NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited . R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0730-24
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ISAAC M. TONEY,
Defendant-Appellant. ________________________
Submitted January 21, 2026 – Decided February 4, 2026
Before Judges Firko and Vinci.
On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 18-08-0146.
Jennifer N. Sellitti, Public Defender, attorney for appellant (Dianne Glenn, Designated Counsel, on the brief).
Jennifer Davenport, Acting Attorney General, attorney for respondent (Daniel I. Bornstein, Deputy Attorney General, of counsel and on the brief).
PER CURIAM Defendant Isaac M. Toney appeals from an October 25, 2024 order
denying his petition for post-conviction relief (PCR) after oral argument but
without an evidentiary hearing. Because defendant failed to establish a prima
facie showing of ineffective assistance of trial counsel and insufficient factual
basis for his guilty plea, we affirm.
I.
On August 27, 2018, a criminal State grand jury returned indictment
number 18-08-0146-S charging defendant, a training technician employed at the
Mercer County Board of Social Services, with second-degree official
misconduct, N.J.S.A. 2C:30-2 (count one); second-degree luring a child,
N.J.S.A. 2C:13-6(a) (count two); and third-degree attempted endangering the
welfare of a child, N.J.S.A. 2C:5-1(a)(1) and N.J.S.A. 2C:24-4(a)(1) (count
three).
On September 28, 2018, defendant filed a motion to dismiss all counts of
the indictment. On March 22, 2019, the trial court granted the motion to dismiss
count one of the indictment but denied dismissal as to counts two and three. On
October 24, 2019, defendant filed a motion to suppress physical evidence —
contents of a text exchange from his cell phone—between himself and an
A-0730-24 2 undercover police officer posing as a child—alleging such evidence was seized
without a warrant.
Defendant ultimately entered into a negotiated plea agreement with the
State. On November 19, 2019, defendant pled guilty in accordance with the plea
agreement, which amended count three, charging him with fourth-degree
attempted lewdness, N.J.S.A. 2C:5-1(a)(1) and N.J.S.A. 2C:14-4(b)(1).
Pursuant to the plea agreement, the remaining counts were dismissed. The State
recommended a sentence of non-custodial probation without a requirement that
defendant register under Megan's Law, N.J.S.A. 2C:7-1 to -23, and no contact
with the "victim."
The court addressed defendant to confirm he was knowingly and
voluntarily waiving his rights, had an opportunity to review all discovery with
his trial counsel, and to establish a factual basis for the guilty plea. The court
asked defendant about his age, and he responded he was "forty-three." In
response to the court's questions, defendant testified he has an associate's degree
and had no "difficulty reading, writing, or understanding the English language."
The court asked defendant if he was under the influence of any legal or illegal
substance that might interfere with his ability to make the decision to accept the
plea agreement, and he responded in the negative. Defendant confirmed the plea
A-0730-24 3 agreement was complete and nothing was omitted. The court questioned
defendant as to whether he was satisfied with his trial counsel's representation,
and he responded, "Yes, Your Honor." Additionally, the court showed
defendant the five-page plea form and confirmed his answers circled on the form
were "true." Furthermore, the court confirmed with defendant he understood the
questions on the plea form and that he had the opportunity to review each
question with his trial counsel. The following exchange then occurred during
the plea colloquy:
TRIAL COUNSEL: [Defendant], I want to direct your attention to July 17, 2017. Were you in the Township of Hamilton on that day?
DEFENDANT: Yes.
TRIAL COUNSEL: Did there come a point in time where you arranged, via text message, to meet an individual in a public park?
TRIAL COUNSEL: And that individual you believed, based upon the exchange, to be under the age of [thirteen]. Is that correct?
TRIAL COUNSEL: And you were four years older at the time? How old were you . . . in 2017? Four years ago?
A-0730-24 4 DEFENDANT: It was two years.
TRIAL COUNSEL: Two years ago. So—
DEFENDANT: I was actually; I was [forty]. . . .
TRIAL COUNSEL: Forty then? Okay.
DEFENDANT: Forty.
TRIAL COUNSEL: So you clearly were four years older than [thirteen]. Right?
TRIAL COUNSEL: Okay. And the purpose was to attempt to expose your privates—your private parts to that individual—
TRIAL COUNSEL: [F]or the purpose of sexual gratification?
TRIAL COUNSEL: That's all I have.
Following defendant's plea allocution, the court found he was competent,
had sufficient time to discuss the plea agreement with his trial counsel, he
understood the terms of the plea agreement, and the rights he was waiving. The
court determined defendant had not been threatened or promised anything in
exchange for his guilty plea. Defendant was sentenced that day in accordance
A-0730-24 5 with the plea agreement. The plea court imposed the requisite monetary fines
and penalties. The remaining counts of the indictment were dismissed.
On December 5, 2019, defendant's trial counsel withdrew the motion to
suppress because the matter was resolved by virtue of the plea agreement. On
December 12, 2019, an amended judgment of conviction was entered to correct
the charge from lewdness to attempted lewdness. Defendant did not file a direct
appeal.
On August 19, 2021, defendant filed a PCR petition as a self-represented
litigant. In his unsworn submissions, defendant claimed his trial counsel was
ineffective, which violated his constitutional rights. On September 17, 2022,
defendant filed a supplemental to his PCR petition and asserted his trial counsel
was ineffective for not addressing the violation of his Miranda1 and Fourth
Amendment rights as it pertained to the alleged illegal search and seizure of his
cell phone at the time of his arrest. Defendant claimed he would have moved
forward with his motion to suppress, as he believed the motion would have been
granted and resulted in dismissal of the charges. For the first time, defendant
asserted that his trial counsel had not reviewed discovery with him or answered
his questions regarding motion practice.
1 Miranda v. Arizona, 384 U.S. 436 (1966). A-0730-24 6 The PCR court assigned defendant PCR counsel. On April 21, 2024, his
PCR counsel filed an amended verified PCR petition, a supplemental
certification, memorandum of law, appendix, and requested an evidentiary
hearing. On August 8, 2024, roughly four years and nine months after entering
his guilty plea, defendant's PCR counsel filed a motion to withdraw his guilty
plea pursuant to Rule 3:21-1. Defendant argued the factual basis for the plea
was insufficient because he was improperly questioned as to whether he acted
with a purpose to expose his "private parts" and not his "intimate parts" to the
child victim.
On September 18, 2024, the PCR court heard argument and reserved
decision on both matters. On October 25, 2024, in an oral opinion and without
conducting an evidentiary hearing, the PCR court denied defendant's PCR
petition and his motion to withdraw his guilty plea.
The PCR court first addressed defendant's motion to withdraw his guilty
plea. The PCR court found defendant had not alleged specific facts supporting
his assertion that trial counsel had been deficient due to her alleged failure to
elicit the essential elements of fourth-degree attempted lewdness. The PCR
court went on to reason that N.J.S.A. 2C:14-1(e) defines "intimate parts" as,
A-0730-24 7 "sexual organs, genital area, anal area, inner thigh, groin, buttock, [and] breast
of a person."
Notably, our Supreme Court in T.M. held the phrase "private area" was
sufficient to describe the element of having contact with "intimate parts" under
the same statute. See State ex rel. T.M., 166 N.J. 319, 323, 334-35 (2001). The
PCR court distinguished the factual basis in T.M. to the present matter under
review, explaining how in that case, the factual basis was inadequate solely
because the defendant did not admit he had the requisite criminal purpose, which
is in contrast to here. See Id. at 332-35. The PCR court also cited to State v.
Tate, 220 N.J. 393, 406-07 (2015), where our Supreme Court relied on T.M. to
support its reasoning for the same proposition, that the defendant acknowledged
he had touched the "private areas" of a child but the proper factual basis
pertaining to his criminal purpose was lacking. Therefore, the PCR court
ultimately found that "private parts" and "intimate parts" are synonymous, and
the factual basis for defendant's guilty plea satisfied every element of the crime
of fourth-degree lewdness.
The PCR court determined there was no need to conduct an analysis under
State v. Slater, 198 N.J. 145 (2009) because defendant was seeking to withdraw
his guilty plea based on a deficient factual basis. Notwithstanding, the PCR
A-0730-24 8 court reasoned the outcome would be the same even if the Slater factors were
applied. Based on the totality of defendant's admissions during his plea
colloquy, the PCR court concluded he provided a sufficient factual basis for his
plea to fourth-degree attempted lewdness and that no "manifest injustice" would
result if he was not permitted to withdraw his guilty plea.
The PCR court determined defendant's trial counsel "demonstrated
constitutionally effective advocacy skills" on his behalf and negotiated "an
extremely favorable resolution" that "completely shielded" defendant from
"between five and ten years['] incarceration and parole supervision for life." The
PCR court held defendant failed to establish a prima facie claim of ineffective
assistance of counsel to justify an evidentiary hearing. This appeal followed.
Defendant raises the following contentions for our consideration:
POINT ONE
THE PCR [COURT] ERRED IN ITS DETERMINATION THAT . . . DEFENDANT DID NOT MAKE A PRIMA FACIE SHOWING FOR INEFFECTIVE ASSISTANCE OF COUNSEL AND AN EVIDENTIARY HEARING WAS NOT WARRANTED. (Raised below.)
POINT TWO
THE PCR [COURT] ERRED IN ITS DETERMINATION THAT THERE WAS A VALID
A-0730-24 9 FACTUAL BASIS FOR THE ATTEMPT AND LEWDNESS PLEA. (Raised below.)
II.
When a PCR court does not conduct an evidentiary hearing, appellate
courts review the denial of a PCR petition de novo. State v. Harris, 181 N.J.
391, 420-21 (2004); State v. Lawrence, 463 N.J. Super. 518, 522 (App. Div.
2020). A PCR court's decision to proceed without an evidentiary hearing is
reviewed for an abuse of discretion. State v. Vanness, 474 N.J. Super. 609, 623
(App. Div. 2023) (citing State v. Brewster, 429 N.J. Super. 387, 401 (App. Div.
2013)).
To establish a claim of ineffective assistance of counsel, a defendant must
satisfy the two-prong Strickland test: (1) "counsel made errors so serious that
counsel was not functioning as the 'counsel' guaranteed the defendant by the
Sixth Amendment[,]" and (2) "the deficient performance prejudiced the
defense." Strickland v. Washington, 466 U.S. 668, 687 (1984). See also State
v. Fritz, 105 N.J. 42, 58 (1987) (adopting the two-prong Strickland test in New
Jersey). Under prong one, a defendant must establish that "counsel's
representation fell below an objective standard of reasonableness." Strickland,
466 U.S. at 688. Under prong two, a defendant must demonstrate "a reasonable
A-0730-24 10 probability that, but for counsel's unprofessional errors, the result of the
proceeding would have been different." Id. at 694.
A petitioner is not automatically entitled to an evidentiary hearing merely
by filing for PCR. State v. Porter, 216 N.J. 343, 355 (2013); State v. Cummings,
321 N.J. Super. 154, 170 (App. Div. 1999). Rule 3:22-10(b) provides that a
defendant is entitled to an evidentiary hearing on a PCR petition only if: (1) he
or she establishes "a prima facie case in support of [PCR]," (2) "there are
material issues of disputed fact that cannot be resolved by reference to the
existing record," and (3) "an evidentiary hearing is necessary to resolve the
claims for relief." Porter, 216 N.J. at 354 (alteration in original) (quoting R.
3:22-10(b)).
In making that showing, a defendant must "demonstrate a reasonable
likelihood that his or her claim will ultimately succeed on the merits." State v.
Marshall, 148 N.J. 89, 158 (1997); see also R. 3:22-10(b). Thus, to obtain an
evidentiary hearing on a PCR petition based upon claims of ineffective
assistance of counsel, a defendant must make a showing of both deficient
performance and actual prejudice. State v. Preciose, 129 N.J. 451, 463-64
(1992).
Rule 3:9-2 prohibits the plea court from accepting a plea:
A-0730-24 11 without first questioning the defendant personally, under oath or by affirmation, and determining by inquiry of the defendant and others, in the court's discretion, that there is a factual basis for the plea and that the plea is made voluntarily, not as a result of any threats or of any promises or inducements not disclosed on the record, and with an understanding of the nature of the charge and the consequences of the plea.
"Once it is established that a guilty plea was made voluntarily, it may only be
withdrawn at the discretion of the trial court." State v. Lipa, 219 N.J. 323, 332
(2014).
Under Rule 3:21-1, "[a] motion to withdraw a plea of guilty . . . shall be
made before sentencing, but the court may permit it to be made thereafter to
correct a manifest injustice." Thus, a defendant may withdraw a plea post-
sentencing only to "correct a manifest injustice," whereas prior to sentencing ,
the plea may be withdrawn in "the interests of justice." Lipa, 219 N.J. at 332;
see also R. 3:9-3(e), R. 3:21-1.
When the reason for the motion to withdraw is a lack of an adequate
factual basis, our review is de novo, because we are "in the same position as the
trial court in assessing whether the factual admissions during [the] plea colloquy
satisfy the essential elements of [the] offense[,]" which does not involve
"making a determination based on witness credibility or the feel of the case,
A-0730-24 12 circumstances that typically call for deference to the trial court." Tate, 220 N.J.
at 403-04.
Where, however, an adequate factual basis supports the plea, "but the
defendant later asserts his [or her] innocence," a motion to withdraw, whether
made before or after sentencing, is judged by the four-prong test set forth in
Slater, 198 N.J. at 157-58. Tate, 220 N.J. at 404. The test requires a court to
balance: "(1) whether the defendant has asserted a colorable claim of innocence;
(2) the nature and strength of defendant's reasons for withdrawal; (3) the
existence of a plea bargain; and (4) whether withdrawal [will] result in unfair
prejudice to the State or unfair advantage to the accused." Ibid. (alteration in
original). We review appeals of such motions for abuse of discretion, because
in deciding those motions, "the trial court is making qualitative assessments
about the nature of a defendant's reasons for moving to withdraw his [or her]
plea and the strength of his [or her] case and because the court is sometimes
making credibility determinations about witness testimony." Tate, 220 N.J. at
404.
III.
Here, defendant failed to establish a prima facie case of ineffective
assistance of trial counsel. Defendant's arguments were bare assertions based
A-0730-24 13 on speculation with no factual support. He contended trial counsel was
ineffective for: (1) failing to elicit the essential elements of the crime to which
he was pleading guilty; and (2) failing to review the discovery, investigate, and
communicate with defendant regarding the State's proofs or the defense's trial
strategy, prior to advising him to accept the plea offer. In support of his petition,
defendant provided a ten-page outline explaining the details of trial counsel's
representation through emails. Defendant alleged trial counsel did not respond
to every email he sent to her, and she did not discuss the contents of the motion
to suppress with him prior to its filing.
The record is barren of any affidavit, certification—including
defendant's—or other evidence relating to the advice and representation
provided by his trial counsel. Given defendant's sworn testimony at his plea
allocution that he had the opportunity to review all discovery with his trial
counsel, she answered all his questions, he did not need to discuss anything with
her privately before pleading guilty, and he was satisfied with her
representation, defendant failed to establish trial counsel's representation fell
below an objective standard of reasonableness under prong one of Strickland.
466 U.S. at 688. We note defendant testified at his plea colloquy that he fully
understood all the rights he would be waiving by pleading guilty but nonetheless
A-0730-24 14 wished to plead guilty. Moreover, defendant testified the answers he provided
and circled on the plea form were truthful.
Defendant also testified at the plea allocution that he had enough time to
consider the plea offer, converse with trial counsel in that regard, and he had no
questions. These findings were made on the record and clearly established
defendant's "vague, conclusory, or speculative" allegations do not warrant relief.
Marshall, 148 N.J. at 158.
We also conclude defendant failed to establish prejudice under the second
Strickland prong. 466 U.S. at 694. Defendant did not demonstrate a reasonable
probability that, but for trial counsel allegedly not eliciting the essential
elements of lewdness or failing to review discovery, investigate , and
communicate with him regarding strategy and the motions pertaining to Miranda
and to suppress evidence were material or would have changed the outcome.
Marshall, 148 N.J. at 156-58; see also R. 3:27-10(b).
"With respect to both prongs of the Strickland test, a defendant asserting
ineffective assistance of counsel on PCR bears the burden of proving his or her
right to relief by a preponderance of the evidence." State v. Gaitan, 209 N.J.
339, 350 (2012) (citations omitted). Defendant also failed to demonstrate how
prevailing on the motions would have led to a more favorable outcome than was
A-0730-24 15 achieved by virtue of the plea agreement. Defendant's emails belie his
arguments because they reveal trial counsel sent him discovery and informed
him that the pending motions would not be adjudicated if he pled guilty in
accordance with the plea agreement. Indeed, defendant commented on the
discovery in his emails and never claimed he did not receive it. Accordingly,
based upon our de novo review, we affirm denial of all claims of ineffective
assistance of counsel in defendant's PCR petition. We also conclude the PCR
court did not abuse its discretion in denying defendant an evidentiary hearing.
IV.
We next address defendant's argument the PCR court erred in its
determination that there was a valid factual basis for the attempt and lewdness
plea. N.J.S.A. 2C:5-1(a)(1) provides:
A person is guilty of an attempt to commit a crime if, acting with the kind of culpability otherwise required for commission of the crime, he [or she]:
(1) Purposely engages in conduct which would constitute the crime if the attendant circumstances were as a reasonable person would believe them to be[.]
Under N.J.S.A. 2C:14-4(b)(1), a person commits a fourth-degree crime of
lewdness if:
(1) He [or she] exposes his [or her] intimate parts for the purpose of arousing or gratifying the sexual desire
A-0730-24 16 of the actor or of any other person under circumstances where the actor knows or reasonably expects he [or she] is likely to be observed by a child who is less than [thirteen] years of age where the actor is at least four years older than the child.
In State v. Hackett, our Supreme Court held that "[i]n order to constitute
fourth-degree lewdness, then, the nudity of the actor must be occasioned by the
sexual desire of the actor to be observed by a minor who is less than thirteen.
The mens rea of the actor constitutes an important element of the offense of
fourth-degree lewdness." 166 N.J. 66, 76 (2001) (citation omitted). Defendant
maintains the attempt charge fails whether his conduct is analyzed under the
theory of impossibility or substantial step. According to defendant, his plea
colloquy did not establish that he attempted or displayed his "intimate parts" to
the purported child victim.
Defendant argues N.J.S.A. 2C:14-1(e) defines "intimate parts" as stated
previously, but does not define "private parts," nor does it "equate the two
phrases." Defendant claims he did not admit that he attempted to expose his
"private parts" to an individual under the age of thirteen, and therefore, a
necessary element of lewdness had not been met. Under the substantial step
theory, defendant contends his guilty plea also fails because all he admitted to
was "texting" someone.
A-0730-24 17 Based upon our review of the record, we have no doubt defendant meant
his genitals when he testified to his "private parts." Defendant's claim that his
agreement to meet an individual he believed was under thirteen years of age and
then proceeding to the park for the meeting was not a "substantial step" is
contradicted by his own testimony when he pled guilty. This argument is also
irrelevant because he pled guilty to attempted lewdness and admitted his intent
to commit that crime at his plea allocution. We are satisfied the PCR court
properly determined there was a valid factual basis for the attempted lewdness
plea.
Affirmed.
A-0730-24 18