STATE OF NEW JERSEY v. GARY L. BROWN

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NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

GARY L. BROWN,

Defendant-Appellant.

______________________________________________

September 10, 2015

 

Argued November 5, 2014 Decided

Before Judges Messano and Hayden.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 10-06-0084.

Frank M. Gennaro argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Gennaro, on the brief).

Joseph A. Glyn, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Mr. Glyn, on the brief).

PER CURIAM

Defendant Gary L. Brown, co-defendants Sharon Vanessa Phillips, Donald H. Giddings, James McKoy and Roy Harte, were indicted by the State Grand Jury and charged with a series of crimes alleging their involvement in an interstate conspiracy to distribute large amounts of marijuana in New Jersey. The judge denied several pre-trial motions made by defendants and granted certain evidentiary motions made by the State, one of which was to permit introduction of "other crimes" evidence and a redacted version of a statement Phillips gave to law enforcement at defendants' joint trial.

On September 21, 2011, pursuant to a plea agreement reached with the State, McKoy, Phillips and Giddings pled guilty to second-degree conspiracy to distribute marijuana, N.J.S.A. 2C:35-5(a)(1), N.J.S.A. 2C:35-5(b)(10)(b), and N.J.S.A. 2C:5-2 (Count One); first-degree distribution of marijuana, N.J.S.A. 2C:35-5(a)(1), N.J.S.A. 2C:35-5(b)(10)(a), N.J.S.A. 2C:35-5(c), and N.J.S.A. 2C:2-6 (Count Two); and third-degree distribution of marijuana within one-thousand feet of a school, N.J.S.A. 2C:35-7 (Count Seven). The next day, September 22, 2011, defendant pled guilty to the same counts. He was sentenced to an aggregate term of thirteen years in prison, with a six and one-half year period of parole ineligibility.

Harte proceeded to trial and was convicted. We affirmed his conviction and sentence on appeal, and the Supreme Court denied his petition for certification. State v. Harte, No. A-5385-11 (App. Div. Jan. 12), certif. denied, 221 N.J. 492 (2015).1

We decided the appeals of Giddings and Philips before defendant's appeal was calendared for argument. State v. Donald Giddings; State v. Sharon Vanessa Philips, Nos. A-2180-11; A-2595-11 (App. Div. June 30, 2014). We need not detail the procedural history that followed the filing of those two appeals, or the findings and conclusions reached by Judge Verna G. Leath who effectuated our remand while the appeals were pending. It suffices to say we concluded that Giddings and Phillips did not preserve their rights to appeal the adverse rulings regarding certain pre-trial motions because they failed to substantially comply with Rule 3:9-3(f) (the Rule). Id. at 20. The Rule provides

Conditional Pleas. With the approval of the court and the consent of the prosecuting attorney, a defendant may enter a conditional plea of guilty reserving on the record the right to appeal from the adverse determination of any specified pretrial motion. If the defendant prevails on appeal, the defendant shall be afforded the opportunity to withdraw his or her plea.

[R. 3:9-3(f) (emphasis added).]

We therefore concluded defendants had waived their rights to appeal most of the points raised before us and dismissed those appeals, permitting defendants to "immediately move to withdraw their guilty pleas if they so choose." Giddings, supra, slip op. at 27.

When McKoy's appeal was calendared, in September 2014, our review of the record revealed that his plea, like those of Giddings and Phillips, did not substantially comply with the Rule. We requested the attorneys in McKoy's appeal to address the issue, particularly in light of our decision in Giddings. McKoy responded that "the outcome of []his case should be the same as the outcome in Giddings . . . ." State v. McKoy, No. A-5566-11 (App. Div. Sept. 29, 2014) (slip op. at 3-4). As a result, we dismissed McKoy's appeal and remanded the matter "to the Law Division so that [McKoy] may move, if he chooses, to withdraw his guilty plea." Id. at 4.

Our review of the record in this case led to our conclusion that defendant too had not entered a conditional plea pursuant to the Rule. By letter of October 1, 2014, we asked the Deputy Attorney General and defendant's appellate counsel to address the same question we posed in the prior appeals filed by Giddings, Philips and McKoy.

The State responded that defendant's appeal should be resolved in the same manner as those of his three co-defendant's who had plead guilty, but not conditionally in accordance with the Rule. Defendant responded and argued that his plea "was conditional, in accordance with" the Rule. Additionally, defendant asserted that since he had not participated in the remand hearing occasioned by our order in Giddings, "the decision as to the co-defendants should not control this appeal." At oral argument on November 5, 2014, defendant reasserted his contention that since he had not participated in the prior remand, the findings and conclusions reached by Judge Verna G. Leath, whose opinion we cited extensively in Giddings, supra, at 10-13, could not be binding upon him. As a result, we remanded this appeal to Judge Leath for purposes of conducting a hearing specific to this defendant.

Judge Leath completed that hearing. The conclusion of her comprehensive written opinion of August 17, 2015, states: "[D]efendant's plea was not a conditional plea, but . . . defendant and defense counsel did intend and had a good faith reason to believe that the plea was a conditional plea and . . . defendant and defense counsel, in reliance upon this belief, waived the right to trial and entered pleas of guilty."2

We asked counsel to address Judge Leath's conclusion and any effect it has upon this appeal. Defendant responded by arguing, as he did before, that his guilty plea was a conditional guilty plea that substantially complied with the Rule. The State continues to assert that the result reached in the prior three appeals should be the same.

We reject defendant's argument for all the reasons expressed in our prior opinion in Giddings, supra, at 20-23. In short, defendant's guilty plea was not a conditional guilty plea that preserved his "right to appeal from the adverse determination of any specified pretrial motion." R. 3:9-3(f). We must resolve what that conclusion means as to the points defendant has raised on appeal.

Defendant's brief raises the following issues

POINT ONE

THE TRIAL COURT IMPROPERLY DENIED DEFENDANT'S MOTION TO SUPPRESS EVIDENCE.

POINT TWO

THE ADDITION OF THREE NEW COUNTS IN THE SUPERCEDING INDICTMENT DENIED DEFENDANT THE DUE PROCESS OF LAW.

POINT THREE

COUNTS FIVE AND SIX OF THE SUPERCEDING INDICTMENT LACKED TERRITORIAL JURISDICTION.

POINT FOUR

THE STATE PRESENTED INSUFFICIENT EVIDENCE TO THE GRAND JURY TO SUPPORT COUNTS FIVE AND SIX OF THE SUPERCEDING INDICTMENT.

POINT FIVE

THE TRIAL COURT'S RULING THAT OTHER CRIMES EVIDENCE WOULD BE ADMISSIBLE AT TRIAL WAS ERROR.

POINT SIX

THE TRIAL COURT IMPROPERLY DENIED DEFENDANT'S MOTION TO SEVER DEFENDANTS.

POINT SEVEN

THE SENTENCING JUDGE IMPROPERLY FAILED TO MERGE COUNTS ONE AND SEVEN INTO COUNT TWO AND FAILED TO CONSIDER AN APPLICABLE MITIGATING FACTOR.

As we said in Giddings,

"Generally, a guilty plea constitutes a waiver of all issues which were or could have been addressed by the trial judge before the guilty plea." State v. Robinson, 224 N.J. Super. 495, 498 (App. Div. 1988). The waiver even applies to claims of certain constitutional violations. State v. Knight, 183 N.J. 449, 470 (2005); State v. J.M., 182 N.J. 402, 410 (2005).

[Id. at 15-16.]

One exception is provided by Rule 3:5-7(d), which permits a challenge to the denial of a motion to suppress after a guilty plea is entered. Also, the legality or excessiveness of a sentence may be appealed following a guilty plea. State v. Sainz, 107 N.J. 283, 292 (1987). Thus, defendant's failure to enter a conditional guilty plea means that only Points One and Seven are cognizable on appeal.

We do not know with certainty whether defendant will move to withdraw his guilty pleas. If he were to be successful in that endeavor, then any challenge to his sentence would be moot. At this point in time, appellate consideration of the issues raised in Point One would be imprudent, because we would essentially be providing an advisory opinion. That is so because if defendant successfully withdraws his guilty pleas, goes to trial and is acquitted, his challenge to the denial of his motion to suppress is moot. If he is subsequently convicted at trial, the issues he raises now would be preserved for direct appeal. Therefore, we dismiss defendant's appeal for these and all the other reasons expressed in Giddings.

If defendant does not to move to withdraw his guilty pleas or is unsuccessful in that attempt, then resolution of the issues raised in Points One and Seven would be necessary. We intend to preserve his right to seek appellate review in that regard. Therefore, defendant shall have forty-five days from our judgment to move in the Law Division to withdraw his guilty pleas and to advise this court that the motion has been filed. If he chooses not to do so, this appeal will be reinstated for consideration of the issues raised in Points One and Seven upon motion addressed to the Presiding Judge for Administration.

If defendant is unsuccessful in vacating his guilty pleas, then he shall have forty-five days from the Law Division's order denying that motion to reinstate his appeal as to Points One and Seven. Defendant may reinstate this appeal as to Points One and Seven on motion to the Presiding Judge for Administration.

Subject to the conditions expressed, the appeal is dismissed.

1 Although citing an unpublished opinion is generally forbidden, we do so here to provide a full understanding of the issues presented and pursuant to the exception in Rule 1:36-3 that permits citation "to the extent required by res judicata, collateral estoppel, the single controversy doctrine or any other similar principle of law . . . ." See Badiali v. New Jersey Mfrs. Ins. Grp., 429 N.J. Super. 121, 126 n.4 (App. Div. 2012), aff'd, 220 N.J. 544 (2015).

2 Judge Leath's conclusion mirrored the conclusion she reached after conducting the hearings on remand in Giddings and Phillips.


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