                                NOT FOR PUBLICATION WITHOUT THE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-0656-17T1

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

BRENDON M. JAMES, a/k/a
BRANDON M. JAMES, JAMES
SENU, and BRANDON SENU,

     Defendant-Appellant.
____________________________

                    Submitted October 31, 2018 – Decided December 17, 2019

                    Before Judges Fuentes and Accurso.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Mercer County, Accusation No.17-02-0065.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Ruth Elizabeth Hunter, Designated Counsel,
                    on the brief).

                    Gurbir S. Grewal, Attorney General, attorney for
                    respondent (Regina M. Oberholzer, Deputy Attorney
                    General, of counsel and on the brief).

          The opinion of the court was delivered by
FUENTES, P.J.A.D.

      Pursuant to a negotiated plea agreement with the State, defendant Brendon

M. James pled guilty to second degree unlawful possession of a handgun and

third degree possession of marijuana with intent to distribute. More than a

month after the plea hearing, defendant moved to withdraw his guilty plea under

State v. Slater, 198 N.J. 145 (2007). The Criminal Part judge who presided over

the plea hearing denied defendant's motion and sentenced him in accordance

with the plea agreement. Defendant originally appealed the trial court's decision

under the summary proceeding provided in Rule 2:9-11. The matter was

thereafter transferred to the regular appellate calendar.

      Defendant argues the trial court erred in denying his motion to withdraw

his guilty plea because he did not provide a valid factual basis. Alternatively,

defendant argues we should remand the matter for resentencing because the

sentencing judge "incorrectly believed" he was not eligible for a waiver of the

mandatory period of parole ineligibility under the Graves Act, N.J.S.A. 2C:43-

6. We reject these arguments and affirm.

      In Count Three of a Mercer County indictment returned on May 25, 2016,

the grand jury charged defendant and codefendants Darnel Biggs and Shawn

Reid with third degree possession of marijuana with intent to distribute, in a

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                                        2
quantity of no less than one ounce but no more than five pounds, N.J.S.A. 2C:

35-5a(1) and N.J.S.A. 2C:35-5b(11). Count Four charged defendant and his

codefendants with second degree possession of marijuana with intent to

distribute within 500 feet of a public park, N.J.S.A. 2C:35-5 and N.J.S.A. 2C:35-

7.1; and Count Five charged defendant and his codefendants with fourth degree

possession of marijuana in a quantity of more than fifty grams, N.J.S.A. 2C:35 -

5-10a(3).

      Counts One, Two, and Six only involved charges against Biggs. Count

One charged Biggs with second degree unlawful possession of a Taurus "Ultra

Lite" .38 caliber revolver, N.J.S.A. 2C:39-5b and N.J.S.A. 2C:58-4; Count Two

charged Biggs with second degree unlawful possession of a Taurus "Ultra Lite"

.38 caliber revolver, while in the course of committing or attempting to commit

a drug-related offense, N.J.S.A. 2C:35-5 and N.J.S.A. 2C:39-4.1a. Count Six,

the last count of the indictment, charged Biggs with second degree possession

of a Taurus "Ultra Lite" .38 caliber revolver, while having been previously

convicted of third degree distribution of a controlled dangerous substance,

N.J.S.A. 2C:39-7b.

      On February 3, 2017, defendant appeared before the Law Division,

Criminal Part at a hearing to prosecute a motion to suppress the evidence seized


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                                       3
by law enforcement authorities that formed the basis of the charges against him

and codefendant Biggs. At this hearing, defendant's counsel addressed the

motion judge as follows:

            DEFENSE COUNSEL: Mr. James has indicated that he
            wants to resolve this matter for unlawful possession of
            a handgun second degree, five over three-and-a-half.
            The DAG [(Deputy Attorney General)] informed me
            that he would also have to plead to possession with
            intent to distribute, a third degree offense, because it is
            marijuana over an ounce and that would be a three flat
            concurrent. I should indicate on the record that Mr.
            James, since he's not charged with any handgun
            offenses, he is not charged with unlawful possession,
            he's also not charged with certain persons which, in
            fact, Mr. James is because he does have a prior burglary
            conviction. As --

            THE COURT: [Is] . . . the three flat that the State was
            offering concurrent or consecutive?

            DEFENSE COUNSEL: It's concurrent, Your Honor.

            THE COURT: Okay.

      Defense counsel explained to the judge that she had discussed with

defendant the possibility of a plea agreement for over two hours that day and on

several other occasions.    Defense Counsel made clear on the record that

defendant "was very adamant in the fact that he wanted to resolve this matter in

this fashion." Defense counsel also represented to the judge that she had spoken



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                                        4
with the attorney who represented codefendant Biggs to confirm Biggs was

willing to accept the terms of the plea agreement. Defense counsel stated:

            [W]e have a resolution on the table if the parties are
            willing to enter it where Mr. James will plead to the
            handgun and the drugs recovered together upstairs in
            the bedroom and that Mr. Biggs will be pleading to the
            drugs that were recovered downstairs on the first floor.
            If that is, in fact, a -- and Mr. Reid would receive a
            dismissal. If that is, in fact, a plea agreement that Mr.
            Biggs and Mr. James are willing to enter into today, that
            is what is presently on the table.

                  ....

            I just want to also indicate on the record it's my
            understanding that if this matter is not resolved today,
            the offer of five with a three-and-a-half with a
            concurrent three flat for Mr. James would no longer be
            available to him from the Deputy Attorney General's
            Office.

      As these discussions continued, the DAG confirmed he had the

authorization from his superiors to enter into this plea agreement. At this point,

defendant addressed the judge directly and stated:

            I've been trying to resolve this from day one. You know,
            when they came to my house, you know, I'm the owner
            . . . I went in the house. I've been acknowledging the
            gun and the drugs being mine, not even the drugs
            downstairs. They're really his. Everything there was
            mine.

                  ....


                                                                          A-0656-17T1
                                        5
            I want to plead guilty today.

      The DAG prepared an Accusation charging defendant with second degree

unlawful possession of a handgun. The terms of the plea agreement required

defendant to plead guilty to the second degree charge in the Accusation and to

Count Three in the indictment, which charged him with third degree possession

of marijuana with intent to distribute. In exchange, the State would recommend

that the court sentence defendant to a term of five years, with forty-two months

of parole ineligibility pursuant to the Graves Act, N.J.S.A. 2C:43-6c, on the

second degree unlawful possession of a handgun charge and impose a term of

three years flat on the marijuana charge.        Both sentences were to run

concurrently.   The State would also dismiss the remaining counts in the

indictment related to defendant.

      Defense counsel confirmed these were the terms of the plea agreement

and stated defendant was "prepared to provide a factual basis." Defense counsel

also noted for the record that the DAG had agreed to "an extended sentencing

date" of July 14, 2017, more than five months later. The judge stated: "I'm okay

with it subject to the defendant remaining offense free." The judge then asked

defendant a series of questions to ensure he understood the ramifications of his

decision to plead guilty.


                                                                        A-0656-17T1
                                       6
      In response to the judge's questions, defendant stated under oath that he

was twenty-three years old, had graduated from high school, and attended "some

college classes" in Criminal Justice. Defendant acknowledged that he had

reviewed and answered the questions on the plea form with the assistance of his

attorney. He was in good physical and mental health and was not under the

influence of any substance or medication that impaired his judgment. Defendant

told the judge that he understood the terms of the plea agreement, was aware of

his constitutional rights, and was pleading guilty voluntarily. Defendant also

indicated he was satisfied with the services provided by his attorney.

      Defense counsel also questioned defendant to establish a factual basis for

his guilty plea to second degree unlawful possession of a handgun. The record

shows defendant admitted that police officers entered his residence looking for

someone else. In the process of searching for this person, the officers found a

.38 caliber handgun in defendant's bedroom.1 Defendant admitted he acquired

this handgun without the permit required by law.

      The only issue defendant contested in the course of providing the factual

basis concerned whether he ever possessed the handgun outside of his residence.


1
  Defendant stipulated the handgun the police recovered from his bedroom was
the .38 caliber Taurus revolver identified in the Accusation.


                                                                         A-0656-17T1
                                       7
This controversy was finally resolved when defendant admitted he carried the

handgun outside of his residence at the time he purchased it. The following

colloquy illustrates this point:

             THE COURT: -- because there's no doubt that it was --
             while it might not have been outside of the house that
             day or the day before, it had to have been outside of the
             house at some point.

             DEPUTY ATTORNEY GENERAL: That was my line
             of questioning. It had to have been somewhere prior to
             that date to be brought into the house.

             DEFENDANT: Yes, that's true.

             DEFENSE COUNSEL: Okay, so prior to July 1st, 2015
             it was brought into the house?

             DEFENDANT: Yes.

             DEFENSE COUNSEL: And you did not have a license
             to carry that gun outside of the house?

             DEFENDANT: No.

             DEFENSE COUNSEL: And you brought it into the
             house?

             DEFENDANT: Yes.

             THE COURT: How long had you lived there?

             DEFENDANT: I lived there since November of
             2014.



                                                                         A-0656-17T1
                                        8
            THE COURT: Okay, so some time during that time
            period you brought it into the house?

            DEFENDANT: Yes.

            THE COURT: Okay.

            DEFENSE COUNSEL: And you knew what you were
            doing when you were carrying it that you did not have
            a license to carry it?

            DEFENDANT: Yes.

      The DAG also argued that since defendant had been convicted of burglary

at the time the police found the handgun in his bedroom, it was unlawful for him

to possess a handgun anywhere under N.J.S.A. 2C:39-7(b). Defendant also

provided a factual basis for his guilty plea to third degree possession of

marijuana with intent to distribute. We will not describe the factual basis for

this crime since defendant is not challenging this conviction on appeal.

      On March 10, 2017, defendant and the attorneys returned before the judge

to correct a data entry problem. Because Biggs was the only person charged

under the indictment with the second degree offense of unlawful possession of

the handgun, the judiciary's computer system for criminal cases known as

Promis/Gavel did not accept defendant's guilty plea to the same offense as part

of an Accusation. Defense counsel explained that to correct this "technical

glitch in the system," defendant had to sign a new waiver of indictment form.

                                                                           A-0656-17T1
                                       9
The record shows the judge thoroughly explained to defendant the technical

nature of the problem and reassured him this was intended to avoid any potential

future misunderstanding or unintentional prejudice. In the judge's words: "you

can't have an accusation number and an indictment number under the same case

number[.]"

      Despite acknowledging everything that the judge and the attorneys

explained to him on the record, defendant unexpectedly told the judge: "I

understand that. I just don't -- I feel like I don't want to sign anything." The

judge explained to defendant that if he did not sign these documents, it would

be treated by the court as a request to withdraw the guilty plea he entered on

February 3, 2017. This prompted the following exchange between defendant

and the judge:

             DEFENDANT: This is my reason for pleading guilt[y].
             On the day of the motion [defense counsel] was
             supposed to subpoena my witness. She didn't subpoena
             my witness. I was stuck between a rock and a hard
             place.

             THE COURT: You weren't stuck in any place. Let's
             stop with that right now.

             DEFENDANT: All right. Well, then, that's where I was
             at. Where's my witness?

             THE COURT: You came out of nowhere, volunteered -
             - no, no, stop. You came out of nowhere. We were

                                                                        A-0656-17T1
                                      10
getting ready to do a testimonial suppression hearing
and volunteered to plead guilty to a gun charge that you
weren't even charged with.

DEFENDANT: That's because it belonged to me.
It's not about whether I'm charged with --

THE COURT: Okay. But -- so let's not get into [defense
counsel] didn't do the things [defense counsel was]
supposed to do. You volunteered to plead guilty to a
gun charge, a second degree charge that was
substantially more serious in terms of what your
custodial exposure was than this drug charge.

I don't know anything about any witnesses but it's --
you have to make some sort of a decision about where
you're going with this. If you want to file a motion to
get your plea back I have no choice but to let you do
that. You don't want your plea back, we have to fix the
technical problems that are here.

DEFENDANT: I want my plea back. I want to go to
trial.

THE COURT: All right. Well, you're going to have to
file that motion.

      ....

THE COURT: He wants to go to trial on what, on the
gun charge or the drug charge?

DEFENDANT: Anything. It don't matter. I don't want
to take this plea. Unless they give me a better plea –

THE COURT: All right. Well --

DEFENDANT: -- then I want to go to trial.

                                                           A-0656-17T1
                          11
            [(Emphasis added).]

      Represented by different counsel, defendant appeared before the trial

court on July 25, 2017 to argue his motion to withdraw his guilty plea.   Defense

counsel argued that defendant did not provide an adequate factual basis to

support his guilty plea to second degree unlawful possession of a handgun under

N.J.S.A. 2C:39-5b. Defense counsel noted: "He stated he brought the . . . gun

in some time before July 1st. That was the extent of it." Defense counsel argued

the court failed to consider defendant's right to possess a handgun in his own

home pursuant to N.J.S.A. 2C:39-6(e), which provides, in relevant part:

"[n]othing in subsections b., c., and d. of N.J.S.2C:39-5 shall be construed to

prevent a person keeping or carrying about his . . . residence[.]" Finally, defense

counsel argued the State's fallback position concerning defendant's prior

burglary conviction was unavailing. According to defense counsel, defendant's

prior criminal record only applies if he had been charged with the offense

codified in N.J.S.A. 2C:39-7(b), which makes a person previously convicted of

burglary or any other of the offenses listed therein, guilty of second degree

unlawful possession of a handgun, regardless of the circumstances.

      The State argued that defendant's burglary conviction rendered him per se

ineligible to invoke the statutory defense under N.J.S.A. 2C:39-6(e). Thus, the

                                                                           A-0656-17T1
                                       12
State argued that defendant's admission that he acquired a handgun without a

license while being legally prohibited from having a handgun was a sufficient

factual basis to support his plea.

      The judge reviewed the transcripts of the plea hearing held on February 3,

2017 as well as defendant's impromptu request to withdraw his guilty plea on

March 10, 2017. The judge first summarized the factors the Supreme Court

established in Slater for deciding a defendant's motion to withdraw a guilty 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." 198 N.J. at 150. The judge then made

the following findings:

            Defendant says, anything, it don't matter, I don't want
            to take this plea unless they give me a better plea. A
            clear, unequivocal statement that unless he got a better
            plea offer, he wanted to go to trial. Direct, honest, clear
            statement as to what his true motivation was; that he
            wanted a better number. And that comes on the heels of
            extensive colloquy during the plea hearing where he
            was advised not just what the State's recommendation
            was but the near inevitability of the five-year sentence
            with the three-and-a-half year stipulation of parole
            ineligibility.




                                                                          A-0656-17T1
                                       13
      The judge concluded defendant did not raise a colorable claim of

innocence. He proactively sought to plead guilty to second degree unlawful

possession of a handgun, a crime he had not been charged with committing, to

absolve Biggs. Defendant's criminal history rendered him per se ineligible to

lawfully possess a handgun. The record reflects defendant was fully apprised

of the penal consequences of his guilty plea, including the mandatory period of

parole ineligibility required by the Graves Act.        The judge thus denied

defendant's motion to withdraw his guilty plea.

      Defendant appeared for sentencing before the court on August 11, 2017.

The court found defendant had two prior convictions for burglary, committed on

May 30, 2012 and June 1, 2013, respectively. He was sentenced on September

16, 2013, to two three-year terms of probation to run concurrently, with 226

days of jail time credits. At the time, defendant resided with his girlfriend, her

daughter, and defendant's son. The judge noted that the sentence related to the

unlawful possession of a handgun was mandatory under the Graves Act, and

sentenced defendant to a term of five years, with three-and-one-half years of

parole ineligibility. On the charge of third degree possession of marijuana with

intent to distribute, the judge sentenced defendant to a flat three-year term of

imprisonment to run concurrently with the Graves Act sentence. The court


                                                                          A-0656-17T1
                                       14
found aggravating factors N.J.S.A. 2C:44-1(a)(3) and (9), and no mitigating

factors.

      Against this record, defendant now raises the following arguments.

            POINT I

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

                  A.     Defendant Did Not Provide an
                  Adequate Factual Basis For His Guilty
                  Plea, and the Trial Court Erred in Relying
                  Upon an Offense That Defendant Was
                  Neither Charged With Nor Pled Guilty To.

                  B. Defendant's Motion To Withdraw His
                  Plea Should Have Been Granted under
                  State v. Slater, 198 N.J. 145 (2009).

            POINT II

           ALTERNATIVELY, DEFENDANT SEEKS A
           REMAND FOR RESENTENCING BECAUSE THE
           TRIAL COURT INCORRECTLY BELIEVED THAT
           DEFENDANT WAS SUBJECT TO A MANDATORY
           THREE-AND-A-HALF                YEAR        PAROLE
           INELIGIBILTY PERIOD, WHEN IN FACT,
           DEFENDANT WAS ELIGIBLE FOR A GRAVES
           ACT WAIVER.
      We reject these arguments and affirm. The argument challenging the trial

court's decision to deny defendant's motion to withdraw his guilty plea based on

the Slater factors lacks sufficient merit to warrant discussion in a written


                                                                        A-0656-17T1
                                      15
opinion. R. 2:11-3(e)(2). The record shows the judge correctly found that

defendant did not establish a colorable claim of innocence. The argument

challenging the sentence imposed by the court is equally without merit. As the

State correctly points out in its brief before this court, defendant did not seek a

waiver of the Graves Act from the vicinage's Assignment Judge, as provided in

N.J.S.A. 2C:43-6.2. Defendant raised the issue with his attorney for the first

time after entering into a negotiated plea.

      Finally, although N.J.S.A. 2C:43-6.2 authorizes the prosecutor to refer a

case to the Assignment Judge for a waiver of the mandatory sentence in a Graves

Act offense, State v. Nance, 228 N.J. 378, 394 (2017), in this case the prosecutor

did not make such a referral. More importantly, defendant did not request one.

As an appellate court, we review defendant's sentence "in accordance with a

deferential standard," State v. Fuentes, 217 N.J. 57, 70 (2014). We are not

permitted to substitute our judgment for that of the sentencing judge. State v.

Case, 220 N.J. 49, 65 (2014). We discern no legal basis to disturb the sentence

imposed by the trial judge in this case.

      Affirmed.




                                                                           A-0656-17T1
                                       16
