STATE OF NEW JERSEY v. BRANDON MEADOWS

NOT FOR PUBLICATION WITHOUT THE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.

BRANDON MEADOWS,

Defendant-Appellant.

_____________________________________________

January 2, 2014

Submitted October 8, 2013 Decided

Before Judges Sabatino and Hayden.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 07-04-1142 and 07-04-1143.

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

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

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant Brandon Meadows appeals from a February 21, 2012 Law Division order denying his petition for post-conviction relief (PCR). For the reasons that follow, we affirm.

On September 21, 2007, a jury found defendant guilty of third-degree unlawful possession of a firearm, N.J.S.A. 2C:39-5(b), and fourth-degree possession of hollow point bullets, N.J.S.A. 2C:39-3(f), and acquitted him of other charges, including first-degree armed robbery, N.J.S.A. 2C:15-1 and second-degree conspiracy to commit armed robbery, N.J.S.A. 2C:5-2 and 2C:15-1. At a second trial on the same day, the jury found defendant guilty of one count of second-degree possession of a weapon by a person previously convicted of certain crimes, N.J.S.A. 2C:39-7(b). On November 26, 2007, Judge Michael L. Ravin sentenced defendant to an aggregate term of ten years imprisonment with five years of parole ineligibility.

The charges stem from an incident whereby two armed men robbed an auto parts store in Newark, holding three employees at gunpoint. After the robbers fled, two of the employees immediately began driving around the area looking for the them. About fifteen minutes later, the two employees approached an unmarked police vehicle to report that they believed they had spotted the robbers nearby. Detective Rafael Ramos approached the two suspects and ordered them to stop. They fled, and a foot chase ensued. Ramos apprehended defendant in the basement of an apartment building, handcuffed him, and frisked him. During the frisk, Ramos asked defendant where was the gun, defendant replied that the gun was in his coat pocket, and Ramos retrieved the weapon. The search also uncovered $2400 in cash.

On appeal, defendant raised numerous claims of error, including that his statement to Ramos was inadmissible, the court improperly permitted the substitution of a juror during deliberations, the court neglected to give a Hampton1 jury charge, the prosecutor engaged in misconduct during summation, and his sentence was excessive. We rejected those arguments and affirmed defendant's conviction and sentence. State v. Meadows, No. A-3860-07 (App. Div. Nov. 9, 2009), certif. denied, 201 N.J. 274 (2010).

Defendant filed a pro se petition for PCR on March 24, 2010. Appointed counsel filed an amended petition on August 4, 2010. The petition raised the following points:

POINT I: PETITIONER'S ASSERTION OF STATE AND FEDERAL CONSTITUTIONAL ISSUES ARE NOT BARRED BY R. 3:22 ET SEQ.

A: Petitioner's Ineffective-Assistance-of-Counsel Claims Warrant an Evidentiary Hearing.

POINT II: THE DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL

A: Petitioner was Denied the Effective Assistance of Counsel During the Pendency of the Plea Bargain.

B: Trial Counsel was Ineffective in Failing to have Petitioner Testify at the Suppression Hearing.

POINT III: DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL.

POINT IV: PCR COUNSEL INCORPORATES BY REFERENCE ALL ISSUES RAISED BY PETITIONER IN HIS PETITION.

Defendant's pro se supplemental brief raised the following points:

POINT I: COUNSEL FAILED TO ADVISE DEFENDANT OF INCULPATORY STATEMENT AND FAILED TO FILE SUPPRESSION MOTION IN A TIMELY FASHION AS TO NOT EFFECT MY PLEA BARGAIN PROCESS.

POINT II: MY ATTORNEY FAILED TO ADVISE ME OF MY RIGHT TO TESTIFY AT THE SUPPRESSION HEARING.

POINT III: DEFENSE SHOULD HAVE REQUESTED A HAMPTON CHARGE.

POINT IV: DEFENSE FAILED TO PROPERLY USE THE POLICE REPORT DURING THE ENTIRE COURT PROCEEDINGS.

POINT V: DEFENSE DID NOT OBJECT TO THE SUBSTITUTION OF A JUROR. NOR DID HE ASK IF ANY PARTIAL VERDICTS HAD BEEN REACHED BEFORE AGREEING TO A SUBSTITUTION.

Judge Ravin heard oral argument on defendant's PCR petition on October 28, 2010. The judge ordered an evidentiary hearing solely concerning defendant's ineffective-assistance-of-counsel claim that trial counsel failed to advise defendant properly during plea negotiations and that appellate counsel failed to argue that trial counsel was constitutionally ineffective due to his deficient advise. The judge also found that defendant's other claims of ineffective assistance of counsel were meritless as to both trial and appellate counsel.

On February 14, 2012, Judge Ravin held an evidentiary hearing. Defendant testified that, during plea negotiations, his counsel did not tell him that his statement to Ramos about the gun being in his pocket could be admitted at trial. He reported that when the State offered a three-year term in exchange for a guilty plea, he did not take the offer because his attorney told him that the only evidence against him was the gun.

Defendant further stated that if he knew that his statement was admissible, he would have taken the offered plea and not gone to trial. He contended he did not learn of its admissibility until after the plea offer had expired. Defendant denied making the statement to Ramos, but acknowledged that it was contained in the police report, which he had reviewed with his attorney in preparation for trial.

Defendant's trial counsel testified that although he could not recollect specific matters pertaining to the trial, he was certain that he went through all discovery with defendant in "minute detail," and "discussed all aspects of [the] case, including any statements" with defendant. He explained that it was his normal practice with clients to discuss everything related to their case, especially if there was a written statement to police or a "blurt out" statement in a police report. The attorney recalled that he discussed the significance of the statement with his client, defendant wanted to proceed to trial, and defendant did not express that he wanted to take the plea before the cutoff date.

Judge Ravin issued a comprehensive written opinion on February 21, 2012, denying defendant's PCR petition. The judge found defendant's trial counsel credible, and determined that counsel had timely discussed the admission of the statement with defendant. Judge Ravin observed that trial counsel's credibility was bolstered by defendant's testimony that, prior to trial, he and his attorney had reviewed the police report containing his inculpatory statement about the gun.

Judge Ravin found defendant to be less credible, noting that defendant's memory of the facts and dates appeared to be "foggy," and he gave contradictory statements. The judge also pointed out that defendant had a "paramount interest" in the outcome of the PCR hearing in comparison to counsel. Judge Ravin specifically determined defendant's testimony, that he did not realize that his statement would be admitted against him until the trial had begun, was not believable. The judge further found that defendant chose not to accept the plea and chose to go to trial despite discussions with counsel that his statement might be admissible.

Judge Ravin concluded that all defendant's claims of ineffective assistance of trial and appellate counsel failed to meet the two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). He found that defendant had not presented evidence of counsel's inefficiencies or that the inefficiencies prejudiced the defense. Concerning the plea issue, the judge found that defendant failed to show that trial counsel's conduct fell outside the range of reasonable professional assistance because, based upon defendant's counsel's credible testimony, trial counsel had properly informed him that his statement might be admissible. This appeal followed.

Defendant raises the following points for our consideration:

POINT I: THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL.

A: Trial Counsel Failed to Render Effective Assistance During Plea Negotiations.

B: Trial Counsel Deprived Defendant of his Opportunity to Testify on his Own Behalf.

C: Trial Counsel Failed to Request an Appropriate Charge to the Jury.

D: Trial Counsel Failed to Properly Use the Police Report on Cross-examination.

E: Trial Counsel Failed to Protect Defendant's Right to a Fair and Impartial Jury.

POINT II: THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL.

We begin with a review of the well-established legal principles that guide our analysis. Post-conviction relief constitutes "New Jersey's analogue to the federal writ of habeas corpus." State v. Preciose, 129 N.J. 451, 459 (1992). "Ineffective-assistance-of-counsel claims are particularly suited for post-conviction review because they often cannot reasonably be raised in a prior proceeding." Id. at 460.

Both the United States Constitution and New Jersey Constitution guarantee the right of assistance of counsel to every person accused of a crime. U.S. Const. amend. VI; N.J. Const. art. I, 10. This right to assistance of counsel "encompasses the right to effective counsel." State v. Norman, 151 N.J. 5, 23 (1997).

Claims of ineffective assistance of counsel must satisfy the two prong test set forth in Strickland, supra, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674, as adopted by our Supreme Court in State v. Fritz, 105 N.J. 42 (1987). The test requires a showing of deficient performance by counsel, and "'that the deficient performance prejudiced the defense.'" Id. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693).

This standard also applies in the context of guilty pleas, where attorney competence is required and the prejudice prong "focuses on whether counsel's constitutionally ineffective performance affected the outcome of the plea process." Hill v. Lockhart, 474 U.S. 52, 58-59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 210 (1985); see also State v. DiFrisco, 137 N.J. 434, 457 (1994) (requiring a reasonable probability that defendant would have refused to plead guilty and insisted on trial), cert. denied sub nom. DiFrisco v. New Jersey, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996). "If a plea bargain has been offered, a defendant has the right to effective assistance of counsel in considering whether to accept it." Lafler v. Cooper, 566 U.S. __, __, 132 S. Ct. 1376, 1397, 182 L. Ed. 2d 398, 410 (2012); State v. Agathis, 424 N.J. Super. 16, 19 (App. Div. 2012).

In considering the first prong, we give great deference to counsel's professional performance, and evaluate the decisions made, not with hindsight, but in light of counsel's state of mind at the time. State v. Petrozelli, 351 N.J. Super. 14, 21-22 (App. Div. 2002). "Counsel's 'strategic choices made after a thorough investigation of [relevant] law and facts . . . are virtually unchallengeable.'" Id. at 22 (quoting Strickland, supra, 466 U.S. at 690-91, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695).

A petitioner must establish the right to relief by a preponderance of the evidence. Preciose, supra, 129 N.J. at 459. "[B]ald assertions" of ineffective assistance are not enough. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). A petitioner must "allege facts sufficient to demonstrate counsel's alleged substandard performance" and the court must view the facts alleged in the light most favorable to the petitioner. Ibid.

Our standard of review gives deference to the PCR judge's fact findings based on witness testimony. State v. Nash, 212 N.J. 518, 540 (2013). "In such circumstances we will uphold the PCR court's findings that are supported by sufficient credible evidence in the record." Ibid.

Having considered defendant's contentions in light of the record and the applicable legal principles, we find them to be without sufficient merit to warrant extended discussion. R. 2:11-3(e)(2). We affirm substantially for the reasons expressed in Judge Ravin's thorough and cogent written opinion of February 21, 2012. We add only the following comments.

We reject defendant's argument that Judge Ravin erred by finding his testimony less credible than trial counsel's. Defendant has not shown that Judge Ravin's credibility findings were "'so wide of the mark' as to result in a manifest injustice." State v. J.D., 211 N.J. 344, 354 (2012) (quoting State v. Brown, 170 N.J. 138, 147 (2001)). Rather, Judge Ravin's credibility findings were sufficiently supported in the record to be afforded requisite deference. See Nash, supra, 212 N.J. at 540.

Based on his credibility findings, Judge Ravin properly determined that defendant did not satisfy the first prong of the two-prong test set forth in Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Regarding the first prong, the judge properly found that trial counsel was not deficient since he had informed defendant during plea negotiations that his statement might be admitted into evidence. Moreover, as Judge Ravin found, defendant had not demonstrated that he was likely to have accepted the offered plea even if he knew his statement to Ramos was admissible. Defendant insisted that the State had "no evidence" against him, but he did not deny that the weapon retrieved from his pocket was admissible into evidence. Thus, defendant has not shown a reasonable probability that, even if counsel had not properly advised him, this deficient advice would have "affected the outcome of the plea process." Hill, supra, 474 U.S. at 59, 106 S. Ct. at 370, 88 L. Ed. 2d at 210. Consequently, defendant's claim that appellate counsel was also ineffective for failing to raise this meritless issue on direct appeal must also fail. See State v. Harris, 181 N.J. 391, 520 (2004), cert. denied sub nom. Harris v. New Jersey, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005).

Judge Ravin also appropriately determined that defendant's remaining ineffective assistance of counsel arguments were without sufficient merit under the Strickland standard to present a prima facie case. See Cummings, supra, 321 N.J. Super. at 170. We concur that defendant's other claims are mere conclusory statements attacking his attorney's trial strategy without any showing that the attorney s performance was deficient or that, absent counsel engaging in those strategies, defendant would not have been found guilty. See State v. Arthur, 184 N.J. 307, 321 (2005) (noting the heightened deference given to trial counsel's strategic decisions).

Additionally, defendant raises two contentions, failure to request a Hampton jury charge, and the improper substitution of a juror, which we considered on appeal and found not to be erroneous. Meadows, supra, No. A-3860-07 (slip op. at 22-23, 31). Defendant cannot utilize post-conviction relief to re-litigate an issue already decided on direct appeal where, as here, his present claim is substantially equivalent to his prior claim on appeal. R. 3:22-5; State v. Marshall, 173 N.J. 343, 351 (2002).

In sum, from our review of the entire record, and for the reasons stated above, we are satisfied that defendant has not established a prima facie case of ineffective assistance of counsel, as he has not shown his trial or appellate attorneys' performances were deficient or that they resulted in prejudice to his case. See Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.

1 State v. Hampton, 61 N.J. 250 (1972).