STATE OF NEW JERSEY v. DAVID P. GANLEY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2781-06T42781-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DAVID P. GANLEY,

Defendant-Appellant.

__________________________

 

Submitted January 22, 2008 Decided

Before Judges Sabatino and Alvarez.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Accusation No. 05-11-02367.

Clifford E. Lazzaro & Associates, attorneys for appellant (Heather A. Fierro, on the brief).

Anne Milgram, Attorney General, attorney for respondent (Robyn B. Mitchell, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant, David P. Ganley, pled guilty to an accusation on February 6, 2006. He was sentenced in accord with the plea agreement on April 28, 2006, to ten years imprisonment, subject to fifty-four months of parole ineligibility, on two counts of first-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5(b)(1), and a consecutive five years on one count of second-degree possession of a weapon while in the course of committing a drug offense, N.J.S.A. 2C:39-4.1. On June 23, 2006, defendant filed a motion seeking to withdraw his guilty plea, which was denied after oral argument on September 29, 2006. This appeal followed. We reverse and remand.

Defendant asserts in support of his request to withdraw his guilty plea, that his plea attorney failed to file a meritorious motion to suppress the evidence against him, and failed to insist the viability of the motion be factored into the Brimage Guidelines 2 calculations which resulted in the offer extended to him by the State. These omissions, defendant contends, amounted to ineffective assistance of counsel in violation of his constitutional rights. Defendant explains the prejudice which resulted from his attorney's alleged shortcomings by reference to State v. Eckel, 185 N.J. 523 (2006), and State v. Dunlap, 185 N.J. 543 (2006), both of which were decided by the Supreme Court on January 10, 2006, approximately a month prior to the entry of his guilty plea. In a nutshell, the opinions stand for the proposition that "a warrantless search of an automobile based not on probable cause but solely on the arrest of a person unable to endanger the police or destroy evidence cannot be justified under any exception to the warrant requirement and is unreasonable." Eckel, supra, 185 N.J. at 540. Because these cases significantly changed the warrantless automobile search landscape, and did not figure into the plea attorney's advocacy of defendant, it is argued, counsel's representation was ineffective.

Defendant further maintains that counsel's failure to take Eckel and Dunlap into account in plea negotiations is borne out by the fact the term of parole ineligibility was not reduced in the Brimage Guidelines 2 calculations to reflect an application of Section 12, "Downward Departure for Trial Proof Issues." Brimage Guidelines 2 at 97-100. That section would have permitted some discretionary reduction in the State's offer, given the strength of defendant's legal arguments in support of a motion to suppress.

As no suppression hearing was conducted, we glean the facts from police reports, as did the motion judge. The Monmouth County Prosecutor's Office Narcotics Strike Force made an undercover purchase of narcotics from defendant, with the aid of a confidential informant, on March 29, 2005. Defendant used his vehicle, a black Lincoln Navigator, as the pick-up site for the narcotics, and the drop-off point for the payment. Thereafter, on April 6, 2005, the Strike Force received a tip that defendant was going to be "delivering a large quantity of powder cocaine to the Colts Neck Township area on the evening of April 7, 2005."

Early that morning, six detectives commenced day-long surveillance of defendant. An arrest warrant, based on the undercover sale, issued early that afternoon. When defendant returned to his apartment at approximately 4:15 p.m., detectives set up surveillance outside, and parked an unmarked car along the route between defendant's apartment and Colts Neck. At approximately 4:55 p.m., they observed defendant carrying a large black gym bag, which he placed on the back seat of his SUV before driving away.

The arrest warrant was executed after defendant had been followed by detectives for approximately half an hour. He was cuffed and told "that his vehicle was going to be seized and searched incident to his arrest." He was asked "if there were any narcotics or weapons in the vehicle." Defendant informed the officers that "there was a gun and cocaine inside a black backpack located in the rear passenger seat of [his Lincoln] Navigator." A loaded handgun and a large quantity of powder cocaine was retrieved from the backpack.

Only then was defendant informed of his Miranda rights and only then did he initial and sign a "Monmouth County Police Uniform Miranda Warning and Waiver Form." After defendant signed the waiver, he was asked "if he had additional amounts of cocaine or weapons." He responded that he had "a large quantity of cocaine in a bedroom closet" in his apartment. Defendant consented in writing to a search of his residence, which resulted in the seizure of a large amount of cocaine.

At the station, defendant signed a written statement in which he admitted that he was "mak[ing] a drop of six ounces of cocaine" when he was arrested. He said that he lived in the apartment with his girlfriend, but that "the apartment [was] not in [his] name." He also admitted to selling cocaine for about two years, during which time he traveled to New York every one or two months to buy cocaine, and to selling it regularly to about five people. He claimed his girlfriend was not involved in drug dealing, and that he would do anything to protect her.

A fundamental principle of our jurisprudence is that under the Sixth Amendment of the United States Constitution, a person accused of crimes is guaranteed the effective assistance of legal counsel in his defense. Strickland v. Washington, 466 U.S. 668, 685-86, 104 S. Ct. 2052, 2063, 80 L. Ed. 2d 674, 692 (1984). To establish a deprivation of that right, a defendant must satisfy the two-part test enunciated in Strickland by demonstrating that: (1) counsel's performance was deficient, and (2) the deficient performance actually prejudiced the accused's defense. Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; see also State v. Fritz, 105 N.J. 42, 58 (1987)(adopting the Strickland two-part test in New Jersey).

In reviewing such claims, courts employ a strong presumption that defense counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. "[C]omplaints 'merely of matters of trial strategy' will not serve to ground a constitutional claim of inadequacy . . . ." Fritz, supra, 105 N.J. at 54 (quoting State v. Williams, 39 N.J. 471, 489, cert. denied, 374 U.S. 855, 83 S. Ct. 1924, 10 L. Ed. 2d 1075 (1963), overruled on other grounds, State v. Czachor, 82 N.J. 392 (1980)); see also State v. Perry, 124 N.J. 128, 153 (1991) ("We will not second-guess" an attorney's reasonable strategy.).

In deciding a motion for withdrawal of a guilty plea, a court must determine whether to hold a defendant to the bargain he struck with the State would result in manifest injustice. R. 3:21-1. The motion judge in this case had to decide whether counsel's representation was ineffective within the meaning of Strickland, and in doing so, was compelled to consider the merits of the motion to suppress to at least some extent. The principal question, however, which could not be decided in the absence of a hearing, was whether defendant was fully advised as to the merits of the motion to suppress before he decided to waive his trial rights.

In deciding a motion to withdraw a guilty plea:

the court must weigh the policy considerations which favor the finality of judicial procedures against those which dictate that no man be deprived of his liberty except upon conviction after a fair trial or after the entry of a plea of guilty under circumstances showing that it was made truthfully, voluntarily and understandingly.

[State v. Herman, 47 N.J. 73, 76-77 (1966).]

Furthermore, a plea entered after an agreement is reached with the State is entitled to a higher degree of finality. State v. Smullen, 118 N.J. 408, 416 (1990). A manifest injustice will be found where a defendant is not fully informed of his rights, of the penal consequences of the entry of his guilty plea, or of some other circumstance that makes his consent less than a knowing consent. State v. Johnson, 182 N.J. 232, 236-37, 241-44 (2005). The misinformation has to be material to the decision to plead guilty, defendant must have relied upon it, and defendant must "suffer[] prejudice to such an extent as to result in manifest injustice." State v. McQuaid, 147 N.J. 464, 498 (1997).

Based on our review of the police reports, it does appear that defendant may have colorable issues not only as to the suppression of physical evidence, pursuant to Eckel, supra, 185 N.J. 523, and Dunlap, supra, 185 N.J. 543, but as to his initial pre-Miranda statements as well. Without the benefit of a fully developed record as to ineffective assistance of counsel, however, we cannot determine whether defendant's decision to plead guilty was made knowingly, and with a full understanding of the rights he was waiving.

If plea counsel did not review with defendant the considerations relative to a motion to suppress, that would constitute deficient performance in this case. Such inaction could have actually prejudiced defendant, as he may not have entered a guilty plea if he knew he had viable defenses. A plenary hearing must be conducted in order to fairly decide whether, based on ineffective assistance of counsel, manifest injustice would result if defendant was not permitted to withdraw his guilty plea.

If, on the other hand, an informed decision was made by defendant to forego a suppression motion after plea counsel explained to him the potential impact of Eckel and Dunlap, as well as Miranda, his motion, obviously, should be denied. He is not entitled to vacate his plea merely because a second attorney views the motion to suppress in a more favorable light than did the first attorney. In that hypothetical instance, defendant can properly be found to have made a knowing, voluntary and intelligent decision to waive his trial rights, and no manifest injustice would result from denial of the motion to vacate the plea. It is only if either the plea attorney did not consider the potential impact of Eckel, Dunlap, and Miranda on suppression issues, or did not discuss the filing of a motion to suppress at all with defendant, that a manifest injustice could result from holding him to his plea.

Should defendant succeed on remand to vacate the guilty plea, he is then, for purposes of the Brimage Guidelines 2, returned to the starting point where he should have been during pre-indictment negotiations. The difference is that a reduced offer may now be extended to him under Section 12, because the prosecutor can depart downwards from the baseline calculation due to "Trial Proof Issues," namely, defendant's potentially meritorious motion to suppress. Brimage Guidelines 2 at 97-100.

To summarize, if defendant's motion is granted on the grounds of ineffective assistance of counsel after a plenary hearing, he has two options. Defendant has the option of listing the matter for trial, and litigating the suppression issues. He also has the right to attempt to renegotiate a plea agreement with the State pursuant to the Brimage Guidelines 2, and only then, if no agreement is reached, list the matter for trial and proceed with the motion to suppress. It goes without saying that he can also choose to abide by the terms of his present agreement.

Accordingly, the order denying defendant's application is reversed, and the matter is remanded for further proceedings on the question of ineffective assistance of counsel with respect to defendant's waiver of his right to litigate suppression issues. We do not retain jurisdiction.

 
Reversed and remanded.

The accusation incorrectly cites to N.J.S.A. 2C:39-4 instead of N.J.S.A. 2C:39-4.1. The judgment of conviction only refers to N.J.S.A. 2C:35-5, and not to second-degree possession of a weapon while committing a drug offense or to the correct statute.

The Attorney General Law Enforcement Directive 2004-2, Revised Attorney General Guidelines for Negotiating Cases Under N.J.S.A. 2C:35-12 (Brimage Guidelines 2) are employed to calculate plea offers in certain categories of drug cases, such as this one.

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

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A-2781-06T4

August 5, 2008