STATE OF NEW JERSEY v. MICHAEL BURTON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2959-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MICHAEL BURTON,

Defendant-Appellant.

_______________________________

December 14, 2010

Submitted October 27, 2010 - Decided

Before Judges Axelrad and Lihotz.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment Nos. 04-01-0010 and 03-10-1820.

Yvonne Smith Segars, Public Defender, attorney for appellant (Timothy P. Reilly, Designated Counsel, on the brief).

Theodore F. L. Housel, Atlantic County Prosecutor, attorney for respondent (Jack J. Lipari, Assistant County Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Michael Burton1 appeals from a May 14, 2008 order

denying his petition for post-conviction relief (PCR). On appeal defendant argues:

POINT I

THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED BECAUSE THE POST-CONVICTION COURT ERRED IN DENYING RELIEF WHERE TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL.

A. PETITIONER-APPELLANT'S PLEA MUST BE VACATED SINCE THERE WAS AN INADEQUATE FACTUAL BASIS TO SUPPORT THE PLEA.

B. THE POST-CONVICTION COURT ERRED IN DENYING POST-CONVICTION RELIEF WHERE TRIAL COUNSEL FAILED TO EFFECTIVELY PURSUE A DEFENSE INVOLVING "THIRD[-] PARTY GUILT."

C. THE POST-CONVICTION COURT ERRED IN FINDING THAT TRIAL COUNSEL WAS NOT INEFFECTIVE FOR FAILURE TO PROPERLY PURSUE A WADE2 MOTION.

D. THE POST-CONVICTION COURT ERRED IN FAILING TO AWARD JAIL CREDITS TO PETITIONER-APPELLANT OR BY FAILING TO ORDER POST-CONVICTION RELIEF BASED UPON COUNSEL'S FAILURE TO ADVISE HOW JAIL CREDITS WOULD AFFECT HIS SENTENCE.

E. THE POST-CONVICTION COURT ERRED BY DENYING PETITIONER-APPELLANT RELIEF BASED UPON THE IMPROPER ISSUANCE OF ARREST WARRANTS.

POINT II

THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE MATTER REMANDED TO THE LAW DIVISION SINCE THE POST-CONVICTION COURT ERRED IN DENYING A[N EVIDENTIARY] HEARING ON [DEFENDANT'S] PETITION FOR POST-CONVICTION RELIEF ALLEGING INEFFECTIVE ASSISTANCE OF COUNSEL AND BECAUSE POST-CONVICTION COUNSEL WAS INEFFECTIVE.

POINT III

THE CLAIMS RAISED BY DEFENDANT IN THE WITHIN PETITION WERE NOT LITIGATED ON DIRECT APPEAL AND FAILURE TO RAISE ALL INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS ON DIRECT APPEAL DID NOT PROCEDURALLY BAR CLAIM IN POST-CONVICTION PROCEEDING.

We determine defendant's claims of ineffective assistance of trial counsel fail to meet either the performance or prejudice prong of the Strickland/Fritz test.3 Also, we reject defendant's claims that the PCR judge erred in denying his request for an evidentiary hearing to review the assertions of ineffective assistance. We affirm.

These facts are not in dispute. Defendant was indicted after police observed a hand-to-hand drug sale. Atlantic County Indictment No. 03-10-1820 charged defendant with the following offenses: fourth-degree possession of marijuana with intent to distribute, N.J.S.A. 2C:35-5a(1) and 2C:35-5b(12) (count one); fourth-degree distribution of marijuana, N.J.S.A. 2C:35-5a(1) and 2C:35-5b(12) (count two); third-degree possession of a controlled dangerous substance (cocaine), N.J.S.A. 2C:35-10a(1) (count three); and (4) third-degree possession of a controlled dangerous substance (cocaine) with intent to distribute, N.J.S.A. 2C:35-5a(1) and 2C:35-5b(3) (count four).

While awaiting trial, defendant was again arrested under the name of "Robert Ross" and charged along with co-defendant Tina Shaw under Indictment No. 04-01-0010 with armed robbery, N.J.S.A. 2C:15-1 (count one); third-degree aggravated assault, N.J.S.A. 2C:12-1b(2) (count two); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d (count three); third-degree possession of a weapon for unlawful purposes, N.J.S.A. 2C:39-4d (count four); and second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and 2C:15-1 (count five). The charges against defendant and Shaw arose from the assault and robbery of a victim who had engaged Shaw's prostitution services.

On July 21, 2004, defendant entered a retraxit plea on Indictment No. 03-10-1820, pleading guilty to counts two and three in exchange for the State's agreement to recommend an aggregate sentence and dismiss the remaining charges. The court imposed sentence consistent with the plea agreement of eighteen months with a nine-month period of parole ineligibility on count two, to run concurrent to the sentence of four years imprisonment imposed on count three.

With respect to Indictment No. 04-01-0010, defendant challenged the photo array used to obtain the victim's identification testimony. After review, the court found defendant's articulated challenge to the witness's identification was one of credibility and "nothing" supported the claim that the array was impermissibly suggestive. Defendant's motion was denied.

During the motion hearing, a lengthy discussion was held regarding defendant's request to introduce testimony to support his contention that a third party was responsible for the robbery and assault. The court considered the proffer and determined there was no competent evidence to suggest a link between a third party and the crime, other than "a mere, mere, mere suspicion or a statement that someone else was involved." The court barred admission of evidence of third-party guilt.

That same day, defendant entered a retraxit guilty plea to the amended charge of second-degree robbery. The court sentenced defendant consistent with the terms of the plea agreement to six years imprisonment, subject to an eighty-five percent parole ineligibility as provided by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, to run concurrently with the sentence imposed under Indictment No. 03-10-1820. Additionally, the court imposed a three-year period of parole supervision along with applicable penalties and assessments.

Defendant's appeal of his August 25, 2005 sentence was considered on our Excessive Sentence Oral Argument calendar, R. 2:9-11, and affirmed. State v. Ross, No. A-0860-05 (App. Div. September 21, 2006). Certification was denied. State v. Ross, 189 N.J. 427 (2007).

On March 23, 2007, defendant filed his first PCR petition, which is the subject of this appeal. Defendant sought to set aside his plea because (1) the public defender's office delayed assignment of the case preventing the two indictments from being heard together; (2) trial counsel rendered ineffective assistance when he incorrectly advised defendant regarding his entitlement to gap-time credits, failed to adequately investigate other suspects, negligently presented his identification challenges, including that the identification was not conducted by a neutral police officer, and did not present challenges regarding prosecutorial misconduct and defective arrest warrants; and (3) appellate counsel was ineffective for failing to present the trial deficiencies on direct appeal.

With respect to the third-party liability defense, defendant introduced a one-page investigator's report relating an interview with an individual identified by Shaw as "BUM" Brown.4 Brown, like defendant, employed "escorts." Brown had admitted to defendant's investigator that he was at the Trump Plaza on the night of the incident and had offered to arrange company for the victim. The victim stated he wanted Shaw, who Brown stated was "defendant's girl." As a result, Brown left the victim at the casino. Outside, Brown saw defendant on the street and told him "his girl" was with the victim.

In his review, Judge Michael Donio first found defendant's plea was "knowingly and intelligently and voluntarily" entered. Next, he analyzed the various contentions of deficiency, rejecting each one and concluding trial counsel was "more than competent" as he successfully negotiated a plea, lowering the degree of the offense accompanied by a sentence "at the low end of a lower degree range."

The court labeled defendant's complaint regarding the speed of counsel's appointment by the public defender's office "ludicrous," and the claims of limited pre-trial investigation meritless. The court also rejected the contentions challenging counsel's performance during the Wade hearing, determining there was "no reasonable probability that a more efficient pursuit of Wade would've led to a different result" as there was no evidence of suggestible conduct by the police. Judge Donio found no prosecutorial misstatements were made and that evidence requested was timely produced. Finally, the court determined the arrest warrants were properly issued. Accordingly, Judge Donio concluded defendant had not established a right to PCR. This appeal ensued.

The analytic framework that controls our review is well-recognized. To establish a claim of ineffective assistance of counsel, a defendant must satisfy the two-prong test formulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). A defendant must show "'that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed . . . by the Sixth Amendment.'" Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693); State v. Allah, 170 N.J. 269, 283 (2002). A defendant must also prove that he suffered prejudice due to counsel's deficient performance. Strickland, supra, 466 U.S. at 691-92, 104 S. Ct. at 2066-67, 80 L. Ed. 2d at 696. That is, the defendant must show by a "reasonable probability" that the outcome of the case was affected by the deficient performance. Fritz, supra, 105 N.J. at 58.

Counsel's efforts are measured by a standard of "reasonable competence." Fritz, supra, 105 N.J. at 53. Courts are to exercise a strong presumption that counsel has rendered appropriate and sufficient professional assistance. Strickland, supra, at 688-89, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694; Fritz, supra, 105 N.J. at 52. In our review, we must evaluate the conduct from the attorney's perspective at the time of trial, being careful to eliminate the distorting effects of hindsight. State v. Buonadonna, 122 N.J. 22, 42 (1991). Additionally, counsel may not be considered ineffective merely because trial strategy failed. State v. Sheika, 337 N.J. Super. 228, 243 (App. Div.), certif. denied, 169 N.J. 609 (2001).

In order to establish a prima facie case, a defendant must "do more than make bald assertions that he was denied the effective assistance of counsel." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999); Allah, supra, 170 N.J. at 283.

Defendant must prove to "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. This requires a showing that "counsel's errors were so serious as to deprive the defendant of a fair trial[,]" undermining confidence in defendant's conviction. Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; Cummings, supra, 321 N.J. Super. at 170.

While a "claim of ineffective assistance of trial . . . counsel is more likely to require an evidentiary hearing because the facts often lie outside the trial record and because the attorney's testimony may be required[,]" it remains within the Court's discretion whether such a hearing is necessary. State v. Preciose, 129 N.J. 451, 462 (1992); R. 3:22-10. "An evidentiary hearing on an ineffective assistance of counsel claim is required only where the defendant has shown a prima facie case and the facts on which he relies are not already of record." Pressler & Verniero, Current N.J. Court Rules, comment 2 to R. 3:22-10 (2011); see also State v. Rountree, 388 N.J. Super. 190, 214 (App. Div. 2006), certif. denied, 192 N.J. 66 (2007).

Defendant's claim that his guilty plea must be vacated as it is not supported by a factual basis is procedurally barred pursuant to Rule 3:22-4, because it could have been, but was not, raised on direct appeal. Furthermore, although defendant's PCR petition sought to vacate his plea, it did not specifically allege the current challenge of defects in the factual basis supporting the plea. The issue, therefore, is not properly before us on appeal. State v. Robinson, 200 N.J. 1, 20 (2009). Nevertheless, for completeness, we examine the merits of defendant's claim. The suggestion that the factual basis recited was inadequate must be viewed against the admissions or acknowledgments made, in light of all surrounding circumstances. State v. Sainz, 107 N.J. 283, 293 (1987).

The record of defendant's plea reflects defendant spoke to trial counsel in detail about the case. During the hearing, defendant agreed that although he claimed to have ingested cocaine on the evening of the crimes, he waived an intoxication defense. During examination by counsel, defendant stated he could not remember all the details of the evening's events, but was able to recount that he was in the victim's motel room with co-defendant Shaw. Defendant admitted he had read Shaw's statement of the events. Defendant acknowledged Shaw gave him access to the victim's motel room, that as the victim exited the bathroom, defendant repeatedly struck him with a "table leg" and he and Shaw took $200. Defendant was also aware Shaw would offer testimony implicating him in the assault and robbery and he acknowledged he could not dispute her statement of events.

Counsel's comments during the plea colloquy reflect he had met with defendant and fully explained the evidence the State would present and the likely sentence the court would impose if convicted by a jury. Likewise, defendant's written plea agreement reveals he was satisfied with trial counsel's representation and had no questions regarding the terms of the plea. These facts, when taken together, provide a sufficient factual basis to support the plea to the lesser offense.

We also determine defendant's claim fails to establish "'that there is a reasonable probability that, but for counsel's errors, [he] would not have pleaded guilty and would have insisted on going to trial.'" State v. DiFrisco, 137 N.J. 434, 528 (1994) (quoting Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 210 (1985)). Although defendant makes the assertion he would have rejected the very favorable plea agreement he received in favor of pursuing an intoxication defense at trial, that defense, if believed by the jury, would not have obviated a conviction. At best, the defense would affect the state of mind possibly reducing the degree of the crime. The terms of the plea agreement suggest a recognition of this fact as the State, by allowing defendant to plead guilty to an amended charge of second-degree robbery, conceded the possible lack of intent to cause serious bodily injury, a necessary element of the first degree offense. Therefore, assertion of an intoxication defense would not have yielded a better result.

Defendant next argues trial counsel's insufficient efforts to locate "BUM" Brown compromised his third-party guilt defense, as he suggests Shaw's admission that "BUM" had set her up on "dates" and "BUM's" unsworn statement he had contact with the victim are sufficient proof of Brown's involvement. We disagree.

As Judge Donio pointed out, the witness was known and available to defendant at the time of trial but, evidently, his testimony was determined to be more detrimental than helpful. We determine Brown's statement as recorded by defendant's investigator was not exculpatory and does not link him to the criminal offense. Although Brown saw the victim earlier on the day of the assault, his comments do not place him in the motel room. On the other hand, Brown's statement actually connected defendant to Shaw who was with the victim. Brown told defendant where to find Shaw and the victim and Shaw's statement detailed defendant's criminal conduct.

"[W]hen a petitioner claims his trial attorney inadequately investigated his case, he must assert the facts that an investigation would have revealed, supported by affidavits or certifications based upon the personal knowledge of the affiant or the person making the certification." Cummings, supra, 321 N.J. Super. at 170. It is "not enough to prove some hostile event and leave its connection with the case to mere conjecture. Somewhere in the total circumstances there must be some thread capable of inducing reasonable men to regard the event as bearing upon the State's case." State v. Sturdivant, 31 N.J. 165, 179 (1959), cert. denied, 362 U.S. 956, 80 S. Ct. 873, 4 L. Ed. 2d 873 (1960).

We conclude Judge Donio properly weighed defendant's proffered evidence against the "countervailing considerations such as the capacity of the evidence to mislead or confuse the jury and undue consumption of time," and found it insufficient to support the claimed third-party involvement. State v. Koedatich, 112 N.J. 225, 299 (1988), cert. denied, 488 U.S. 1017, 109 S. Ct. 813, 102 L. Ed. 2d 803 (1989). Accordingly, we agree defendant's conclusory statements of Brown's involvement in the crimes insufficiently establish a basis to claim counsel's efforts fell short of expected professional competence. Cummings, supra, 321 N.J. Super. at 170.

Defendant next argues counsel was ineffective for not preparing effectively for the motion requesting a Wade hearing. Defendant's challenges include these three contentions: counsel was not prepared because he had believed defendant was pleading guilty; the victim's perception was impaired because of his alcohol consumption and he suffered blows to his head; and a neutral police officer did not conduct the photo array identification procedure in contravention of the Attorney General's guidelines.5

Following our examination of the record, we discern no willful contravention of the Guidelines or impermissible suggestivity in the victim's identification of defendant impacting the reliability of the identification to require it be disregarded. Similarly, there was no impairment of advocacy in counsel's failure to pursue defendant's uncorroborated urgings of police impropriety in the identification process. Defendant's contentions failed to satisfy the two-pronged test of Strickland/Fritz.

Defendant next asserts the court erred in denying jail credits for the period of incarceration beginning on the date of arrest for the robbery until he pled guilty to the unrelated CDS offenses, arguing the "equities of the situation" warrant the discretionary award of jail credits.6 We disagree.

NERA's mandatory parole ineligibility period is unaffected by gap-time credits. Meyer v. State Parole Bd., 345 N.J. Super. 424, 429-30 (App. Div. 2001). The record reveals defendant's understanding of his NERA sentence such that defendant's argument that he was "misinformed" is rejected. R. 2:11-3(e)(2).

Defendant also argues trial counsel failed to challenge the validity of the arrest warrants. This contention is untimely. Objections and defenses "based on defects . . . in the indictment or accusation, except as otherwise provided . . . must be raised by motion before trial. Failure to so present any such defense constitutes a waiver thereof[.]" R. 3:10-2(c). Moreover, the three arrest warrants complied with Rule 3:3-1,7 as they were executed by the investigating police officers and the court found probable cause. See Schneider v. Simonini, 163 N.J. 336, 363-65 (2000), cert. denied, 531 U.S. 1146, 121 S. Ct. 1083, 148 L. Ed. 2d 959 (2001) (discussing a situation where an investigating officer executed an affidavit that was the basis for a warrant); State v. Bobo, 222 N.J. Super. 30, 34 (App. Div. 1987).

After rejecting the assertions of error in denying defendant's PCR petition, we similarly reject his claim that an evidentiary hearing was mandated. A "court is not obligated to conduct an evidentiary hearing to allow [the] defendant to establish a prima facie case not contained within the allegations in his PCR petition." State v. Bringhurst, 401 N.J. Super. 421, 436-37 (App. Div. 2008); see also Preciose, supra, 129 N.J. at 462-63. A court need not grant an evidentiary hearing "if the defendant's allegations are too vague, conclusory or speculative[.]" R. 3:22-10(d)(2).

We also find unavailing defendant's general assertions of appellate counsel's ineffectiveness for failing to present on direct appeal, the challenges to the arrest warrants, the identification procedure and the time credits. R. 2:11-3(e)(2). "[I]f defendant's arguments . . . lack merit, counsel cannot be deemed ineffective for failing to raise them" because there is no prejudice to defendant. State v. Roper, 362 N.J. Super. 248, 252 (App. Div. 2003). "The failure to raise unsuccessful legal arguments does not constitute ineffective assistance of counsel." State v. Worklock, 117 N.J. 596, 625 (1990).

A

1 Defendant has used several aliases. In many transcripts, he is referred to as Robert Ross and Michael Harmon.

2 U.S. v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967).

3 See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), the holding in which was adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987).

4 We have chosen to omit the third party's actual name and note "BUM" was alleged to be an acronym for "bitches under management."

5 The April 21, 2001 "Attorney General Guidelines for Preparing and Conducting Photo and Live Lineup Identification Procedures" recognized the need for precautions to minimize suggestivity and advised that "whenever practical someone other than the primary investigator assigned to the case" should conduct the identification procedure. The Guidelines can be found as an attachment to the Supreme Court's opinion in State v. Herrera, 187 N.J. 493, 511-20 (2006); see also State v. Adams, 194 N.J. 186, 202 (2008).

6 The judgment of conviction recorded defendant's entitlement to 392 days of gap-time credit, 215 days of jail-credit, and required his sentence for Indictment No. 04-01-0010 to be served concurrently with the sentence imposed on Indictment No. 03-10-1820.

7 Rule 3:3-1 provides an "arrest warrant may be issued on a complaint" if a judicial officer finds probable cause.