STATE OF NEW JERSEY v. FRANCIS NEWTON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1010-09T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

FRANCIS NEWTON, a/k/a

KARL A. MCCALLA,

Defendant-Appellant.

________________________________

May 16, 2011

Argued October 20, 2010 Decided

Before Judges Fuentes, Gilroy and Nugent.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. S-1684-93.

Donald Horowitz argued the cause for appellant.

Annmarie Cozzi, Senior Assistant Prosecutor, argued the cause for respondent (John L. Molinelli, BergenCounty Prosecutor, attorney; Ms. Cozzi, on the brief).

PER CURIAM

Defendant Francis Newton appeals from the August 14, 2009 order that denied his petition for post-conviction relief (PCR). We affirm.

A jury found defendant guilty of first-degree possession of a controlled dangerous substance (CDS) (cocaine) with intent to distribute, N.J.S.A. 2C:35-5a(1) and b(1) (count one); and third-degree possession of a CDS (cocaine), N.J.S.A. 2C:35-10a(1) (count three). On October 24, 1997, the court sentenced defendant to an extended fifty-year term of imprisonment, one-third to be served without parole eligibility, to run consecutive to a sentence defendant was then serving on a New York State conviction. Because the facts leading to defendant's arrest were discussed in our prior opinion, State v. Newton, No. A-1962-97 (App. Div. Feb. 18, 2000), it is unnecessary for us to detail the evidence against defendant for these crimes. However, the following summary will place this appeal in context.

On September 9, 1993, at approximately 1:00 a.m., while defendant was a passenger in a motor vehicle operated by co-defendant Cleveland Fearon in Fort Lee, two members of the Borough's Police Department stopped the motor vehicle after they observed it come off the George Washington Bridge ramp and drive through a yield sign without slowing, cutting off another vehicle. After the police officers received conflicting statements from defendant and co-defendant as to where they were proceeding, the officers requested defendant to exit the motor vehicle. Upon defendant opening the door, one of the police officers observed a plastic bag sticking out of the door panel with a white liquid substance leaking therefrom. The bag was later found to contain cocaine.

On appeal, we affirmed the judgment of conviction and sentence. Id. (slip op. at 13). On June 7, 2000, the Supreme Court denied defendant's petition for certification. 165 N.J. 133 (2000).

On July 9, 2004, while incarcerated in New York State, defendant filed a pro se PCR petition challenging his arrest, contending that the motor vehicle stop was not based on probable cause, but on racial profiling. Because defendant was not available to prosecute his petition as he was then incarcerated in New York, the trial court entered an order on May 5, 2005, dismissing the petition without prejudice to defendant re-filing upon defendant being able to appear in New Jersey. In so doing, the court ruled that defendant had satisfied the five-year period of limitations for filing a petition for PCR pursuant to Rule 3:22-12(a) because the original petition was timely filed. On August 31, 2007, defendant either filed a new petition for PCR or successfully petitioned the court to reinstate his July 2004 petition.1 On October 31, 2007, defendant filed a motion seeking to compel discovery of the personnel files of the officers involved in the motor vehicle stop, and records from various governmental agencies as to any studies or reports of racial profiling by the Fort Lee Police Department. On November 26, 2007, the court entered an order supported by an oral decision of November 9, 2007, denying the motion.

On August 4, 2009, the court conducted argument on defendant's petition for PCR. At the hearing, defendant argued that his sentence was illegal, the trial court having sentenced him to the then-presumptive extended term of fifty years of imprisonment. Defendant contended that he was entitled to a new sentencing hearing, citing State v. Natale, 184 N.J. 458 (2005). Defendant also asserted that the police violated his due process and equal protection rights when they stopped his motor vehicle based on racial profiling. On August 14, 2009, the court entered an order supported by an oral decision of August 4, 2009, denying the petition without conducting an evidentiary hearing.

On appeal, defendant argues:

POINT I.

THE SENTENCE IMPOSED ON THE DEFENDANT IS ILLEGAL AND IN VIOLATION OF THE NEW JERSEY AND UNITED STATES CONSTITUTIONS.

POINT II.

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO COMPEL DISCOVERY.

POINT III.

THE TRIAL COURT ERRED IN DENYING THE DEFENDANT AN EVIDENTIARY HEARING ON HIS RACIAL PROFILING CLAIM.

The decision whether to conduct an evidentiary hearing on a claim of ineffective assistance of counsel rests primarily on the trial court's determination whether a defendant has made a prima facie showing of the claim. State v. Preciose, 129 N.J. 451, 462 (1992). Rule 3:22-1 does not require that an evidentiary hearing be granted in every PCR proceeding. Ibid. Where a "court perceives that holding an evidentiary hearing will not aid the court's analysis of whether the defendant is entitled to post-conviction relief, or that the defendant's allegations are too vague, conclusory, or speculative to warrant an evidentiary hearing, then an evidentiary hearing need not be granted." State v. Marshall, 148 N.J. 89, 158 (internal citations omitted), cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). Our court rules have adopted these exceptions as well. R. 3:22-10(e).

Claims of ineffective assistance of counsel are governed by the standards set forth in Strickland v. Washington.2 See State v. Fritz, 105 N.J. 42, 58 (1987) (holding the precepts of Strickland have been adopted by New Jersey). For a defendant to establish a prima facie case of ineffective assistance of counsel under Strickland, the defendant must show that defense "counsel's performance was deficient," and that "there exists 'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Preciose, supra, 129 N.J. at 463-64 (quoting Strickland, supra, 466 U.S. at 694; 104 S. Ct. at 2068, 80 L. Ed. 2d at 698); see also State v. Allegro, 193 N.J. 352, 366 (2008).

To satisfy the second prong of Strickland, a defendant must prove "that 'there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Allegro, supra, 193 N.J. at 367 (quoting State v. Loftin, 191 N.J. 172, 198 (2007)). It is "an exacting standard: '[t]he error committed must be so serious as to undermine the court's confidence in the jury's verdict or the result reached.'" Ibid. (quoting State v. Castagna, 187 N.J. 293, 315 (2006)).

Defendant argues that the fifty-year extended-term sentence imposed on his first-degree conviction for possession of a CDS with intent to distribute violated his Sixth Amendment right to a jury trial because the court imposed the then-presumptive term for a first-degree crime. Defendant contends that he is entitled to have the sentence vacated and the matter remanded for re-sentencing pursuant to Natale. We disagree for several reasons.

Procedurally, defendant's case does not fall within that narrow corridor of cases for which the Court provided retroactive effect of Natale. The Court accorded Natale "[p]ipeline retroactivity"; that is, applied the "holding to defendants with cases on direct appeal as of the date of [the] decision[, August 2, 2005,] and to those defendants who raise Blakely3 claims at trial or on direct appeal." Natale, supra, 184 N.J. at 494.

The phrase "on direct appeal" means "in any case still on direct appeal at the time [the] new rule is set forth." State v. Cummings, 184 N.J. 84, 99 (2005). Pipeline retroactivity, contrary to full retroactivity, does "not apply to those defendants who had exhausted all avenues of direct relief at the time [the decision] was decided." State v. Knight, 145 N.J. 233, 258 (1996); see also, State v. Yanovsky, 340 N.J. Super. 1, 11 (App. Div. 2001) (holding that the decision of State v. Carty, 332 N.J. Super. 200 (App. Div. 2000), aff d, 170 N.J. 632, modified, 174 N.J. 351 (2002), was limited to pipeline retroactivity, that is, "to all pending cases, including those on direct appeal at the time Carty was decided, but not to those cases in which defendants had exhausted all avenues of direct relief at the time Carty was decided").

Here, defendant had filed a direct appeal from his judgment of conviction and asserted, among other arguments, that his sentence was excessive. We affirmed the conviction and sentence on February 18, 2000. The Court denied defendant's petition for certification on June 7, 2000. Because defendant's direct appeal had been decided prior to the Court's 2005 decision in Natale, this case does not fall within the ambit of pipeline retroactivity.

Substantively, the sentence neither violated defendant's Six Amendment right, nor was it otherwise illegal. The Court in Natale held that "a sentence above the presumptive statutory term based solely on a judicial finding of aggravating factors, other than a prior criminal conviction, violates a defendant's Sixth Amendment jury trial guarantee." Natale, supra, 184 N.J. at 466 (emphasis added). Here, the trial court sentenced defendant to the then-presumptive term of fifty years, N.J.S.A. 2C:44-1f(1)(b), not to a term in excess thereof. What is more, defendant was sentenced to a mandatory extended term based on his prior New York drug conviction pursuant to N.J.S.A. 2C:43-6f. Newton, supra, (slip op. at 11). Thus, defendant's Sixth Amendment right was not violated because his extended-term sentence resulted from the trial court's finding of his prior conviction. State v. Thomas, 188 N.J. 137, 151-52 (2006).

Defendant argues next that the trial court erroneously denied his motion seeking to compel discovery of materials pertaining to defendant's allegation of racial profiling. Citing State v. Lee, 190 N.J. 270 (2007), defendant contends that because he brought his motion in support of his PCR petition that he "is entitled to discovery in an effort to support [the] racial profiling claim." We do not read Lee so broadly.

Generally, before a defendant asserting a claim of racial profiling is entitled to pre-trial discovery of documents in exclusive control of governmental agencies, the defendant "must establish a colorable basis for [the] claim of selective enforcement." State v. Kennedy, 247 N.J. Super. 21, 25 (App. Div. 1991). That is, the defendant must show "a colorable claim that a police agency has an officially sanctioned or de facto policy of selective enforcement against minorities." State v. Smith, 306 N.J. Super. 370, 378 (App. Div. 1997). Under that principle, "a defendant must present 'some evidence tending to show the existence of the essential elements of the defense and that the documents in the government's possession would indeed be probative of these elements.'" Kennedy, supra, 247 N.J. Super. at 32 (quoting United States v. Berrios, 501 F.2d 1207, 1211-12 (2d Cir. 1974)).

Here, defendant has not established a colorable claim that the Fort Lee Police Department, either de jure or de facto, engaged in a policy of selective enforcement against minorities. Rather, the only evidence proffered by defendant in support of the discovery motion was contained in his self-serving affidavit wherein he contended that he was told by one of the police officers the motor vehicle stop was a "routine profile stop." The trial court determined that the alleged statement was insufficient to establish a colorable claim under Kennedy, and we agree.

Defendant argues that Lee supports his claim to discovery. We disagree. In Lee, following a motor vehicle stop by State Police troopers, the defendant was arrested and subsequently convicted of various drug offenses, aggravated assault upon a State trooper, resisting arrest, and escape. 190 N.J. at 272-74. Defendant appealed, and we affirmed. Id. at 274. The Supreme Court denied certification. Ibid. The defendant filed a subsequent petition for PCR, together with a request for discovery to support a claim that the motor vehicle stop was a product of racial profiling. Ibid. The discovery matter was referred to Judge Barisonek pursuant to an order of the Administrative Director of the Courts. Ibid.

Pursuant to the terms of a consent decree, the State agreed that there was a colorable basis to allow discovery concerning racial profiling arising from motor vehicle stops by State troopers on certain roads during the periods from January 1, 1988 through April 20, 1999. Id. at 274-75. However, the State moved to dismiss the discovery request, arguing that the criminal conduct leading to defendant's arrest occurred after the motor vehicle stop, and as such, constituted a break in the chain of events between the stop and the discovery of the drugs. Id. at 275. The trial court agreed and denied the motion requesting discovery. Id. at 276.

After defendant's PCR petition was denied, defendant appealed, and we affirmed. Ibid. (citing State v. Lee, 381 N.J. Super. 429, 433-37 (App. Div. 2005)). Ibid. Because of a dissent filed in our decision, the matter proceeded to the Court as a matter of right. Ibid. The Court reversed, determining that because the State had essentially agreed that defendant had established a colorable basis in support of his claim of racial profiling, it would have been premature for the trial court to address the issue of attenuation until defendant produced evidence showing that the motor vehicle stop actually resulted from racial profiling. Id. at 282-83. Here, contrary to Lee, defendant has not crossed the primary threshold of showing a colorable claim of racial profiling.

We have considered defendant's remaining argument and determine that it is without merit. R. 2:11-3(e)(2). Accordingly, we affirm.

1 The State indicates in its appellate brief that defendant filed a second petition for PCR; however, the appellate appendix does not contain a copy of the second petition. A review of the transcript of August 4, 2009, suggests that defendant moved to have the original petition reinstated after arrangements were made to have him appear via video conference.

2 Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).

3 Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).