STATE OF NEW JERSEY v. JAMES M. WATERS, JR

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0075-10T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JAMES M. WATERS, JR.,

Defendant-Appellant.

________________________________________________________________

November 9, 2011

 

Submitted October 25, 2011 - Decided

 

Before Judges Fisher and Baxter.

 

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 06-01-0115.

 

Joseph E. Krakora, Public Defender, attorney for appellant (Mark Zavotsky, Designated Counsel, on the brief).

 

Marlene Lynch Ford, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Supervising Assistant Prosecutor, of counsel; Roberta DiBiase, Assistant Prosecutor, on the brief).

 

PER CURIAM

Defendant James M. Waters, Jr. appeals from a March 24, 2010 Law Division order that denied his petition for post-convictionrelief (PCR). On appeal,he raisesthe following claims:

I. COUNSEL'S FAILURE TO CHALLENGE THE WARRANTLESS SEARCH BY WAY OF A MOTION TO SUPPRESS CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL ENTITLING DEFENDANT TO POST CONVICTION RELIEF.

 

II. COUNSEL'S DECLARATION MADE AT SENTENCING THAT THE COURT WAS BOUND TO THE NEGOTIATED PLEA AND SUBSEQUENT FAILURE TO ARGUE FOR A LESSER SENTENCE CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL ENTITLING DEFENDANT TO POST CONVICTION RELIEF.

 

III. DEFENDANT HAS SUBMITTED PRIMA FACIE EVIDENCE REQUIRING HE BE GRANTED AN EVIDENTIARY HEARING ON POST CONVICTION RELIEF.

 

We affirm.

I.

On September 27, 2005, Lakewood Township police officers effectuated a motor vehicle stop of the vehicle defendant was driving after they observed the vehicle stopped in the middle of the road, next to a parked car, thereby obstructing traffic and forcing other drivers to maneuver into oncoming traffic. Two females were in defendant's vehicle at the time it was stopped; one in the front passenger seat, and the other in the rear. Detective Humeny noticed defendant was attempting to hide an open container of beer behind his legs, and that the front seat passenger, Chariese Paden, was holding one in her hands. The rear seat passenger, later identified as Telisha Blyther, was observed sitting all the way forward on the edge of the seat with her knees pressed against the map-pouch on the back of the front passenger seat. When Detective Humeny asked Blyther for her age and date of birth, she provided a date of birth that was inconsistent with the age she reported to the officer. He then directed her to exit the vehicle. As she did so, Humeny observed a clear plastic bag protruding from the map-pouch, with several smaller transparent baggies in it, each containing marijuana.

At that time, all three of the vehicle's occupants were arrested. A search of the vehicle by another officer uncovered twenty-five additional bags of marijuana and a bag of crack cocaine located in the fuse access panel to the immediate left of the driver's seat, where defendant had been sitting. Upon searching defendant, the officers found a folding knife and $293 in his pockets.

An Ocean County grand jury returned an eight-count indictment charging defendant with one count of third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1); one count of second-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5(a)(1); two counts of third-degree possession of CDS with intent to distribute within 1000 feet of a school, N.J.S.A. 2C:35-7; one count of fourth-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5(b)(12); one count of second-degree possession of a weapon while engaged in a drug distribution offense, N.J.S.A. 2C:39-4.1(c); and one count of fourth-degree certain persons not to possess weapons, N.J.S.A. 2C:39-7(a).1

On July 17, 2006, defendant moved to suppress evidence of the cocaine and marijuana found during the motor vehicle stop. Although the hearing on defendant's motion was originally scheduled for August 21, 2006, it was adjourned on seven occasions, and was ultimately assigned a hearing date of March 30, 2007.

On that date, after extensive plea negotiations, defendant entered a negotiated plea of guilty to one count of second-degree possession of CDS with intent to distribute and one count of third-degree possession of CDS with intent to distribute within 1000 feet of a school. In return for defendant's guilty plea on those two counts, the State agreed to recommend a seven-year period of incarceration subject to a thirty-nine month period of parole ineligibility, and to dismiss the remaining counts. Notably, the terms of the plea agreement also required defendant to withdraw the motion to suppress that had been pending since July 2006. The following colloquy between the judge and defendant occurred concerning the withdrawal of defendant's motion to suppress:

Q: And in fact, as we stand here today we are scheduled to have a motion made by [your attorney] on your behalf, seeking to suppress the evidence that was seized on the day of this incident. You are aware of that?

 

A: Yes, sir.

 

Q: And by pleading guilty here today, you're giving up your right to have that motion and have the court make a decision whether the State can use the evidence that was taken that day against you.

 

A: Yes, sir.

 

Q: You understand that by giving up your right to proceed with that suppression motion, you are in fact waiving that right and acknowledging that probably you would not be successful, and that you're taking the deal rather than run the risk of not being successful with that . . . suppression motion.

 

A: Yes, sir.

 

Q: Is that correct?

 

A: Yes, sir.

 

Q: Because you know that the Brimage guidelines are off the table if you lose the suppression motion. That's the law. You understand that?

 

A: Yes, sir.

 

Q: And then you'd be faced with, if you lost the suppression motion, going to trial; and if you lost [at trial], you'd be facing a maximum of 20 years just on Count 2. Right?

 

A: Yes.

 

Q: And [defense counsel] explained all of that to you?

 

A: Yes, he has.

 

Q: And you have sat down in his office and you have gone over the facts and circumstances of this incident; is that correct?

 

A: That's correct, sir.

 

Q: And you've discussed with him quite fully what he thinks and what you think and what witnesses might be available to you, and how he might try and attack and impeach the State's witnesses at the suppression hearing?

 

A: Yes, sir.

 

Q: And you've made the determination, together with [defense counsel], to withdraw the motion to suppress?

 

A: Yes, sir.

 

Q: Is that right?

 

A: Yes.

 

Q: That's your decision; right? . . .

 

A: Yes[.]

 

In subsequent answers to the judge's questions, defendant also stated that he was satisfied with the legal advice his attorney had provided, and that he did not have any questions about the terms of the plea agreement.

At the conclusion of the colloquy, the judge found that defendant understood the provisions of the negotiated plea agreement and also understood that as part of the plea, his previously-filed motion to suppress would be withdrawn. The judge stated, "I have reviewed that with him, and he fully understands the parameters of that aspect; and he voluntarily withdraws the motion to suppress, and knowingly and voluntarily asks the court to take the plea without having ruled or heard any evidence in that regard."

At the time of sentencing on June 13, 2007, defense counsel urged the court to impose the negotiated sentence of seven years imprisonment, subject to the thirty-nine month parole ineligibility term. Defense counsel stated, "[t]he court really has no ability to vary or deviate from what has been negotiated under the statute." After balancing the aggravating and mitigating factors, the judge imposed the sentence we have described. Defendant did not file a direct appeal, but filed the present PCR petition on February 19, 2009. On March 24, 2010, at the conclusion of oral argument, the judge rendered a decision in which he rejected defendant's claims that trial counsel rendered ineffective assistance by failing to pursue the motion to suppress and by failing to argue for a lesser sentence.2

II.

To establish a prima facie case of ineffective assistance of counsel, defendant must demonstrate a reasonable likelihood of succeeding under the two-prong test established by Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). First, defendant must show that defense counsel's performance was indeed deficient. Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Second, defendant must demonstrate that there exists "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. There is a "strong presumption that counsel's conduct falls within a wide range of reasonable professional assistance." Id. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694. The precepts of Strickland have been adopted by New Jersey. State v. Fritz, 105 N.J. 42, 58 (1987).

Prejudice is not presumed. Fritz, supra, 105 N.J. at 61.

Defendant must demonstrate "how specific errors of counsel undermined the reliability" of the proceeding. United States v. Cronic, 466 U.S. 648, 659 n.26, 104 S. Ct. 2039, 2047 n.26, 80 L. Ed. 2d 657, 668 n.26 (1984).

When a defendant's claim of ineffective assistance of counsel cannot be resolved without resort to matters lying outside the trial record, the court should conduct an evidentiary hearing; however, a defendant is not entitled to an evidentiary hearing unless he establishes a prima facie case of ineffective assistance. State v. Preciose, 129 N.J. 451, 462 (1992).

Applying those precepts here, we are satisfied, as was the trial judge, that no evidentiary hearing was necessary to conclude that trial counsel's performance was well within the bounds of the effective assistance required by the Sixth Amendment. Had defendant chosen to reject the State's plea offer, and proceed with his suppression motion, he would have faced a considerable risk of the suppression motion being denied for reasons that we shall explain shortly. Had the suppression motion been denied, defendant would have stood trial and faced a significant risk of conviction.

Evaluating the State's likely proofs at trial, we recognize that no CDS was found on defendant's person. Nonetheless, a reasonable jury could have found defendant guilty of possession with intent to distribute CDS if the jury found defendant was in constructive possession of the CDS found in the fuse access panel or in the map-pouch. See State v. Morrison, 188 N.J. 2, 14 (2006) (observing that a person has constructive possession of an object when, although not in actual possession of it, he has knowledge of its presence, and intends and has the capacity to exercise physical control or dominion over the object).

Defendant was the driver of the vehicle, and under such circumstances the jury was entitled to find that he was aware of the CDS in the fuse access panel to his left and in the map-pouch in the rear of the vehicle. See State v. Palacio, 111 N.J. 543, 553 (1988) (affirming the defendant's conviction where evidence in the record demonstrated that the defendant, who was a passenger, had been traveling in the vehicle for a while, and appeared to know the driver fairly well, thereby entitling the jury to conclude that the defendant was in constructive possession of the CDS found in a secret compartment behind the back seat of the car).

Here, as in Palacio, a jury could have inferred from the open cans of beer held by defendant and Paden that the three had been traveling together in the vehicle for a period of time, thus leading to the further inference that defendant would have been aware of the CDS found in the map-pouch, as well as the CDS found in the fuse access panel to his left.

Had defendant been convicted, he would have faced an extremely lengthy sentence. In particular, in light of his prior drug distribution conviction, defendant would have faced a mandatory extended term sentence on the second-degree drug distribution charge. N.J.S.A. 2C:43-6(f). The extended term sentence, of between ten to twenty years in prison, N.J.S.A. 2C:43-7(a)(3), would have required the imposition of a mandatory period of parole ineligibility of up to one-half of the sentence imposed. N.J.S.A. 2C:43-6(f). Thus, on the second-degree drug distribution charge alone, defendant faced as much as twenty years in prison, subject to a ten-year parole ineligibility term.

Had defendant also been convicted of possession of a knife while engaged in drug distribution, N.J.S.A. 2C:39-4.1(c), he would have faced an additional term of between five and ten years in prison; that term would have been imposed consecutively to the sentence imposed for the drug distribution conviction. See N.J.S.A. 2C:39-4.1(d) (requiring that a sentence imposed upon a violation of N.J.S.A. 2C:39-4.1 must be "served consecutively to that imposed for any conviction for a violation of any of the sections of Chapter 35"). Thus, on those two counts alone, defendant faced as much as a thirty-year term of imprisonment, subject to a fifteen-year period of parole ineligibility.

Measured against that risk, counsel cannot be faulted for advising defendant to accept the State's plea offer of a seven-year term of imprisonment, subject to the thirty-nine month parole ineligibility term, provided, of course, that defendant's chances of succeeding on the suppression motion were uncertain. We now turn to that issue.

Defendant relies heavily on the Supreme Court's opinion in State v. Pena-Flores, 198 N.J. 6, 28-33 (2009), in which the Court imposed a requirement that police obtain telephonic search warrants except in instances where police face danger to their personal safety in light of the surrounding circumstances. Relying on Pena-Flores, defendant argues that exigent circumstances were not present and that had trial counsel pursued the suppression motion, it would have been granted.

Pena-Flores was not decided until nearly two years after defendant entered his plea of guilty. In particular, defendant accepted the State's plea offer on March 30, 2007, and Pena-Flores was not decided until February 25, 2009. Nonetheless, the Court observed in Pena-Flores that its ruling did not constitute "a new multi-factor test," id. at 29 n.6 (internal quotation marks omitted), and remarked that its holding was "nothing more than a reaffirmation of over three decades of "jurisprudence," ibid. For that reason, we do not accept the State's request that we disregard defendant's Pena-Flores argument.

When evaluating defendant's prospects for succeeding on his suppression motion, counsel would have applied the then-existing standard articulated in State v. Cooke, 163 N.J. 657, 665 (2000), which allowed warrantless searches of passengers, and passenger compartments of automobiles, based on probable cause whenever exigent circumstances justified a warrantless search. Measured against Cooke, it is unlikely that defendant's challenge to the State's claim of exigent circumstances would have succeeded. The stop of defendant's car occurred at 10:00 p.m. in an area known for gang activity, and there were three occupants of the car, all of whom needed to be secured.

So viewed, counsel's analysis of defendant's prospects of succeeding on the motion to suppress was well within the standard of competence expected of attorneys. Defendant's prospects of succeeding on the suppression motion were, at best, uncertain and defendant faced a more than insignificant risk of conviction at trial, with a concomitant lengthy sentence. Under such circumstances, counsel wisely advised defendant to accept the highly favorable plea agreement.3 In light of the strong presumption that counsel provided reasonable professional assistance, Strickland, supra, 466, U.S. at 689, 104 S. Ct. 2065, 80 L. Ed. 2d at 694, a presumption that was not overcome here, defendant's claim of ineffective assistance of counsel was correctly rejected by the judge.

III.

In Point II, defendant contends counsel rendered ineffective assistance by failing to urge the judge to impose less than a thirty-nine month parole ineligibility term. The State argues that in light of State v. Brimage, 153 N.J. 1, 25-27 (1998), the judge had no discretion to impose a shorter parole ineligibility term. We need not decide that issue as defendant was released from confinement on September 30, 2010.4 Where an inmate has been released on parole, a challenge to unlawful confinement is deemed moot where the defendant does not demonstrate any collateral consequences flowing from the detention in question. Cinque v. Dep't of Corrs., 261 N.J. Super. 242, 243-44 (App. Div. 1993). Here, defendant's challenge is not to the length of the sentence, which unquestionably has a bearing on the length of time he will be on parole, but only to the length of the parole ineligibility term, which defendant has already completed. Unlike the length of the sentence, the length of the parole ineligibility term has no collateral consequences. As the issue raised in Point II is moot, we will not decide it. Ibid.

Affirmed.

1 The eighth count of the indictment did not pertain to defendant.

2 Defendant also argued that the sentence imposed was illegal because the judge was required to have merged the school zone conviction into the second-degree drug distribution conviction. We need not address that claim, as the PCR judge agreed with defendant and granted his request for merger. Thus, the issue of merger is moot.

3 As we have noted, the record demonstrates that the judge conducted a painstaking review of this issue with defendant during the plea colloquy. Defendant acknowledged having had a thorough opportunity to discuss with trial counsel the State's likely proofs at the suppression hearing and defendant's prospects of succeeding on that motion.

4 The Department of Corrections website shows defendant was released from confinement on September 20, 2010. Offender Search Engine, State of New Jersey Department of Corrections, http://www.state.nj.us/corrections.