STATE OF NEW JERSEY v. JAMES BURNETT

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5818-06T45818-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JAMES BURNETT,

Defendant-Appellant.

_______________________________________

 

Submitted October 13, 2009 - Decided

Before Judges Reisner and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 04-03-0639.

Yvonne Smith Segars, Public Defender, attorney for appellant (Lee March Grayson, Designated Counsel, on the brief).

John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Catherine A. Foddai, Senior Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant James Burnett pled guilty to one count of third degree fraudulent use of a credit card, contrary to N.J.S.A. 2C:21-6(h), and he was sentenced to four years of incarceration, to be served concurrently with a sentence defendant was then serving. Defendant appeals from the judgment of conviction dated April 13, 2007, as amended, and argues that the trial court erred by denying his motion to dismiss the indictment. For the reasons that follow, we dismiss the appeal.

We briefly summarize the relevant facts and procedural history. In 2003, defendant was tried before a jury and found guilty of third degree aggravated assault, contrary to N.J.S.A. 2C:12-1b (7), as charged in Bergen County Indictment No. 00-06-1229-I. The court continued defendant's bail pending sentencing. Defendant failed to appear on the sentencing date and the trial court issued a warrant for his arrest.

In March 2004, while defendant was a fugitive, he was charged in Bergen County Indictment No. 04-03-639-I with second degree robbery, contrary to N.J.S.A. 2C:15-1 (count one); third degree fraudulent use of a credit card, contrary to N.J.S.A. 2C:21-6(h) (counts two and four); and third degree theft by deception, contrary to N.J.S.A. 2C:20-4 (counts three and five). On May 15, 2004, defendant was arrested in California on certain unrelated charges.

In August 2004, defendant wrote to the Bergen County Prosecutor's Office (BCPO) and advised that he was in custody in the Orange County Correctional Facility (OCCF) in California. By letter dated September 22, 2004, Detective Therese Steele (Steele) of the BCPO advised the Records Supervisor of the OCCF that, after defendant was sentenced on the California charges, the State would accept a transfer of custody to New Jersey pursuant to the Interstate Agreement on Detainers (IAD), N.J.S.A. 2A:159A-1 to -15. In April 2005, Steele again wrote to the OCCF and asked to be informed when defendant was ready to be extradited.

On October 12, 2005, defendant was sentenced in California to one year of incarceration in the OCCF. On that same date, defendant wrote to the BCPO and requested a temporary transfer of custody and final disposition of the pending Bergen County indictment pursuant to the IAD. Defendant also requested that the OCCF promptly forward to him certain forms for the purpose of perfecting his application under the IAD.

Defendant thereafter forwarded certain forms to the BCPO and sometime after December 12, 2005, Detective Barbara A. Stio (Stio) of the BCPO wrote to defendant and informed him that his application was deficient because one of the forms was missing. Stio also advised defendant that all of the documents had to be originals and notarized. She suggested that defendant check with the "records staff [at the OCCF] for the proper procedure."

In January 2006, the BCPO received certain forms from defendant. According to the State, these forms were neither originals nor official, defendant's signatures were dissimilar and there were three different signature dates on the documents. By letter dated January 11, 2006, Stio wrote to the OCCF and requested that defendant be provided with assistance in completing the forms. The State did not receive any further documentation from defendant.

Defendant was returned to New Jersey on July 29, 2006, and incarcerated in the Bergen County jail. In October 2006, defendant filed a motion to dismiss the pending indictment on the ground that he had not been brought to trial within 180 days of the date of his request for a transfer of custody and final disposition of the charges, as required by N.J.S.A. 2A:159A-3(a).

The trial court considered the motion on December 1, 2006, and placed its decision on the record. The court determined that defendant's application under the IAD for final disposition of the charges was deficient because, while Forms 1, 2 and 4 were in order, Form 3 was not. The court found that strict compliance with the requirements of the IAD is required in order to perfect an application by a defendant under N.J.S.A. 2A:159A-3(a) for transfer of custody and final disposition of charges. The court entered an order dated December 13, 2006, denying defendant's motion to dismiss the charges.

On January 16, 2007, defendant entered a plea to count two of the indictment, in which he was charged with third degree fraudulent use of a credit card. The State agreed to recommend a flat, four-year sentence of incarceration, to be served concurrently with the sentence imposed under the Indictment No. 00-06-1229-I, which defendant was then serving. Defendant did not reserve the right to appeal the denial of his motion to dismiss the indictment in the plea agreement or on the record when he entered the plea.

Defendant was sentenced on April 13, 2007, in accordance with the plea agreement, and a judgment of conviction was entered on that date. Defendant filed a notice of appeal on May 30, 2007. Thereafter, on March 6, 2008, the trial court entered an amended judgment of conviction, granting defendant's motion for 315 days of jail credit and denying his motion for gap time credit.

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

POINT I

THE TRIAL COURT ERRED BY NOT DISMISSING THE INDICTMENT WITH PREJUDICE PURSUANT TO THE INTERSTATE AGREEMENT ON DETAINERS ACT BECAUSE THE DEFENDANT SUBSTANTIALLY COMPLIED WITH THE ACT BY SUBMITTING THE REQUIRED DOCUMENTS AND SUBSEQUENTLY MORE THAN ONE HUNDRED EIGHTY (180) DAYS PASSED DURING WHICH HIS CASE WAS NOT BROUGHT TO TRIAL.

POINT II

THE INDICTMENT SHOULD HAVE BEEN DISMISSED BECAUSE THE DELAY IN PROSECUTION VIOLATED THE DEFENDANT'S SIXTH AMENDMENT RIGHTS AS APPLIED BY THE FOURTEENTH AMENDMENT['S] DUE PROCESS CLAUSE.

POINT III

BECAUSE THE ATTORNEY BELOW FAILED TO PRESERVE THE RIGHT TO APPEAL AFTER THE MOTION TO DISMISS THE INDICTMENT WAS DENIED, THE DEFENDANT WAS DEPRIVED OF THE EFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF THE NEW JERSEY AND UNITED STATES CONSTITUTIONS.

POINT IV

REVERSAL IS REQUIRED IN THIS CASE BECAUSE OF THE CUMULATIVE EFFECTS OF THE ERRORS AND INEFFECTIVENESS OF COUNSEL AT THE WAIVER HEARING, SENTENCING AND DIRECT APPEAL.

We have thoroughly reviewed the record and conclude that defendant is precluded from challenging the trial court's December 13, 2006 order denying his motion to dismiss the indictment.

As we have explained, after the trial court denied defendant's motion to dismiss the charges, he entered an unconditional plea to count two of the indictment. Generally, the entry of such a plea precludes a defendant from raising on appeal any adverse determination of the trial court, including claims that the State violated his constitutional rights before he entered the plea. State v. Knight, 183 N.J. 449, 470 (2005) (citing State v. Crawley, 149 N.J. 310, 316 (1997)). There are, however, three exceptions to the rule. Id. at 471.

The first exception permits a defendant to challenge the denial of a motion to suppress evidence on the ground that it was obtained as a result of an unconstitutional search or seizure. Ibid. (citing Rules 3:5-7(d) and 7:5-2(c)(2)). The second exception allows a defendant to appeal the denial of admission to a pretrial intervention program. Ibid. (citing Rule 3:28(g)). The third exception applies when a defendant enters a conditional plea "'reserving on the record the right to appeal from the adverse determination of any specified pretrial motion.'" Ibid. (quoting Rule 3:9-3(f)).

None of these exceptions apply here. Therefore, defendant is precluded from challenging the trial court's order of December 13, 2006, denying his motion to dismiss the indictment. Defendant also is precluded from asserting that his rights under the Sixth and Fourteenth Amendments to the United States Constitution were violated by the State's "delay in prosecution."

Defendant further argues that he was denied the effective assistance of counsel because his attorney failed to reserve his right to appeal from the adverse decision on his motion to dismiss the indictment. We decline to address this argument on direct appeal because resolution of this claim appears to "involve allegations and evidence that lie outside" the record before us on this appeal. State v. Preciose, 129 N.J. 451, 460 (1992). Defendant may, if he chooses, pursue his ineffective-assistance-of-counsel claim in a petition for post-conviction relief.

Appeal dismissed.

(continued)

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A-5818-06T4

October 28, 2009