STATE OF NEW JERSEY VS. QUAWEE L. JOHNSON (19-05-1321 AND 19-05-1532, ESSEX 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NOT FOR PUBLICATION WITHOUT THE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-1453-20

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

QUAWEE L. JOHNSON,

Defendant-Respondent.
__________________________

Argued June 9, 2021 – Decided July 15, 2021

Before Judges Sumners and Geiger.

On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Indictment Nos. 19-05-1321
and 19-05-1532.

Frank J. Ducoat, Special Deputy Attorney General/
Acting Assistant Prosecutor, argued the cause for
appellant (Theodore N. Stephens, II, Acting Essex
County Prosecutor, attorney; Frank J. Ducoat, of
counsel and on the briefs).

Kevin S. Finckenauer, Assistant Deputy Public
Defender, argued the cause for respondent (Joseph E.
Krakora, Public Defender, attorney; Kevin S.
Finckenauer, of counsel and on the brief).
PER CURIAM

Prior to sentencing, defendant Quawee L. Johnson successfully moved to

withdraw his guilty pleas to one third-degree offense and two second-degree

offenses under two separate indictments. On leave granted to appeal, the State

contends the motion judge abused her discretion and seeks reversal and remand

for sentencing. We disagree and affirm.

I.

On May 14, 2019, defendant and a co-defendant were indicted under

Indictment 19-05-1321 for third-degree conspiracy to commit the crime of

receiving stolen property, N.J.S.A. 2C:5-2 and 2C:20-7(a), and third-degree

receiving stolen property, N.J.S.A. 2C: 20-7(a), related to possession of a stolen

motor vehicle in February 2019. Approximately three weeks later, defendant

and a different co-defendant were indicted under Indictment 19-06-1532 for

second-degree conspiracy to commit aggravated assault, N.J.S.A. 2C:5-2 and

2C:12-1(b)(1), and second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1),

related to a March 2019 incident.

In November 2019, defendant entered into a global plea agreement with

the State resolving both indictments, pleading guilty to third-degree receiving

stolen property, second-degree conspiracy to commit aggravated assault, and

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second-degree aggravated assault. In exchange, the State agreed to recommend

an aggregate prison sentence of six years subject to the No Early Release Act,

N.J.S.A. 2C:43-7.2, and dismiss the remaining charge of third-degree

conspiracy to commit the crime of receiving stolen property. Defendant's pleas

were accepted by the plea judge because, among other reasons, he did not

express any doubt about his knowing and voluntary decision to plead guilty and

set forth an adequate factual basis for his pleas.

In February 2020, defendant's sentencing was postponed after he informed

the judge for the first time that he did not view a surveillance camera video of

the aggravated assault incident. Defendant informed the judge, who had also

accepted his pleas:

I just wanted to say that as far as like my discovery and
all of that, I haven’t received that. The video [defense
counsel] gave me I never got to really see it. She told
me I was going to get [twenty] years on this charge, and
only [ten] years if I go to – if I don’t take the plea or
whatever the case may be . . . .

I never seen information on [the second-degree
aggravated assault charges]. All I know, [the co-
defendant is] telling on me. [1] What do they have on
me? I could take that to trial. That’s what I’m saying.
I got – [defense counsel] shook me up, but all that time
sitting – I need to see all of the proof.

1
Co-defendant gave a statement implicating defendant in the assault.
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When the judge further inquired about the video, defendant replied: "I never

seen anything"; "I never seen any of that"; and "I honestly didn’t see anything."

The judge adjourned the sentencing to give defendant time to consult with

counsel.

Sentencing was continued five months later to July 2020. However, it

was postponed again due to defendant's new claim that he just received the video

five days earlier and had not viewed it. The judge expressed doubt about

defendant's claim but directed him to file a motion to withdraw his guilty pleas

within one week.

Represented by new counsel, defendant moved to withdraw his guilty

pleas based on his inability to view the video of the aggravated assault. At the

motion hearing, Judge Sharifa R. Salaam questioned defendant regarding his

confusing remarks at his initial sentencing hearing in February 2020, that he had

the video but claimed he had not watched it. Defendant replied that he told his

first counsel he was unable to view the video that was on a flash drive, yet

counsel did not address the issue until five days before the adjourned sentencing

date in July 2020. He added that when he could not view the video, he told the

plea judge at the first opportunity in February 2020.

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 Regarding his remarks to the plea judge establishing his guilt, defendant

stated: "I just said yes because that’s what my counsel told me to do, is [say] yes

to all the questions [the judge] asked. She . . . said yes and I said yes or right."

As to defendant's understanding of the plea proceeding, the following colloquy

occurred:

[DEFENDANT]: Yes, I was copping out to a charge
because I know – but [my first counsel] said I was going
to get that extended term. I’m not a career criminal, I
didn’t know. I cannot get no extended term. I have no
jacket. This is what she was telling me, "You know,
somebody’s telling on you saying you did this. You’re
going to get the extended term."

....

THE COURT: So[,] when you were asked if you knew
what you were doing [at the plea], did you know what
you were doing on that day?

[DEFENDANT]: I was copping out, ma’am.

When defendant was asked if seeing the video changed his opinion on whether

he would like to plead guilty, he stated, "[y]es."

Judge Salaam reserved decision, and a month later entered an order

granting defendant's motion. In her written decision, the judge considered the

four-factor balancing test set forth in State v. Slater, 198 N.J. 145, 157-58 (2009)

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to determine whether to allow defendant to withdraw his guilty pleas. Slater

requires a trial court to weigh:

(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.]

The judge determined "it [wa]s in the interests of justice to permit

[d]efendant to withdraw his guilty plea." She held defendant's situation did not

"neatly fit into" the Slater factors. Yet "an injustice" had been "done to

[d]efendant" when he could not, for some reason, view all his discovery.

Before considering the Slater factors, the judge concluded:

The record indicates that [defendant's] previous counsel
received discovery, which was conveyed to
[d]efendant. He was unable to view all the discovery
files whether it be lack of access, corrupt files, or
inconveniences caused by the pandemic. It is essential
that [d]efendant at least have the opportunity to view
the discovery in order to make an intelligent an[d]
informed decision o[n] how to proceed with his case.
Defendant has been made aware by counsel of the
potential consequences that he would face by going to
trial.

In assessing the first Slater factor––colorable claim of innocence, the

judge held it was "weak" because defendant was "unable to intelligently assess

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his innocence" by viewing the video prior to pleading guilty. For similar

reasons, the judge maintained the second Slater factor––reasons for withdrawal–

–weighed in favor of defendant being allowed to withdraw his pleas. The judge

found defendant "lacked the resources to assess the evidence against him." The

judge did not assign "great weight" to the third Slater factor––existence of a plea

bargain. Regarding the fourth Slater factor––unfair prejudice to the State––the

judge found that "the State would not suffer prejudice if . . . [defendant was

allowed] to withdraw his plea of guilty." Thus, the judge concluded, this factor

"weighs for" defendant's withdrawal of his plea.

II.

The decision to grant or deny a motion to withdraw a guilty plea is

governed by balancing the noted four Slater factors. See State v. Lipa, 219 N.J.

323, 331-32 (2014). "No single Slater factor is dispositive; 'if one is missing,

that does not automatically disqualify or dictate relief.'" State v. McDonald, 211

N.J. 4, 16–17 (2012) (quoting Slater, 198 N.J. at 162).

Before sentencing, a judge reviewing a plea withdrawal applies "the

interests of justice" standard. R. 3:9-3(e). "Generally, representations made by

a defendant at plea hearings concerning the voluntariness of the decision to

plead, as well as any findings made by the trial court when accepting the plea,

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constitute a 'formidable barrier' which defendant must overcome before he will

be allowed to withdraw his plea." State v. Simon, 161 N.J. 416, 444 (1999)

(quoting Blackledge v. Allison, 431 U.S. 63, 74 (1977)). Accordingly, "courts

are to exercise their discretion liberally to allow plea withdrawals[]" and "[i]n a

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

Munroe, 210 N.J. 429, 441 (2012) (second alteration in original) (quoting Slater,

198 N.J. at 156 and State v. Taylor, 80 N.J. 353, 365 (1979)). Nevertheless, the

Munroe Court explained that "[l]iberality in exercising discretion does not mean

an abdication of all discretion, and, accordingly, any plea-withdrawal motion

requires a fact-specific analysis." Id. at 441-42 (internal quotation marks and

citations omitted). Thus, we will reverse the trial court's determination of

whether to allow a defendant to withdraw a guilty plea "only if there was an

abuse of discretion which renders the [trial] court's decision clearly erroneous."

Simon, 161 N.J. at 444 (citing State v. Smullen, 118 N.J. 408, 416 (1990)).

Guided by these principles, Judge Salaam did not abuse her discretion in

granting defendant's motion as her decision is fully supported by her factual

findings. This is a close call because the judge recognized defendant's colorable

claim of innocence was weak. Indeed, the State argues defendant never

presented a colorable claim of innocence and the strength and nature of his

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reasons for withdrawal were poor. The State further stresses that its proofs are

very strong based on the video and the co-defendant's statement. Nonetheless,

the judge accepted defendant's representation that he would not have entered

into the plea agreement had he viewed the video. We discern no reason to

disagree.

The State has failed to persuade us that the judge improperly weighed the

Slater factors. The judge adequately balanced the factors, stressing the

importance of defendant being unable to view the video of the alleged

aggravated assault in deciding whether he had any viable defenses. See, e.g.,

State v. Parsons, 341 N.J. Super. 448, 457 (App. Div. 2001) (holding in a pre-

Slater case, that where a key piece of evidence was withheld from the defendant

by the State, "we should not insist that the defendant proclaim his innocence in

order to retract a guilty plea"). Based on the record before us, there is no reason

to disturb the judge's ruling that the interests of justice weigh in favor of

allowing defendant to withdraw his guilty plea.

Affirmed.

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