                                NOT FOR PUBLICATION WITHOUT THE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
