SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3811-18T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

COLBY DESSOURCES,

Defendant-Appellant.

_________________________

Submitted November 18, 2020 – Decided

Before Judges Accurso and Enright.

On appeal from the Superior Court of New Jersey, Law 

Division, Essex County, Indictment No. 17-12-3564.

Joseph E. Krakora, Public Defender, attorney for 

appellant (Michele E. Friedman, Assistant Deputy 

Public Defender, of counsel and on the brief).

Theodore N. Stephens II, Acting Essex County 

Prosecutor, attorney for respondent (Barbara A. 

Rosenkrans, Special Deputy Attorney General/Acting 

Assistant Prosecutor, of counsel and on the brief). 

PER CURIAM 

NOT FOR PUBLICATION WITHOUT THE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.

January 6, 2021
2

A-3811-18T1

Defendant Colby Dessources appeals from the denial of his motion to 

withdraw his guilty plea. We affirm, substantially for the reasons set forth in 

Judge Ronald D. Wigler's cogent oral and written decisions on January 18, and 

March 4, 2019, respectively.

On the morning of October 21, 2017, defendant crossed a double-yellow 

line while driving on Frelinghuysen Avenue in Newark. He collided head-on 

with another vehicle, killing the driver. Defendant's blood alcohol level was 

above the legal limit, and the record reflects he was driving over ninety miles

per hour immediately before the fatal crash. 

Defendant was indicted on charges of second-degree death by auto, 

N.J.S.A. 2C:11-5(a) (count one); first-degree aggravated manslaughter, N.J.S.A. 

2C:11-4(a)(l) (count two); and third-degree driving with a suspended or

inoperable license while being involved in a motor vehicle accident, resulting in 

the death of another person, N.J.S.A. 2C:40-22 (count three). 

On July 12, 2018, defendant agreed to plead guilty to count two of the 

indictment, in exchange for the State recommending he serve a ten-year prison 

term, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and the 

dismissal of his remaining charges. When defendant filled out the requisite plea 

form with the benefit of counsel, he answered the citizenship question, i.e., 
3

A-3811-18T1

Question 17a., by circling "yes," thus conveying he was a United States citizen. 

Based on this answer, he was not prompted to answer Questions 17b. through f., 

involving possible immigration consequences attendant to his plea. 

During the plea hearing, Judge Wigler extensively questioned defendant

about his plea form answers. The judge specifically asked defendant, while he 

was under oath, if he was "a U.S. citizen." Defendant answered, "Yes." 

On defendant's scheduled sentencing date of October 4, 2018, his attorney 

announced that once she reviewed defendant's presentence report, she realized 

defendant was born in Haiti and was not a United States citizen. She further 

advised Judge Wigler that defendant "was under the impression he was a U.S. 

citizen." Accordingly, defense counsel asked for sentencing to be postponed, 

acknowledging that if sentencing proceeded, defendant "would likely be subject 

to removal proceedings following his sentence." Judge Wigler granted 

defendant's adjournment request. 

Defendant filed a motion on November 23, 2018 to withdraw his plea 

agreement, alleging he did not understand the immigration consequences of his 

guilty plea. On January 18, 2019, Judge Wigler denied this motion without an 

evidentiary hearing, finding it would be "inappropriate to just allow" defendant 

to withdraw a plea entered "in good faith," as he knew "full well" when he pled 
4

A-3811-18T1

guilty that he was not a United States citizen. Following this decision, Judge 

Wigler sentenced defendant to a ten-year prison term, subject to NERA, and 

dismissed his remaining charges, consistent with the plea agreement.

On appeal, defendant raises the following argument for our consideration:

POINT I

DEFENDANT DID NOT ENTER THE GUILTY 

PLEA KNOWINGLY, INTELLIGENTLY, AND 

VOLUNTARILY BECAUSE HE WAS NOT MADE 

AWARE OF THE DEPORTATION 

CONSEQUENCES ATTENDANT TO THE 

CONVICTION.

We are not persuaded.

Preliminarily, we note that before a trial court can accept a defendant's 

guilty plea, "it first must be convinced that (1) the defendant has provided an 

adequate factual basis for the plea; (2) the plea is made voluntarily; and (3) the 

plea is made knowingly." State v. Lipa, 219 N.J. 323, 331 (2014) (citing R. 3:9-

2); see also State v. Crawley, 149 N.J. 310, 318 (1997). Here, Judge Wigler 

found defendant did not contest the factual basis of his plea. Instead, defendant 

claimed his "plea was not made knowingly, intelligently, or voluntarily because 

[he] was not advised of the likely consequences of deportation as a result of his 

guilty plea." However, as the judge observed, "[t]he only reason [defendant] 

was not informed by the court or counsel about the possible immigration 
5

A-3811-18T1

consequences was because he misstated his immigration status. Unless 

defendant can show he truthfully was unaware of his immigration status, his 

actions do not entitle him to withdraw his guilty plea."

Defendant bears the burden to show why a plea should be withdrawn. 

State v. Huntley, 129 N.J. Super. 13, 17 (App. Div. 1974). As Judge Wigler 

recognized, a motion to withdraw a plea presentence should be liberally granted. 

State v. Deutsch, 34 N.J. 190, 198 (1961). However, the "withdrawal of a guilty 

plea is within the broad discretion of the trial court." State v. Bellamy, 178 N.J. 

127, 135 (2003) (citations omitted). 

Here, defendant did not provide any documentation to Judge Wigler to 

support his assertion that he was mistaken about his immigration status. 

However, the State presented exhibits to the court to show defendant was aware 

of his immigration status. For example, it provided the judge with a 2009 plea 

form, where defendant acknowledged he was not a United States citizen. 

Additionally, the State provided Judge Wigler with a 2010 presentence report

which confirmed defendant was born in Haiti, that he notified his presentence 

investigator of his true immigration status, and he provided his permanent 

resident card to the investigator. Based on these proofs, Judge Wigler concluded 

that when defendant filled out the plea form in the instant matter, he "was aware 
6

A-3811-18T1

of his immigration status, and therefore was untruthful to the court and counsel. 

Defendant should not be rewarded for deceiving the court and counsel."

A trial judge's finding that a plea was voluntarily and knowingly entered

into is entitled to deference so long as that determination is supported by 

sufficient credible evidence in the record. State v. McCoy, 222 N.J. Super. 626, 

629 (App. Div. 1988) (citing State v. Johnson, 42 N.J. 146, 162 (1964)).

Generally, once a guilty plea has been entered on a knowing and voluntary basis, 

it may be withdrawn only at the discretion of the trial court. State v. Simon, 161 

N.J. 416, 444 (1999) (citations omitted). "Thus, the trial court's denial of 

defendant's request to withdraw his guilty plea will be reversed on appeal only 

if there was an abuse of discretion which renders the lower court's decision 

clearly erroneous." Ibid. (citing State v. Smullen, 118 N.J. 408, 416 (1990)).

Rule 3:21-1 governs the withdrawal of guilty pleas. Before sentencing, 

the standard for plea withdrawal is "in the interests of justice." R. 3:9-3(e); State 

v. Howard, 110 N.J. 113, 123-24 (1988); State v. Slater, 198 N.J. 145, 156 

(2009). When considering whether the interests of justice warrant a withdrawal, 

trial courts balance the four Slater factors, namely: "(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) 
7

A-3811-18T1

whether withdrawal would result in unfair prejudice to the State or unfair 

advantage to the accused." Slater, 198 N.J. at 157-58. 

Under the first Slater factor, "[a] bare assertion of innocence is insufficient 

to justify withdrawal of a plea." Id. at 158. The defendant must put forth 

specific and credible facts and should be able to point to the record to support 

his assertion of a colorable claim of innocence. Ibid. (citations omitted). The 

court looks to the evidence available to both the defendant and the prosecutor at 

the time of the guilty plea. Ibid. (quoting Smullen, 118 N.J. at 418). It should 

not conduct a miniature trial at this point; instead, it "should simply consider 

whether a defendant's assertion of innocence is more than a blanket, bald 

statement and rests instead on particular, plausible facts." Id. at 159. 

Here, Judge Wigler found defendant did not assert a colorable claim of 

innocence, but instead, claimed he was confused about his immigration status. 

The judge declined to find defendant was honestly mistaken about his 

immigration status, given the contents of defendant's 2009 plea form and his 

2010 presentence report, as well as the fact defendant provided his permanent 

resident card to his presentence investigator in connection with his previous 

matter. 
8

A-3811-18T1

Regarding the second Slater factor, it is clear this factor "focuses on the 

basic fairness of enforcing a guilty plea by asking whether defendant has 

presented fair and just reasons for withdrawal, and whether those reasons have 

any force." Ibid. The Slater court provided four scenarios meriting withdrawal 

of a guilty plea, specifically: (1) the court and prosecutor misinformed the 

defendant about a material element of the plea bargain on which the defendant 

relied when entering the plea; (2) the defendant was not informed about the 

material terms and consequences of his guilty plea; (3) the defendant's 

reasonable expectations under the plea deal were not met; and (4) the defendant 

had a valid defense against the charges which was forgotten or missed at the 

time of the plea. Id. at 159-60 (internal citations omitted). 

Judge Wigler determined "[n]one of the four scenarios in which courts 

have found fair and just reasons for withdrawal is present here." Again, the 

judge found defendant "was, in fact, aware of his immigration status as far back 

as 2009." 

As to the third Slater factor, Judge Wigler found defendant's plea "was 

entered into pursuant to a plea bargain." Citing Huntley, 129 N.J. Super. at 17, 

the judge aptly noted that a "defendant's burden of presenting a plausible basis 

for his request to withdraw his guilty plea is heavier" if the plea stems from a 
9

A-3811-18T1

plea bargain. Judge Wigler concluded the third Slater factor "does not carry 

enough weight to outweigh any of the other factors" but it did "count against 

defendant and vacating the plea." Based on this finding, and his overall analysis, 

the judge determined the State was not required to demonstrate prejudice under 

the fourth Slater factor and that defendant failed to meet his burden under Slater. 

We agree with Judge Wigler's findings. Our conclusion is bolstered not 

only by the State's exhibits, but by defendant's plea testimony, where he affirmed 

he was twenty-nine years old, fluent in English, college educated, and that he 

was not under the influence of any substance which affected his ability to 

understand the plea proceedings. Moreover, defendant testified he was satisfied 

with the services of his attorney and had sufficient time to discuss his plea with 

her. Under these circumstances, we discern no abuse of discretion in the denial 

of defendant's presentence plea withdrawal motion.

Affirmed.