STATE OF NEW JERSEY v. STEVEN B. MCNEIL

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

STEVEN B. MCNEIL,

Defendant-Appellant.

________________________________________________________________

February 7, 2014

Submitted December 17, 2013 Decided

Before Judges Fisher, Espinosa and Koblitz.

On appeal from Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 03-02-262.

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

Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Jennifer B. Paszkiewicz, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Steven B. McNeil appeals from the December 8, 2010 order denying his petition for post-conviction relief (PCR) following an evidentiary hearing at which both defendant and trial counsel testified. We affirm.

On February 25, 2003, the Burlington County Grand Jury returned a five-count indictment against defendant charging: second degree possession of cocaine with intent to distribute within 500 feet of public housing, N.J.S.A. 2C:35-7.1, (Count 1); third degree possession of cocaine with intent to distribute within 1,000 feet of a school, N.J.S.A. 2C:35-7, (Count 2); third degree possession of cocaine with intent to distribute less than one-half an ounce, N.J.S.A. 2C:35-5a(1) and 2C:35-5b(3), (Count 3); third degree possession of cocaine, N.J.S.A. 2C:35-10a(1), (Count 4); and fourth degree resisting arrest, N.J.S.A. 2C:29-2a(2), (Count 5).

On the first day of trial, before the jury was impanelled, defendant attempted to plead guilty, but the judge refused to accept his guilty plea after defendant stated he was only pleading guilty because he did not wish to proceed to trial with designated counsel. During the plea colloquy, defendant and counsel informed the court of ongoing interpersonal conflict. Defendant had fired counsel and filed an ethics complaint against him in the past. Defendant claimed that trial counsel did not communicate with him and did not prepare him for trial. The judge did not permit designated counsel to withdraw because counsel had successfully represented defendant in prior trials and because these concerns were raised for the first time at trial, which had been delayed for nearly four months. The case proceeded to trial the next day.

The trial testimony revealed the following facts. On November 22, 2002, Detective Sergeant David Ekelberg received a call regarding a "disturbance" outside a Burlington night club. When he arrived, he witnessed defendant and another man wrestling in front of the club. Ekelberg broke up the fight and told defendant to leave the area. Defendant left briefly and then returned and began screaming at the other individual. Ekelberg, now joined by other officers, told defendant that if he did not leave, he would be arrested for disorderly conduct. Two officers approached defendant when he refused to comply and arrested him after a brief chase. Police searched defendant incident to the arrest and found thirty small baggies of crack-cocaine contained in a larger plastic bag in his waistband. At the stationhouse, five more baggies containing crack-cocaine were found in defendant's coat. Ekelberg testified that defendant appeared intoxicated, though coherent, during the incident and did not require help sitting or standing after arrest. Another officer corroborated Ekelberg's observation, noting defendant slurred his speech and smelled of alcohol, but was "for the most part" coherent. Next, the State's expert concluded that the thirty-five small, individually wrapped baggies of crack-cocaine were packaged for street level distribution. The expert testified that the lack of drug paraphernalia found on defendant was further evidence that the drugs were not for personal use.

Defendant testified on his own behalf, explaining that he went out for a few drinks and mistakenly grabbed his son's winter coat when leaving the house. When he discovered the baggies in the coat, defendant explained that he called his son who told defendant that he was holding drugs for a friend. Defendant testified that, after learning of this, he became distraught, drank fifteen shots of hard liquor and blacked out from intoxication. He admitted on cross-examination that he had been arrested in connection with his crack-cocaine addiction in the past and could have smoked all thirty-five bags of crack in one day at the height of his addiction.

After defendant testified, the trial judge granted defense counsel's request to charge the jury on the intoxication defense. Defendant was convicted on all five charges. The judge merged Counts 2, 3 and 4 into Count 1 and sentenced defendant to a ten-year term with a five-year period of parole ineligibility. Defendant received a concurrent nine-month sentence on Count 5. These sentences were to run "consecutively with any sentence he is currently serving."

On direct appeal, we affirmed defendant's convictions. State v. McNeil, No. A-4784-04 (App. Div. Jan. 30, 2007), certif. denied, 192 N.J. 480 (2007). On direct appeal, defendant claimed that the jury verdict was against the weight of the evidence and that his sentence was excessive. Id. slip op. at 2. We reviewed and rejected the claim that the verdict was against the weight of the evidence in the interest of justice, even though defendant did not move for a new trial following the verdict. Ibid. We also held that defendant's sentence was not manifestly excessive. Id. slip op. at 9-11.

In his PCR petition, defendant argued, among other things, that he was denied effective assistance of counsel. The PCR judge issued a written opinion granting defendant an evidentiary hearing on a "very narrow and limited basis" so that "defense counsel can respond on the record to defendant's allegations and so the Court can review the defendant's allegations, giving fair and impartial consideration to both sides . . . ."

At the PCR hearing, defense counsel explained that he had represented defendant in three other trials, including a first-degree home-invasion case that resulted in an acquittal. He noted that after winning the home-invasion trial, defendant filed an ethics complaint against him because counsel did not give defendant discovery before trial. Defendant also filed an ethics complaint against the judge presiding over that trial. Counsel testified that the ethics complaint against him was baseless and "was dismissed at the letter-writing stage." He also stated that during the home-invasion trial he went over discovery and trial preparation with defendant and communicated plea offers to him. As for the instant case, counsel did not recall whether he met with defendant prior to his trial. He did, however, testify that he engaged in preparation of defendant on the intoxication defense before defendant testified. Counsel reviewed "bullet points" with his client regarding his testimony and potential questions on cross-examination. Counsel stated that he "prepared [defendant] the best [he] could for this trial based on what he told me happened on that day at that time." He also noted that "at the time and place of preparation of the trial, I did not think that an intoxication expert was necessary[]" to prove defendant's intoxication defense. Counsel further testified that the judge wouldn't have given defendant the intoxication jury instruction if there "wasn't sufficient basis for the instruction. . . ."

Defendant testified that trial counsel never came to visit him in jail to discuss his defense. He stated that his lack of pre-trial preparation adversely impacted his effectiveness when he testified on his own behalf.

After hearing testimony, the PCR judge determined that the difficult relationship between counsel and defendant did not result in trial counsel's inability to render effective assistance of counsel. The judge found that trial counsel was credible and determined that his representation in preparation for trial was not deficient. She also found that defendant's testimony that counsel did not prepare him at all for trial was "self-serving" in the context of the PCR hearing and thus not believable. The judge found that counsel prepared defendant for trial and reviewed discovery with defendant. The court also determined that counsel's actions were "not impacted by this previously filed ethics complaint . . . ," that counsel "did his best to represent defendant and that there is no objective evidence based upon the testimony that there was any conceivable effect on the outcome of the proceeding, despite the previously filed ethics complaint." Accordingly, the court denied defendant's application as not meeting either prong of the Strickland / Fritz test.

Defendant raises the following issue on appeal:

POINT I: THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF SINCE THE DEFENDANT FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION AT THE TRIAL LEVEL AS A RESULT OF THE IRREPARABLY DAMAGED RELATIONSHIP EXISTING BETWEEN THE DEFENDANT AND TRIAL COUNSEL PRIOR TO AND DURING TRIAL.

A. FACTUAL INTRODUCTION.

B. THE RELEVANT LEGAL PRINCIPLES TO BE UTILIZED IN ASSESSING WHETHER THE DEFENDANT WAS DENIED HIS RIGHT TO THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

C. THE FRACTURED RELATIONSHIP BETWEEN THE DEFENDANT AND TRIAL COUNSEL PREVENTED THE DEFENDANT FROM RECEIVING ADEQUATE LEGAL REPRESENTATION AT TRIAL.

The standard of review of a PCR petition denial is whether the judge's findings were supported by sufficient and credible evidence. State v. Nunez-Valdez, 200 N.J. 129, 141 (2009). In reviewing PCR denials, we will be "highly deferential" with an eye to "avoid viewing the performance [of trial counsel] under the distorting effects of hindsight." State v. Arthur, 184 N.J. 307, 318-19 (2005) (internal quotations and citations omitted). We review a PCR judge's fact-findings for clear and plain error with deference to the trial court's finding of credibility. State v. Harris, 181 N.J. 391, 420 (2004).

A deprivation of the constitutional right to effective assistance occurs when: (1) an attorney provides inadequate representation and (2) that deficient performance causes the defendant prejudice. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); see also, State v. Fritz, 105 N.J. 42, 57-58 (1987) (adopting the Strickland two part test in New Jersey).

Defendant argues that the strained relationship between him and counsel and the prior ethics complaint he filed against counsel caused counsel not to prepare defendant for trial, which culminated in "defendant's inconsistent and contradictory testimony," which he claims contributed to the adverse jury result. This argument is without merit. The PCR judge made credibility findings and determined that counsel had adequately prepared his client for trial over defendant's "self-serving" testimony that counsel conducted no preparation at all.

We are "required to affirm the findings of the trial court if they could reasonably have been reached on sufficient credible evidence in the record." Nunez-Valdez, supra, 200 N.J. at 141. We "should give deference to those findings of the trial judge which were substantially influenced by his opportunity to hear and see the witnesses and to have a feel of the case, which a reviewing court cannot enjoy." State v. Elders, 192 N.J. 224, 244 (2007) (internal citations and quotation marks omitted).

Defendant also challenges counsel's strategic decision to prepare defendant for his testimony by going over "bullet points" instead of using a mock-trial setting. Appellate counsel argues that defendant's "long, rambling, and at times irrelevant" testimony is evidence of trial counsel's improper preparation.

When challenging counsel's performance on PCR, a defendant must overcome a "strong presumption" that counsel's conduct "fell within the range of reasonable professional assistance . . . ." Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 695. The Strickland Court further noted that "Strategy choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable." Id. at 690, 104 S. Ct. at 2066, 80 L. Ed. at 696.

The PCR judge found convincing counsel's testimony that he reviewed bullet points with defendant so that defendant's testimony did not sound scripted on the stand. She also found that counsel sufficiently prepared defendant for trial and went over discovery before trial. The judge correctly noted that these strategic decisions do not rise to the level of objectively deficient performance under the first Strickland prong.

Defendant also cannot prove the second Strickland prong of prejudice. The overwhelming weight of the evidence against defendant supports the conviction. The police discovered crack-cocaine both in defendant's pants and in the coat he was wearing after he was arrested. Defendant has not shown a reasonable probability, under the totality of the circumstances, that the result of trial counsel's alleged deficiency "undermine[s] confidence" in the jury's verdict. State v. L.A., 433 N.J. Super. 1, 17-18 (App. Div. 2013).

We note that the Sixth Amendment entitles a criminal defendant "who does not require appointed counsel to choose who will represent him." State v. Kates, 426 N.J. Super. 32, 43 (App. Div. 2012) (internal citations and quotation marks omitted), aff'd o.b., __ N.J. __ (2013). An indigent defendant who is represented by appointed counsel, as here, "does not enjoy a right to choose counsel." Id. at 43 (citations omitted). The record reveals that defendant at no time sought an adjournment to hire his own lawyer. Rather, his assigned counsel suggested an adjournment would be appropriate so that the Public Defender's Office could consider appointing new counsel. Defendant presents no reason to believe he would have received a new appointed lawyer more to his liking from the Public Defender's Office this late in the proceedings, especially because assigned counsel had represented him in the past and defendant's complaints about the lawyer were well known. The trial judge did not abuse her discretion by proceeding with trial despite defendant's objection to his appointed attorney.