STATE OF NEW JERSEY v. ABRAHAM BUTLER

NOT FOR PUBLICATION WITHOUT THE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.

ABRAHAM BUTLER,

Defendant-Appellant.

_______________________________

November 24, 2014

Submitted October 15, 2014 - Decided

Before Judges Hoffman and Whipple.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 07-05-01852.

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

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Sara A. Friedman, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Abraham Butler appeals from the February 8, 2013 order denying his petition for post-conviction relief ("PCR"). Defendant argues

I. DEFENDANT SHOULD BE GRANTED AN EVIDENTIARY HEARING BECAUSE HE ESTABLISHED A PRIMA FACIE CASE THAT TRIAL COUNSEL WAS INEFFECTIVE IN FAILING TO FILE A MOTION TO SUPPRESS THE EVIDENCE SEIZED AS PART OF AN UNLAWFUL SEARCH.

We have considered this argument in light of the record and applicable legal standards. We reverse and remand.

We previously related the facts in detail in our affirmance of defendant's conviction on direct appeal. State v. Butler, No. A-2835-08 (App. Div. June 10, 2010) (slip op. at 3-7), certif. denied, 204 N.J. 40 (2010). We again summarize the facts here.

On March 2, 2007, two Newark police officers walked into a pizzeria/donut shop at 9:00 a.m. as defendant was completing a drug deal. Defendant had just received currency from an individual and had his back to the officers. When defendant realized the officers were present, he placed the money in his upper, right-hand pocket, closed a brown paper bag that he had in front of him, looked over his shoulder, and began to walk away from the officers. According to one of the officers, defendant then "crumpled up the brown paper bag and tossed" it toward a garbage can about three to four feet away from him. The bag landed on an "eating shelf" over the garbage can.

Immediately, one officer detained defendant, while the other grabbed the brown paper bag, opened it, and found five bundles of ten glassine envelopes containing heroin, or a "brick" of heroin. Defendant was arrested and transported to the police station, where his pants pockets yielded bundles of folded bills, totaling $1,171.

In 2007, a jury found defendant guilty of possession of a controlled dangerous substance ("CDS"), N.J.S.A. 2C:35-10(a)(1) (count one); possession of CDS with intent to distribute the same, N.J.S.A. 2C:35-5(a)(1) (count two); and possession of CDS with intent to distribute the same within one thousand feet of school property, N.J.S.A. 2C:35-7 (count three). The trial court merged counts two and three, and sentenced defendant to an aggregate term of ten years of incarceration, with a five-year period of parole ineligibility.

We affirmed on direct appeal, rejecting defendant's claims of trial error relating to expert testimony, improper jury charges, prosecutorial misconduct, and excessive sentence. Butler, supra, slip op. at 2-3. The State conceded that count one, which charged possession of CDS, should have merged with count three, which charged possession of CDS with intent to distribute the same within one thousand feet of school property, and we remanded for entry of a corrected judgment of conviction merging counts one and three. Id. at 14-16.

On December 3, 2010, defendant filed a petition for PCR, alleging ineffective assistance of trial counsel. PCR counsel was assigned and five claims of ineffectiveness were asserted: failure to file a motion to suppress the contents of the bag, failure to call two witnesses who were present at the time of the arrest, failure to object to certain jury instructions, failure to object to the court's instruction to the jurors that they could not take notes, and failure to advise the court that one of the jurors had spoken to defendant prior to deliberations.

The court heard oral argument on June 29, 2012, and denied the petition on the record, noting, "I think you were right to focus on the suppression, because, quite candidly, on the other three issues I . . . don't even see . . . a prima facie case, at all." On the issue of juror note-taking, the court stated, "[the claim regarding the] notes really [does not] have any merit because it's at the [c]ourt's discretion whether or not a jury can take notes."

The court went on to opine

The issue with the two witnesses is too abstract, and anybody can come back and say . . . the lawyer didn't talk to two witnesses. I know the suppression . . . and the other one being the two witnesses . . . and the juror. That seems to be pulling straws. I find no basis [for] PCR.

The court focused on trial counsel's failure to file a suppression motion and whether that omission had been a deviation from the "standard practice." Because it appeared that defendant was abandoning the bag by tossing it towards a garbage can, the court stated that defendant's trial counsel must have concluded that a suppression motion was not viable, and therefore denied the petition.

The court then added, "I'll have to submit a[n] opinion, I'm sure, especially if it's gonna be taken up . . . I'll have an opinion issued in the next [thirty] days." An opinion was never issued. Seven months later on February 8, 2013, the order was issued denying the petition "for the reasons extensively set forth on the record, dated June 29, 2012." Defendant subsequently filed this appeal.

When deciding a petition for PCR the court must "make specific fact findings as required by Rule 1:7-4(a) and state his or her conclusions of law." State v. Thompson, 405 N.J. Super. 163, 172 (App. Div. 2009), certif. denied, 209 N.J. 232 (2012); see also Rule 3:22-11 (requiring a court to "state separately its findings of fact and conclusions of law, and . . . enter a judgment" when making a final determination on a PCR petition). "Anything less is a 'disservice to the litigants, the attorneys and the appellate court.'" Thompson, supra, 405 N.J. Super. at 172 (quoting Curtis v. Finneran, 83 N.J 563, 569-70 (1980)).

"Although Rule 3:22-1 does not require evidentiary hearings to be held on post-conviction relief petitions, Rule 3:22-10 recognizes judicial discretion to conduct such hearings." State v. Preciose, 129 N.J. 451, 462 (1992). However, in the exercise of discretion, "[p]etitions for post-conviction relief cannot be disposed of out of hand." State v. Odom, 113 N.J. Super. 186, 189 (App. Div. 1971).

"[A] defendant's claim of ineffective assistance of . . . counsel is more likely to require an evidentiary hearing because the facts often lie outside the trial record and because the attorney's testimony may be required." Preciose, supra, 129 N.J. at 462. "[T]rial courts ordinarily should grant evidentiary hearings to resolve ineffective-assistance-of-counsel claims if a defendant has presented a prima facie claim in support of post-conviction relief." Ibid. "It is well-settled that, to the extent that a petition for [PCR] involves material issues of disputed facts that cannot be resolved by reference to the trial record, an evidentiary hearing must be held." State v. Porter, 216 N.J. 343, 347 (2013).

In determining whether a prima facie claim is established, courts must view the facts "in the light most favorable to a defendant," just as in a summary judgment motion. Preciose, supra, 129 N.J. at 462-63. A prima facie case is established if there is a reasonable likelihood of showing that 1) "counsel's performance was deficient" and 2) that there is "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 463-64 (internal citations omitted).

Here, defendant contends that, given the favorable standard of review, there should have been an evidentiary hearing to help determine whether counsel was ineffective. We do not reach the issue of whether defendant is entitled to an evidentiary hearing because it is not clear from the court's findings on the record whether the deficient performance and prejudice prongs under the standard of review were adequately addressed on each of the issues raised. While the PCR court began the analysis, it was not completed, as the court never separately stated its findings of fact and conclusions of law.

Reversed and remanded for findings of fact and conclusions of law consistent with this opinion. We do not retain jurisdiction.