Opinion
DOCKET NO. A-1013-14T3
02-17-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. TERRELL MORRIS, a/k/a RAHEEM JOHNSON, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Brian Plunkett, Assistant Deputy Public Defender, of counsel and on the brief). Fredric M. Knapp, Morris County Prosecutor, attorney for respondent (Erin Smith Wisloff, Supervising Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Alvarez and Manahan. On appeal from the Superior Court of New Jersey, Law Division, Morris County, Indictment No. 12-12-1324. Joseph E. Krakora, Public Defender, attorney for appellant (Brian Plunkett, Assistant Deputy Public Defender, of counsel and on the brief). Fredric M. Knapp, Morris County Prosecutor, attorney for respondent (Erin Smith Wisloff, Supervising Assistant Prosecutor, on the brief). PER CURIAM
Defendant Terrell Morris appeals from his conviction after pleading guilty to one count of fourth-degree certain persons not to have weapons. On appeal, defendant challenges the denial of his motion to suppress statements made to the police, as well as the physical evidence recovered from his residence. Having carefully reviewed the record and arguments on appeal, we affirm.
On January 10, 2013, a grand jury returned a six-count indictment charging defendant with second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (count one); third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(2) (count two); third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(7) (count three); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count four); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d) (count five); and fourth-degree certain persons not to have weapons, N.J.S.A. 2C:39-7(a) (count six).
Following the indictment, defendant moved to suppress statements given to the Boonton police, as well as the box cutter recovered by the police after defendant consented to a search of his apartment. A hearing on the motion took place on June 20 and 25, 2013. On June 25, 2013, the judge denied the motion in a thorough and comprehensive oral opinion.
Defendant pled guilty to count six of the indictment on July 24, 2013. On October 4, 2013, the judge "suspended" the recommended sentence of eighteen months in state prison, and sentenced defendant to two years of probation.
We note that the sentence was not in accord with N.J.S.A. 2C:43-2(b). That issue, not raised by either party, is moot as defendant was subsequently sentenced to eighteen months in state prison after pleading guilty to a violation of probation.
We briefly recite the relevant factual background. The indictment arose from a physical altercation between defendant and the victim, which took place in an apartment building in Boonton on October 1, 2012. Following the incident, defendant voluntarily provided statements to the police regarding the altercation, asserting at the scene that he was defending himself and was actually the victim. Defendant provided additional statements at the Boonton police station, filled out three written statements, and consented to a search of his apartment to retrieve the box cutter he used to defend himself during the altercation. Defendant was not provided any Miranda warnings at that time because he was not considered a suspect. Defendant was subsequently provided a Miranda warning after one of the investigating officers took a statement from the victim. After the victim gave a statement, the investigating officers considered defendant to be the assailant rather than the victim. Defendant was given Miranda warnings and a videotaped statement was taken. After the statement, defendant was placed under arrest.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
On October 22, 2014, defendant filed a notice of appeal challenging the judge's decision denying the motion to suppress. Defendant argues on appeal that the police improperly questioned defendant without first providing Miranda warnings, and therefore, all of the statements made were improperly obtained and the box cutter was "fruit of the poisonous tree."
Wong Sun v. United States, 371 U.S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963). --------
We first address whether there is a procedural bar to defendant's appeal. The July 24, 2013 plea agreement executed by defendant did not reserve the right to appeal his conviction based upon the denial of any pretrial motion. In fact, the agreement expressly stated that defendant understood that by pleading guilty he was waiving his right to appeal the denial of all pretrial motions, with the exception of those contemplated in Rule 3:5-7(d) or Rule 3:28(g). Defendant did not seek to preserve a right to appeal at the conclusion of the motion to suppress, nor did he do so at his plea hearing.
It is well settled that "a defendant who pleads guilty is prohibited from raising, on appeal, the contention that the state violated his constitutional rights prior to the plea." State v. Knight, 183 N.J. 449, 470 (2005) (quoting State v. Crawley, 149 N.J. 310, 316 (1997)); accord Tollett v. Henderson, 411 U.S. 258, 267, 93 S. Ct. 1602, 1608, 36 L. Ed. 2d 235, 243-44 (1969). Those constitutional rights include "the privilege against compulsory self-incrimination, the right to trial by jury, the right to confront one's accusers, and the right to a speedy trial." Ibid. (quoting Crawley, supra, 149 N.J. at 316).
There are three exceptions to the general rule of waiver. Id. at 471. First, Rule 3:5-7(d) and Rule 7:5-2(c)(2) permit a defendant to appeal the denial of a Fourth Amendment-based motion to suppress evidence after a conviction, whether based on a guilty plea or conviction. Ibid. (citing State v. Greeley, 178 N.J. 38, 50 (2003)). Rule 3:5-7(d) and Rule 7:5-2(c)(2) do not allow for the appeal of unsuccessful challenges to statements and Miranda violations. Ibid. (citing State v. Smith, 307 N.J. Super. 1, 8 (App. Div. 1997)). Second, Rule 3:28(g) permits a defendant to appeal the denial of admission into the pretrial intervention program. Third, Rule 3:9-3(f) allows 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." In the event a defendant prevails on appeal, he or she "shall be afforded the opportunity to withdraw his or her plea." Ibid.
Here, defendant did not preserve his right to appeal pursuant to Rule 3:9-3(f). "As explained by the Appellate Division on several occasions . . . only motions for suppression [on the grounds of unlawful search and seizure] automatically survive the entry of a guilty plea." Greeley, supra, 178 N.J. at 50-51. Thus, in the absence of a cognizable exception, defendant waived his right to challenge the judge's decision when he entered the unconditional guilty plea. Knight, supra, 183 N.J. at 470-71; State v. Robinson, 224 N.J. Super. 495, 498, 500 (App. Div. 1988); see also Pressler & Verniero, Current N.J. Court Rules, comment 7 to R. 3:9-3 and comment 4 to R. 3:5-7 (2016). We conclude, therefore, that defendant is barred from raising on appeal issues relating to his pre- and post-Miranda statements to police.
Notably, defendant does not challenge the legality of the search of his residence. Instead, he seeks to suppress the box cutter as the illegal fruits of an alleged violation of his Fifth Amendment right to be free from self-incrimination. Since defendant's appeal does not allege that the physical evidence was seized in violation of his Fourth Amendment right, Rule 3:5-7(d) is not applicable. State v. Morales, 182 N.J. Super. 502, 508-509 (App. Div. 1981), certif. denied, 89 N.J. 421 (1982).
Even were we to conclude that there was no procedural bar, predicated upon our review of the record as well as controlling decisions of law, there were ample grounds to sustain the judge's determination that defendant's pre- and post-Miranda statements were legally obtained and therefore, along with the box cutter, admissible. As such, we conclude defendant's substantive arguments are without sufficient merit to warrant full discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION