STATE OF NEW JERSEY v. IVAN D. FOSTER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3580-08T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

IVAN D. FOSTER,

Defendant-Appellant.

________________________________________________________________

June 3, 2011

Submitted May 23, 2011 - Decided

Before Judges Lisa and Alvarez.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 07-12-4041.

Yvonne Smith Segars, Public Defender, attorney for appellant (Diane Toscano, Assistant Deputy Public Defender, of counsel and on the brief).

Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Nancy P. Scharff, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant, Ivan D. Foster, was indicted for one count of second-degree aggravated arson and one count of second-degree burglary. After his motion to dismiss the indictment was denied, defendant, while representing himself and with the assistance of standby counsel, entered into a plea agreement. The agreement provided that the burglary count would be dismissed and the arson count would be downgraded to third-degree arson, N.J.S.A. 2C:17-1b(1), to which defendant would plead guilty in exchange for a recommended sentence of four years imprisonment. The agreement also provided that the probationary term defendant was then serving on an unrelated offense would be terminated at the time of sentencing. Defendant pled guilty to the downgraded charge and provided a sufficient factual basis.

On the day of sentencing, defendant asserted that he was uncertain whether he would be assigned to a halfway house to serve his sentence, and he requested a postponement to make further inquiries in that regard. When the judge denied the postponement request, defendant said he wanted to withdraw his guilty plea. He contended his standby counsel had told him he would be eligible for assignment to a halfway house. Standby counsel advised the court that it was only after entering the guilty plea that defendant requested that standby counsel look into the potential for a halfway house assignment. The judge found no basis for withdrawal of the plea and denied defendant's motion to do so. Defendant did not assert his innocence or provide any other legitimate basis for withdrawal of a guilty plea. See State v. Slater, 198 N.J. 145, 157-62 (2009). The judge imposed sentence as recommended in the plea agreement.

Defendant appealed. The case was initially assigned to our excessive sentencing calendar. See R. 2:9-11. However, at defendant's request, the case was removed from that calendar and placed on a plenary calendar with full briefing. The State has advised us that defendant has been released from custody and is no longer confined.

Defendant presents the following arguments on appeal:

POINT I

THE COURT ERRED IN DENYING DEFENDANT'S MOTION TO DISMISS THE INDICTMENT.

POINT II

THE COURT ERRED IN DENYING THE DEFENDANT'S MOTION TO WITHDRAW HIS GUILTY PLEA, CONTRARY TO PRINCIPLES OF FUNDAMENTAL FAIRNESS, AND REASONABLE EXPECTATIONS UNDERLYING THE GUILTY PLEA. U.S. CONST. Amends. V, VI, VIII, AND XIV; N.J. CONST. Art. 1, 1, 10.

POINT III

BECAUSE THE COURT FAILED TO INFORM DEFENDANT THAT HIS GUILTY PLEA WOULD CONSTITUTE A WAIVER OF HIS RIGHT TO APPEAL THE DENIAL OF HIS MOTION TO DISMISS THE INDICTMENT, DEFENDANT DID NOT ENTER HIS PLEAS KNOWINGLY AND VOLUNTARILY; CONSEQUENTLY, THE COURT'S DENIAL OF DEFENDANT'S MOTION TO WITHDRAW HIS PLEA DENIED HIM DUE PROCESS AND MUST BE REVERSED. (Not raised below).

These arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We therefore reject the arguments and affirm. We nevertheless offer the following brief comments.

The plea agreement said nothing about assignment to a halfway house. Indeed, any such agreement or order by the court would not be binding on the Department of Corrections, which has the sole authority as the executive agency responsible for housing assignments of inmates under its custody. At the plea hearing, after reviewing the plea agreement with defendant on the record and confirming that he understood all of its terms and signed it, the judge inquired of defendant whether "anybody mentioned anything else to you or promised you anything to get you to plead guilty that is different from what I have said." Defendant answered in the negative.

The law is clear. By entering an unconditional plea, defendant waived the right to appeal the denial of his motion to dismiss the indictment. R. 3:9-3(f); State v. Knight, 183 N.J. 449, 471 (2005). Defendant chose to represent himself and, after appropriate inquiry by the court, was permitted to do so. He asserts no error in that regard. Having chosen to represent himself, he was required to do so "in accordance with the relevant rules of criminal procedure and evidence." State v. Crisafi, 128 N.J. 499, 512 (1992). In these circumstances, he is charged with knowledge of the law and cannot assert a lack of such knowledge as a basis for relief.

Further, defendant's contention that the court erred in denying his motion to dismiss the indictment is completely lacking in merit. The evidence defendant contends the prosecutor wrongfully withheld from the grand jury was not clearly exculpatory and did not directly negate guilt. See State v. Hogan, 144 N.J. 216, 237 (1996).