STATE OF NEW JERSEY v. CHARLES STAFFORD

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4468-05T44468-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CHARLES STAFFORD,

Defendant-Appellant.

______________________________

 

Submitted September 15, 2009 - Decided

Before Judges Parrillo and Ashrafi.

On appeal from Superior Court of New

Jersey, Law Division, Atlantic County,

Indictment No. 99-04-0663.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Philip Lago,

Designated Counsel, of counsel and

on the brief).

Theodore F. L. Housel, Atlantic County

Prosecutor, attorney for respondent

(Jack J. Lipari, Assistant Prosecutor,

of counsel and on the brief).

PER CURIAM

Defendant Charles Stafford appeals from an order of the Law Division denying his petition for post-conviction relief (PCR) under Rule 3:22. Having reviewed the record of proceedings in the PCR court, relevant parts of the trial transcripts, and the briefs filed for this appeal and before the PCR court, we now affirm denial of the petition.

In January 2000, defendant was convicted by a jury of second-degree possession of cocaine with intent to distribute, third-degree possession of cocaine, third-degree possession of cocaine with intent to distribute in a school zone, and fourth- degree unlawful possession of a paging device.

At a pretrial hearing and at trial, the State presented evidence to establish that on March 29, 1999, Atlantic City police received a tip from a confidential informant that a person carrying drugs would be arriving on a casino bus. A police sergeant and a narcotics detective set up surveillance near the area of the bus stop and observed defendant, who fit the description provided by the informant, walking and flipping up in the air and catching a box of baking soda. The police approached defendant and spoke to him about the tip they had received.

Defendant immediately said that he only had bags in his possession. Understanding the reference to mean plastic baggies for packaging of illegal drugs, the police detective held out his palm, indicating that he wanted defendant to hand over the baggies. Defendant reached into the back of his pants and pulled out and gave the detective a zip-lock plastic baggie with numerous empty smaller baggies inside. The police then questioned defendant further, and he gave evasive answers about his residence.

The police sergeant patted down defendant's clothing and felt something hard in the middle of his buttocks. He reached into defendant's pants and pulled out a folded paper towel containing what appeared to be an illegal drug. Defendant was then arrested for possession of a controlled dangerous substance (CDS) with intent to distribute. A field test of the substance confirmed that it was cocaine.

At trial, the State presented evidence that the cocaine seized from defendant weighed 15.2 grams, which is slightly more than one-half ounce, the quantity that makes the offense a crime of the second degree. N.J.S.A. 2C:35-5a(1) and -5b(2). The State also presented the testimony of a police witness who was qualified as an expert in the field of narcotics investigations. The expert testified that the quantity of cocaine, together with possession of baggies for packaging and baking soda as a cutting agent, and also defendant's arrival on a bus from New York City where cocaine could be purchased at a lower price, all indicated that defendant intended to cut, package, and distribute the cocaine.

Defendant testified in his own defense that he was addicted to crack cocaine and that the entire quantity of cocaine found on his person was intended for his personal consumption. The jury convicted defendant on all four charges against him.

Because of two prior convictions for possession of drugs with intent to distribute in a school zone, defendant was sentenced under N.J.S.A. 2C:43-6f to an extended term. On the second-degree charge, he was sentenced to sixteen years' imprisonment with seven years to be served before eligibility for parole. The other drug counts either merged into the second-degree count or defendant received a concurrent sentence. However, a sentence of one year in prison to run consecutively was added for defendant's conviction for unlawful possession of a paging device.

On direct appeal, we affirmed defendant's conviction and sentence. State v. Stafford, No. A-4182-99T4 (App. Div. Dec. 10, 2001). The Supreme Court denied his petition for certification. 172 N.J. 356 (2002).

Defendant filed a pro se petition for post-conviction relief in July 2002. After counsel was assigned to represent defendant, an amended petition for post-conviction relief and briefs were filed. The judge who presided at defendant's trial heard argument on the petition on December 2, 2005. He denied the petition the same day without an evidentiary hearing, putting an oral decision on the record. An order denying defendant's petition was entered on December 8, 2005. Defendant filed a notice of appeal on April 25, 2006, which we accepted as timely.

Defendant raises the following points:

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

A. TRIAL COUNSEL FAILED TO CONSULT AND PRESENT THE TESTIMONY OF AN APPROPRIATE EXPERT

B. TRIAL COUNSEL FAILED TO CONSULT ADEQUATELY WITH THE DEFENDANT

C. TRIAL COUNSEL FAILED TO FILE A MOTION TO DISMISS THE INDICTMENT ON THE BASIS OF PROSECUTORIAL MISCONDUCT

D. TRIAL COUNSEL FAILED TO FOLLOW UP ON A FILED MOTION TO SUPPRESS THE EVIDENCE

E. TRIAL COUNSEL WAS INEFFECTIVE IN HIS EFFORT TO ASCERTAIN THE IDENTITY OF THE CONFIDENTIAL INFORMANT

F. TRIAL COUNSEL WAS INEFFECTIVE IN FAILING TO OBJECT TO INADMISSIBLE HEARSAY AND DURING CROSS-EXAMINATION

G. TRIAL COUNSEL WAS INEFFECTIVE IN FAILING TO HIGHLIGHT THE DISCREPANCY IN THE AMOUNT OF THE DRUGS SEIZED

H. TRIAL COUNSEL WAS INEFFECTIVE DURING THE PLEA BARGAINING STAGE SINCE SHE FAILED TO CORRECT DEFENDANT'S CONFUSION REGARDING THE OFFER

I. TRIAL COUNSEL WAS INEFFECTIVE DURING SENTENCING

J. TRIAL COUNSEL WAS INEFFECTIVE IN FAILING TO OBJECT TO THE STATE'S OPENING STATEMENT

K. TRIAL COUNSEL WAS INEFFECTIVE DURING HIS OPENING STATEMENT

L. TRIAL COUNSEL'S STRATEGY WAS DEFICIENT AND AMOUNTED TO INEFFECTIVE ASSISTANCE OF COUNSEL

POINT II - THE LOWER COURT ORDER DENYING THE PETITION

MUST BE REVERSED SINCE DEFENDANT RECEIVED

INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL.

POINT III - THE LOWER COURT ORDER DENYING THE PETITION

MUST BE REVERSED SINCE CUMULATIVE ERRORS

RENDERED THE TRIAL UNFAIR.

POINT IV - THE IMPOSITION OF THE SENTENCE WAS

MANIFESTLY EXCESSIVE.

POINT V - THE LOWER COURT ORDER DENYING THE PETITION

MUST BE REVERSED SINCE DEFENDANT'S CLAIMS

ARE NOT PROCEDURALLY BARRED UNDER R. 3:22-5.

POINT VI - THE LOWER COURT ERRED IN NOT GRANTING

DEFENDANT'S REQUEST FOR AN EVIDENTIARY

HEARING AND THE LOWER COURT ORDER MUST

THEREFORE BE REVERSED.

We find no merit in any of defendant's arguments and affirm for reasons stated by the trial court in denying defendant's PCR petition. We add the following comments.

In considering a petition for post-conviction relief, the court begins with a presumption that defendant who was represented at trial and on appeal received the assistance of counsel that is mandated by the Sixth Amendment of the United States Constitution and Article I, Paragraph 10 of the New Jersey Constitution. Strickland v. Washington, 466 U.S. 668, 689, 694, 104 S. Ct. 2052, 2065, 2068, 80 L. Ed. 2d 674, 694, 698 (1984); State v. Loftin, 191 N.J. 172, 198 (2007). Defendant bears the burden of proving that his attorney provided ineffective assistance in his defense. Ibid.

In Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693, the United States Supreme Court identified a two-part test for evaluating claims of ineffective assistance of counsel.

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.

To satisfy the second part of this test, "[t]he 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." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. The Strickland standard was adopted by the New Jersey Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987).

In this case, defendant has alleged ten instances of ineffective representation. In none of them has defendant adequately set forth how the alleged deficiency of counsel's performance was likely to affect the outcome of his trial. Nowhere has defendant alleged sufficiently detailed facts establishing a prima facie showing of the second part of the Strickland test, the probability that the result of his trial would have been different. An evidentiary hearing is not required unless defendant makes such a prima facie showing. State v. Preciose, 129 N.J. 451, 462 (1992).

For example, as argued in Point I,D of defendant's brief, defendant's substituted trial attorney may have performed deficiently in failing to follow through with the Fourth Amendment suppression motion filed by his first trial attorney. But defendant has failed to show a probability that the cocaine or other evidence would have been suppressed if counsel had pursued the motion. The trial judge had held an evidentiary Miranda hearing on defendant's pretrial motion to suppress his statements to the police under the Fifth Amendment. The judge had concluded that the police could constitutionally make a field inquiry, see, e.g., Florida v. Royer, 460 U.S. 491, 497, 103 S. Ct. 1319, 1324, 75 L. Ed. 2d 229, 236 (1983); State v. Davis, 104 N.J. 490, 497 (1986), and upon discovery of packaging and cutting materials, had reasonable suspicion to conduct a patdown search of defendant in accordance with Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). When the police sergeant felt a hard item hidden in defendant's buttocks, the police had probable cause to seize the item and, upon its identification as probable CDS, to arrest and charge defendant. As the judge said in his PCR decision, the same findings as in the Miranda hearing would have applied to defendant's motion to suppress evidence on Fourth Amendment grounds and resulted in denial of that motion.

With respect to several of defendant's allegations of ineffective assistance, there is insufficient proof of deficient performance of counsel even if the facts are accepted precisely as defendant alleges. For example, defendant alleges that his trial attorney should have consulted a defense expert to assist his defense that the 15.2 grams of cocaine was all for his personal use and not for distribution. To support this contention, defendant has presented a two-page letter dated August 19, 2005, from a proposed expert, David Leff. Most of the letter is in the nature of business solicitation. It extols the advantages of a defense expert in every drug prosecution and offers Leff's services in that regard. Only near the end does Leff's letter address defendant's case, and then, very generally. Leff states:

In the case at hand involving Mr. Stafford, I have had several hundred similar type cases. There are many issues in this case that would require additional information and/or investigation. I would state however, that on the basis of the discovery provided so far, it is possible that my opinion could be favorable. At the very least, there are an abundance of issues, (some very complicated), that should absolutely be covered in detail between the expert and defense counsel.

Despite the conclusion of trial and no further expectation of discovery from the State, Leff's letter does not provide any specific opinion that would help defendant. It does not state, as one might expect, that Leff reached a conclusion that the 15.2 grams of cocaine were or could have been entirely for defendant's personal use.

The purported expert opinion does not assist in establishing a defense to the charge of possession with intent to distribute, and it is not evidence that shows "a reasonable probability that . . . the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. Consequently, defendant has not shown that his trial attorney's performance was ineffective for failing to engage such a defense expert.

Finally, concerning sentencing, we rejected defendant's contention of excessive sentence on direct appeal. He may not raise it again in this PCR petition. R. 3:22-5. Although severe, the sentence was for defendant's third conviction for possession of CDS with intent to distribute in a school zone. Furthermore, at the time of his arrest on the charges in this case, defendant was a fugitive from his second conviction, having fled before sentencing. The judge described defendant as a professional drug dealer who continued to distribute illegal drugs while a fugitive from justice.

All other arguments raised by defendant have been considered and are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.

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

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A-4468-05T4

October 8, 2009