STATE OF NEW JERSEY v. MICHAEL L. BARRETT

NOT FOR PUBLICATION WITHOUT THE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.

MICHAEL L. BARRETT,

Defendant-Appellant.

___________________________________

July 1, 2015

Submitted March 2, 2015 Decided

Before Judges Sabatino and Leone.

On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment Nos. 09-03-0250, 09-06-0505, and 10-01-0097.

Joseph E. Krakora, Public Defender, attorney for appellant (Durrell Wachtler Ciccia, 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 Michael L. Barrett appeals from the denial without a hearing of his petition for post-conviction relief (PCR), which claimed ineffective assistance of counsel for the failure to file a motion to suppress physical evidence at trial. We affirm.

I.

We derive the following facts from the opinion of the PCR court, except as indicated.

On September 23, 2008, defendant was a passenger in a vehicle driven by Jamar Richardson. Willingboro police officers, Detective Deissler and Sergeant Vetter, recognized Richardson from past encounters, and knew his driver's license was suspended. They pulled over Richardson's vehicle. After questioning Richardson about the status of his license, Deissler asked defendant if he had a valid driver's license. Defendant answered in the affirmative. Deissler asked defendant to get into the driver's seat while he went back to the patrol car to verify that information. Upon finding defendant possessed only a State Identification Card, not a valid driver's license, Deissler asked defendant to exit the vehicle. After a brief conversation about defendant's identification, Deissler ordered defendant to speak with Sergeant Vetter at the front of the vehicle.

According to defendant's PCR certification, he told the officers he "did not wish to remain in the parking lot and that [he] was going to leave." It is undisputed defendant proceeded to walk away from the scene of the traffic stop. In his police report, Sergeant Vetter noted that defendant shielded the front of his body from the officers' view

[Defendant] walked from the rear of the vehicle to the front of the car and walked past me with his back angled towards me and the front of his torso towards the vehicle. . . . I called out to [defendant] to stop and return to the vehicle. He stopped, and turned clockwise towards the vehicle again with his back to me and walked directly to the front bumper of vehicle facing towards the rear of the vehicle.

Sergeant Vetter asked defendant to turn around and face him. Once defendant did so, Vetter had a conversation with defendant. During the conversation, Vetter "looked at [defendant's] person from head to toe and could observe a bulge in his right waistband."

In addition, Sergeant Vetter's police report stated that during the conversation, defendant "appeared to be very nervous," "would not maintain eye contact," and "continually moved his hands from behind his back to the front of his body," touching the bulge. In his PCR certification, defendant claims he was not nervous or waving his arms, but was standing still and speaking in a normal tone.

Fearing the bulge was a concealed weapon, Vetter performed a pat-down search, which yielded a loaded semi-automatic handgun. Defendant was placed under arrest.

In Indictment 09-03-250, defendant was charged with unlawful possession of a handgun, possession of a handgun for an unlawful purpose, and possession of dum-dum bullets. On September 24, 2010, defendant entered a guilty plea for unlawful possession of a handgun, N.J.S.A. 2C:39-5(b). At the same time, defendant resolved two other indictments by pleading guilty to third-degree distribution of a controlled dangerous substance within 1000 feet of a school, N.J.S.A. 2C:35-7; and possession of a controlled dangerous substance with intent to distribute on or within 1000 feet of school property, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3). Under the plea agreement, the two other gun counts, and nine other drug counts, would be dismissed.

On December 21, 2010, defendant was sentenced to five years in prison with three years of parole ineligibility for the handgun charge, and five years in prison with two and one half years of parole ineligibility on each of the drug charges. All sentences were to run concurrently to each other, but consecutively to a federal sentence defendant was already serving. Defendant did not appeal.

Defendant subsequently filed a pro se petition for PCR. PCR counsel was appointed and filed an amended petition and a brief. On December 6, 2012, a telephonic hearing was conducted. In a fourteen-page written opinion, the PCR court denied defendant's motion without an evidentiary hearing. Defendant appeals from the December 7, 2012 denial of PCR, and raised the following arguments

POINT I: THE LOWER COURT ABUSED ITS DISCRETION IN DENYING MR. BARRETT AN OPPORTUNITY TO PRESENT ORAL ARGUMENT IN SUPPORT OF HIS PETITION FOR POST-CONVICTION RELIEF.

POINT II: THE LOWER COURT ABUSED ITS DISCRETION IN DENYING MR. BARRETT AN EVIDENTIARY HEARING ON HIS INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM.

We address these arguments in reverse order.

II.

A PCR court need not grant an evidentiary hearing unless "'a defendant has presented a prima facie [case] in support of post-conviction relief.'" State v. Marshall, 148 N.J. 89, 158, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997) (citation omitted). "To establish such a prima facie case, the defendant must demonstrate a reasonable likelihood that his or her claim will ultimately succeed on the merits." Ibid. If the PCR court has not held an evidentiary hearing, we "conduct a de novo review" of its ruling. State v. Harris, 181 N.J. 391, 421 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). We must hew to that standard of review.

To show ineffective assistance of counsel, a defendant must satisfy the two-pronged test of Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and State v. Fritz, 105 N.J. 42 (1987). "[T]he defendant must demonstrate first that counsel's performance was deficient, i.e., that 'counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment.'" State v. Parker, 212 N.J. 269, 279 (2012) (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). The defendant must overcome a "strong presumption that counsel rendered reasonable professional assistance." Ibid.

Defendant asserts that trial counsel was constitutionally ineffective because counsel failed to file a motion to suppress the handgun found in defendant's possession prior to his arrest. "'In order to satisfy the Strickland standard when an ineffective assistance of counsel claim is based on the failure to file a suppression motion, a defendant must establish 'that his Fourth Amendment claim is meritorious.'" State v. O'Neal, 190 N.J. 601, 618 19 (2007) (quoting State v. Fisher, 156 N.J. 494, 501 (1998)). "It is not ineffective assistance of counsel for defense counsel not to file a meritless motion[.]" Id. at 619.

Second, "a defendant must also establish that the ineffectiveness of his attorney prejudiced his defense. 'The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Parker, supra, 212 N.J. at 279-80 (quoting Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698). In the context of a guilty plea, the defendant must show "'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.'" State v. Nu ez-Vald z, 200 N.J. 129, 138-39 (2009) (citation omitted); accord Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 210 (1985).

III.

Defendant alleges trial counsel did not review the discovery with him before the guilty plea was entered. Defendant asserts that had such a review occurred, he would have urged trial counsel to file a suppression motion based on the disputed facts, specifically defendant's nervousness and arm movements and motions alleged in Sergeant Vetter's report.

Regardless of this factual dispute, we find that trial counsel was not deficient for failing to file a meritless suppression motion. The vehicle in which defendant was a passenger was lawfully pulled over, and defendant was lawfully detained at the traffic stop. Further, even ignoring defendant's alleged nervousness and arm movements, the bulge and defendant's other actions provided the requisite level of reasonable suspicion to perform a pat-down search. Therefore, defendant cannot show a suppression motion had merit. Thus, defendant failed to make a prima facie case of ineffective assistance of counsel. Thus, defendant was properly denied an evidentiary hearing.

A.

Detective Deissler and Sergeant Vetter lawfully pulled over Richardson's vehicle. "A 'police officer is justified in stopping a motor vehicle when he has an articulable and reasonable suspicion that the driver has committed a motor vehicle offense.'" State v. Pitcher, 379 N.J. Super. 308, 314 (2005) (quoting State v. Locurto, 157 N.J. 463, 470 (1999)), certif. denied, 186 N.J. 242 (2006). Based on past encounters with Richardson, and the officers' knowledge of his suspended license, Deissler and Vetter had reasonable suspicion to believe he had committed a traffic offense by driving his vehicle with a suspended license. See ibid.; see also N.J.S.A. 39:3-40. Therefore, the vehicle in which defendant was a passenger was lawfully stopped.

"Because the car stop was lawful, detaining [defendant] at that moment was also valid." State v. Sloane, 193 N.J. 423, 432 (2008). "[I]f a stop for a motor vehicle violation is reasonable, the police do not have to show an independent basis for detaining the passengers, unless the detention goes beyond what is incident to a brief motor vehicle stop." State v. Hickman, 335 N.J. Super. 623, 634 (App. Div. 2000).1

Defendant's attempt to depart was contrary to that lawful detention. "[A] passenger would reasonably expect that 'a police officer . . . [would] not let people move around in ways that could jeopardize [the officer's] safety.'" Sloane, supra, 193 N.J. at 431 (quoting Brendlin v. California, 551 U.S. 249, 251, 127 S. Ct. 2400, 2403, 168 L. Ed. 2d 132, 135 (2007)). "'[A] sensible person would not expect a police officer to allow people to come and go freely from the physical focal point of an investigation into'" the traffic violation. Id. at 430 31 (quoting Brendlin, supra, 551 U.S. at 257, 127 S. Ct. at 2407, 168 L. Ed. 2d at 140). Further, "'the passenger will expect to be subject to some scrutiny, and his attempt to leave the scene would be so obviously likely to prompt an objection from the officer that no passenger would feel free to leave in the first place.'" Id. at 431 (quoting Brendlin, supra, 551 U.S. at 257, 127 S. Ct. at 2407, 168 L. Ed. 2d at 140). Therefore, Vetter's orders were within the scope of defendant's lawful detention. Arizona v. Johnson, 555 U.S. 323, 327, 129 S. Ct. 781, 784, 172 L. Ed. 2d 694, 700 (citing Brendlin, supra, 551 U.S. at 255, 127 S. Ct. at 2406, 168 L. Ed. 2d at 139).

In his PCR certification, defendant admitted he tried to leave the scene of the traffic stop after he was told to speak with Sergeant Vetter. However, defendant did not have the right to come and go freely while the traffic stop was ongoing. Id. at 430 31. Accordingly, defendant was lawfully told to remain during the traffic stop. Vetter "was not constitutionally required to give [defendant] an opportunity to depart the scene after he exited the vehicle without first ensuring that, in so doing, [he] was not permitting a dangerous person to get behind [him]." Johnson, supra, 555 U.S. at 334, 129 S. Ct. at 788, 172 L. Ed. 2d at 704-05.

B.

Sergeant Vetter also had reasonable suspicion to perform a pat-down search of defendant at the traffic stop. Our Supreme Court "recognize[d] 'a narrowly drawn authority to permit a reasonable search for weapons for the protection of the police officer[.]'" State v. Privott, 203 N.J. 16, 25 (2010) (quoting Terry v. Ohio, 392 U.S. 1, 27, 88 S. Ct. 1868, 1883, 20 L. Ed. 2d 889, 909 (1968)). "'[T]he issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.'" O'Neal, supra, 190 N.J. at 623 (quoting Terry, supra, 392 U.S. at 27, 88 S. Ct. at 1883, 20 L. Ed. 2d at 909). For the purposes of a Terry stop, the reasonableness of a search is measured in objective terms by examining the totality of the circumstances. State v. Bernokeits, 423 N.J. Super. 365, 372 (App. Div. 2011) (citing State v. Davis, 104 N.J. 490, 504 (1986)).

Here, the undisputed circumstances justified a protective pat-down for weapons. In particular, the "bulge" in defendant's waistband gave the officer reasonable suspicion to conclude a defendant was armed and "thus posed a serious and present danger to the safety of the officer." Pennsylvania v. Mimms, 434 U.S. 106, 112, 98 S. Ct. 330, 334, 54 L. Ed. 331, 338 (1977). "Once defendant exited the car and the police observed the bulge in" defendant's waistband, "the officers unquestionably had the right to conduct a frisk of the defendant under the principles pronounced in Terry v. Ohio[.]" State v. Wancyk, 201 N.J. Super. 258, 264 65 (App. Div. 1985).

Other undisputed circumstances added to that reasonable suspicion. Defendant's false claim he had a driver's license, his attempt to leave the scene of the traffic stop, his conscious effort to hide his torso from Sergeant Vetter both in leaving and returning to the vehicle, and the readily-noticeable bulge in his waistband, all gave Vetter reasonable suspicion to perform a pat-down search. Those circumstances were sufficient even ignoring defendant's disputed nervousness and arm movements. "Indeed, a bulge alone has been held sufficient to validate a protective pat-down." State v. Legette, ___ N.J. Super. ___, ___ (App. Div. 2015) (slip op. at 21) (quoting State v. Smith, 134 N.J. 599, 621 (1994)). Accordingly, defendant cannot demonstrate his suppression claim would be successful on the merits.

C.

Because defendant had no valid basis to move to suppress, even assuming trial counsel did not review the discovery with defendant, there is no reasonable probability that such a review of the discovery materials and the poor prospects for suppression would have caused defendant to not plead guilty, especially given his favorable plea deal. Indeed, defendant does not ever make that allegation. Defendant cannot satisfy either prong of the ineffectiveness test. Because defendant fails to make a prima facie case of ineffective assistance of counsel, the PCR court did not err in denying an evidentiary hearing on the claim. See Marshall, supra, 148 N.J. at 158.

IV.

Defendant argues "the lower court abused its discretion in denying . . . an opportunity to present oral argument." However, his argument mischaracterizes the record.

Oral argument was scheduled on this matter for December 6, 2012. On that date, the prosecutor appeared, but PCR counsel apparently had a scheduling conflict.2 The court had contact with PCR counsel, who waived the opportunity to present arguments in support of defendant's PCR motion. PCR counsel indicated to the PCR court he was "willing to rely upon the papers for the disposition of [the] matter," and the PCR court obliged.

Defendant cites our Supreme Court's decision in Parker, which held that when a PCR judge declines to permit oral argument, "the judge should provide a statement of reasons that is tailored to the particular application, stating why the judge considers oral argument unnecessary." Parker, supra, 212 N.J. at 282. However, the denial of oral argument in Parker is factually distinct from the waiver of oral argument here. In Parker, the PCR court never scheduled a hearing. Id. at 275. The PCR court received the papers and issued an order denying relief, without providing any reasoning as to why oral argument was not scheduled. Ibid. Specifically, the defendant's complaint in Parker on appeal was the PCR court "erred by hearing the matter on the papers without having obtained a waiver of oral argument." Id. at 276 (emphasis added). Here, the PCR court received a waiver of oral argument by defendant's PCR counsel. Therefore, the PCR court need not detail why oral argument was unnecessary.

Defendant does not claim his PCR counsel was ineffective for waiving oral argument. We note that PCR counsel is not absolutely required to present oral arguments under R. 3:22-6(d). State v. Webster, 187 N.J. 254, 257 (2005). Rather, counsel's "brief must advance the arguments" that can be made in support of defendant's claims. Ibid. Defendant's PCR counsel presented a brief to the court that put forth defendant's claims. We have rejected those claims. Defendant has not suspected how oral argument to the PCR court would have altered that result.

Affirmed.

1 Moreover, "it was reasonable for the officer to ask [defendant] for identification to insure that the car would be driven by a properly licensed driver." Sloane, supra, 193 N.J. at 432. Lacking a proper license, defendant does not dispute that the officer properly ordered him out of the car. See Maryland v. Wilson, 519 U.S. 408, 413-15, 117 S. Ct. 882, 886, 137 L. Ed. 2d 41, 47-48 (1997) ("an officer making a traffic stop may order passengers to get out of the car pending completion of the stop"); see also State v. Bacome, 440 N.J. Super. 228, 237-38 (App. Div. 2015).

2 The parties filed their briefs without obtaining the December 6, 2012 transcript. That transcript was subsequently supplied to us at our request. Although a docket entry suggests the prosecutor appeared by telephone, the transcript contains no such indication.