STATE OF NEW JERSEY v. SCOTT C. DAVIS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5416-05T45416-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SCOTT C. DAVIS,

Defendant-Appellant.

____________________________________

 

Submitted July 5, 2007 - Decided July 23, 2007

Before Judges Skillman and King.

On appeal from Superior Court of New Jersey, Law Division, Warren County, Indictment No. 02-05-0207.

Yvonne Smith Segars, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief).

Thomas S. Ferguson, Warren County Prosecutor, attorney for respondent (Dit Mosco, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant was charged with conspiracy to distribute marijuana, in violation of N.J.S.A. 2C:5-2, N.J.S.A. 2C:35-5a and N.J.S.A. 2C:35-5b(10)(a), and first degree possession of marijuana with the intent to distribute, in violation of N.J.S.A. 2C:35-5b(10)(a). Defendant entered into a plea agreement under which he agreed to waive indictment and plead guilty to both charges and the State agreed to recommend a sentence of eleven years imprisonment, with five years of parole ineligibility. The trial court accepted the plea and sentenced defendant in accordance with the plea agreement to an eleven year term of imprisonment, with five years of parole ineligibility, for first degree possession of marijuana with the intent to distribute and a concurrent ten year term, with five years of parole ineligibility, for conspiracy to distribute marijuana. Defendant did not file a direct appeal from the judgment of conviction.

Defendant filed a petition for post-conviction relief. The trial court denied defendant's petition without assigning him counsel. We reversed the denial on the ground that the court's failure to refer the petition to the Public Defender violated Rule 3:22-6(a). State v. Davis, No. A-4308-03T4 (decided Dec. 28, 2004).

On remand, after briefing and oral argument by counsel, the trial court denied defendant's petition by a written decision and order filed April 24, 2006. Defendant appeals. We affirm.

The evidence upon which defendant's convictions are based is set forth in the trial court's written decision:

On March 28, 2002, the United Parcel Service ("UPS") intercepted a suspicious package at Newark Airport Terminal. The package was addressed to Brian Ballard, 82 Heckman Street, Phillipsburg, New Jersey 08865, for delivery on March 28, 2002 at 11:00 a.m. UPS subsequently opened the package and discovered the contents to be forty pounds of marijuana, wrapped in

pepper. UPS then contacted the U.S. Drug Enforcement Administration ("DEA"). Special Agent Brent Edwards responded. Agent Edwards observed the contents of the package and based on his training and experience in narcotics, he believed the contents to be approximately 40 pounds of marijuana.

Agent Edwards then contacted the Phillipsburg Police Department and the Warren County Prosecutors Office Narcotics Task Force, who then took custody of the package to conduct a controlled delivery to 82 Heckman Street in Phillipsburg. The New Jersey State Police transported the package to the Phillipsburg police station. The police obtained an anticipatory search warrant for the premises, Brian Ballard and any person found inside the premises during the search believed to be involved in narcotics activity.

In an undercover capacity, Detective Charles Zellars delivered the package to the residence, to which Mr. Ballard signed for. Mr. Ballard then exited the residence, carrying the package and placed it into the trunk of a blue Acura, driven by the petitioner, which had just pulled up to the residence. Police then followed the vehicle, pulled the vehicle over and placed the defendant, petitioner in this matter, Scott C. Davis under arrest. In addition, police executed the search warrant at the residence.

The police retrieved the package of marijuana from the trunk of the vehicle. The petitioner was advised of his Miranda warnings and the vehicle was transported and impounded at the police station. The petitioner later provided a sworn confession to the police and assisted the police in attempting to locate the sender of the package.

Defendant presents the following arguments:

I. DEFENDANT'S PCR PETITION WAS NOT PROCEDURALLY BARRED BECAUSE IT ASSERTED CONSTITUTIONAL CLAIMS AND/OR ENFORCEMENT OF THE BAR WOULD RESULT IN "FUNDAMENTAL INJUSTICE."

II. DEFENDANT WAS ENTITLED TO AN EVIDENTIARY HEARING BECAUSE A PRIMA FACIE CASE WAS ESTABLISHED AS TO HIS INEFFECTIVE-ASSISTANCE-OF-COUNSEL CLAIM.

We agree with defendant that his petition was not procedurally barred because it asserted claims of ineffective assistance of counsel that rely upon evidence outside the trial record. See State v. Preciose, 129 N.J. 451, 459-61 (1992). However, we agree with the State, substantially for the reasons set forth in the trial court's written decision, that defendant's claims of ineffective assistance of counsel are clearly without merit and do not require an evidentiary hearing. We emphasize the absence of any evidence in the record that any governmental agency or employee encouraged or participated in any other way in UPS's decision to open the package containing the marijuana that was subsequently transferred to defendant.

Affirmed.

 
 

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A-5416-05T4

July 23, 2007