STATE OF NEW JERSEY v. RONNIE BARR

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0303-09T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RONNIE BARR,

Defendant-Appellant.

_________________________________

February 21, 2012

Submitted September 28, 2011 - Decided

Before Judges Sapp-Peterson and Ostrer.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment Nos. 04-10-3999 and 05-01-0391.

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

Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Nancy P. Scharff, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant appeals from the trial court order denying his petition for post-conviction relief (PCR) filed in connection with two separate drug-related judgments of conviction. We affirm.

The first conviction stems from a surveillance operation, during which defendant was observed engaging in suspected narcotics transactions with two different men on two separate occasions on July 26, 2004. Following trial, a jury convicted defendant of possession of a controlled dangerous substance (CDS) and possession of CDS with the intent to distribute. In the second indictment, after his suppression motion was denied, defendant pled guilty to possession of CDS with the intent to distribute within 1000 feet of a school. The court subsequently sentenced defendant on both charges, imposing an aggregate fourteen-year sentence with a five-year period of parole ineligibility. Although defendant initially appealed the convictions from both indictments, he later withdrew his appeal.

On July 20, 2007, defendant filed a pro se PCR application. Counsel was subsequently assigned to represent defendant and filed a letter brief on behalf of defendant on November 11, 2008. Defendant claimed that his trial and plea counsel, who were two different attorneys, provided ineffective assistance of counsel. Specifically, defendant claimed trial counsel failed to (1) file a motion to disclose the surveillance location; (2) obtain the personnel records of the arresting officers, who were allegedly the subject of an internal affairs investigation; (3) timely request the grand jury minutes; (4) provide him with a copy of the laboratory report for the suspected narcotics seized, chain of custody report, and the expert report in connection with the suspected narcotics seized; and (5) obtain the grand jury minutes as well as other items of discovery. In addition, defendant claimed that trial counsel's representation of him was affected by her pregnancy status at the time.

With regard to the second indictment, defendant urged that the same trial counsel failed to obtain the laboratory report and curriculum vitae of the expert until two days after his suppression motion was heard and denied. As to his plea counsel, a different attorney, defendant contends that during the plea negotiations, counsel provided no legal assistance other than to urge him to plead guilty, resulting in the imposition of a consecutive sentence.

The PCR judge, Judge John T. McNeill, III, in an oral opinion delivered following oral argument on the petition, denied defendant's motion. The judge first observed that beyond defendant's certification, nothing was submitted to the court in support of the application. He found defendant's statement in his certification that he was unaware he would receive a consecutive sentence in connection with the second indictment totally lacking in credibility, based upon the court having personally presided over the plea proceedings:

I was directly involved [when defendant] was before the [c]ourt on at least three separate occasions where the sentence was detailed -- let me take that back -- he was before the [c]ourt on the day that the plea was taken, at which time, as counsel are aware, you've both been in front of me many times, I ask a standard litany of questions and I supplement those questions, if required, depending on what comes up during the plea colloquy.

The defendant's attention is directed to the plea agreement, and among the other questions that I ask, I ask him if any questions he asked his attorney when the plea agreement was reviewed item by item, were answered to his satisfaction. He answered in the negative. He then initialed and signed the various documents[,] which clearly indicated that the plea agreement contained two sentence[s] which were -- two sentences which were to be consecutive to each other.

There was then a . . . sentencing event, at which time the [c]ourt indicates, once again for the record, what the sentence is in detail. The defendant is addressed for purposes of comment, commonly known as elocution.

[Defendant] was so addressed. He had no comments to the [c]ourt. So there is absolutely no doubt in my mind that he knew exactly what was going on as far as these two sentences being consecutive to each other.

So he puts in his certification that he thought it was going to be a concurrent sentence, which as far as I'm concerned, as I've already basically mentioned in my comments to [defense counsel], reduces his credibility in my mind and in my evaluation to zero.

He makes a lot of allegations in regard to what did or did not happen between himself and his attorneys. The [c]ourt questioned [defense counsel], which is part of the record today, and I applaud him for his candor that he did review the situation with the two attorneys that represented this gentleman . . . .

He handled the matter well by simply indicating to the [c]ourt[,] in discharging his responsibility as far as candor before the tribunal[,] that nothing was developed in talking to the two attorneys that would have been helpful to [defendant] in this [PCR] application.

So what we have here in support of this application is a certification from somebody whose credibility I find at zero level.

There are no other certifications or affidavits submitted. We've already reviewed on the record that, among other things, [defendant] talks about two . . . gentlem[e]n that were present when the one matter took place[,] when the officer walked up to his car with a flashlight that he used and the evening was apparently, it's alleged, a dark night, maybe darker than average.

But[,] basically, as I've already indicated, the use of the flashlight nullifies any impact, as far as I'm concerned, that the darkness of the night would have in terms of what happened.

There's no allegation that he didn't have the drugs on him. There's no allegation other than the -- what these two gentlem[e]n would have said if they were called. And they apparently can't be located, which I'm not -- I'm not surprised to hear that.

So when I evaluate everything, can I make the determination that there's a prima facie case based upon these comments from the defendant alone that would justify this [c]ourt in ordering an evidentiary hearing? The answer is no.

I should also mention in passing that [defendant] took an appeal and then abandoned the appeal. I don't know why he abandoned the appeal, but he certainly was aware of the appeal process. Many of these issues could have been addressed in the appeal process because they were basically within the record that's been established. Nothing else is submitted here other than what's in the record and [defendant]'s comments.

The present appeal followed.

On appeal, defendant raises the following points for our consideration:

POINT I

THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL AT THE TRIAL OF IND. NO. 3999-10-04.

A. TRIAL COUNSEL FAILED TO FILE A MOTION TO DISCLOSE THE LOCATION OF THE SURVEILLANCE.

B. TRIAL COUNSEL FAILED TO FILE A MOTION TO SUPPRESS THE EVIDENCE.

C. TRIAL COUNSEL FAILED TO PROVIDE DEFENDANT WITH DISCOVERY.

D. TRIAL COUNSEL'S PREGNANCY INTERFERED WITH HER ABILITY TO TRY THE CASE AND DEFENDANT WAS THEREBY DEPRIVED OF EFFECTIVE ASSISTANCE.

POINT II

THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL ON IND. NO. 391-01-05.

A. COUNSEL FAILED TO PROVIDE DEFENDANT WITH DISCOVERY.

B. COUNSEL FAILED TO CHALLENGE THE LAB REPORT RESULTS AND THE CHAIN OF CUSTODY OF THE DRUGS.

C. COUNSEL FAILED TO INTERVIEW WITNESSES AT THE SCENE.

D. COUNSEL WAS INEFFECTIVE DURING THE PLEA BARGAINING STAGE.

POINT III

THE LOWER COURT ORDER MUST BE REVERSED SINCE CUMULATIVE ERRORS DEPRIVED DEFENDANT OF DUE PROCESS.

POINT IV

THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT'S CLAIMS ARE NOT PROCEDURALLY BARRED UNDER R[ULE] 3:22-4.

POINT V

THE LOWER COURT ERRED IN NOT GRANTING DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING AND THE LOWER COURT ORDER MUST THEREFORE BE REVERSED.

We have considered the points raised in accordance with the record and applicable legal principles and reject each of the points raised. We affirm substantially for the reasons expressed by Judge McNeill in his January 28, 2009 oral opinion. We add the following brief comments.

A defendant claiming ineffective assistance of counsel warranting PCR must satisfy the two-part test enunciated in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). Specifically, a defendant must demonstrate that: (1) counsel's performance was deficient, and (2) the deficient performance actually prejudiced the accused's defense. Ibid.; see also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland two-part test for New Jersey).

In reviewing such claims, courts apply a strong presumption that defense counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. "[C]omplaints 'merely of matters of trial strategy' will not serve to ground a constitutional claim of inadequacy[.]" Fritz, supra, 105 N.J. at 54 (quoting State v. Williams, 39 N.J. 471, 489, cert. denied, 374 U.S. 855, 83 S. Ct. 1924, 10 L. Ed. 2d 1075 (1963)); see also State v. Perry, 124 N.J. 128, 153 (1991).

Addressing defendant's contentions under this standard, we first observe that defendant points to no authority standing for the principle that he is entitled to be given a copy of the grand jury transcript by his retained counsel. Nor is there any evidence in the record that defendant asked for a copy of the grand jury transcript and trial counsel refused the request. Furthermore, defendant has failed to demonstrate how the lack of the transcript resulted in prejudice.

Next, defendant proffers no evidence that trial counsel's failure to file a motion for disclosure of the surveillance location in any way interfered with trial counsel's ability to effectively cross-examine the witnesses. Trial counsel had the opportunity to cross-examine the surveillance officer on the distance, elevation, line of sight, and type of binoculars used.

Turning to defendant's claim that defense counsel failed to timely obtain discovery related to the narcotics seized, the theory of the defense was that police arrested the wrong person. Thus, any questions surrounding the drugs, including that the drugs may not have actually been controlled dangerous substances, were irrelevant.

The remaining arguments advanced, relating to trial counsel's pregnancy, the circumstances surrounding defendant's guilty plea, and defense counsel's failure to interview two witnesses who were at the scene of the incident that led to the second indictment, are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

A