NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-6302-11T3
STATE OF NEW JERSEY, APPROVED FOR PUBLICATION Plaintiff-Respondent, January 20, 2016 v. APPELLATE DIVISION CECILIO DAVILA,
Defendant-Appellant. _______________________________
Argued September 17, 2015 – Decided January 20, 2016
Before Judges Fuentes, Koblitz and Gilson.
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment Nos. 11-03-00394 and 11-03-00398.
James S. Friedman argued the cause for appellant.
Garima Joshi, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General; Teresa A. Blair, Deputy Attorney General, of counsel and on the brief; Teresa Sia, Volunteer Attorney, on the brief).
The opinion of the court was delivered by
KOBLITZ, J.A.D.
Defendant entered into a negotiated guilty plea, reserving
the right to appeal a pre-trial motion relating only to a
dismissed count of the indictment. We hold that a defendant's appeal of a pre-trial motion relating only to a dismissed count
is moot. To afford this defendant every benefit of his plea
agreement, we nevertheless reach the merits of his claim that
insufficient evidence was presented to the grand jury and
affirm.
Defendant Cecilio Davila was charged with the first-degree
crime of being a leader of a narcotics trafficking network,
N.J.S.A. 2C:35-3 (the Leader count). He was also charged in the
same indictment with eight other related crimes: third-degree
drug conspiracy, N.J.S.A. 2C:5-2, 2C:35-10(a), 2C:35-5(a)(1),
2C:35-5(b)(3) (count two); third-degree possession of heroin,
N.J.S.A. 2C:35-10(a)(1) (count three); third-degree possession
of heroin with intent to distribute, N.J.S.A. 2C:35-5(a)(1),
(b)(3) (count four); third-degree possession of cocaine,
N.J.S.A. 2C:35-10(a)(1) (count five); third-degree possession of
cocaine with intent to distribute, N.J.S.A. 2C:35-5(a)(1),
(b)(3) (count six); third-degree maintaining a fortified
structure for drug distribution activity, N.J.S.A. 2C:35-4.1(c)
(count seven); third-degree possession of a BB gun, N.J.S.A.
2C:39-5(b)1 (count eight); and second-degree possession of a BB
gun for an unlawful purpose, N.J.S.A. 2C:39-4.1 (count nine).
1 The indictment incorrectly refers to N.J.S.A. 2C:39-3(b), possession of a sawed-off shotgun.
2 A-6302-11T3 Defendant was also charged in a separate indictment with
the second-degree crime of certain persons not to possess
weapons, N.J.S.A. 2C:39-7(a).
The grand jury heard testimony from a New Brunswick police
sergeant, who testified that he was involved in an investigation
prompted by reports that defendant sold heroin and cocaine. The
investigation involved three separate locations and six
"controlled buys." The sergeant explained that a "controlled
buy" occurs when an informant is searched and given funds to
purchase drugs. The police then observe the informant
interacting with the suspect, after which the informant returns
to the officers where the drugs are relinquished and tested.
During the controlled buys, defendant involved two men in the
delivery of the drugs. Through wiretapped conversations, the
police discovered that drug purchasers contacted defendant and
defendant directed the purchasers to one of the two men to
obtain drugs. On other occasions, defendant's girlfriend drove
him in her car to make drug deliveries. Pursuant to search
warrants, one of which involved the search of the home of
defendant's sister, the police found illicit drugs, a .177
pellet pistol, drug distribution paraphernalia, and cash.
Subsequently, in a taped interview, defendant gave an
3 A-6302-11T3 incriminating statement to the police admitting that he sells
approximately 1000 to 2000 bags of heroin per week.
After unsuccessfully pursuing several pre-trial motions,
including a motion to dismiss the Leader count because
insufficient evidence was presented to the grand jury, defendant
entered into a plea agreement with the State. In the plea form,
defendant listed the pre-trial motions he had pursued.2 At the
plea hearing he reserved the right to appeal "all of the
motions" that had been decided by the judge and were listed in
his plea form. He pled guilty to counts four, seven and nine of
the first indictment, as well as to the single "certain persons"
crime charged in the second indictment. As part of the plea
agreement, the other charges against defendant, including the
Leader count, were dismissed, as were the charges against
defendant's sister and girlfriend. Defendant received an
aggregate custodial sentence of fifteen years in prison with
seven-and-one-half years3 of parole ineligibility.
2 We could not fully decipher this handwritten list with any certainty, although it appears to state, verbatim: "Miranda Hearing (Suppress Statement), Motion to Dismiss Indictment severance pursuant to Bruton Application, Motion to Suppress for insufficient probable cause and improper no knock warrant Motion to Suppress as to identities of confidential informants." 3 This number reflects the period of parole ineligibility recorded in the judgment of conviction. The judge stated on the record that he was imposing a ninety-one month period of parole (continued)
4 A-6302-11T3 On appeal defendant raises the following single issue:
POINT I: THE TRIAL COURT'S FAILURE TO GRANT THE LEADER MOTION WAS REVERSIBLE ERROR.
At our direction, the parties submitted supplemental briefs
on the question of whether defendant's appeal of a pre-trial
issue relating only to a dismissed count is moot. The State
argues that the issue is moot, while defendant argues that if we
reverse the trial judge's determination regarding the pre-trial
motion concerning the Leader count, he should be permitted to
withdraw his guilty plea because he would have received a better
plea agreement if he had not been facing the Leader count.
Defendant also argues that we should consider the issue,
even if otherwise moot, because defendant was told at the time
he pled guilty that he had preserved all of his pre-trial
motions for appeal. Defendant maintains that he should
therefore be afforded the benefit of his bargain and allowed a
full appeal on the merits, rather than an appeal that results in
a dismissal for mootness. See State v. Bellamy, 178 N.J. 127,
134 (2003) (citations omitted) ("A defendant has the right not
to be 'misinformed' about a material element of a plea
agreement, and to have his or her 'reasonable expectations'
(continued) ineligibility. We assume the additional month resulted from an error in computation.
5 A-6302-11T3 fulfilled." (first quoting State v. Nichols, 71 N.J. 358, 361
(1976); then quoting State v. Howard, 110 N.J. 113, 122
(1988))).
"When a party's rights lack concreteness from the outset or
lose it by reason of developments subsequent to the filing of
suit, the perceived need to test the validity of the underlying
claim of right in anticipation of future situations is, by
itself, no reason to continue the process." JUA Funding Corp.
v. CNA Ins./Cont'l Cas. Co., 322 N.J. Super. 282, 288 (App. Div.
1999) (citing Milk Drivers & Dairy Emps. v. Cream-O-Land Dairy,
39 N.J. Super. 163, 177 (App. Div. 1956)). "[C]ourts of this
state do not resolve issues that have become moot due to the
passage of time or intervening events." City of Camden v.
Whitman, 325 N.J. Super. 236, 243 (App. Div. 1999). We consider
an issue moot when "the decision sought in a matter, when
rendered, can have no practical effect on the existing
controversy." Greenfield v. N.J. Dep't of Corr., 382 N.J.
Super. 254, 257-58 (App. Div. 2006) (quoting N.Y. Susquehanna &
W. Ry. Corp. v. N.J. Dep't of Treasury, Div. of Taxation, 6 N.J.
Tax 575, 582 (Tax 1984), aff'd, 204 N.J. Super. 630 (App. Div.
1985)). We generally do not render advisory decisions, for
"[o]rdinarily, our interest in preserving judicial resources
dictates that we not attempt to resolve legal issues in the
6 A-6302-11T3 abstract." Zirger v. Gen. Accident Ins. Co., 144 N.J. 327, 330
(1996) (citing Oxfeld v. N.J. State Bd. of Educ., 68 N.J. 301,
303-04 (1975) and Sente v. Mayor & Mun. Council of Clifton, 66
N.J. 204, 205 (1974)).
We now hold that if a pre-trial motion only affects a
dismissed count, an appeal of that pre-trial motion presents a
moot, non-justiciable question. Upon dismissal of the Leader
count pursuant to the plea agreement, defendant's claim relating
to that count on the basis of insufficient evidence presented to
the grand jury became moot. By seeking the dismissal of a count
already dismissed pursuant to a plea agreement, defendant is in
essence requesting that we provide an advisory opinion. See
Decker v. Northwest Envtl. Def. Ctr., __ U.S. __, 133 S. Ct.
1326, 1335, 185 L. Ed. 2d 447, 459 (2013) ("A case becomes moot
only when it is impossible for a court to grant any effectual
relief whatever to the prevailing party." (quoting Knox v. SEIU,
Local 1000, 567 U.S. __, 132 S. Ct. 2277, 2287, 183 L. Ed. 2d
281, 295 (2012))); JUA Funding Corp., supra, 322 N.J. Super. at
288.
"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
7 A-6302-11T3 claims of certain constitutional violations. See State v.
Knight, 183 N.J. 449, 470 (2005) ("[A] defendant who pleads
guilty is prohibited from raising, on appeal, the contention
that the State violated his constitutional rights prior to the
plea." (quoting State v. Crawley, 149 N.J. 310, 316 (1997)));
State v. J.M., 182 N.J. 402, 410 (2005) ("[T]he failure to enter
a conditional plea under Rule 3:9-3(f) generally bars appellate
review of non-Fourth Amendment constitutional issues.").
As our Supreme Court explained in Knight, supra, the waiver
rule has three exceptions. 183 N.J. at 471; see State v.
Wakefield, 190 N.J. 397, 417 n.1 (2007) (confirming "that only
three exceptions for waiver exist"), cert. denied, 552 U.S.
1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008). The first,
expressly provided by Rule 3:5-7(d), permits a defendant to
challenge on appeal an unlawful search and seizure of evidence
after entering a guilty plea. See Knight, supra, 183 N.J. at
471. The second, expressly authorized by Rule 3:28(g), permits
an appeal after a guilty plea from an order denying entry into
the pre-trial intervention program. Ibid. Lastly, pursuant to
Rule 3:9-3(f), a defendant may appeal those adverse decisions
specifically reserved by a conditional guilty plea entered in
accordance with the Rule. Ibid.
8 A-6302-11T3 Rule 3:9-3(f) requires that a defendant satisfy several
requirements before a conditional guilty plea can be accepted.
"[A] defendant may plead guilty while preserving an issue for
appellate review only with the 'approval of the court and the
consent of the prosecuting attorney.'" State v. Gonzalez, 254
N.J. Super. 300, 304 (App. Div. 1992) (emphasis added) (quoting
R. 3:9-3(f)). This reservation of "the right to appeal from the
adverse determination of any specified pretrial motion" must be
placed "on the record." R. 3:9-3(f). It must also specifically
be approved by the State and by the court. In approving a
defendant's preservation of issues for appellate review, the
court should act as a gatekeeper to comply with the purpose of
the Rule, by precluding agreements that preserve non-justiciable
or non-dispositive issues. See, e.g., Pressler & Verniero,
Current N.J. Court Rules, comment 7 on R. 3:9-3(f) (2016)
(stating that "[t]he primary utility of the rule" relates to
pre-trial issues encompassing disputes of a dispositive nature).
Here, defense counsel's casual mention of "all of the motions"
is insufficient; nor does a difficult-to-read handwritten list
included in the plea form satisfy the requirement of judicial
approval or constitute "on the record" acknowledgment of a
particular motion.
9 A-6302-11T3 If a defendant reserves the right to appeal a motion and is
successful on appeal, he or she has the right to withdraw the
guilty plea and go to trial or renegotiate another plea.4 R.
3:9-3(f); State v. Diloreto, 362 N.J. Super. 600, 616 (App.
Div.), certif. denied, 178 N.J. 252 (2003), and aff'd, 180 N.J.
264 (2004). We note, however, that defendants are not entitled
to a negotiated plea offer. State v. Williams, 277 N.J. Super.
40, 46 (1994) ("[A] defendant has no legal entitlement to compel
a plea offer or a plea bargain; the decision whether to engage
in such bargaining rests with the prosecutor."). Thus, the
dismissal of a count does not ensure a "better plea offer," as
argued by defendant. While its dismissal results in fewer
charges pending, the State may not offer defendant a better
offer, or any plea offer at all. On the other hand, the mere
passage of time, a factor unrelated to defendant's success on
appeal, might well place defendant in a better position to
negotiate a resolution.
Here, defendant did not articulate with specificity that he
wished to preserve the right to appeal his motion to dismiss the
Leader count, nor did the judge approve that particular
4 Of course, if the defendant chooses to withdraw the guilty plea, he or she would face all of the charges in place prior to the plea, including any charges dismissed pursuant to the plea agreement. See Howard, supra, 110 N.J. at 126.
10 A-6302-11T3 condition of his guilty plea. Even if the record had been
sufficient to preserve defendant's right to appeal the pre-trial
motion relating only to a dismissed count of the indictment, we
hold that the issue is moot.
We recognize that the State did not argue that the record
was insufficient to preserve the motion for appeal, nor did the
State argue that the issue was moot until we solicited briefing
on the issue of mootness. We view the State's appellate silence
on these two issues as entirely appropriate under the
circumstances. For the State to allow defendant to preserve the
right to appeal a motion at the trial level and then argue the
issue is moot on appeal could be considered as sharp practices,
tactics not rising to the level of prosecutorial standards we
expect in New Jersey. See Brundage v. Estate of Carambio, 195
N.J. 575, 603-04 (2008) (recognizing that "[o]ur courts have
long expressed a distaste" for sharp practices, which are
practices "employed by some members of the bar that are not
explicitly unethical but nonetheless tread perilously close to
the line of being unacceptable"). That being said, however, the
parties cannot confer jurisdiction on the court. See Sabella v.
Lacey Twp., 204 N.J. Super. 55, 62 (App. Div. 1985) ("If there
is no legally granted power in the court, the parties cannot
confer jurisdiction pursuant to an agreement between
11 A-6302-11T3 themselves." (quoting Manczak v. Dover, 2 N.J. Tax 529, 533 (Tax
1981))). In the interest of convincing a defendant to forego a
trial, the State cannot bind us to consider an issue that is
moot.
Defendant asserts that his right to appeal the trial
court's denial of his motion to dismiss the Leader count was an
incentive to accept the plea agreement. The State correctly
points out that defendant also received other inducements in
exchange for his guilty plea. Although no other pre-trial
motions were pursued on appeal, he reserved the right to appeal
all pre-trial motions. He had pursued a Miranda5 motion, a
motion to suppress evidence obtained after the execution of a
search warrant, a motion to reveal the identities of
confidential informants, and a motion regarding a potential
Bruton6 issue. Further, defendant procured the dismissal of
other counts against him, as well as the dismissal of all
charges against his sister and his girlfriend. While defendant
5 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). 6 Bruton v. United States, 391 U.S. 123, 126, 88 S. Ct. 1620, 1622, 20 L. Ed. 2d 476, 479 (1968) (holding that admission of a co-defendant's confession in a joint trial violates a defendant's right of cross-examination when there exists a substantial risk that the jury, despite contrary instructions, would look to the co-defendant's statements in determining defendant's guilt).
12 A-6302-11T3 received benefits in addition to his right to appeal the Leader
count, these additional incentives do not diminish defendant's
right to receive every benefit promised.
An appeal does not guarantee any particular result – not an
affirmance nor a reversal. Appeals are also dismissed for
various reasons including mootness. See, e.g., R. 2:8-2
(permitting appellate courts to dismiss an appeal "at any time
on its own motion" on the basis of procedural or jurisdictional
grounds); State v. Alford, 99 N.J. 199, 200 (1984) (dismissing a
criminal appeal as moot). We understand, however, that a lay
person may reasonably assume that a right to appeal encompasses
the right to have the appeal heard on the merits. We are
clearly establishing mootness in this procedural posture for the
first time in this decision. Here, defendant could plausibly
argue in a post-conviction proceeding that he misunderstood his
ability to appeal the Leader motion on its merits when he
entered into the plea agreement. We will therefore consider
defendant's appeal on its merits.
"[T]he New Jersey Constitution does not restrict the
exercise of judicial power to actual cases and controversies."
State v. McCabe, 201 N.J. 34, 44 (2010) (citing State v.
Gartland, 149 N.J. 456, 464 (1997)); see N.J. Const. art. VI, §
1, ¶ 1. Occasionally, the courts will consider the merits of an
13 A-6302-11T3 issue notwithstanding its mootness where significant issues of
public import appear. Joye v. Hunterdon Cent. Reg'l High Sch.
Bd. of Educ., 176 N.J. 568, 583 (2003). Because a finding of
mootness under these circumstances is an issue of first
impression in New Jersey, we cannot fault the trial attorney for
not advising his client that the legal challenge to the
viability of the Leader count in the indictment was moot.
Therefore, to prevent a potential collateral attack on
defendant's conviction grounded on any claims impugning defense
counsel's performance in this respect, and to afford defendant
the benefit of all of the promises made to him when he entered
this guilty plea, we conclude that the public interest in the
finality and efficiency of litigation warrants a resolution on
the merits.
The evidence presented to a grand jury need not be
sufficient to convict the defendant, but must present a prima
facie case that a crime has been committed by the defendant.
See State v. Muhammad, 182 N.J. 551, 575 (2005) ("The State's
burden of proof in returning an indictment is to present the
grand jury with a prima facie case . . . ."); State v.
Reininger, 430 N.J. Super. 517, 531 (2013) ("The purpose of the
grand jury is to 'determine whether the State has established a
prima facie case that a crime has been committed and that the
14 A-6302-11T3 accused has committed it.'" (quoting State v. Hogan, 144 N.J.
216, 227 (1996))), certif. denied, 216 N.J. 367 (2013), cert.
denied, ___ U.S. ___, 134 S. Ct. 1947, 188 L. Ed. 2d 962 (2014).
A trial court "should not disturb an indictment if there is some
evidence establishing each element of the crime." State v.
Eckel, 429 N.J. Super. 580, 585 (Law Div. 2012) (citing Hogan,
supra, 144 N.J. at 236). The trial court should view the facts
"in the light most favorable to the State." State v. Saavedra,
222 N.J. 39, 56-57 (2015) (quoting State v. Morrison, 188 N.J.
2, 13, (2006)).
Thus, to sustain the Leader count, the State only needed to
present some evidence that: (1) "defendant conspired with two or
more persons"; (2) the purpose of the conspiracy "included a
scheme or course of conduct to unlawfully manufacture,
distribute, dispense, bring into, or transport in this State" a
controlled dangerous substance; (3) defendant was a financier,
"organizer, supervisor or manager of at least one other person";
and (4) "defendant occupied a high level position in the
conspiracy." See State v. Alexander, 136 N.J. 563, 568, 570-71
(1994); Model Jury Charge (Criminal), "Leader of Narcotics
Trafficking Network" (October 2000).
Here the dispute centered around whether the State
presented evidence to the grand jury that supported a finding
15 A-6302-11T3 that defendant was in a supervisory position, the third and
fourth elements. The State satisfied its low burden in proving
that some evidence existed establishing these elements. See
Eckel, supra, 429 N.J. Super. at 585. Because evidence was
presented through the police sergeant that defendant controlled
the activities of other members of the drug operation, the trial
court did not abuse its discretion in rejecting defendant's
motion to dismiss. See Hogan, supra, 144 N.J. at 229 ("[T]he
decision whether to dismiss an indictment lies within the
discretion of the trial court.").
Affirmed.
16 A-6302-11T3 ___________________________________________________
GILSON, J.S.C. (temporarily assigned), concurring.
I concur in the majority's affirmance based on the
rationale that defendant's motion to dismiss count one of the
indictment lacks merit. I do not join in the holding that
defendant's appeal is moot.
In accordance with Rule 3:9-3(f), defendant entered into a
conditional plea of guilt preserving his right to appeal the
denial of a motion to dismiss count one of the indictment, which
charged him with the first degree crime of being a leader of a
narcotics trafficking network, N.J.S.A. 2C:35-3 (Leader count).
Under the plea agreement, defendant pled guilty to counts four,
seven and nine and to a separate indictment of certain persons
not to possess a weapon. The Leader count, as well as the
remaining counts of the indictment, were then to be dismissed at
defendant's sentencing. The prosecutor and defendant agreed to
all the terms of the plea agreement and the trial court accepted
the conditional plea. Defendant was thereafter sentenced in
accordance with the plea agreement and the Leader count was
dismissed. Under these facts, defendant's reserved right to
appeal the denial of his motion to dismiss the Leader count is
not moot. Three related reasons demonstrate why an appeal of a
preserved pretrial motion, which is then conditionally
dismissed, is justiciable and not moot. First, a properly
preserved right of appeal under Rule 3:9-3(f) renders the
concept of mootness inapplicable. "An issue is 'moot' when the
decision sought in a matter, when rendered, can have no
practical effect on the existing controversy." Greenfield v.
N.J. Dep't of Corr., 382 N.J. Super. 254, 257-58 (App. Div.
2006) (quoting N.Y. Susquehanna & W. Ry. Corp. v. State Dep't of
Treasury, Div. of Taxation, 6 N.J. Tax 575, 582 (Tax 1984),
aff’d, 204 N.J. Super. 630 (App. Div. 1985)). The concept of
mootness has its roots in the jurisprudential principle that
courts will not give advisory opinions. See Calderon v. Moore,
518 U.S. 149, 150, 116 S. Ct. 2066, 2067, 135 L. Ed. 2d 453,
455-56 (1996); North Carolina v. Rice, 404 U.S. 244, 246, 92 S.
Ct. 402, 404, 30 L. Ed. 2d 413, 415-16 (1971); State v. Harvey,
176 N.J. 522, 528 (2003). "A case is technically moot when the
original issue presented has been resolved, at least concerning
the parties who initiated the litigation." De Vesa v. Dorsey,
134 N.J. 420, 428 (1993) (plurality opinion) (Pollock, J.,
concurring) (citing Oxfeld v. N.J. State Bd. of Educ., 68 N.J.
301, 303 (1975)).
2 A-6302-11T3 Here, a decision on defendant's motion to dismiss the
Leader count will have a very real and practical effect on
defendant's conditional guilty plea. If successful on appeal,
defendant would have the right to withdraw his guilty plea. See
R. 3:9-3(f); State v. Diloreto, 362 N.J. Super. 600, 616 (App.
Div. 2003), aff’d, 180 N.J. 264 (2004). Count one charged
defendant with the first degree crime of being a leader of a
narcotics trafficking network. If convicted of that crime,
defendant faced a minimum of twenty-five years in prison without
eligibility of parole. See N.J.S.A. 2C:35-3. Consequently,
defendant argues that because of that significant potential
prison sentencing, he did not want to run the risk of going to
trial on that count and, thus, his ability to negotiate a lesser
sentence was restricted. Defendant also argues that if he had
been successful on appeal, he could have withdrawn his guilty
plea and either (1) proceeded to trial on the remaining second
and third degree charges, or (2) tried to negotiate a new plea
agreement. Alternatively, if unsuccessful on appeal,
defendant's guilty plea would have stayed in place. Under
either scenario, a ruling on defendant's appeal would have had a
very practical effect because it would give defendant exactly
what he bargained for — a decision on the merits of his appeal.
3 A-6302-11T3 The majority reasons that "[u]pon dismissal of the Leader
count pursuant to the plea agreement, defendant's claim relating
to that count on the basis of insufficient evidence presented to
the grand jury became moot." I respectfully disagree. The
reservation of the right to appeal the motion is no different
than the conditional plea itself. Depending on the outcome of
the appeal, the plea of guilty can either be withdrawn or will
stay in place. In other words, just as any conditional plea of
guilty to any count is conditional, any and all related
dismissals of other counts are also conditional. If a defendant
is successful on appeal, he or she has the right to withdraw the
guilty plea and the State has the right to reinstate all
dismissed counts. The only counts that could not be reinstated
are counts found defective on appeal, which is exactly what
defendant sought on his appeal. In either scenario, the
decision on appeal has a very concrete and practical effect;
either a defendant can withdraw the guilty plea or be bound by
his or her guilty plea because the preserved motion has been
Second, holding that defendant's appeal is moot is
inconsistent with Rule 3:9-3(f). The Rule does not limit what
motions can be preserved. Instead, the Rule expressly states
that "any" motion can be reserved for appeal: "[A] defendant may
4 A-6302-11T3 enter a conditional plea of guilty reserving on the record the
right to appeal from the adverse determination of any specified
pretrial motion." R. 3:9-3(f). The Rule requires only two
conditions: (1) consent of the prosecutor; and (2) approval of
the court. Ibid.; see State v. Gonzalez, 254 N.J. Super. 300,
304 (App. Div. 1992).
In this case, both conditions were met. The prosecutor
expressly consented to defendant's reservation of his right to
appeal the denial of his motion to dismiss the Leader count.
The trial judge then expressly accepted the conditional plea and
noted that defendant was reserving his right to appeal a number
of motions, including the motion to dismiss the Leader count.
In entering into a conditional guilty plea agreement, the
State is not binding this court to consider a moot issue.
Instead, the State and defendant are doing exactly what Rule
3:9-3(f) allows them to do; that is, reserve the right to appeal
a specifically identified pretrial motion. Indeed, that is
exactly what the Rule was designed to achieve. See Pressler &
Verniero, Current N.J. Court Rules, comment 7 on R. 3:9-3(f)
(2016) (stating "[t]he purpose of this paragraph is . . . namely
to provide a technique for avoiding trial where the defendant's
willingness to plead guilty is dependent solely upon the
5 A-6302-11T3 disposition and opportunity for appellate review of separable
issues determinable on a pretrial basis").
It is well-recognized that plea agreements are to be
treated like contracts. See State v. Means, 191 N.J. 610, 622
(2007); State v. Conway, 416 N.J. Super. 406, 410-12 (App. Div.
2010). Accordingly, the reservation of a right to appeal a
specified motion is a material condition of the plea agreement,
a condition that does not become moot simply because the count
related to the motion is conditionally dismissed. Indeed, if we
were to take the reserved right away, then defendant should have
the right to withdraw his guilty plea.
I respectfully disagree with the majority's reasoning that
the State may now argue that the right to appeal is moot. The
State expressly entered into a plea agreement where a material
condition was the right to appeal the denial of the motion to
dismiss the Leader count. That same plea agreement expressly
recognized that the Leader count would be dismissed at the time
of sentencing. Like the conditional plea, the dismissal of the
Leader count through the plea agreement was also conditional.
Having entered into that plea agreement, it is inconsistent for
the State to now argue that the right to appeal is moot. Even
if the State took that position only after this court's
invitation to address the mootness issue, the State should have
6 A-6302-11T3 recognized that its prior representation to defendant and to the
trial judge precluded it from taking such an inconsistent
position.
Notably, this is not a case where defendant failed to
identify the motion he seeks to appeal. I respectfully disagree
with the majority's suggestion that the handwritten list in the
plea agreement was insufficient and that the judge did not
approve the condition. Both the State and defendant
acknowledged on this appeal that defendant had clearly reserved
the right to appeal the denial of his motion to dismiss the
Leader count. The trial judge then expressly accepted the
conditional plea. Indeed, if the right to appeal had not been
clearly preserved, there would be no need to reach the mootness
issue. See State v. Knight, 183 N.J. 449, 471 (2005)
(explaining that an unconditional guilty plea waived the
defendant's right to appeal).
The majority's opinion will be the first published opinion
in New Jersey holding that a reserved motion to appeal under
Rule 3:9-3(f) can become moot. While no published opinion in
New Jersey has expressly previously addressed the mootness
issue, this court has implicitly accepted the concept that such
preserved motions, even when connected to a dismissed count, are
not moot. See State v. Maxwell, 361 N.J. Super. 401, 402 (App.
7 A-6302-11T3 Div.) (considered the defendant's appeal from a denial of his
motion to dismiss particular counts of the indictment, including
counts that were dismissed under the plea), certif. denied, 178
N.J. 34 (2003). Moreover, a federal appellate court, which
applied a similar rule concerning conditional pleas, has
rejected the concept that a reserved motion to appeal becomes
moot. See United States v. Scott, 884 F.2d 1163, 1165 (9th Cir.
1989) (holding that a conditional guilty plea was not moot when
defendant sought to appeal the denial of his motion to dismiss
the indictment even after defendant pled guilty to superseding
information charging an offense different from the offense
contained in the indictment), cert. denied, 506 U.S. 901, 113 S.
Ct. 288, 121 L. Ed. 2d 213 (1992).
Finally, the concept of mootness as applied by the majority
treats defendants differently than the State. The majority
correctly recognizes that if a defendant is allowed to withdraw
a conditional guilty plea, the State can reinstate all charges
that had been in the indictment prior to the plea, including
charges dismissed pursuant to the plea agreement. See State v.
Howard, 110 N.J. 113, 125-26 (1988). If the State has the right
to reinstate dismissed charges after a conditional guilty plea
is withdrawn, a defendant should also have the right to appeal
an adverse ruling on a motion related to a conditionally
8 A-6302-11T3 dismissed count of the indictment. Just as the State has the
right to return to the position it had at the time the
conditional plea was negotiated, so too should a defendant have
the right to reserve the right to appeal a motion, even if that
motion relates to a count that will be dismissed as part of the
plea agreement. To hold otherwise is to reason that all issues
related to all counts that are dismissed are moot and cannot
have future practical effects no matter what happens on appeal.
In fact, the opposite is true. Because the appeal has the
potential of giving a defendant the right to withdraw the
conditional guilty plea, the State has the right to reinstate
the dismissed counts if the plea is withdrawn and a defendant
has the right to have the merits of his or her appeal ruled on
for all reserved motions. In both situations, the ruling on
appeal has a very practical effect.
In summary, I do not believe the appeal is moot. I concur
based on the substantive ruling that the trial court correctly
denied defendant's motion to dismiss the Leader count.
9 A-6302-11T3