STATE OF NEW JERSEY VS. QUIASIA N. CARROLL (18-10-2403 AND 18-10-2404, CAMDEN COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2020 )

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE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-4103-18T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
QUIASIA N. CARROLL,
Defendant-Appellant.
_________________________
Submitted December 7, 2020 – Decided December 29, 2020
Before Judges Rothstadt and Mayer.
On appeal from the Superior Court of New Jersey, Law
Division, Camden County, Accusation Nos. 18-10-
2403 and 18-10-2404.
Joseph E. Krakora, Public Defender, attorney for
appellant (Ruth E. Hunter, Designated Counsel, on the
brief).
Gurbir S. Grewal, Attorney General, attorney for
respondent (Daniel Finkelstein, Deputy Attorney
General, of counsel and on the brief).
PER CURIAM
Defendant Quiasia N. Carroll appeals from a March 14, 2019 judgment of
conviction after pleading guilty to third-degree witness retaliation, N.J.S.A.
2C:28-5(b). We affirm.
We incorporate the facts from our opinion in State v. Carroll, 456 N.J.
Super. 520 (App. Div. 2018) (Carroll I), addressing defendant's challenge to the
trial court's pretrial detention order on the charges of second-degree witness
retaliation, N.J.S.A. 2C:28-5(b), and fourth-degree cyber-harassment, N.J.S.A.
2C:33-4.1(a)(2). Id. at 528. In Carroll I, we remanded the pretrial detention
determination to the trial court for reconsideration of probable cause to detain
defendant on the fourth-degree cyber-harassment charge. Ibid. However, we
held the State established probable cause to detain defendant on the charge of
second-degree retaliation against a witness. Ibid.Pre-indictment, and prior to the issuance of Carroll I, the State and
defendant discussed a potential plea on all charges. Pursuant to the plea
discussions, on the separate accusations charging third-degree witness
retaliation, N.J.S.A. 2C:28-5(b), and third-degree distribution of narcotics,
N.J.S.A. 2C:35-5(b)(3), the State would recommend time served and five years
of probation for each crime, to run concurrently. The State also agreed it would
not object to early termination of probation after three years of successful
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probation. As part of a plea deal, the State agreed to release defendant on her
own recognizance on the third-degree witness retaliation charge and level two
release with conditions on the drug charge. In addition, the State would dismiss
the cyber-harassment and second-degree witness retaliation charges at the time
of sentencing. The State's recommendation of the proposed plea was contingent
on defendant's "waiver of appeal."
On October 3, 2018, prior to any indictment, defendant chose to enter a
guilty plea on the third-degree witness retaliation charge as well as the drug
charge. Her agreement to the plea occurred before the issuance of our opinion
in Carroll I.
During the plea hearing, the judge advised defendant that she faced a
potential prison sentence of ten years if convicted on the charges. He then
confirmed defendant's understanding of her constitutional rights, including the
right to a jury trial. Defendant told the judge she wished to plead guilty to the
charges.
As part of the plea colloquy, defendant answered questions establishing
the factual basis for her guilty plea to third-degree witness retaliation. She
admitted to posting on her Facebook page "lewd, indecent[,] or obscene
material" regarding a witness who testified for the State during a murder trial.
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Defendant admitted to calling the prosecution's witness a "rat" and encouraged
people to retaliate against the witness. Defendant confirmed her intent to
"harass or threaten" the witness based on her Facebook posts.1
The judge accepted the plea, finding defendant "freely, voluntarily and
intelligently" admitted to conduct constituting third-degree witness retaliation.
He noted defendant was not under the influence of any substance that would
impact her ability to understand the plea proceeding, was not "threatened or
pressured" into pleading guilty and was satisfied with the services of her
attorney.
After addressing the serious nature of the witness retaliation charge and
the potential chilling effect of defendant's conduct on the willingness of
witnesses to testify in the future, the judge explained he would "give some
serious consideration of whether or not [he would] agree to this sentence." The
judge signed a waiver of the indictment on the charges against defendant and
she was released from custody.
After the plea hearing and before she was sentenced, defendant moved to
withdraw her guilty plea. Based on our decision in Carroll I, she argued she
1
The witness, fearing for his physical safety, left the State as a result of
defendant's Facebook posts. Carroll I, 456 N.J. Super. at 531.
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could not be guilty of witness retaliation absent a finding of probable cause to
support the cyber-harassment charge. She also claimed there was no predicate
"unlawful act" required for a conviction based on witness retaliation. In
addition, defendant asserted a free-speech defense to the witness retaliation
charge.
On March 8, 2019, the motion judge denied defendant's motion to
withdraw her guilty plea. Applying the Slater2 factors, the judge found
defendant failed to assert a colorable claim of innocence, the decision in Carroll
I had no bearing on the validity of witness retaliation charge, defendant offered
no fair or just reason to withdraw her plea, the existence of a plea bargain
weighed against vacating the plea, there would be prejudice to both parties if the
plea was vacated, and defendant accepted an "exceedingly fair" plea offer.
The judge rejected defendant's argument that Carroll I was binding on his
analysis of the motion to withdraw the guilty plea. He noted Carroll I was based
on the limited nature of information typically presented during a pretrial
detention hearing and the scant documentation and written arguments proffered
as part of a pretrial detention appeal. Unlike the pretrial detention judge, the
sentencing judge had the benefit of defendant's testimony from the plea hearing.
2
State v. Slater, 198 N.J. 145 (2009).
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The motion judge declined to vacate the plea based on the plea hearing
testimony and defendant's admission to retaliating against a witness. The judge
concluded defendant's change of position and argument that her plea was not
voluntary were belied by her testimony during the plea hearing. The judge also
rejected defendant's contention that she was coerced into pleading guilty. To
the contrary, the judge found no coercive conduct by the State regarding
defendant's acceptance of the plea. Rather, he concluded defendant accepted the
plea to obtain her release from custody. The judge then sentenced defendant in
accordance with the negotiated plea.
Defendant filed an appeal challenging her sentence and denial of the
motion to withdraw her plea. On December 2, 2019, the matter was considered
by an appellate excessive sentencing panel. The panel noted defendant decided
to plead guilty despite the known defenses available to her at the time she
considered the plea offer. However, the panel determined the appeal was not
ready for disposition without briefs and adjourned the matter for review on a
plenary calendar.
On appeal, defendant raises the following arguments:3
3
Defendant's notice of appeal and case information statement asserted the trial
court erred in denying her motion to withdraw the guilty plea. The issues raised
in defendant's point headings were not included in the notice of appeal or case
information statement.
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POINT I
THE ACCUSATION WAS DEFECTIVE AND THE
FACTUAL BASIS FOR DEFENDANT'S GUILTY
PLEA WAS INADEQUATE BY VIRTUE OF THIS
COURT'S SUBSEQUENT DECISION REVERSING
DEFENDANT'S DETAINER ORDER ON THE SAME
FACTS UNDERLYING THE PLEA.
A. The Accusation Alleging Defendant Tampered With
a Witness By Cyber Harassment Was Defective.
B. The Guilty Plea's Factual Basis For Tampering Was
Inadequate.
POINT II
BECAUSE THIS COURT'S DETAINER DECISION
DEMONSTRATED THAT DEFENDANT'S
FACEBOOK POSTS WERE NOT CRIMINAL
PURSUANT TO N.J.S.A. 2C:28-5b ON THE
EVIDENCE PRESENTED TO IT, AND INSTEAD
MAY BE PROTECTED SPEECH UNDER THE
FIRST AMENDMENT, DFENDANT'S MOTION TO
WITHDRAW HER PLEA SHOULD HAVE BEEN
GRANTED UNDER STATE v. SLATER, 198 N.J. 145(2009).
Although we requested briefing limited to vacating defendant's guilty
plea, we elect to address each of defendant's arguments. We begin by rejecting
defendant's contention that our decision in Carroll I supports her argument on
appeal. The decision in Carroll I was premised on a review of the limited facts
presented as part of defendant's appeal from the trial court's pretrial detention
A-4103-18T1
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order and addressed only the probable cause determination supporting
detention. Carroll I, 456 N.J. Super. at 533-34. In that case, we "disagree[d]
with the trial court's finding of probable cause as to [cyber-harassment], and
discern[ed] significant legal impediments to successful prosecution of the
[second-degree retaliation of a witness charge] . . . ." Id. at 528. However, the
strength or the weakness of the evidence against defendant was analyzed in the
context of the trial court's probable cause finding to detain defendant. Id. at
533-34. We did not address whether the State would ultimately prevail in its
prosecution of defendant on the charges. Nor did we dismiss any of the charges
against defendant. Although, we did suggest the type of evidence the State
would need to obtain a conviction on the charges at the time of trial. Id. at
536-45. Thus, defendant's reliance on Carroll I as evidence that her Facebook
posts did not support a third-degree charge of witness retaliation is misguided
and unfounded.
We next address defendant's argument that the accusation, alleging
defendant retaliated against a witness based on cyber-harassment, was
defective. Therefore, we must consider whether defendant's cyber-harassment
activities resulted in an unlawful act, constituting witness retaliation.
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The statute governing retaliation against a witness, N.J.S.A. 2C:28-5(b)
provides: "[a] person commits an offense if he harms another by an unlawful
act with the purpose to retaliate for or on account of the service of another as
a witness or informant." Thus, defendant must commit an unlawful act with
the purpose of retaliating to be charged under N.J.S.A. 2C:28-5(b).
Under the relevant portion of the cyber-harassment statute:
[a] person commits the crime of cyber-harassment if,
while making a communication in an online capacity
via any electronic device or through a social media
networking site and with the purpose to harass another,
the person:
(1) threatens to inflict injury or physical harm to any
person . . . .; [or]
(2) knowingly sends, posts, comments, requests,
suggests, or proposes any lewd, indecent, or obscene
material to or about a person with the intent to
emotionally harm a reasonable person or place a
reasonable person in fear of physical or emotional harm
to his [or her] person; . . . .
[N.J.S.A. 2C:33-4.1(a).]
In her Facebook posts, defendant referred to the witness as a "lying ass
rat," "little ass nigga," and hoped someone should "blow them glasses tf (the
fuck) off [the witness's] face." Carroll I, 456 N.J. Super. at 528-29. When the
witness asked defendant to remove her posts, she refused. Id. at 529. Based on
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defendant's posts, the witness feared for his safety and relocated to another state.
Id. at 531.
Here, defendant's Facebook posts, by her own admission, constituted
"lewd, indecent, or obscene material," made with the purpose to harass, and with
the intent to place the witness in fear of physical or emotional harm. While there
may not have been sufficient probable cause to detain defendant on the cyber-
harassment charge, defendant later testified under oath that she posted material
on a social media website with the intent to place the witness in fear of physical
or emotional harm to retaliate for the witness testifying on behalf of the State in
a murder trial. Thus, we are satisfied defendant's social media postings
constituted an unlawful act supporting the third-degree witness retaliation
charge, and the accusation was not defective.
We next consider whether defendant waived her ability to appeal the
validity of the accusation on third-degree witness retaliation charge or assertion
of a defense based on the First Amendment right to free speech. The State
expressly conditioned its plea recommendation on defendant's waiver of any
appeal. In addition, plaintiff failed to preserve these issues at the time of the
plea hearing. Further, these issues were never presented to the trial court as
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part of any the pre-indictment proceedings and were not asserted in defendant's
notice of appeal. Thus, defendant waived her challenges.
It is well-settled that "[g]enerally, 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. Davila, 443 N.J. Super. 577, 585 (App. Div. 2016)
(quoting State v. Robinson, 224 N.J. Super. 495, 498 (App. Div. 1988)). "[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). "The waiver even applies to claims
of certain constitutional violations." Davila, 443 N.J. Super. 585. As the
United States Supreme Court held:
When a criminal defendant has solemnly admitted in
open court that he is in fact guilty of the offense with
which he is charged, he may not thereafter raise
independent claims relating to the deprivation of
constitutional rights that occurred prior to the entry of
the guilty plea.
[Tollet v. Henderson, 411 U.S. 258, 267 (1973).]
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There are three general exceptions to the rule waiving an appeal based
on a guilty plea. See State v. Wakefield, 190 N.J. 397, 417 n.1 (2007).4 None
of the exceptions are applicable here and defendant never claimed she qualified
for any of these exceptions. To the contrary, defendant waived any appeal as
part of the plea offer and so indicated that waiver on her executed plea form.
Having reviewed the record, we are satisfied defendant waived her right
to challenge the accusation on the charge of third-degree witness retaliation
based on her knowingly, voluntarily, and intelligently pleading guilty and
admitting she engaged in conduct that constituted retaliation against a witness.
We next consider defendant's claim the judge erred in denying her
motion to vacate her guilty plea. We review a decision on a motion to withdraw
a guilty plea for abuse of discretion. State v. Tate, 220 N.J. 393, 404 (2015).
When a trial court decides a motion to vacate a guilty plea, the court must
consider "(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 would result in
4
The three exceptions are: denial of a motion to suppress physical evidence,
denial of acceptance into a pretrial intervention program, and any adverse
decisions reserved as part of a conditional guilty plea. Knight, 183 N.J. at 471.
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unfair prejudice to the State or unfair advantage to the accused." Slater, 198
N.J. at 150.
We have already concluded the judge properly accepted defendant's
guilty plea on the charge of third-degree witness retaliation based on her
testimony. Defendant acknowledged her postings were lewd, indecent, or
obscene, made with the intent to cause fear, and in retaliation for the witness
testifying for the State. Defendant does not contest she made these postings,
only that the postings were protected by the First Amendment. Thus, defendant
failed to assert a colorable claim of innocence.
Further, there was a plea agreement that included defendant's immediate
release from custody. If defendant was not guilty of the witness retaliation
charge, she could have awaited a decision on her pretrial detention appeal. She
then would have had another option to obtain her release from custody because,
in Carroll I, we instructed the trial court to conduct a remand hearing on the
State's pretrial detention motion.
Moreover, on appeal, defendant admitted she failed to testify truthfully
during the plea hearing in order to secure her immediate release from custody.
Defendant seeks to undo the plea after she obtained the benefit of the
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agreement, which would result in unfair prejudice to the State and unfair
advantage to her.
Having reviewed the record, we are satisfied the judge's properly applied
and analyzed the Slater factors in denying defendant's motion to withdraw her
guilty plea.
Affirmed.
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