STATE OF NEW JERSEY v. BRIAN J. TYKOT

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0487-10T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

BRIAN J. TYKOT,

Defendant-Appellant.

_____________________________________________

July 24, 2013

Argued November 15, 2012 - Decided

Before Judges Fuentes and Hayden.

On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 02-06-666.

Joseph E. Krakora, Public Defender, attorney for appellant (Alison Perrone, Designated Counsel, of counsel and on the brief).

Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Alexis R. Agre, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Brian J. Tykot appeals from the July 29, 2010 Law Division order denying his petition for post-conviction relief (PCR) based upon a claim of ineffective assistance of appellate counsel. For the reasons that follow, we affirm.

The record reveals that on January 5, 2002, three people were found dead inside their North Hanover trailer home. In a statement to the New Jersey State Police on January 9, 2002, defendant confessed to fatally shooting all three victims and stabbing two of the victims during a burglary. In a twelve-count indictment, defendant was indicted on three counts of capital murder, N.J.S.A. 2C:11-3a(1) and (2), three counts of felony murder, N.J.S.A. 2C:11-3a(3), first-degree robbery, N.J.S.A. 2C:15-1a(1), and other related crimes.

Defendant made a pretrial motion to suppress evidence, including his signed statement to the police. Judge John A. Almeida issued a written opinion denying the motion on March 27, 2003. He found that when the police initially questioned defendant on January 7, 2002, he agreed to speak with them, voluntarily waived his Fifth Amendment right to remain silent, and signed a Miranda1 warning card before a witness. After speaking with the police for several hours, defendant stated around 3:00 a.m. that he "was tired and wanted to take the Fifth." All questioning ceased at that time and defendant was taken to the county jail where he was incarcerated on an unrelated charge.

Thirty-six hours later, after the police located articles stolen from the deceased buried near defendant's girlfriend's house and intercepted defendant's phone conversations from jail revealing that he had hidden some of the victims' stolen items, the police obtained arrest warrants charging defendant with the three homicides. When the detectives visited defendant in jail to inform him of the arrest warrants, they also sought to clarify his early morning statement that he did not want to continue speaking to the police. According to the judge's opinion, the following colloquy took place:

He [defendant] was asked if when he told the detectives that he was too tired to continue talking, and wanted to "take the Fifth," what he had meant. [Defendant] stated, "I was questioned all night. I didn't want to talk anymore."

He was then asked if he was exercising his rights, specifically his right to remain silent and refuse to answer any questions. [Defendant] stated, "No, I was tired.

He was asked if he wanted an attorney at that time. He said, "No."

He was asked if he wanted a lawyer now. He advised us that he did not want a lawyer by saying "No."

He was asked if he wanted to talk to us now. He said, Yeah."

He was asked if he's sure. He said, Yeah, I'll talk."

Defendant was then again advised of his Miranda warnings by the detective reading the instructions off a Miranda card.

The judge found that when defendant made his statement, he was polite, eager, cogent, and had no questions after reading the Miranda card, and that neither the length nor the form of the clarifying question raised a question of voluntariness. The judge determined that defendant's incriminating statements were "obtained in strict conformity with the law."

On May 29, 2003, Judge Almeida sentenced defendant, in accordance with the plea agreement, to three consecutive life terms of 75 years, with an 85% parole disqualifier on each term pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant appealed his conviction on the excessive sentence calendar, R. 2:9-11, and we affirmed the decision of the trial court. On October 22, 2008, the Supreme Court denied defendant's petition for certification. State v. Tykot, 196 N.J. 598 (2008).

Defendant filed a pro se petition for PCR and supporting brief on November 21, 2008, raising numerous arguments. After defendant retained counsel, his attorney filed a brief which argued that PCR must be granted because appellate counsel was ineffective for failing to file a direct appeal arguing that the court erred in denying the motion to suppress defendant's confession. The attorney also withdrew all the other arguments defendant raised in his pro se PCR petition and supporting brief.

After Judge Almeida heard oral argument, he issued a letter opinion on July 29, 2010 denying defendant's PCR petition without an evidentiary hearing. He relied on his March 27, 2003 written opinion denying defendant's suppression motion for factual and legal support. This appeal followed.

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

POINT I: APPELLATE COUNSEL WAS INEFFECTIVE IN FAILING TO CHALLENGE THE DENIAL OF DEFENDANT'S MOTION TO SUPPRESS ON DIRECT APPEAL.

POINT II: THIS MATTER MUST BE REMANDED FOR A PCR HEARING WITH THE TRANSCRIPTS OF THE MOTION TO SUPPRESS.

POINT III: DEFENDANT WAS ENTITLED TO AN EVIDENTIARY HEARING AND/OR POST-CONVICTION RELIEF BASED ON THE REMAINING ARGUMENTS ADVANCED BY DEFENDANT AND DEFENSE COUNSEL.

We begin with a review of the relevant well-settled principles governing PCR. Post-conviction relief constitutes "New Jersey's analogue to the federal writ of habeas corpus." State v. Preciose, 129 N.J. 451, 459 (1992). A person making a prima facie showing of entitlement to such relief by demonstrating a reasonable likelihood that his or her claim will ultimately succeed on the merits is generally entitled to an evidentiary hearing. Id. at 462. Without such a showing, no evidentiary hearing is required. See State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). In deciding if defendant has established a prima facie claim, we must "view the facts in the light most favorable to a defendant." Ibid.

We consider a defendant's claim of ineffective assistance of counsel under the standards established in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), which were adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). In order to prevail on such a claim, a defendant must show both that his attorney's performance was deficient and that this deficient performance prejudiced his defense. Id. at 52 (citing Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). We apply the same standard to a defendant's claim of ineffective assistance of appellate counsel as to claims of trial counsel. State v. Gaither, 396 N.J. Super. 508, 513 (App. Div. 2007), certif. denied, 194 N.J. 444 (2008).

In order to demonstrate a prima facie case of ineffective assistance of counsel when defendant pled guilty, defendant must satisfy a modified Strickland standard:

When a guilty plea is part of the equation . . . "a defendant must show that (i) counsel's assistance was not within the range of competence demanded of attorneys in criminal cases; and (ii) that there is a reasonable probability that, but for counsel's errors, [the defendant] would not have pled guilty and would have insisted on going to trial."

[State v. Nunez-Valdez, 200 N.J. 129, 139

(2009) (quoting State v. DiFrisco, 157 N.J.

434, 457 (1994)) (internal quotation marks omitted).]

Additionally, to obtain relief under the second prong "a petitioner must convince the court that a decision to reject the plea bargain would have been rational under the circumstances." Padilla v. Kentucky, 559 U.S. 356, __, 130 S. Ct. 1473, 1485, 176 L. Ed. 2d 284, 297 (2010).

Based upon our review of the record and the applicable law, we conclude that defendant's arguments are without sufficient merit to warrant extended discussion. R. 2:11-3(e)(2). We add only the following brief discussion.

The sole issue defendant raised at the PCR hearing concerned appellate counsel's failure to appeal the denial of the motion to suppress defendant's confession.2 A defendant's waiver of Miranda rights must be voluntary, knowing, and intelligently made. State v. Bey, 112 N.J. 123, 134 (1988). The police must "scrupulously honor" the invocation of the right against self-incrimination. State v. Melendez, 423 N.J. Super. 1, 29 (App. Div. 2011). "Once a defendant invokes his or her right to silence, interrogation can resume only if the police administer a fresh set of Miranda warnings." State v. Harvey, 151 N.J. 117, 221 (1997). However, when a defendant makes a statement that is ambiguous as to his reason for stopping the interrogation, the police may seek a "clarification" of the defendant's intent. State v. Johnson, 120 N.J. 263, 283 (1990).

Here, defendant stated that he was tired and wanted to invoke "the Fifth." Because defendant provided two reasons for halting the questioning, the detectives were not inappropriate in asking him to clarify his purpose for halting the questioning. Indeed, defendant replied that the reason he stopped the questioning was his fatigue, not because he wanted an attorney. He unequivocally expressed his willingness to speak to the detectives without counsel. Thus, the statement he gave to the police was not made in violation of his Miranda rights. See State v. Wright, 97 N.J. 113, 120 n.4 (1984) (substantive questioning can resume "if the suspect makes clear that he is not invoking his Miranda rights").

Defendant argues that we are unable to determine if the judge's fact-findings were supported by the record of the suppression hearing because the judge conducted the PCR argument without the transcript having been supplied. However, defendant failed to obtain that transcript and identify where the judge's findings were not supported by the record. We reject defendant's argument that he did not supply the transcript because it was not part of the record below, as he could have obtained a copy and moved to supplement the record if the judge's findings did not comport with the record.3

That said, even if defendant met the first prong of the Strickland criteria by proving that appellate counsel was ineffective in failing to raise the issue of defendant's confession, defendant has not submitted evidence or argument to establish a rational basis for claiming that he was prejudiced as required by prong two of Strickland. Defendant was indicted on three counts of capital homicide, which at the time presented the possibility of receiving the death penalty.4 N.J.S.A. 2C:11-3c. In making the plea agreement, he was able to eliminate that possibility. See State v. Cooper, 151 N.J. 326, 360-62 (1997). In addition, the evidence of defendant's guilt was overwhelming, including a gun sleeve with the initials "B.T." found at the scene of the crime, taped phone conversations concerning defendant's possession of expensive articles of the victims, and the victims' stolen items found hidden within fifty feet of defendant's girlfriend's backyard where defendant claimed he had spent the night of the murders. Consequently, we are satisfied that defendant has not established that it would have been rational, even if his second statement to the police had been suppressed, to reject the plea, proceed to trial, and risk receiving the death penalty.

Affirmed.

1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

2 In her brief, defense counsel withdrew all previously raised issues with defendant's consent.

3 We do not consider defendant s certification that the police questioned him before giving the second set of Miranda warnings as this certification was created for the PCR petition, was not part of the suppression motion record, and could not have been used by appellate counsel in a direct appeal.

4 See N.J.S.A. 2C:11-3c (repealed 2007). The conviction occurred before December 17, 2007, when the Legislature adopted legislation that abolished the death penalty and replaced it with life imprisonment without the possibility of parole. L. 2007, c. 204.