NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

PER CURIAM.

Pursuant to a plea agreement, defendant Khaliff Broaddus pled guilty to second-degree sexual assault, N.J.S.A. 2C:14-2(c)(1). Prior to sentencing, defendant filed a pro se motion to withdraw his guilty plea. Subsequently, defendant's appointed counsel filed a motion seeking a ruling that the State's DNA report is inadmissible and, if the court so found, to withdraw the plea. Defendant also served a subpoena on the prosecutor for certain evidence relating to a discovery dispute prior to the plea. On June 4, 2013, the court denied both motions, quashed the subpoena, and sentenced defendant according to the terms of the plea agreement.

On appeal, defendant raises the following issue for our consideration.

After considering defendant's contention in light of the record and the applicable legal standards, we affirm.

I.

The record reveals the following facts. Defendant was charged with sexually assaulting N.C., a fourteen-year-old girl, with his finger and his penis. DNA evidence was found on the victim's underwear, but not on the vaginal or other body swabs. DNA testing showed that defendant's DNA matched the DNA found on the underwear. Thereafter, a grand jury indicted defendant on three counts, including first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(1) (first count); first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(2)(a) (second count); and second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a (third count).

At a pre-trial hearing on March 22, 2013, defense counsel stated that she was seeking the lab notes and details about a preliminary "Christmas Tree Test" performed on the stained underwear of the victim.1 The prosecutor represented that everything in the State's possession and everything provided by the persons who performed the DNA testing, including all lab notes and spread sheets, had been turned over to defendant. The defense counsel acknowledged that neither she nor the prosecutor had reviewed the evidence box or the sealed sexual assault examination kit, which she suggested might contain this information.

At the start of the trial on March 27, 2012, before jury selection commenced, defense counsel again raised the issue of possible missing discovery concerning the preliminary DNA testing. Defendant also addressed the court directly, explaining his belief that data was missing related to the "Christmas Tree Test."2 Defendant referenced an unnamed document3 which he believed showed that a step in the preliminary testing procedure had not occurred or the data concerning that step was not provided.

Although the allegedly missing data was not located after a search of the evidence box, defense counsel reiterated her belief that this information could be in the sexual assault examination kit. The judge ordered that the kit be brought back to the court the following day so that defense counsel could examine it. The judge also observed, without contradiction by defense counsel, that the prosecutor had previously complied with Rule 3:13-3, the criminal discovery rule, by turning over all of the lab notes and reports on the DNA evidence, which were then reviewed by defendant's DNA expert. The defense expert agreed with the prosecutor's expert that the DNA on the underwear matched defendant's and the expert did not object to the State's DNA testing procedures or request more data.

The following day, defense counsel and the prosecutor examined the contents of the sexual assault examination kit and the evidence box. Shortly thereafter, following discussions with his counsel, defendant informed the judge that he wished to accept an earlier plea offer made by the State. In exchange for pleading guilty to second-degree sexual assault, the State agreed to dismiss the remaining counts and recommend a sentence not to exceed five years' imprisonment subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, parole supervision for life pursuant to Megan's Law, and no contact with the victim. During the plea colloquy, defendant admitted to digitally penetrating N.C. Neither defendant nor his counsel expressed any concerns regarding discovery of the DNA evidence or indicated that the guilty plea was conditioned upon his right to appeal that issue or any issue.

Three months later, prior to sentencing, defendant filed a pro se motion to withdraw his guilty plea. Defendant asserted that his former trial counsel informed him that the sexual assault examination kit did not contain any data related to the DNA testing but the DNA report would still be presented and admissible. Defendant claimed that he was innocent and only pled guilty because of this "misinformation."

Defendant's newly-appointed motion counsel later filed a motion requesting that the court determine that the DNA report was inadmissible and vacate the guilty plea if it was inadmissible. While the motion was pending, defense counsel served a subpoena on the prosecutor, seeking production of "any and all evidence envelopes and the box ... [and] kit ... opened ... on or about March 28, 2012[.]" Counsel argued that he wanted to see the box and kit to confirm that the data was missing.

After hearing argument, the trial judge denied defendant's motion to withdraw his guilty plea, finding that he failed to satisfy the Slater4 factors. Specifically, the judge found that defendant's assertion of innocence was unsupported and that Slater requires the defendant to show "more than a mere assertion of" innocence. The judge also found that the State provided defendant with everything in its possession and that defendant's own expert "did not require any additional data necessary to make [his] conclusion." Further, the court determined that the DNA report was irrelevant to defendant's plea as he pleaded guilty to digital penetration, for which there was no DNA evidence. The judge concluded that defendant's motion was simply a case of "buyer's remorse[.]"

As to defendant's subpoena, the judge granted the State's motion to quash it, finding that both trial attorneys believed that there was no discovery missing. Moreover, the judge noted that the subpoena was overly vague as it failed to specify what documents or evidence were missing; rather, it simply referred to "empty envelopes." Consequently, the judge sentenced defendant in accordance with the plea agreement. This appeal followed.

II.

Defendant argues that the trial judge should not have decided the motion to withdraw the guilty plea before determining whether the DNA report was admissible without the underlying data. Defendant contends that if the judge found that the DNA report was inadmissible, he would have had a colorable claim of innocence under Slater. Further, defendant disputes the trial judge's characterization of the subpoena as vague, arguing that the subpoena simply requested an opportunity to view the evidence box and sexual assault examination kit that was presented on March 28, 2012. We find these arguments to be without merit.

"`Generally, 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)); see also Tollett v. Henderson, 411 U.S. 258, 267, 93 S.Ct. 1602, 1608, 36 L. Ed. 2d 235, 243 (1973) ("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."). There are three exceptions to this general rule. First, Rule 3:5-7(d) and Rule 7:5-2(c)(2) permit a defendant to bring a motion to suppress evidence under the Fourth Amendment, even after a guilty plea or conviction. See State v. Greeley, 178 N.J. 38, 50-51 (2003). Second, under Rule 3:28(g), a defendant can appeal the denial of admission into a pretrial intervention program (PTI). Third, Rule 3:9-3(f) expressly authorizes a defendant to enter into a conditional guilty plea, which reserves the defendant's "right to appeal from the adverse determination of any specified pretrial motion."

None of these exceptions apply to the present case. Defendant's claim is not based on an illegal search or seizure, the denial of admission to PTI, or a conditional plea. Instead, his claim involves an alleged discovery violation by the State. Prior to accepting the guilty plea, defendant argued that the discovery from the State concerning the DNA report did not contain information and data concerning the preliminary "Christmas Tree Test," yet defendant did not seek to reserve his right to appeal that issue. Rather, he entered an unconditional plea. Consequently, we conclude that by entering an unconditional guilty plea, defendant waived his right to appeal the admissibility of the DNA report or that there was a discovery violation. See Knight, supra, 183 N.J. at 471.

Furthermore, even if defendant had not waived his discovery claim by entering into a guilty plea, defendant has not demonstrated a factual predicate for his argument that the DNA report was inadmissible due to missing discovery. While the record does not contain either DNA expert's report, defendant admitted that both DNA experts agreed that the DNA testing was valid and showed a match between the DNA sample and his DNA. The defense expert did not identify any missing data needed for him to reach his decision. Defense counsel acknowledged that she received all the discovery which the Rules required the prosecutor to provide. The judge specifically found that all required discovery had been turned over before the defense expert's report was produced.

Nevertheless, defendant insists that because his reading of a report concerning a preliminary "Christmas Tree Test" showed a test step for which no data was provided in discovery and other irregularities, the prosecutor did not turn over all required discovery. When questioned by the judge, defendant admitted that he was not a DNA expert. He did not support his contention with a DNA expert's explanation of precisely what data was missing, the scientific significance of the data, or how this purportedly missing information affected the validity of both experts' conclusions. Nor did defendant provide a basis for his rejection of his trial counsel's conclusion that despite the absence of this information, the DNA report was admissible. We are convinced that defendant's bare unsupported assertion does not demonstrate that any discovery was missing that would make the State's expert report inadmissible.

A motion to withdraw a plea "implicates fundamental rights to liberty and due process." State v. O'Donnell, 435 N.J.Super. 351, 369 (App. Div. 2014) (citing Slater, supra, 198 N.J. at 158). Under Slater, courts 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 unfair prejudice to the State or unfair advantage to the accused." Slater, supra, 198 N.J. at 157-58. The defendant bears the burden of proof to demonstrate, using the Slater factors, "that the interests of justice would not be served by effectuating the agreement[.]" R. 3:9-3(e). See also O'Donnell, supra, 435 N.J. Super. at 369-70.

The Slater court made clear that under factor one, a defendant "must show more than a change of heart" or make a "bald statement" of innocence. Id. at 157, 159. Rather, "[d]efendants must present specific, credible facts[.]" Id. at 158. In evaluating a claim of innocence, courts "may look to evidence that was available to the prosecutor and to the defendant through our discovery practices at the time the defendant entered the plea of guilt." Ibid. (quoting State v. Smullen, 118 N.J. 408, 418 (1990)); see State v. Mustaro, 411 N.J.Super. 91, 99, 106-07 (App. Div. 2009) (rejecting the defendant's argument that the trial court erred in denying his withdrawal motion because the State violated its discovery obligation).

In reviewing a trial court's order on a plea withdrawal motion, we apply an abuse of discretion standard. O'Donnell, supra, 435 N.J. Super. at 372. Consequently, "`the trial court's denial of defendant's request to withdraw [a] guilty plea will be reversed on appeal only if there was an abuse of discretion which renders the lower court's decision clearly erroneous.'" Ibid. (quoting State v. Simon, 161 N.J. 416, 444 (1999)). The lower court's denial of a motion to withdraw a guilty plea is "`clearly erroneous' if the evidence presented on the motion, considered in light of the controlling legal standards, warrants a grant of that relief." Ibid. (quoting Mustaro, supra, 411 N.J. Super. at 99).

We find that the trial judge did not abuse her discretion in denying defendant's motion to withdraw his guilty plea. We are in agreement with the trial judge that defendant failed to meet his burden under Slater, particularly that defendant failed to set forth "specific, credible facts" that would support his claim of innocence. Slater, supra, 198 N.J. at 158. Rather, defendant merely made a "bald statement of innocence" premised on his unsupported theory that the DNA testing was erroneous. This does not demonstrate a colorable claim of innocence. See State v. McDonald, 211 N.J. 4, 8, 10 (2012) (finding that the defendant did not demonstrate a colorable claim of innocence where he failed to present particular plausible facts that would support his assertion of innocence); see also Mustaro, supra, 411 N.J. Super. at 107.

We have considered defendant's other contentions and find them without sufficient merit for discussion in this opinion. R. 2:11-3(e)(2).

Affirmed.