STATE OF NEW JERSEY v. ISAIAH WISE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2892-11T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ISAIAH WISE,

Defendant-Appellant.

____________________________________

March 10, 2014

Submitted January 7, 2014 Decided

Before Judges Fisher, Espinosa and O'Connor.

On appeal from Superior Court of New Jersey,

Law Division, Essex County, Indictment No.

10-04-00921.

Isaiah Wise, appellant pro se.

Carolyn A. Murray, Acting Essex County

Prosecutor, attorney for respondent

(Maria I. Guerrero, Special Deputy Attorney General/Acting Assistant Prosecutor, of

counsel and on the brief).

PER CURIAM

In this appeal, we consider defendant's claims that his guilty plea must be vacated on the grounds the complaint-summons and indictment were deficient, the prosecutor engaged in misconduct, defense counsel provided ineffective assistance, and the court wrongfully denied his motion to withdraw his guilty plea. After reviewing these arguments in light of the record and applicable legal principles, we are satisfied none has merit and affirm.

On October 2, 2009, a complaint-summons was issued charging defendant Isaiah Wise with first-degree financial facilitation of criminal activity, N.J.S.A. 2C:21-25b(2)(a), and second-degree theft by deception, N.J.S.A. 2C:20-4a. Defendant filed a motion to dismiss the complaint-summons on the basis it was unsigned. Pending the return date of the motion, defendant was indicted for the latter offenses and third-degree forgery, N.J.S.A. 2C:21-1a(2). On the return date, the court treated the motion as one to dismiss the indictment and held that any infirmity that may have existed in the complaint-summons became moot when defendant was indicted, and denied the motion.

Thereafter, pursuant to a plea agreement, defendant pled guilty to second-degree theft by deception, but reserved the right to appeal the denial of his motion to dismiss the indictment. See R. 3:9-3(f)(authorizing a defendant to "enter a conditional plea of guilty reserving on the record the right to appeal from the adverse determination of any specified pretrial motion"). The State agreed to dismiss the remaining charges at the time of sentencing and recommend a seven-year flat sentence.

After pleading guilty but before sentencing, defendant filed a second motion to dismiss the indictment based on prosecutorial misconduct. Specifically, defendant argued that, despite knowing the complaint-summons was unsigned, the prosecutor told the grand jury defendant had been "charged by way of complaint" for theft by deception and the financial facilitation of criminal activity. Defendant contended that, as an unsigned complaint-summons is not valid, the prosecutor's representation to the grand jury that defendant had been charged with a complaint was false, warranting the dismissal of the indictment.

The court denied the second motion, finding the reference to the complaint-summons immaterial given it was not evidence. The court further held that there was not any indication or even a contention by defendant the evidence before the grand jury was insufficient to support the indictment.

After the motion was denied, defense counsel informed the court defendant wished to appeal the court's ruling on the second motion and "if necessary, . . . withdraw his plea." Defendant did not move, however, to withdraw his plea. Defendant was then sentenced in accordance with the plea agreement.

Defendant raises the following points on appeal:1

POINT I - PROSECUTORS CONDUCT, AFTER BEING SERVED WITH THE NOTICE OF A MOTION ALLEGING A DEFECTIVE COMPLAINT CONSTITUTE PROSECUTORIAL MISCONDUCT DURING THE GRAND JURY AND PROCEEDINGS.

POINT II - THE PETITIONER WAS DENIED HIS SIXTH AMENDMENT CONSTITUTIONAL RIGHT TO THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL BY COUNSEL'S FAILURE TO: (A) TO CHALLENGE THE STATE'S INTRODUCTION OF A DEFECTIVE SUMMONS COMPLAINT PRIOR TO THE GRAND JURY; (B) TO CHALLENGE THE ACCURACY OF THIS STAGE CHARGE OF COUNT ONE OF THE INDICTMENT N.J.S.A. 2C:21-25(b)(2)(A); FAILING TO OBJECT TO BE ERRONEOUS GRAND JURY INSTRUCTION RELATING TO THE CHARGE OF FINANCIAL FACILITATION OF CRIMINAL ACTIVITY.

POINT III - THE MONEY LAUNDERING STATUTE WAS IMPROPERLY APPLIED TO THE FACTS AT ISSUE IN THE INSTANT CASE DEFENDANT ARGUES THAT THE STATE CHARGED THE GRAND JURY ON THE INCORRECT CHARGE AS STATED IN THE INDICTMENT FOR MONEY LAUNDERING, IN VIOLATION OF 2C:21-25(b)(2)(A).

POINT IV - THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING DEFENDANTS IN COURT REQUESTS TO WITHDRAW HIS PLEA PRIOR TO SENTENCING.

I.

In Point I defendant argues that, although the State failed to file any opposition to defendant's first motion to dismiss the indictment, during oral argument the court erroneously permitted the State to produce a signed complaint-summons for the court's consideration.2 This contention is belied by the record. The trial judge made it clear he was going to assume for the purpose of deciding the motion that the complaint-summons was unsigned.

Second, and more important, whether or not the complaint-summons was unsigned or flawed in any respect is entirely irrelevant. Any deficiency in the complaint-summons was superseded by the indictment and had no bearing on the charge to which defendant ultimately pled guilty. See State v. Boykin, 113 N.J. Super. 594, 596 (Law Div. 1971)(noting that even after dismissal of a complaint, a defendant "may still be indicted and convicted for the same offense"). Further, as observed by the trial court, even if the motion to dismiss the indictment were granted, the State had the right to re-present the case to the grand jury.

Defendant also argues the trial court erred when it denied defendant's second dismissal motion, which alleged prosecutorial misconduct. We will not consider this argument. The second motion was filed after defendant pled guilty. "A plea of guilty amounts to a waiver of all issues, including constitutional claims, that were or could have been raised in prior proceedings." State v. Marolda, 394 N.J. Super. 430, 435 (App. Div.), certif. denied, 192 N.J. 482 (2007)(citing Tollett v. Henderson, 411 U.S. 258, 267, 93 S. Ct. 1602, 1608, 36 L. Ed. 2d 235, 243 (1973)); State v. Owens, 381 N.J. Super. 503, 508-09 (App. Div. 2005).

The Rules of Court do recognize limited exceptions to the waiver principle, but none applies here. See R. 3:9-3(f); R. 3:5-7(d) and R. 7:5-2(c)(2) (permitting appeal from denial of a motion to suppress physical evidence after a guilty plea); R. 3:28(g) (permitting appeal from denial of admission into a pretrial intervention program following a plea of guilty). While pursuant to Rule 3:9-3(f) defendant preserved the right to appeal the denial of his first motion to dismiss the indictment, he did not preserve any other issues for appeal.

II.

In Point II defendant claims he was denied effective assistance of counsel. He claims his attorney: (1) wrongfully advised him to plead guilty3 before his first motion to dismiss the indictment was decided; (2) ignored defendant's concerns that the State submitted a signed complaint-summons to the court during oral argument on the first motion; (3) failed to file a motion to dismiss the charge of financial facilitation of criminal activity from the indictment; and (4) failed to file a motion to withdraw defendant's guilty plea on the grounds the complaint-summons was defective and that he was wrongfully charged with financial facilitation of criminal activity in the indictment.

Defendant's claims are wholly devoid of merit. First, defendant pled guilty after his motion to dismiss the indictment was denied. Second, the court did not consider the signed complaint-summons when it considered and decided defendant's motion to dismiss the indictment, although whether the complaint-summons was signed or unsigned is beside the point. Any flaws which may have existed in the complaint-summons became moot when the grand jury returned the indictment. Third, defendant did not plead guilty to financial facilitation of criminal activity, a charge the State dismissed; thus, the failure of defendant's counsel to challenge such charge is immaterial. Fourth, given the indictment superseded the complaint-summons, there would have been no basis to grant a motion to withdraw the guilty plea on the grounds there was a flaw in the complaint-summons, or that defendant had been wrongfully charged with an offense to which he never pled guilty.

To establish a case of ineffective assistance of counsel, a defendant must show that, first, his attorney made errors so serious the attorney was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). Second, the defendant must show his attorney s errors were so serious that defendant was deprived of a fair trial. Ibid. A defendant seeking to set aside a guilty plea based on ineffective assistance of counsel must show his attorney's performance was not "'within the range of competence demanded of attorneys in criminal cases' and 'there is a reasonable probability that, but for counsel's errors, [the defendant] would not have pled guilty but would have insisted on going to trial.'" State v. Nu ez-Vald z, 200 N.J. 129, 139 (2009)(quoting State v. DiFrisco, 137 N.J. 434, 457 (1994)).

For the reasons set forth above, defendant failed to establish a prima facie case of ineffective assistance of counsel. Even if plea counsel's performance was deficient in the manner alleged, defendant has not demonstrated there exists "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. Defendant could not have obtained a more favorable plea agreement by challenging the sufficiency of the complaint-summons or the charge of financial facilitation of criminal activity.

III.

In Point III, defendant claims the evidence presented to the grand jury did not support the charge of financial facilitation of criminal activity. We decline to address this issue. Not only did defendant fail to preserve his right to appeal this issue at the time he pled guilty, see Rule 3:9-3(f), but also the State dismissed this charge.

IV.

In Point IV defendant claims the trial court abused its discretion when it denied defendant's request to withdraw his plea. This claim is without any merit. Our review of the record reveals defendant did not move to withdraw his plea. Defendant raised other arguments which were interspersed throughout his brief, predominantly having to do with the complaint-summons. These remaining issues lack sufficient merit to warrant further discussion. R. 2:11-3(e)(2).

A

1 We have reproduced defendant's point headings exactly as written.

2 As at the time defendant pled guilty he preserved his right to appeal the trial court's denial of his initial motion to dismiss the indictment, we have considered this argument. See R. 3:9-3(f).

3 In his brief defendant claims he pled guilty to both theft by deception and financial facilitation of criminal activity; however, he pled guilty to theft by deception only.