STATE OF NEW JERSEY VS. ADRIANE D. WILLIAMS (15-03-0358, BURLINGTON COUNTY AND STATEWIDE) ( 2019 )


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  •                                 NOT FOR PUBLICATION WITHOUT THE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-0141-17T4
    STATE OF NEW JERSEY,
    Plaintiff-Respondent,
    v.
    ADRIANE D. WILLIAMS,
    Defendant-Appellant.
    ______________________________
    Submitted February 26, 2019 – Decided July 18, 2019
    Before Judges Rothstadt and Natali.
    On appeal from the Superior Court of New Jersey, Law
    Division, Burlington County, Accusation No. 15-03-
    0358.
    Joseph E. Krakora, Public Defender, attorney for
    appellant (Al Glimis, Designated Counsel, on the
    briefs).
    Scott A. Coffina, Burlington County Prosecutor,
    attorney for respondent (Nicole Handy, Assistant
    Prosecutor, of counsel and on the brief).
    PER CURIAM
    Defendant Adriane Williams appeals from the Law Division's July 20,
    2017 denial of her motion to vacate her conviction and to allow her to withdraw
    her 2015 guilty plea to one count of third-degree conspiracy to commit theft,
    N.J.S.A. 2C:5-2(a)(1), N.J.S.A 2C:20-3(a).          The charge arose from her
    involvement as a driver during her and her co-defendants' participation in a
    home invasion and assault. After defendant pled guilty, one of the victims
    refused to cooperate with authorities and the charges against the co-defendants
    were dismissed. Defendant later filed a motion to withdraw her plea, arguing
    that her plea counsel had a conflict of interest in violation of the Rules of
    Professional Conduct (RPC) when she pled guilty because he had represented
    the uncooperative victim in 2006. Judge Terrence R. Cook denied the motion,
    finding that defendant failed to meet the requirements set forth in State v. Slater,
    
    198 N.J. 145
    (2009) after concluding that her plea counsel was not in violation
    of RPC 1.7 or RPC 1.9.
    On appeal, defendant argues that the judge erred in denying her relief
    because her plea counsel's conflict interfered with her Sixth Amendment right
    to representation.    We disagree and affirm substantially for the reasons
    expressed by Judge Cook in his oral decision, as there was no evidence that there
    was a significant risk that plea counsel was materially limited in his
    A-0141-17T4
    2
    representation of defendant nine years after representing the victim in this case
    in an unrelated matter and, as the judge found, defendant failed to satisfy the
    requirements under Slater.
    We need not recount the details of defendant's role in the commission of
    the offense to which she pled guilty. Suffice it to say, she was originally charged
    with one count of kidnapping, N.J.S.A. 2C:13-1(b)(2); one count of aggravated
    assault, N.J.S.A. 2C:12-1(b)(1); one count of robbery, N.J.S.A. 2C:15-1(a)(1);
    one count of armed burglary, N.J.S.A. 2C:18-2(b)(2); and one count of unlawful
    possession of a weapon, N.J.S.A. 2C:39-3(b).
    On March 13, 2015, while represented by Michael Riley, Esq., defendant
    pled guilty pursuant to an "open plea" to an accusation that charged her with
    only third-degree conspiracy to commit theft, N.J.S.A. 2C:5-2(a)(1), N.J.S.A
    2C:20-3(a).    Although designated as an "open plea" because he did not
    recommend a specific sentence, the prosecutor recommended that acceptance of
    defendant's plea be conditioned upon her waiving her right to appeal and
    "provid[ing] truthful testimony against [her] co-defendants . . . ."
    At the plea hearing, defendant testified that she understood the plea and
    was satisfied with Riley's services. She also understood that it was ultimately
    the judge's decision as to what the punishment should be at the time of
    A-0141-17T4
    3
    sentencing, given the open nature of the plea. Defendant also testified that she
    spoke to Riley about the case and was aware of the rights she was waiving. After
    defendant gave a factual basis for the crime to which she was pleading guilty,
    the judge accepted her plea. Defendant's sentencing was delayed pending the
    trial of her co-defendants.
    Almost two years later, on January 11, 2017, Riley filed a motion on
    defendant's behalf to withdraw her guilty plea based upon the fact that the case
    against the co-defendants had been dismissed on September 27, 2016 because
    one of the victims would not cooperate with law enforcement. While that motion
    was pending, defendant learned that Riley had represented the uncooperative
    victim or his father years earlier. According to defendant, when she confronted
    Riley, he confirmed the prior representation. She believed that once he learned
    who the victim was, he should not have taken the case. As a result, prior to her
    motion's return date, she fired Riley.
    On March 17, 2017, defendant sent an email to Assistant Deputy Public
    Defender, Philip G. Pagano.1 Citing to RPC 1.7, defendant stated that Riley had
    an obligation to inform her and her family of any conflict and failed to do so.
    1
    Evidently, Pagano was originally assigned to represent defendant before Riley
    was hired.
    A-0141-17T4
    4
    She requested that Pagano file a motion to withdraw her guilty plea based upon
    the conflict of interest that existed at the time of her plea. Defendant also stated
    that she was not interested in "pursuing [Riley's] effort[s]" if he filed a motion
    for her. Riley later signed a substitution of attorney in favor of Pagano that
    Pagano signed and filed on April 7, 2017.
    On the same day, defendant, Riley, Pagano, and the prosecutor appeared
    before the motion judge for oral argument and sentencing.            After Pagano
    informed the judge that defendant terminated Riley based on the alleged conflict
    and that she would not have pled guilty had she known of the conflict, the judge
    denied the pending motion, finding it inappropriate to consider it since Riley
    had been fired. The judge suggested that defendant and Pagano discuss the
    situation further and that she could re-file the motion at a later point.
    Five days later, defendant refiled her motion, this time relying on Riley's
    alleged conflict. The motion was only supported by Pagano's certification that
    attached a copy of defendant's March 17, 2017 email to him. In the email,
    defendant never asserted her innocence or contradicted any of the statements she
    made at her plea hearing in 2015. She only raised issues about Riley's alleged
    conflict.
    A-0141-17T4
    5
    On July 14, 2017, the parties once again appeared before the motion judge
    for oral argument on defendant's motion.2          After counsel presented their
    arguments, defendant spoke on her own behalf and stated that if she knew Riley
    represented the victim, she "would have thought twice." She did not feel Riley
    fought for her and thought her plea was illegal.
    Judge Cook denied defendant's motion that day, placing his reasons on the
    record. At the outset, the judge explained that Rule 3:9-3(e) governs motions to
    withdraw guilty pleas prior to sentencing and Slater requires a four-prong test
    to analyze such motions by examining "whether the defendant has asserted a
    colorable claim of innocence, the nature and strength of defendant's reasons for
    withdrawal, the existence of a plea bargain[,] and whether withdrawal wo uld
    result in unfair prejudice to the state or [an] unfair advantage to the defendant."
    The judge then reviewed the colloquy in which he engaged with defendant
    during her 2015 plea hearing and confirmed that she testified that she was
    satisfied with counsel, understood the rights she was waiving, admitted to being
    2
    At the hearing, the prosecutor reiterated an earlier offer he made to downgrade
    the charge against defendant to a disorderly persons offense and recommend a
    sentence of time served. Despite Pagano and the judge's explanations that the
    offer would result in a favorable outcome, and the judge giving her time to think
    about the offer and consult with Pagano, defendant rejected the offer and wanted
    to proceed with the motion.
    A-0141-17T4
    6
    guilty of the crime, and that she was not forced into entering into her plea. The
    judge found that defendant failed to meet the Slater standards because she did
    not assert a colorable claim of innocence and that, with regard to the nature and
    strength of her reasons to withdraw, Riley's representation of the victim nine
    years prior did not support her position.
    According to the judge, at the time Riley appeared as plea counsel, there
    was no concurrent conflict of interest under RPC 1.7. Specifically, he explained
    that
    [a] concurrent conflict of interest exists if, (1) the
    representation of one client will be directly adverse to
    another client, or (2) there is a significant risk that the
    representation of one or more clients will be materially
    limited by the lawyer's responsibilities to another
    client, a former client, or a third person or by personal
    interest of the lawyer.
    He did not find that RPC 1.7 was implicated because Riley's former client
    had no personal interest in defendant's case and had not been represented by
    Riley for the past nine years before defendant entered into her plea. The judge
    also examined RPC 1.9, concerning an attorney's duties to former clients. He
    observed that there was no conflict as Riley's representation of the victim was
    not substantially related to defendant's case. The judge stated the following:
    A lawyer who has represented a client in a matter shall
    not thereafter represent another client in the same or
    A-0141-17T4
    7
    substantially related matter in which that client’s
    interest[s] are materially adverse to the interest of the
    former client unless the former client gives informed
    consent confirmed in writing. So the conflict or the
    duty would be owed to the former client and there’s no
    indication here that that former [client's] interests were
    even invoked in this proceeding.             They’re not
    substantially related, the former matter and the current
    matter, so I don’t find [RPC] 1.9 to be a sufficient basis
    under the second factor of Slater as well.
    The judge then considered the remaining Slater factors. He stated that
    although defendant's plea was the result of a plea bargain, he "put little weight
    on that. . . .[and found] that the withdrawal of the plea would result in unfair
    prejudice to the State and unfair advantage to . . . defendant."
    After denying her motion, the judge sentenced defendant. He imposed a
    one-year period of probation with time served, required her to pay $155 in
    penalties and assessments, and granted her request to have her probation
    supervision transferred to New York. The judge stated that probation was to be
    terminated whenever defendant paid the $155. On July 19, 2017, the judge
    entered defendant's judgment of conviction. This appeal followed.
    On appeal, defendant specifically argues the following:
    POINT I
    THE COURT BELOW ERRED IN DENYING
    [DEFENDANT'S] MOTION TO VACATE HER
    GUILTY PLEA BECAUSE SHE WAS DENIED HER
    A-0141-17T4
    8
    SIXTH     AMENDMENT         RIGHT    TO
    REPRESENTATION          BY UNCONFLICTED
    COUNSEL AND TO AN ATTORNEY OF HER
    CHOOSING.     U.S. CONST. AMEND. VI; N.J.
    CONST. ART. I, PAR. 10.
    A.  THE COURT ERRED IN FINDING
    THAT R.P.C. 1.7 AND R.P.C. 1.9 WERE NOT
    IMPLICATED         BY         MR.RILEY'S
    REPRESENTATION OF [DEFENDANT] AND
    HIS PRIOR REPRESENTATION OF THE
    VICTIM IN THIS CASE.        MR. RILEY'S
    FAILURE TO DISCLOSE HIS PRIOR
    REPRESENTATION      OF     THE   VICTIM
    DENIED [DEFENDANT] THE ATTORNEY OF
    HER CHOICE AND, BECAUSE THE DENIAL
    CONSTITUTES STRUCTURAL ERROR, HER
    GUILTY PLEA MUST BE VACATED.
    B.  THE     COURT'S      INDEPENDENT
    INTEREST IN ENSURING THAT CRIMINAL
    CASES ARE CONDUCTED ETHICALLY AND
    THAT LEGAL PROCEEDINGS SEEM FAIR
    TO ALL THAT OBSERVE THEM, REQUIRES
    THAT [DEFENDANT'S] GUILTY PLEA BE
    VACATED     AND     THAT    SHE   BE
    REPRESENTED BY AN ATTORNEY WHO
    HAS NOT PREVIOUSLY REPRESENTED
    THE VICTIM IN THIS CASE.
    We review a court's decision on motions to withdraw a guilty plea for an
    abuse of discretion. See State v. O'Donnell, 
    435 N.J. Super. 351
    , 372 (App. Div.
    2014). The "'denial of defendant's request to withdraw his [or her] guilty plea
    will be reversed on appeal only if . . . the lower court's decision [was] clearly
    A-0141-17T4
    9
    erroneous.'" State v. Lipa, 
    219 N.J. 323
    , 332 (2014) (quoting State v. Simon,
    
    161 N.J. 416
    , 444 (1999)). "A denial of a motion to vacate a plea is 'clearly
    erroneous' if the evidence presented on the motion, considered in light of the
    controlling legal standards, warrants a grant of that relief." O'Donnell, 435 N.J.
    Super. at 372 (quoting State v. Mustaro, 
    411 N.J. Super. 91
    , 99 (App. Div.
    2009)).
    Slater sets forth the applicable legal standards. Under Slater, a court must
    consider the following when deciding on a defendant's motion to withdraw his
    or her plea:   "(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
    .
    In all plea withdrawal cases, whether evaluated under the "interests of
    justice" standard of Rule 3:9-3(e) for pre-sentencing motions, or the "correct a
    manifest injustice" standard of Rule 3:21-1, "the burden rests on the defendant,
    in the first instance, to present some plausible basis for his [or her] request, and
    his [or her] good faith in asserting a defense on the merits." 
    Slater, 198 N.J. at 156
    (quoting State v. Smullen, 
    118 N.J. 408
    , 416 (1990)).              "Generally,
    A-0141-17T4
    10
    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, constitute a 'formidable barrier' which defendant
    must overcome before he will be allowed to withdraw his plea." 
    Simon, 161 N.J. at 444
    (quoting Blackledge v. Allison, 
    431 U.S. 63
    , 74 (1977)). "A court
    should evaluate the validity of the reasons given for a plea withdrawal with
    realism, understanding that some defendants will be attempting to game the
    system . . . ." State v. Munroe, 
    210 N.J. 429
    , 443 (2012).
    Among defendant's contentions here, she argues that Riley's conflict
    interfered with his representing her and counseling her to accept the plea. She
    contends that she was less involved in the charged offenses than her co-
    defendants, yet she was the only one to have a criminal conviction entered
    against her. She argues that "[t]here is no way of knowing" whether Riley
    persuaded her to enter into a guilty plea in order to avoid trial where he could
    have been forced to cross-examine his former client. Because she lost her job
    with a police department, she asserts that she might have preferred to remain in
    jail awaiting trial rather than accept a plea and lose her job. We find her
    contentions speculative at best and observe that they do not include any
    A-0141-17T4
    11
    colorable claims of innocence. Moreover, we conclude, as did the motion judge,
    no conflict existed that would support the withdrawal of defendant's guilty plea.
    At the outset, we acknowledge a criminal defendant's right to counsel of
    his or her own choosing, free of any conflicts that would materially interfere
    with counsel's representation of a defendant. See N.J. Div. of Child Prot. &
    Permanency v. G.S., 
    447 N.J. Super. 539
    , 556 (App. Div. 2016) (observing that
    a defense attorney's representation must be "untrammeled and unimpaired"); see
    also State v. Kates, 
    426 N.J. Super. 32
    , 43 (App. Div. 2012) ("the Sixth
    Amendment 'commands . . . that the accused be defended by the counsel he
    believes to be best'" (citation omitted)).
    The Court's RPCs govern an attorney's simultaneous or consecutive
    representation of clients.        "RPC 1.7(a) proscribes the simultaneous
    representation of clients, if the representation would be directly adverse to
    another client . . . ." State v. Hudson, 
    443 N.J. Super. 276
    , 289 (App. Div.
    2015). Under RPC 1.7, "one lawyer cannot represent multiple clients at the
    same time with 'directly' conflicting interests or interests that 'materially limit'
    the lawyer's advocacy." 
    G.S., 447 N.J. Super. at 565
    . The Rule prohibits an
    attorney from representing a client if it would "involve[] a concurrent conflict
    A-0141-17T4
    12
    of interest." RPC 1.7(a). It defines "concurrent conflict" and then sets forth the
    situations in which concurrent representation is allowed.
    A concurrent conflict of interest exists if:
    (1) the representation of one client will be directly
    adverse to another client; or
    (2) there is a significant risk that the representation of
    one or more clients will be materially limited by the
    lawyer's responsibilities to another client, a former
    client, or a third person or by a personal interest of the
    lawyer.
    (b) Notwithstanding the existence of a concurrent
    conflict of interest under paragraph (a), a lawyer may
    represent a client if:
    (1) each affected client gives informed consent,
    confirmed in writing, after full disclosure and
    consultation, provided, however, that a public entity
    cannot consent to any such representation. When the
    lawyer represents multiple clients in a single matter, the
    consultation shall include an explanation of the
    common representation and the advantages and risks
    involved;
    (2) the lawyer reasonably believes that the lawyer will
    be able to provide competent and diligent
    representation to each affected client;
    (3) the representation is not prohibited by law; and
    (4) the representation does not involve the assertion of
    a claim by one client against another client represented
    by the lawyer in the same litigation or other proceeding
    before a tribunal.
    A-0141-17T4
    13
    [RPC 1.7.]
    RPC 1.9 addresses successive representation that gives rise to a conflict,
    explains when successive representation is permissible, and describes the
    prohibitions counsel must adhere to if successive representation occurs. Under
    RPC 1.9, lawyers cannot represent clients in succession where the succeeding
    representation would violate a duty owed to the former client or hamper the
    attorney's ability to represent the new client. The "[e]thical responsibilities
    stemming from the representation of a former client in the course of representing
    a current client [are] governed by RPC 1.9[(c)]." 
    Hudson, 443 N.J. Super. at 289
    .
    The Rule states in pertinent part the following:
    (a) A lawyer who has represented a client in a matter
    shall not thereafter represent another client in the same
    or a substantially related matter in which that client's
    interests are materially adverse to the interests of the
    former client unless the former client gives informed
    consent confirmed in writing.
    (b) A lawyer shall not knowingly represent a person in
    the same or a substantially related matter in which a
    firm with which the lawyer formerly was associated had
    previously represented a client.
    (1) whose interests are materially adverse to that
    person; and
    A-0141-17T4
    14
    (2) about whom the lawyer, while at the former firm,
    had personally acquired information protected by RPC
    1.6 and RPC 1.9(c) that is material to the matter unless
    the former client gives informed consent, confirmed in
    writing.
    Notwithstanding the other provisions of this paragraph,
    neither consent shall be sought from the client nor
    screening pursuant to RPC 1.10 permitted in any matter
    in which the attorney had sole or primary responsibility
    for the matter in the previous firm.
    (c) A lawyer who has formerly represented a client in a
    matter or whose present or former firm has formerly
    represented a client in a matter shall not thereafter:
    (1) use information relating to the representation to the
    disadvantage of the former client except as these Rules
    would permit or require with respect to a client, or when
    the information has become generally known; or
    (2) reveal information relating to the representation
    except as these Rules would permit or require with
    respect to a client.
    [RPC 1.9.]
    An attorney's adherence to the Rule's "ethical responsibilities" cannot
    impair his or her ability to represent a new client. "A criminal defense attorney
    must not be hindered by conflicts of interest that could compromise his or her
    duty to a client . . . ." State v. Miller, 
    216 N.J. 40
    , 63 (2013). However, "[p]rior
    representation, in and of itself, is not sufficient to justify disqualification."
    
    Hudson, 443 N.J. Super. at 291
    . As such, "[c]onflicts must be actual and not
    A-0141-17T4
    15
    merely appearance based." 
    Id. at 292
    (emphasis added). See also In re Supreme
    Court Advisory Comm. on Prof'l Ethics Op. No. 697, 
    188 N.J. 549
    , 562-63
    (2006) (discussing the 2004 amendments to the RPCs and explaining that the
    appearance of impropriety is no longer considered when determining if a
    conflict of interest exists).
    Where a claim of a conflict is made, the burden is on the party asserting
    the conflict to come forward with evidence of an actual, material conflict.
    The absence of factual underpinnings describing the
    prior representation makes it impossible to determine
    whether [an attorney's] role created "a significant risk"
    that his representation of defendant "will be materially
    limited" due to responsibilities owed to [the former
    client, such as] . . . whether [the attorney] obtained
    knowledge from [the former client] which might aid
    defendant that he would be prohibited from utilizing.
    RPC 1.9(c)(1). The assumption [the attorney's] prior
    representation would limit cross-examination because
    of ethical proscriptions against "reveal[ing]
    information relating to the representation" or the "use
    [of] information relating to the representation to the
    disadvantage of the former client" are unfounded. RPC
    1.9. The prior relationship may well have revealed no
    relevant information with the potential to undermine
    [the former client's] testimony.
    [
    Hudson, 443 N.J. Super. at 291
    (sixth and seventh
    alterations in original).]
    Applying these guiding principles here, we conclude that Judge Cook
    correctly determined there was no evidence in this case of any actual material
    A-0141-17T4
    16
    conflict between Riley's prior representation of the uncooperative victim and his
    acting as defendant's counsel in this case. We also conclude that defendant
    failed to satisfy the Slater factors, substantially for the reasons expressed by the
    judge in his oral decision.
    Affirmed.
    A-0141-17T4
    17