STATE OF NEW JERSEY v. DENNIS MILLER

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2395-05T42395-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DENNIS MILLER,

Defendant-Appellant.

_______________________________________________________________

 

Submitted March 13, 2007 - Decided June 8, 2007

Before Judges Payne and Graves.

On appeal from Superior Court of New Jersey,

Law Division, Monmouth County, Indictment No.

00-05-0774.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Ruth Harrigan, Designated

Counsel, of counsel and on the brief).

Luis A. Valentin, Monmouth County Prosecutor,

attorney for respondent (Mark P. Stalford,

Assistant Prosecutor, of counsel and on the

brief).

PER CURIAM

Defendant Dennis Miller appeals from an order denying his petition for post-conviction relief entered on September 8, 2005. We affirm.

In our prior decision dated July 3, 2003, we noted that defendant "entered a guilty plea pursuant to a negotiated agreement" after "Judge Cleary denied defendant's motion to suppress evidence." In his direct appeal, defendant argued his motion to suppress should have been granted and his sentence was manifestly excessive:

POINT I

BECAUSE OFFICER SWEETMAN LACKED PROBABLE CAUSE TO BELIEVE THAT DENNIS MILLER WAS INSIDE ROOM 217 WHEN HE ATTEMPTED TO EXECUTE THE ARREST WARRANT, AND BECAUSE THERE WAS NO EVIDENCE TO EVEN SUGGEST THAT T.G. WAS IN ANY DANGER, THE ENTRY BY THE POLICE INTO THE HOTEL ROOM WAS IMPERMISSIBLE UNDER THE FOURTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ARTICLE I, PARAGRAPH 7 OF THE NEW JERSEY CONSTITUTION (1947). THE SEARCH WARRANT WHICH RELIED ON THE OBSERVATIONS MADE WHILE IN THAT ROOM COULD NOT FORM THE BASIS OF THE SEARCH WARRANT AND CONSEQUENTLY, THE REFUSAL OF THE COURT BELOW TO SUPPRESS THE EVIDENCE SEIZED SHOULD BE REVERSED.

A. THE POLICE LACKED PROBABLE CAUSE TO BELIEVE THAT DEFENDANT WAS INSIDE THE HOTEL ROOM.

B. THERE WERE INSUFFICIENT FACTS TO SUPPORT [THE] APPLICATION OF THE "EMERGENCY AID" DOCTRINE.

POINT II

THE SENTENCE OF THE COURT WAS MANIFESTLY EXCESSIVE.

We rejected both of these arguments. With respect to defendant's claim that his suppression motion should have been granted, we had this to say:

We affirm substantially for the reasons expressed by Judge Cleary in her comprehensive oral opinion rendered on January 19, 2001. The judge's findings are supported by substantial credible evidence in the record as a whole. State v. Locurto, 157 N.J. 463, 470-71 (1999); State v. Johnson, 42 N.J. 146, 162 (1964). Her conclusions respecting the validity of the police officers' entry into defendant's hotel room, based on probable cause as to his presence and alternatively under the "emergency aid" doctrine, are legally sound. See Payton v. New York, 445 U.S. 573, 603, 100 S. Ct. 1371, 1388, 63 L. Ed. 2d 639, 661 (1989); State v. Jones, 143 N.J. 4, 15 (1995); State v. Miller, 342 N.J. Super. 474, 492 (App. Div. 2001); State v. Garland, 270 N.J. Super. 31, 44 (App. Div.), certif. denied, 136 N.J. 296 (1994).

[State v. Miller, No. A-0852-01T4 (App. Div. July 3) (slip op. at 3-4), certif. denied, 178 N.J. 250 (2003).]

On appeal from the denial of his petition for post-conviction relief, defendant offers the following arguments:

POINT I

THE TRIAL JUDGE ERRED BY DENYING DEFENDANT'S CLAIM AT THE POST[-]CONVICTION RELIEF HEARING THAT HE WAS DEPRIVED OF EFFECTIVE ASSISTANCE OF BOTH TRIAL AND APPELLATE COUNSEL.

POINT II

PETITIONER'S MOTION TO SUPPRESS THE EVIDENCE FOUND IN THE HOTEL ROOM AFTER AN ILLEGAL SEARCH AND SEIZURE SHOULD HAVE BEEN GRANTED.

A defendant alleging ineffective assistance of counsel must establish that his "counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 692-93, reh'g denied, 467 U.S. 1267, 104 S. Ct. 3562, 82 L. Ed. 2d 864 (1984). New Jersey has adopted the standards set out in Strickland. State v. Fritz, 105 N.J. 42, 58 (1987). "[A] defendant whose counsel performed below a level of reasonable competence must show that 'there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Id. at 60-61 (quoting Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698).

To establish an ineffective assistance of counsel claim, defendant must meet both prongs of the Strickland/Fritz test. First, he must demonstrate that his counselor's performance was deficient by "showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Second, defendant must show "'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.'" State v. Marshall, 148 N.J. 89, 157 (quoting Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698), cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997).

"The burden to prove that incompetence of counsel had a prejudicial effect upon the outcome of the proceeding is squarely on the defendant." State v. Paige, 256 N.J. Super. 362, 377 (App. Div.), certif. denied, 130 N.J. 17 (1992). As noted in Strickland:

Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy."

[Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694-95 (internal citation omitted).]

Judge Cleary denied defendant's petition because he failed to meet both prongs of the Strickland/Fritz test, and because the "Appellate Division has already upheld the motion to suppress." See Pressler, Current N.J. Court Rules, comment on R. 3:22-5 (2007) ("Prior adjudication of an issue, particularly on direct appeal, will ordinarily bar post-conviction relief."). The record fully supports the trial court's findings and conclusions, and we affirm substantially for the reasons expressed by Judge Cleary in her comprehensive oral decision on August 12, 2005.

Affirmed.

 

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A-2395-05T4

June 8, 2007