STATE OF NEW JERSEY VS. GARY W. JONES (17-04-0305, UNION COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-5502-18T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

GARY W. JONES, a/k/a
WILLIAM FALKINBURG,
and HAKEEM JONES,

Defendant-Appellant.
________________________

Submitted December 2, 2020 – Decided December 24, 2020

Before Judges Geiger and Mitterhoff.

On appeal from the Superior Court of New Jersey, Law
Division, Union County, Indictment No. 17-04-0305.

Hegge & Confusione, LLC, attorneys for appellant
(Michael Confusione, of counsel and on the brief).

Lyndsay V. Ruotolo, Acting Prosecutor of Union
County, attorney for respondent (Meredith L. Balo,
Special Deputy Attorney General/Acting Assistant
Prosecutor, of counsel and on the brief).

PER CURIAM
 Defendant Gary W. Jones appeals from a June 25, 2019 order denying his

motion to withdraw his guilty plea and an August 9, 2019 judgment of

conviction. We affirm, save for defendant’s assertion of ineffective assistance

of trial counsel, which we preserve for future application by defendant for post -

conviction relief (PCR).

This appeal arises from a January 27, 2017 armed robbery committed by

defendant outside a liquor store in Elizabeth. A Union County grand jury

returned two indictments. Indictment No. 17-04-0304 charged defendant with

first-degree armed robbery, N.J.S.A. 2C:15-1(a)(1), and related offenses (the

first indictment). Indictment No. 17-04-0305 charged defendant with second-

degree certain persons not to have weapons, N.J.S.A. 2C:39-7(b)(1) (the second

indictment).

The underlying facts and procedural history were set forth in our opinion

on direct appeal of the defendant's conviction and sentence from the first

indictment.

A jury convicted defendant Gary W. Jones of
first-degree armed robbery, N.J.S.A. 2C:15-1(a)(1); the
lesser-included third-degree aggravated assault,
N.J.S.A. 2C:12-1(b)(2); second-degree unlawful
possession of a weapon, N.J.S.A. 2C:39-5(b)(1);
second-degree possession of a weapon for unlawful
purpose (handgun), N.J.S.A. 2C:39-4(a)(1); fourth-

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degree aggravated assault with a firearm (pointing),
N.J.S.A. 2C:12-1(b)(4); and fourth-degree obstruction,
N.J.S.A. 2C:29-1(a). The jury acquitted defendant of
third-degree resisting arrest, N.J.S.A. 2C:29-2(a)(3)(A)
and 2C:29-2(a)(3)(B). On that same day, defendant
entered a guilty plea to second-degree certain persons,
N.J.S.A. 2C:39-7(b)(1), charged in a separate
indictment. After merging the possession of a weapon
and pointing convictions with the first-degree robbery,
the judge sentenced defendant to a discretionary
persistent offender extended term of fifty years subject
to the No Early Release Act (NERA), N.J.S.A. 2C:43-
7.2. See also N.J.S.A. 2C:44-3(a) and 2C:43-7(a)(2).
When sentenced, defendant was forty-five years old.
We now affirm the convictions, vacate the sentence,
and remand for a new sentence to be imposed.

The circumstances of the crime, as we describe
them, were captured on surveillance tape operated by
the City of Elizabeth Police Department and a second
surveillance tape, belonging to the store in front of
which the robbery occurred. The films, and the stills
extracted from them, were shown to the jury. The
victim, and police officers who arrived on the scene
immediately after defendant’s commission of the
robbery, testified at trial.

The victim was leaving the store at
approximately 10:00 p.m. when defendant, who was
armed, approached him and demanded his money. The
victim responded that he had nothing and attempted to
enter his vehicle, parked immediately in front of the
establishment. Defendant followed, grabbed the
victim’s arm and said, "Oh, you think I’m playing?"
The victim replied, "You really want to do this?"

Defendant shot the victim in the leg. The victim
began to run towards the nearby police station, while

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 defendant gave chase. Elizabeth Police Officer Jason
Luis was driving by when he heard the gunshot. He and
his partner, John Londono, immediately looked towards
the sound and saw a man running in their direction, with
another person close behind. The officers immediately
pulled over, and as they left their vehicle heard the man
closest to them yell, "He shot me," pointing to his
pursuer. The second man’s body was slanted sideways
to the officers, his hands at his waistband.

When Luis attempted to stop the second man, the
second man began to run "in a full sprint" until he
stumbled. Luis tackled him onto the ground and
realized he had a gun. Luis knocked the gun aside, and
along with Londono wrestled the second man,
defendant, until they were able to handcuff him when
other officers arrived. The officers arrested defendant
and seized his gun.

The officers then drove defendant to the
ambulance where the victim was being treated. Luis
conducted the show-up, and he testified that before he
spoke to the victim, he attempted to recall the
identification warnings usually made prior to a photo
array or a lineup. He recorded the identification on his
bodycam. Luis told the victim that there was no
certainty that the person he was about to see was the
perpetrator. Before police even removed defendant
from the vehicle, however, the victim called out that
defendant shot him.

[State v. Jones, No. A-1499-18 (App. Div. Mar. 17,
2020) (slip op. at 2-4).]

We affirmed the convictions. Id. at 2. We found that the robbery "was

certainly a heinous crime in that after shooting the victim in the leg during the

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robbery, defendant chased the victim. Defendant’s prior criminal history made

him eligible for extended-term sentencing." Id. at 14. We nevertheless vacated

the sentence and remanded for resentencing, concluding that imposing "a fifty-

year NERA sentence on a forty-five-year-old man [was] effectively a life

sentence." Id. at 2, 14.

On the same day the jury returned its verdict on the first indictment,

defendant pled guilty to the certain persons offense, in exchange for a

recommended sentence of a concurrent ten-year term, subject to a five-year

period of parole ineligibility. During the plea hearing, defendant testified that

he understood his sentencing exposure and the recommended sentence. He

acknowledged that he was pleading guilty because he was guilty and that no one

forced him to do so or made him any other promises. Defendant also

acknowledged the rights he was waiving by pleading guilty. Defendant testified

that he answered the questions on the plea forms, initialed the pages of the plea

form, signed the supplemental Graves Act plea form, and did not want to change

any of his answers. He further acknowledged that he was satisfied with the

services provided by counsel and had no questions for his attorney or the court.

Defendant provided a factual basis for his plea, acknowledging that on

January 27, 2017, in Elizabeth, he unlawfully possessed a handgun without a

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firearm permit and was not eligible to obtain a firearm permit because of a prior

conviction. Based on defendant's testimony, the court accepted the plea.

Prior to sentencing on the second indictment, defendant moved to

withdraw his guilty plea. In a supporting certification, defendant asserted that

despite the jury's verdict, he did not possess a weapon on the date of the robbery

and was not guilty of the offenses. Defendant averred that "[i]t was the alleged

victim that possessed a weapon."

Defendant further asserted ineffective assistance of counsel, contending

that trial counsel failed to call unnamed witnesses and failed to introduce certain

evidence at the trial of the first indictment. He claimed that contrary to the

testimony of one officer, who alleged that defendant had a weapon on his person

when he detained him, police body camera video demonstrated that police were

still searching for a weapon at the crime scene while he was already in custody.

Defendant also claimed that trial counsel gave him inaccurate legal advice

by advising him that pleading guilty to the certain persons charge would not

affect his appeal. He alleged that only after pleading guilty did he learn that,

even if successful on his appeal of the jury verdict, he would still have the certain

persons conviction and would have to serve that sentence. He also alleged that

trial counsel told him that the maximum sentence for the robbery was twenty

A-5502-18T2
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years with an eighty-five percent parole bar. Defendant stated it was only after

he pled guilty to the certain persons offense that he was made aware that the

State would be moving for an extended sentence.

The court issued a June 25, 2019 order and written opinion denying

defendant's motion to withdraw his guilty plea. It analyzed the motion under

the four-prong test adopted by our Supreme Court in State v. Slater, 198 N.J.

145, 157-58 (2009). The court found that defendant did not present a colorable

claim of innocence, did not provide any evidence to support his claim that he

did not possess a weapon during the incident, did not satisfy either prong of the

test to set aside a guilty plea based on ineffective assistance of counsel, and pled

guilty pursuant to a plea agreement. The court also found that withdrawal of the

guilty plea would not unduly prejudice the State or give defendant an unfair

advantage. Thus, three of the four Slater factors weighed against allowing

withdrawal of the plea.

On August 9, 2019, the judge sentenced defendant in accordance with the

plea agreement to a concurrent ten-year term with a five-year parole-bar, finding

aggravating factors three, six, and nine, and no mitigating factors. It found that

from 1993 to 2014, defendant had been convicted of eleven crimes and exhibited

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"a pattern of criminal conduct that is increasing in its severity." This appeal

followed.

October 1, 2020, defendant was resentenced on the first indictment to an

extended twenty-five-year NERA term on the armed robbery; a concurrent four-

year term on the third-degree aggravated assault; a concurrent five-year term,

subject to a forty-two-month period of parole ineligibility, on the second-degree

unlawful possession of a weapon; and a one-year concurrent term on the fourth-

degree obstruction. The judge found that aggravating factors one ("nature and

circumstances of the offense"), N.J.S.A. 2C:44-1(a)(1); three (risk of

reoffending), N.J.S.A. 2C:44-1(a)(3); six (prior record), N.J.S.A. 2C:44-1(a)(6);

and nine (deterrence), N.J.S.A. 2C:44-1(a)(9); substantially outweighed

mitigating factor nine (defendant unlikely to commit another offense), N.J.S.A.

2C:44-1(b)(9).

Defendant raises the following points in this appeal:

POINT I

THE TRIAL COURT ERRED IN DENYING
DEFENDANT'S MOTION TO WITHDRAW HIS
GUILTY PLEA BEFORE SENTENCING.

POINT II

DEFENDANT'S SENTENCE IS IMPROPER AND
EXCESSIVE.

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 I.

Where a defendant asserts his innocence, we review the grant or denial of

a motion to withdraw a guilty plea for abuse of discretion. State v. Tate, 220

N.J. 393, 404 (2015) (citing State v. Lipa, 219 N.J. 323, 332 (2014)). An abuse

of discretion "arises when a decision is 'made without a rational explanation,

inexplicably departed from established policies, or rested on an impermissible

basis.'" State v. Williams, 458 N.J. Super. 274, 280 (App. Div. 2019) (quoting

Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002)).

"[T]he defendant shall be permitted to withdraw the plea" if the trial court

"determines that the interests of justice would not be served by effectuating the

agreement reached by the prosecutor and defense counsel." R. 3:9-3(e). "[T]he

timing of the motion will trigger different burdens of proof for the movant. "

Slater, 198 N.J. at 158. "Before sentencing, courts are to exercise their

discretion liberally to allow plea withdrawals." Id. at 156 (citations omitted).

"In a close case, the 'scales should usually tip in favor of defendant.'" State v.

Munroe, 210 N.J. 429, 441 (2012) (quoting Slater, 198 N.J. at 156).

A defendant moving to withdraw a guilty plea "bears the burden of

presenting a 'plausible basis for his request' and a good-faith basis for 'asserting

a defense on the merits.'" Id. at 442 (quoting Slater, 198 N.J. at 156).

A-5502-18T2
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 In Slater, the court adopted the following four-prong test for determining

whether defendant has met this burden: "(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."

Slater, 198 N.J. at 157-58. "Trial courts should consider and balance all of the

factors discussed above in assessing a motion for withdrawal of a plea. No

factor is mandatory; if one is missing, that does not automatically di squalify or

dictate relief." Id. at 162.

As to the first prong, "[a] bare assertion of innocence is insufficient to

justify withdrawal of a plea." Id. at 158. A defendant must "present specific,

credible facts and, where possible, point to facts in the record that buttress [his]

claim." Ibid. Courts "should simply consider whether a defendant's assertion

of innocence is more than a blanket, bald statement and rests instead on

particular, plausible facts." Id. at 159.

Under the second prong, the trial court should "focus[] on the basic

fairness of enforcing a guilty plea by asking whether defendant has presented

fair and just reasons for withdrawal, and whether those reasons have any force."

Id. at 159. "The nature and strength of a defendant's reasons for withdrawal of

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a plea will necessarily depend on the circumstances peculiar to the case ."

Munroe, 210 N.J. at 442.

Under the third prong, the trial court should place a heavier burden of

proof on a defendant who enters a plea as part of a plea bargain; however, this

factor receives the least weight in the overall analysis because most criminal

cases are resolved through plea bargains. Slater, 198 N.J. at 160-61.

Under the fourth prong, "the critical inquiry . . . is whether the passage of

time has hampered the State's ability to present important evidence." Id. at 161.

"Thus, the trial court must consider the delay to the State in presenting its case

to the jury because of the plea-withdrawal motion." Munroe, 210 N.J. at 443.

Applying those principles, we affirm the denial of defendant's motion to

withdraw his guilty plea substantially for the reasons expressed by the trial court

in its comprehensive written decision. We add the following comments.

The record supports the trial court's finding that defendant's "bare

assertion of innocence" did not establish a colorable claim of innocence.

Defendant's profession of innocence is belied by his admission of guilt to the

charge at his plea hearing. During the plea colloquy, he admitted that he

unlawfully possessed a handgun and that a prior conviction made him ineligible

to obtain a firearms permit.

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 In addition, defendant did not present the body cam videos that he claimed

supported his claim of innocence. Nor did he establish that the videos

corroborate his claims or that they still exist. More fundamentally, even if

defendant no longer possessed the handgun when captured by police, the

evidence presented at trial satisfied the jury that he possessed the handgun

during the robbery, used it to shoot the victim in the leg, and chased the victim

while still holding the handgun.

Moreover, defendant pleaded guilty immediately after the jury found him

guilty beyond a reasonable doubt of armed robbery, aggravated assault-causing

bodily injury with a deadly weapon; unlawful possession of a weapon;

possession of a weapon for an unlawful purpose (handgun); and aggravated

assault with a firearm (pointing). See Jones, slip op. at 2. Aside from the merger

of certain counts into the robbery, those convictions were affirmed on appeal.

As to defendant's claim of ineffective assistance of counsel, to the extent

defendant’s claims are reliant on matters outside the record, we decline to

consider defendant's argument in the present context, applying the "general

policy against entertaining ineffective-assistance-of-counsel claims on direct

appeal because such claims involve allegations and evidence that lie outside the

trial record." State v. Preciose, 129 N.J. 451, 460 (1992). To that end, a claim

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of ineffective-assistance-of-counsel is best addressed in a post-conviction relief

proceeding. State v. Morton, 155 N.J. 383, 433 (1998). Our decision does not

preclude defendant from raising his ineffective-assistance-of-counsel claim in a

timely filed petition for post-conviction relief. See ibid. (citing State v.

Marshall, 148 N.J. 89, 147-54 (1997) (permitting defendant to raise ineffective

assistance of counsel claims in post-conviction relief proceeding despite

rejection of these claims on direct appeal)).

The second factor focuses on the basic fairness of enforcing a guilty plea.

It requires that the court ask whether the defendant has presented “fair and just

reasons for withdrawal,” and considers the effectiveness of those reasons.

Slater, 198 N.J. at 159. Case law has identified a number of reasons that warrant

withdrawal of a plea. Those reasons include: (i) whether “the court and

prosecutor misinformed the defendant about a material element of the plea

negotiation, which the defendant relied on in entering his plea;” (ii) “the

defendant was not informed and, thus, did not understand material terms and

relevant consequences of the guilty plea, namely, the direct, penal consequences

of the plea;” (iii) the “defendant’s reasonable expectations under the plea

agreement were not met;” and (iv) “the defendant has not only made a plausible

showing of a valid defense against the charges, but also credibly demonstrated

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why that defense ‘was forgotten or missed’ at the time of the plea.” Id. at 159-

60 (citations omitted).

The nature and strength of defendant’s reasons for withdrawal are

inadequate. The review of the plea forms, the recitation of defendant's

sentencing exposure, and the accurate description of the recommended sentence

during the plea hearing, and defendant's testimony during the plea hearing,

coupled with the fact that defendant was sentenced in accordance with the plea

agreement demonstrate that defendant was not misled by counsel as to the

outcome of his guilty plea.

Defendant alleges that trial counsel misadvised him that the maximum

sentence for his robbery conviction was a twenty-year NERA term. Counsel's

advice was accurate at the time defendant pled guilty. The State had not yet

moved for a discretionary persistent offender extended term. And, while the

State's motion was ultimately granted, the fifty-year NERA term initially

imposed by the trial court was reduced to a twenty-five-year NERA term on

resentencing. Defendant has not demonstrated that he would not have pled

guilty to the certain persons charge had he known his sentence for the robbery

would be a twenty-five-year NERA term. See State v. Nuñez-Valdéz, 200 N.J.

129, 139 (2009) (holding that to set aside a guilty plea based on ineffective

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assistance of counsel, the defendant must demonstrate "that there is a reasonable

probability that, but for counsel's errors, [the defendant] would not have pled

guilty and would have insisted on going to trial." (alteration in original) (quoting

State v. DiFrisco, 137 N.J. 434, 457 (1994))).

Although defendant entered his guilty plea as part of a plea agreement, the

judge did not place much weight on this factor and stated it had "little effect" in

denying defendant's motion.

The judge court found that withdrawal of defendant's guilty plea would

neither unduly prejudice the State nor give defendant an unfair advantage. He

therefore concluded that the fourth factor "weigh[ed] in favor of withdrawal of

[d]efendant's guilty plea."

We conclude that the trial court properly applied and weighed the Slater

factors. The record amply supports its finding that three of the four Slater

factors weighed against allowing defendant to withdraw his guilty plea. (Da24).

We discern no abuse of discretion.

II.

Defendant contends that his ten-year term sentence was excessive. We

review a trial court's sentencing determination deferentially, State v. Lawless,

214 N.J. 594, 606 (2013), and do not ordinarily substitute our judgment for that

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of the sentencing court. State v. Liepe, 239 N.J. 359, 370-71 (2019) (citing State

v. Fuentes, 217 N.J. 57, 70 (2014)). Our review is limited to consideration of:

(1) whether guidelines for sentencing established by the
Legislature or by the courts were violated; (2) whether
the aggravating and mitigating factors found by the
sentencing court were based on competent credible
evidence in the record; and (3) whether the sentence
was nevertheless "clearly unreasonable so as to shock
the judicial conscience."

[Liepe, 239 N.J. at 371 (quoting State v. McGuire, 419
N.J. Super. 88, 158 (App. Div. 2011)).]

In our prior opinion, we found: "Defendant’s criminal history is lengthy

and includes juvenile adjudications. He has been sentenced on ten different

occasions between 1991 and 2013 for twelve indictable offenses and served

prison and probation terms. Defendant has violated both probation and parole.

He has also been convicted in municipal court of several offenses." Jones, slip

op. at 12-13 (footnote omitted). Those same findings apply here.

Defendant argues that the court failed to adequately weigh the aggravating

and mitigating factors when it sentenced him to a maximum term. We disagree.

The court noted that defendant's record included five adjudications of

delinquency, four probationary terms, and four violations of probation (VOP) as

a juvenile. As an adult, defendant incurred five disorderly persons convictions,

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twelve prior indictable convictions, seven probationary terms, six VOPs, five

prison terms, and five parole violations.

The record fully supports the aggravating factors found by the court and

its conclusion that those factors outweighed the non-existent mitigating factors.

Defendant is fairly characterized as a persistent offender who has been

committing offenses since he was fourteen. Imposing the recommended

maximum term was not an abuse of discretion. Importantly, the sentence runs

concurrently with the much longer NERA term imposed for the armed robbery.

Defendant's sentence is not manifestly excessive or unduly punitive and does

not shock the judicial conscience.

Affirmed.

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