STATE OF NEW JERSEY v. WILLIAM CURRIER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-04602-11T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

WILLIAM CURRIER,

Defendant-Appellant.

December 9, 2013

Submitted November 19, 2013 Decided

Before Judges Ostrer and Carroll.

On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment Nos. 04-08-1883; 05-01-231; 05-01-34.

Joseph E. Krakora, Public Defender, attorney for appellant (Frank M. Gennaro, of counsel and on the brief).

Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Mary R. Juliano, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel; Stephanie L. Dugan, Legal Assistant, on the brief).

PER CURIAM

Defendant William C. Currier appeals from a January 5, 2012 Law Division order denying his petition for post-conviction relief (PCR), without an evidentiary hearing. We affirm.

Defendant and a juvenile co-defendant were charged in three separate indictments stemming from their participation in a series of burglaries and armed robberies that occurred in May 2004, during which defendant allegedly acted as the lookout. On February 7, 2005, defendant and the State entered into a plea agreement, pursuant to which defendant pled guilty to two counts of third-degree burglary, N.J.S.A.2C:18-2 (Indictment No. 04-08-1883 counts two and five); and three counts of first-degree armed robbery, N.J.S.A.2C:15-1 (Indictment No. 05-01-0034 count one, and Indictment No. 05-01-231 counts two and six). In return, the State agreed to dismiss all remaining counts of the indictments, and recommend an aggregate prison sentence of fifteen years, subject to the No Early Release Act (NERA), N.J.S.A.2C:43-7.2(a). Defendant was then sentenced in accordance with the plea agreement on May 6, 2005. On December 12, 2006, we affirmed defendant's sentence. State v. Currier, No. A-0829-05.

Defendant filed a pro se petition for PCR in April 2008. Counsel was appointed, and he filed an amended PCR petition and a supporting brief in March 2011. In his amended petition, defendant claimed that trial counsel was ineffective because he (1) had a conflict of interest, having previously represented one of the robbery victims, and failed to obtain a waiver of this conflict; (2) failed to adequately advise defendant as to potential defenses, specifically, intoxication and diminished capacity; (3) failed to adequately advise defendant as to potential motions, i.e., Miranda1and suppression; and (4) failed to properly raise the issue of defendant's drug and alcohol dependence as additional mitigating factors at sentencing.

Following oral argument, Judge Ronald L. Reisner denied defendant's petition in a comprehensive twenty-page written opinion and order filed on January 5, 2012. The judge first determined that defendant's ineffective assistance of counsel claims were not procedurally barred. With respect to the conflict issue, the court ruled that this should have been raised on direct appeal, but in any event defendant could not establish prejudice. The court evaluated the likelihood of success had Mirandaand suppression motions been filed, and concluded that they would have been unsuccessful and would not have changed the outcome of the case. The court further rejected defendant's argument that counsel's failure to raise his drug and alcohol issues as additional mitigating factors at sentencing constituted ineffective assistance. The court found no factual support for the contention that defendant would have received a lesser sentence had these arguments been made, and further noted trial counsel's zealous advocacy on behalf of defendant at sentencing. Finally, having found that defendant failed to make a prima facie showing of ineffective assistance, the PCR court concluded that no evidentiary hearing was required.

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

POINT ONE DEFENDANT ESTABLISHED A PRIMA FACIE CLAIM FOR POST-CONVICTION RELIEF.

A. The Conflict of Interest Issue

B. Inadequate Investigation

C. Failure to File Motions

D. Counsel's Performance at Sentencing

We conclude these arguments lack merit, and affirm the denial of PCR substantially for the reasons stated by Judge Reisner in his comprehensive opinion. We add the following.

In order for defendant to obtain relief based on ineffective assistance grounds, he is obliged to show not only the particular manner in which counsel's performance was deficient, but also that the deficiency prejudiced his right to a fair trial. Strickland v. Washington, 466 U.S. 668, 687, l04 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J.42, 58 (1987). The United States Supreme Court has extended these principles to a criminal defense attorney's representation of an accused in connection with a plea negotiation. Lafler v. Cooper, 566 U.S.___, ___, 132 S. Ct. 1376, 1384-85, 182 L. Ed. 2d 398, 406-07 (2012); Missouri v. Frye, 566 U.S.___, ___, 132 S. Ct. 1399, 1407-08, 182 L. Ed. 2d 379, 390 (2012). A defendant must demonstrate with "reasonable probability" that the result would have been different had he received proper advice from his trial attorney. Lafler, supra, 566 U.S.at ___, 132 S. Ct.at 1384, 182 L. Ed. 2d at 406-07 (citing Strickland, supra, 466 U.S.at 694, 104 S. Ct.at 2068, 80 L. Ed.2d at 698).

To set aside a guilty plea based on ineffective assistance of counsel, defendant must demonstrate under the first prong of Strickland that "counsel's assistance was not 'within the range of competence demanded of attorneys in criminal cases.'" State v. DiFrisco, 137 N.J. 434, 457 (1994) (quoting Tollett v. Henderson, 411 U.S. 258, 266, 93 S. Ct. 1602, 1608, 36 L. Ed. 2d 235, 243 (1973)), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996). Under the second prong of Strickland, defendant must establish "'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.'" DiFrisco, supra, 137 N.J. at 457 (quoting Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 210 (1985)) (alteration in original).

Whether a PCR hearing on an ineffective assistance of counsel petition is necessary is a matter within the court's discretion. R. 3:22-10; see State v. Preciose, 129 N.J. 451, 462 (1992). Rule 3:22-10(b) states, in pertinent part:

A defendant shall be entitled to an evidentiary hearing only upon the establishment of a prima facie case in support of PCR, a determination by the court that there are material issues of disputed fact that cannot be resolved by reference to the existing record, and a determination that an evidentiary hearing is necessary to resolve the claims for relief.

Additionally, to establish a prima facie claim of ineffective assistance of counsel, a defendant must demonstrate the reasonable likelihood of succeeding under the Strickland/Fritz test. See Preciose, supra, 129 N.J. at 463. To successfully demonstrate the likelihood of succeeding under the Strickland/Fritz test, a petitioner "must do more than make bald assertions[,] . . . [and] must allege facts sufficient to demonstrate counsel's alleged substandard performance." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.) (emphasis omitted), certif. denied, 162 N.J. 199 (1999).

We first address defendant's argument that trial counsel was ineffective due to a conflict of interest. Initially we note that defendant's pro se verified petition is devoid of any factual recitation pertaining to counsel's purported conflict, or any of the remaining arguments raised by defendant.2 When counsel was appointed, an "amended verified petition" was filed, as authorized by Rule 3:22-9. It included allegations that trial counsel had previously represented Abdul Khan, the gas station attendant who was the victim of the robbery and stabbing listed in Indictment No. 05-01-231, and that counsel "did not properly disclose his conflict of interest with the victim." However this amended petition, while signed by PCR counsel, was not verified, nor was it supported by a separate affidavit or certification by defendant based on personal knowledge. See Rule 1:6-6. Defendant's argument was amplified by the additional allegation in PCR counsel's brief that trial counsel did not disclose his prior representation of Khan until the sentencing. However, we similarly find this contention lacking in competent factual support, as statements of counsel made in supporting briefs do not constitute cognizable facts. See Gonzalez v. Ideal Tile Importing Co., 371 N.J. Super. 349, 358 (App. Div. 2004), aff'd, 184 N.J. 415 (2005); Templeton Arms v. Feins, 220 N.J. Super. 1, 24 (App. Div. 1987).

Even if we overlook these procedural deficiencies and construe defendant's pleadings liberally, we nonetheless find plaintiff's argument lacking in both legal and factual support. Claims that an attorney's conflict of interest deprived a defendant of effective assistance of counsel are analyzed under a two-tiered approach. State v. Cottle, 194 N.J. 449, 467 (2008). Under the first tier, where a per se conflict exists, prejudice is presumed in the absence of a valid waiver, and reversal of a conviction is mandated. Ibid.; State v. Bellucci, 81 N.J. 531, 543 (1980). Such per se conflicts have been limited on constitutional grounds to cases where "a private attorney, or any lawyer associated with that attorney, is involved in simultaneous dual representations of codefendants," State v. Norman, 151 N.J. 5, 24-25 (1997), or where both an attorney and the defendant are simultaneously under indictment in the same county and are being prosecuted by the same prosecutor's office, Cottle, supra, 194 N.J. at 473. In all other cases, such as here, "the potential or actual conflict of interest must be evaluated and, if significant, a great likelihood of prejudice must be shown in that particular case to establish constitutionally defective representation of counsel." Cottle, supra, 194 N.J. at 467-68 (citing Norman, supra, 151 N.J. at 25). See also State v. Purnell, 126 N.J. 518, 535-36 (finding defendant was not denied the effective assistance of counsel because his trial attorney had previously represented a State's witness).

The PCR court correctly found that defendant failed to establish prejudice. Additionally, defendant merely makes bald assertions, without supporting his claims. See Cummings, supra, 321 N.J. Super. at 170. Nowhere in either his verified petition or his amended petition does defendant assert that (1) he was unaware of the conflict when he entered his guilty plea to the three indictments; (2) he only became aware of the conflict when trial counsel disclosed it during sentencing; (3) he did not waive the conflict; and (4) in the absence of this conflict, there is a reasonable probability that counsel would have negotiated a more favorable plea agreement or, alternatively, that defendant would have elected to stand trial on all three indictments, on which he received concurrent sentences under the plea agreement.

Further, PCR counsel's contention in the supporting brief that defendant only became aware of the conflict when trial counsel disclosed it to the court during sentencing is belied by the record. During sentencing, trial counsel vociferously opposed a claim for restitution submitted by Khan's insurance company. Counsel stated "[a]s a matter of fact, I know [Khan]. I represented him on a matter; and if we came to trial, Mr. Currier was aware of that." Defendant remained silent, and gave no indication that he was previously unaware of counsel's prior representation of Mr. Khan. Nor, once he unquestionably was aware, did he ever timely move to withdraw his plea to the three indictments on this basis. Accordingly, defendant failed to establish a prima facie case of ineffective assistance of counsel under Strickland and therefore was not entitled to an evidentiary hearing on this issue. Preciose, supra, 129 N.J. at 463.

Defendant's remaining arguments lack sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). Defendant argues that counsel was ineffective by failing to file suppression and Miranda motions. However the record reveals that defendant signed not one but two written waivers of his Miranda rights. He also signed a consent to search form for the search of his vehicle. Consent is a well-recognized exception to the Fourth Amendment's search warrant requirement. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S. Ct. 2041, 2043-44, 36 L. Ed. 2d 854, 858 (1973); State v. Johnson, 68 N.J 349 (1975).

The record further reflects that no evidence was seized from defendant's vehicle. Where a defendant asserts his or her attorney was ineffective by failing to file a motion, he or she must establish that the motion would have been successful. "It is not ineffective assistance of counsel for defense counsel not to file a meritless motion[.]" State v. O'Neal, 190 N.J. 601, 619 (2007). Defendant has not demonstrated that these motions would have succeeded.

The allegation that trial counsel failed to investigate other defenses is again a bald claim that is unsupported by any competent evidence. Cummings, supra, 321 N.J. Super. at 170 (citing R. 1:6-6). Defendant provided no affidavits or certifications of either lay or expert witnesses which would support a defense of diminished capacity or intoxication. A defendant must demonstrate how a more thorough investigation or preparation for trial would have had the likelihood of changing the result.

Finally, defense counsel was vigorous, not ineffective, at sentencing, and submitted medical records to the court, which he used to bolster his argument that the court consider defendant's substance abuse and mental health disorders as a mitigating factor. Defense counsel negotiated a favorable plea for defendant on the three separate indictments, and there is no credible evidence that counsel could have obtained a more favorable result. Like the PCR court, we are persuaded that the alleged deficiencies here clearly fail to meet either the performance or the prejudice prong of the Strickland test.

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

2 PCR petitions are required to be "verified by defendant and . . . set forth with specificity the facts upon which the claim for relief is based." R. 3:22-8. We observe that paragraph eight of the petition contains directions to state with specificity the facts upon which the claim for relief is based, together with the legal arguments. Defendant left this paragraph blank, and no attached factual statement or memorandum accompanies the petition in defendant's appendix.