on his deportation, the
delay in his sentencing, and the delay in the ruling on his motion
to withdraw his guilty plea. None of those contentions relate to
the factors that might support a withdrawal of a guilty plea. See
State v. Slater, 198 N.J. 145 (2009).
Motions to withdraw guilty pleas after sentencing are subject
to the manifest injustice standard. R. 3:21-1. Courts evaluate
four factors in assessing whether defendant has demonstrated a
valid basis for withdrawing a guilty plea. Slater, supra, 198
N.J. at 157-58. Those factors are (1) whether defendant has
asserted a colorable claim of innocence; (2) the nature and
strength of defendant's reasons for withdrawal; (3) the existence
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of a plea bargain; and (4) whether the withdrawal would result in
unfair prejudice to the State or unfair advantage to the accused.
Ibid. Here, defendant has not established any of the Slater
factors.
In short, defendant has not asserted a colorable claim of
innocence; he has not set forth valid reasons for withdrawing his
guilty plea; there was a valid and negotiated plea agreement; and
a withdrawal at this late date would result in unfair prejudice
to the State.
Defendant also argues that his trial counsel was ineffective
in not supporting his motion to withdraw his guilty plea prior to
his sentence in October 2012. This argument is flawed for two
reasons. First, defendant should have raised this argument in his
first PCR petition, and he is now barred from making the argument
belatedly. R. 3:22-4(b). Second, even if we were to consider
defendant's argument on its merits, he has not shown a prima facie
case of ineffective assistance of counsel. As we have already
reviewed, defendant has not satisfied the standard for withdrawing
a guilty plea and, therefore, he cannot show prejudice. See
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052,
2064, 80 L. Ed. 2d 674, 693 (1984) (to establish a claim of
ineffective assistance of counsel, defendant must show that
counsel rendered inadequate representation and that the deficient
5 A-4957-15T2
performance caused defendant prejudice). State v. DiFrisco, 137
N.J. 434, 457 (1994) (holding that a defendant must show a
reasonable probability that, but for counsel's alleged error,
defendant would not have pled guilty), cert. denied, 516 U.S.
1129, 116 S. Ct. 949, 113 L. Ed. 2d 873 (1996).
Affirmed.
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