STATE OF NEW JERSEY v. ADAM SUMMERS

NOT FOR PUBLICATION WITHOUT THE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.

ADAM SUMMERS,

Defendant-Appellant.

_______________________________

January 23, 2014

Submitted December 11, 2013 - Decided

Before Judges Lihotz and Hoffman.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 08-08-1447.

Joseph E. Krakora, Public Defender, attorney for appellant (Karen A. Lodeserto, Designated Counsel, on the brief).

Andrew C. Carey, Acting Middlesex County Prosecutor, attorney for respondent (Brian D. Gillet,Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel; Matthew P. Tallia, Special Deputy Attorney General/Acting Assistant Prosecutor on the brief).

Defendant Adam Summers appeals from the dismissal of his petition for post-conviction relief (PCR) and denial of his request for an evidentiary hearing. We affirm.

Defendant pled guilty to second-degree conspiracy to distribute a controlled dangerous substance from May 29 to June 11, 2008 in Highland Park, N.J.S.A. 2C:5-2, and fourth-degree possession of prohibited devices, hollow point bullets, on June 11, 2008. N.J.S.A. 2C:39-3F. The charges resulted from a joint investigation conducted by the Middlesex County Prosecutor's Office Task Force (Task Force) and federal authorities. Undercover law enforcement officers made several narcotics purchases from defendant and his co-defendants, between April and June 2008. Based upon the controlled purchases, the Task Force obtained warrants for wire taps to monitor defendant's and co-defendants' narcotics distribution communications.

While under federal surveillance, defendant and his brother, Kwame Summers, conspired to distribute illicit narcotics between April 22 and May 15, 2008. Other recordings captured defendant's agreement with co-defendants Kwame, Terrance Young, Rahmaad Howard, and Jonathan Chavarria to distribute drugs in Highland Park, Edison Township, and New Brunswick, from May 29 to June 11, 2008. During a contact with police in Highland Park on June 11, 2008, defendant possessed eight hollow point, nine millimeter bullets.

Following entry of his guilty plea to the Middlesex County charges, defendant was released on his own recognizance and placed in the custody of the federal authorities, as required by a federal detainer. On January 20, 2009, defendant pled guilty to conspiracy to distribute and possession with intent to distribute a substance containing cocaine, 21 U.S.C.A. 846, from April 22 to May 15, 2008 as set forth in the federal indictment.1 Ten days later, defendant was sentenced in state court to an aggregate seven-year prison term, to be served concurrently with the sentence imposed on the federal charges. Defendant was sentenced to a term of 120 months imprisonment on his federal conviction.

The state sentence was vacated to allow the federal proceedings to be concluded. On July 30, 2009, defendant was re-sentenced on the Middlesex County convictions. The judge imposed the same sentence. Thereafter, defendant was remanded to federal custody. Defendant did not appeal his state conviction.

Defendant filed his petition for PCR seeking to vacate his guilty plea, arguing counsel was ineffective because he failed to fully explain the plea consequences, neglected to consult with defendant to review the charges and discovery documents before allowing him to plead guilty, and ignored the legal consequences of a federal conspiracy conviction, which would preclude a state conviction for conspiracy. The PCR judge rejected these arguments as unfounded and determined defendant presented no basis to conduct a plenary hearing. This appeal ensued.

Defendant maintains the PCR judge erred in denying his request for an evidentiary hearing to consider his allegations of counsel's failure to review discovery materials with him prior to his plea, which hampered his ability to develop a defense to both the federal and state charges arising. Defendant also asserts the federal charges should have been addressed before the state matter, and had that been done, he believes the state charges would have been dismissed. He capsulizes these claims as:

THE POST CONVICTION RELIEF COURT ERRED IN FAILING TO AFFORD DEFENDANT AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION THAT HIS PLEA ATTORNEY FAILED TO REVIEW DISCOVERY WITH HIM AND EXPLAIN TO HIM THE CONSEQUENCES OF THE CHARGES HE WAS FACING IN BOTH STATE AND FEDERAL COURTS.

We reject these arguments.

"Post-conviction relief is New Jersey's analogue to the federal writ of habeas corpus." State v. Preciose, 129 N.J. 451, 459 (1992) (citation omitted). To establish a prima facie claim of ineffective assistance of counsel, a defendant must demonstrate a reasonable likelihood of success under the test set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), as applied by State v. Fritz, 105 N.J. 42, 58 (1987). Under the first prong of the Strickland test, a "defendant must show that counsel's performance was deficient." Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Under the second prong, a defendant must demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.

"A petitioner must establish the right to such relief by a preponderance of the credible evidence." Preciose, supra, 129 N.J. at 459 (citations omitted). "To sustain that burden, specific facts" which "provide the court with an adequate basis on which to rest its decision" must be articulated. State v. Mitchell, 126 N.J. 565, 579 (1992). The court must consider the petitioner's "contentions indulgently and view the facts asserted by him [or her] in the light most favorable to him [or her]." State v. Cummings, 321 N.J. Super.154, 170 (App. Div.), certif. denied, 162 N.J.199 (1999).

More specifically, to demonstrate counsel's performance was deficient under the first prong of Strickland, defendant must overcome "'a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance[.]'" Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 688-89, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694). Further, because prejudice is not presumed, ibid., a defendant must demonstrate "how specific errors of counsel undermined the reliability" of the proceeding. United States v. Cronic, 466 U.S. 648, 659 n.26, 104 S. Ct. 2039, 2047 n.26, 80 L. Ed. 2d 657, 668 n.26 (1984).

Trial courts should grant evidentiary hearings and make a determination on the merits of a defendant's claim only if the defendant has presented a prima facie claim of ineffective assistance. Preciose, supra, 129 N.J. at 462. In determining whether a prima facie claim has been established, the facts should be viewed "in the light most favorable to a defendant." Id. at 462-63.

To be successful, "a petitioner must do more than make bald assertions that he [or she] was denied the effective assistance of counsel." Cummings, supra, 321 N.J. Super.at 170. See alsoR.3:22-10(e)(2) (stating court shall not hold evidentiary hearing if "defendant's allegations are too vague, conclusory or speculative"). A hearing should be held if the PCR petition involves material issues of disputed fact that cannot be resolved by reference to the existing record. State v. Pyatt, 316 N.J. Super. 46, 51 (App. Div. 1998), certif. denied, 158 N.J.72 (1999). However, a court need not hold a hearing if it "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[.]" State v. Marshall, 148 N.J.89, 158 (citations omitted), cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997).

In the context of a request to vacate a guilty plea, a defendant must show counsel's acts or omissions created "a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 210 (1985).

Defendant's assertion that counsel had not discussed the state charges or reviewed the evidence intended to be presented by the State is not supported by any evidence and, in fact, is belied by his plea testimony. At the commencement of the hearing, defense counsel explained the nature of the state and federal charges faced by defendant. In the colloquy with the judge, the proposed plea agreement was reviewed and reference was repeatedly made to the fact defendant had both State and federal indictments. The judge asked defendant about whether counsel explained his rights, that a plea resulted in the waiver of his rights, and asked whether defendant considered the legal advice he received satisfactory. Each time defendant responded affirmatively.

Also, prior to the conclusion of the matter, the prosecutor stated: "Judge, if I may, as counsel indicated, [defendant] is also subject to a parallel federal prosecution . . . . It's anticipated that [defendant] would be in federal custody . . . when this sentencing has to take place." Defense counsel explained he and defendant discussed that issue and defendant sought immediate transfer to federal custody to obtain jail credits against his state sentence.

These excerpts illustrate defendant spoke to counsel in detail and affirmed he understood the proceedings and the consequences of his plea. He was well aware of the pending federal charges and their basis. No contrary evidence supports his contention that counsel failed to consult with him to ensure his understanding of the state indictment.

Additionally, the State's proofs were overwhelming. Substantial evidence showed defendant engaged in numerous hand-to-hand narcotic transactions with undercover police officers. Also, wiretap surveillance recorded his admissions, proving he participated in the distribution conspiracy with co-defendants. Plea counsel successfully negotiated a plea agreement providing that in exchange for his guilty plea to two counts of a thirty-nine count indictment, all remaining counts naming defendant would be dropped and he was permitted to serve his state sentence concurrent to the federal sentence, in a federal facility.

We conclude the PCR judge correctly analyzed these issues and determined defendant did not demonstrate a prima facie case of ineffective assistance of counsel; his assertions did not show "a reasonable likelihood" of meeting the two-prongs of the Strickland/Fritz test. Moreover, because defendant failed to establish a basis for relief, the judge properly exercised his discretion in denying defendant's request for an evidentiary hearing. R. 3:22-10(b) (stating evidentiary hearings to resolve ineffective-assistance-of-counsel claims are necessary only when a defendant has presented a prima facie claim in support of PCR). See also Preciose, supra, 129 N.J. at 462.

The next argument defendant advances requires review of N.J.S.A. 2C:1-11, which, if applicable, would bar state prosecution for the same offense prosecuted in the federal indictment. N.J.S.A. 2C:1-11 provides:

When conduct constitutes an offense within the concurrent jurisdiction of the United States, a prosecution in the District Court of the United States is a bar to a subsequent prosecution in this State under the following circumstances:

a. The first prosecution resulted in an acquittal or conviction, or in an improper termination . . . and the subsequent prosecution is based on the same conduct, unless (1) the offense of which the defendant was formerly convicted or acquitted and the offense for which he is subsequently prosecuted each requires proof of a fact not required by the other and the law defining each of such offenses is intended to prevent a substantially different harm or evil or (2) the offense for which the defendant is subsequently prosecuted is intended to prevent a substantially more serious harm or evil than the offense of which he was formerly convicted or acquitted or (3) the second offense was not consummated when the former trial began; or

b. The former prosecution was terminated, after the information was filed or the indictment found, by an acquittal or by a final order or judgment . . . necessarily required a determination inconsistent with a fact which must be established for conviction of the offense of which the defendant is subsequently prosecuted.

When determining whether a bar exists to preclude a subsequent prosecution our inquiry is "is whether the two prosecutions are based on the same conduct." State v. Jones, 287 N.J. Super. 478, 487 (App. Div. 1996) (citations and internal quotation marks omitted). The phrase has been defined "strictly" and is understood to mean "identical conduct; that is, conduct involving one discrete set of actions occurring on only the one occasion." State v. Cargill, 312 N.J. Super. 13, 18 (App. Div.), certif. denied, 156 N.J. 408 (1998) (citations omitted). Unquestionably, overlapping conduct is not "identical conduct" for purposes of N.J.S.A. 2C:11-1. Ibid.

Here, the State's conspiracy prosecution was based on defendant's conduct from May 29 through June 11, 2008. Federal charges, however, were premised on defendant's conduct from April 22 through May 15, 2008. The separate prosecutions charging different conspiracy offenses were based on distinctly different, rather than identical, conduct. Accordingly, the provisions of N.J.S.A. 2C:11-1 were not triggered and the federal indictment could not bar the State from proceeding with its prosecution.

1 The federal indictment was not provided by defendant on appeal.