STATE OF NEW JERSEY VS. CHRISTOPHER EMMONS (FO-03-0248-19, BURLINGTON COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE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-3525-18T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CHRISTOPHER EMMONS,

Defendant-Appellant.
________________________

Submitted November 17, 2020 – Decided February 3, 2021

Before Judges Gilson and Moynihan.

On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Burlington County,
Docket No. FO-03-0248-19.

Domers, Bonamassa & Hynes, PC, attorneys for
appellant (Michael A. Bonamassa, on the brief).

Scott A. Coffina, Burlington County Prosecutor,
attorney for respondent (Alexis R. Agre, Assistant
Prosecutor, of counsel and on the brief).

PER CURIAM
 Defendant Christopher Emmons appeals from an order of disposition after

he pleaded guilty to and was sentenced for contempt of a final restraining order

(FRO), N.J.S.A. 2C:29-9(b)(2), that prohibited him from having any contact

with his former girlfriend, the mother of his daughter, arguing:

POINT I

[DEFENDANT] WAS WITHOUT THE CAPACITY
TO ENTER INTO A PLEA OF GUILTY TO THE FRO
AND SHOULD HAVE BEEN AFFORDED, BY WAY
OF DISCUSSION WITH HIS COUNSEL, OR BY THE
COURT, TO WITHDRAW HIS GUILTY PLEA WITH
THE MATTER TO BE SCHEDULED FOR AN
EVIDENTIARY HEARING BECAUSE:

1. THE PLEA WAS NOT ACTUALLY
KNOWING AND VOLUNTARY, AS
[DEFENDANT] HAD QUESTIONS FOR
THE COURT AND DID NOT KNOW
THE SERIOUSNESS OF THE
CHARGES, AND

2. HE DID NOT UNDERSTAND NOR
PROVIDE A FULL FACTUAL BASIS
FOR THE CHARGES.

POINT II

DEFENDANT'S GUILTY PLEA MUST BE
VACATED BECAUSE HE WAS MIS-ADVISED
BOTH BY HIS COUNSEL AND THE [PLEA] COURT
CONCERNING THE CONSEQUENCES OF HIS
PLEA. AT MINIMUM, DEFENDANT MAINTAINS
A CLAIM OF INEFFECTIVE ASSISTANCE OF
COUNSEL.

A-3525-18T3
2
Defendant never filed a motion to withdraw his plea or a petition for post -

conviction relief (PCR); on the record before us, we affirm.

Rule 3:9-2 prohibits the plea court from accepting a plea

without first questioning the defendant personally,
under oath or by affirmation, and determining by
inquiry of the defendant and others, in the court's
discretion, that there is a factual basis for the plea and
that the plea is made voluntarily, not as a result of any
threats or of any promises or inducements not disclosed
on the record, and with an understanding of the nature
of the charge and the consequences of the plea.

"Once it is established that a guilty plea was made voluntarily, it may only be

withdrawn at the discretion of the trial court." State v. Lipa, 219 N.J. 323, 332

(2014).

Under Rule 3:21-1, "[a] motion to withdraw a plea of guilty or non vult

shall be made before sentencing, but the court may permit it to be made

thereafter to correct a manifest injustice." Thus, a defendant may withdraw a

post-sentencing plea only to "correct a manifest injustice," whereas prior to

sentencing the plea may be withdrawn in "the interest of justice." Lipa, 219 N.J.

at 332; see R. 3:9-3(e), 3:21-1.

When the reason for the motion to withdraw is a lack of an adequate

factual basis, our review is de novo because we are "in the same position as the

trial court in assessing whether the factual admissions during [the] plea colloquy

A-3525-18T3
3
satisfy the essential elements of [the] offense" which does not involve "making

a determination based on witness credibility or the feel of the case,

circumstances that typically call for deference to the trial court." State v. Tate,

220 N.J. 393, 403-04 (2015).

Where, however, an adequate factual basis supports the plea "but the

defendant later asserts his [or her] innocence," id. at 404, a motion to withdraw,

whether made before or after sentencing, is judged by the four-prong test set

forth in State v. Slater, 198 N.J. 145, 157-58 (2009), which requires a court to

balance: "(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 [will] result in unfair

prejudice to the State or unfair advantage to the accused." See also Tate, 220

N.J. at 404. We review appeals of such motions for abuse of discretion because

in deciding those motions "the trial court is making qualitative assessments

about the nature of a defendant's reasons for moving to withdraw his plea and

the strength of his case and because the court is sometimes making credibility

determinations about witness testimony." Ibid.

Defendant contends because the plea court "failed to satisfy the[]

requirements of . . . Rule [3:9-2], Slater directs that the plea be withdrawn."

A-3525-18T3
4
This argument misapprehends the law. His argument that the plea court failed

to comply with Rule 3:9-2 requires an analysis discrete from that which would

have been required for his contention that he inadvertently had telephone contact

with the victim when he attempted to call back his daughter who lived with the

victim and with whom he was speaking before that call was dropped. As the

Tate Court explained, "when the issue is solely whether an adequate factual basis

supports a guilty plea, a Slater analysis is unnecessary." Ibid. In that defendant

did not file a motion to withdraw in the Family Part, our review is limited to that

which we can review de novo: whether the plea colloquy established an

adequate factual basis and otherwise complied with Rule 3:9-2.

We start with the factual basis. "A factual basis for a plea must include

either an admission or the acknowledgment of facts that meet 'the essential

elements of the crime.'" Id. at 406 (quoting State ex rel. T.M., 166 N.J. 319, 333

(2001)). The elements of disorderly persons contempt of a restraining order are:

(1) There was a court order entered under the provisions
of the "Prevention of Domestic Violence Act" [1][;]

(2) [t]he defendant knew of the existence of the order[;]

(3) [t]he defendant purposely or knowingly violated a
provision of the order[; and]

1
Prevention of Domestic Violence Act of 1991, N.J.S.A. 2C:25-17 to -35.
A-3525-18T3
5
 (4) [t]he conduct which constituted the violation could
also constitute a crime or a disorderly persons offense.

[Model Jury Charges (Criminal), "Violation of an Order
Under the Prevention of Domestic Violence Act
(N.J.S.A. 2C:29-9(b))" (rev. June 20, 1997); see also
N.J.S.A. 2C:29-9(b)(2).]

Defendant admitted: he was present when the November 9, 2018 FRO

was entered; he was served with the FRO; the FRO prohibited him from having

any contact with the victim; and he called the house where the victim lived

knowing that such action violated the restraining order. Despite defendant's

explanation that he was calling his daughter, in prior colloquy with the plea court

during which the court invited him to ask any questions he wished, defendant

complained it was "very hard for [him] to contact [his] daughter" because he

could not call the house under the FRO's proscriptions. He sua sponte admitted,

"I can't call the house." He asked the court if there was a way to change the

FRO's terms to allow him to call his daughter although she lived in the same

house as the victim. Thus, defendant knew that he was violating the order by

calling the victim's house even though he was attempting to speak with his

daughter. As the plea court found, there was an adequate factual basis satisfying

all the elements of the offense. This was not a circumstance where Rule 3:9-2

was required to "protect a defendant who [was] in the position of pleading

A-3525-18T3
6
voluntarily with an understanding of the nature of the charge but without

realizing that his conduct [did] not actually fall within the charge." State v.

Barboza, 115 N.J. 415, 421 (1989) (quoting Fed. R. Crim. P. 11(f) advisory

committee's note to 1966 amendment); see also Tate, 220 N.J. at 406.

The plea court also established the other requirements of Rule 3:9-2. The

court explained, and defendant acknowledged his understanding, that the plea

would result in his disorderly persons conviction for contempt of a court orde r;

a prohibition on his possession of any weapons; and its impact on defendant's

immigration status. The prosecutor had already set forth the terms of the plea

agreement, including the State's recommendation for the imposition of

mandatory fines, penalties and a domestic violence weapons order. Defendant's

counsel concurred with those terms. Defendant also acknowledged he was

waiving his right to trial at which the State would have the burden to prove his

guilt beyond a reasonable doubt. Defendant admitted no one forced or coerced

him to enter the guilty plea, and that he was doing so freely, voluntarily and with

full understanding of the plea's consequences. He denied being under the

influence of "drugs, alcohol or anything else that would alter [his] ability to

understand [what was] taking place" in court; despite having worked all night

he told the court, "I understand what's going on."

A-3525-18T3
7
 The record belies defendant's merits-brief argument that he was "unaware

that he [was] entering into a serious plea, to which he [was] pleading guilty and

for which he [was] waiving and giving up his right to a trial" and that he was

"incapacitated to a certain degree." We are satisfied the plea court complied

with Rule 3:9-2.

As we noted, defendant's remaining claims, asserting an explanation or

defense to the charge to which he pleaded guilty, were not presented to the

Family Part in a motion to withdraw his plea, thus depriving the court of an

opportunity to make "qualitative assessments about the nature of . . . defendant's

reasons for moving to withdraw his plea and the strength of his case ," and

perhaps to make "credibility determinations about witness testimony." Tate, 220

N.J. at 404. We will not consider the issue which requires a full analysis under

Slater and Rule 3:21-1. See State v. Robinson, 200 N.J. 1, 15 (2009). Because

defendant has been sentenced, the Family Part would have to determine if

withdrawal is required to correct a "manifest injustice." See R. 3:21-1. Such a

determination requires the Family Part to weigh the preference for "the finality

of judicial procedures" against the policy consideration that "no [person] be

deprived of . . . liberty except upon conviction after the entry of a plea of guilty

under circumstances showing that it was made truthfully, voluntarily and

A-3525-18T3
8
understandingly." State v. McQuaid, 147 N.J. 464, 487 (1997); see also State v.

Johnson, 182 N.J. 232, 237 (2005). Because those discretionary determinations

under Slater and the Rule have not been addressed on a proper motion before

the Family Part, we decline to address them on this record.

Defendant baldly claims his plea counsel was ineffective because she, like

counsel in State v. Nuñez-Valdéz, 200 N.J. 129 (2009), provided erroneous

advice. He asserts he "had the right to know that he had the ability to address

the charge and also that he had a legitimate defense to the violation of [the]

restraining order," seemingly relying on his contention that contact with the

victim was inadvertent. He argues he "should be entitled, at the very least[,] to

an evidentiary hearing to determine if his defense was shared or even suspected

by his trial counsel."

As stated, defendant did not file a PCR petition. If a PCR petition was

filed, defendant would still have to establish a prima facie case before he would

be entitled to an evidentiary hearing. R. 3:22-10(b); State v. Preciose, 129 N.J.

451, 462 (1992).

The record is barren of any affidavit, certification—including

defendant's—or other evidence relating to the advice given by defendant's plea

counsel. "Our courts have expressed a general policy against entertaining

A-3525-18T3
9
ineffective-assistance-of-counsel claims on direct appeal because such claims

involve allegations and evidence that lie outside the trial record." Preciose, 129

N.J. at 460. As such is the case here, we decline to consider the claim that should

have been presented by way of a PCR petition filed in the Family Part.

Affirmed.

A-3525-18T3
10