STATE OF NEW JERSEY v. FLOYD D. STEVENS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6108-07T46108-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

FLOYD D. STEVENS,

Defendant-Appellant.

________________________________________________________________

 

Submitted April 12, 2010 - Decided

Before Judges Baxter and Coburn.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment Nos. 02-03-0320 and 02-09-1170.

Yvonne Smith Segars, Public Defender, attorney for appellant (Philip Lago, Designated Counsel, of counsel and on the brief).

Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Steven E. Braun, Chief Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Floyd Stevens appeals from an April 29, 2008 order denying his petition for post-conviction relief (PCR). He is serving an aggregate twenty-year term of imprisonment subject to a ten-year parole disqualifier on two indictments. In particular, on Indictment No. 02-03-0320, after a jury trial defendant was convicted of second-degree possession of a controlled dangerous substance (CDS) with intent to distribute, for which the judge sentenced him to an extended-term sentence of twenty years, subject to a ten-year parole ineligibility term. In an unpublished opinion, we affirmed defendant's conviction but remanded for reconsideration of the sentence. State v. Stevens, No. A-4458-03 (App. Div. July 13, 2006). The Supreme Court denied defendant's petition for certification. State v. Stevens, 188 N.J. 576 (2006). On remand, the same sentence was imposed.

On Indictment No. 02-09-1170, defendant pled guilty on March 8, 2004 to three of the indictment's fourteen counts, for which the judge sentenced him to: a ten-year term of imprisonment with five years parole ineligibility on second-degree possession of CDS with intent to distribute (count two); and a consecutive ten-year term with five years parole ineligibility on second-degree possession of a weapon while committing a CDS offense (count thirteen). On count fourteen, second-degree certain persons not to possess weapons, the judge sentenced defendant to a ten-year term with a five-year parole ineligibility period, concurrent to the sentence imposed on counts two and thirteen. The sentence on all three counts was concurrent to the term imposed on Indictment No. 02-03-0320. On July 27, 2005, we affirmed defendant's conviction and remanded for a technical revision to the judgment of conviction (JOC). State v. Stevens, No. A-4769-03 (App. Div. July 27, 2005). On October 25, 2005, the Supreme Court granted defendant's petition for certification and summarily remanded to the trial court for resentencing. State v. Stevens, 185 N.J. 294 (2005). The same sentence was imposed on remand.

On appeal, defendant raises the following claims:

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

A. Counsel was ineffective during plea negotiations in connection with Indictment No. 02-03-0320.

B. Counsel failed to file a motion to dismiss Indictment No. 02-03-0320.

C. Trial counsel failed to move to suppress illegally seized evidence in connection with Indictment No. 02-03- 0320.

D. Trial counsel failed to provide copies of discovery to defendant in connection with Indictment No. 02-03- 0320.

E. Trial counsel failed to obtain a transcript in connection with Indictment No. 02-03-0320.

F. Trial counsel failed to have the drugs independently weighed and tested in connection with Indictment No. 02- 03-0320.

G. Trial counsel stipulated to the admissibility of the lab report in Indictment No. 02-03-0320.

H. Counsel knew defendant possessed all five copies of the original complaint and counsel's failure to raise the issue immediately adversely impacted defendant's trial on Indictment No. 02-03-0320.

I. Counsel in Indictment 02-09-1170 was ineffective during plea negotiations.

J. Counsel in Indictment 02-09-1170 failed to file a motion to dismiss the indictment.

K. Counsel in Indictment 02-09-1170 failed to have the drugs independently weighed and tested.

II. THE LOWER COURT ORDER MUST BE REVERSED SINCE THERE WAS NO FACTUAL BASIS FOR THE PLEA OF GUILTY TO COUNT 13 OF INDICTMENT NO. 02-09-1170.

III. THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE CUMULATIVE ERRORS RENDERED THE TRIAL AND PLEA UNFAIR.

IV. THE IMPOSITION OF THE SENTENCE WAS EXCESSIVE, ILLEGAL AND UNCONSTITUTIONAL.

V. THE LOWER COURT ORDER MUST BE REVERSED IN LIGHT OF ADDITIONAL ERRORS.

VI. THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT'S CLAIMS ARE NOT PROCEDURALLY BARRED UNDER R. 3:22-4.

VII. THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT'S CLAIMS ARE NOT PROCEDURALLY BARRED UNDER R. 3:22-5.

VIII. THE LOWER COURT ERRED IN NOT GRANTING DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING AND THE LOWER COURT ORDER MUST THEREFORE BE REVERSED.

We reject these arguments and affirm.

I.

In light of the claims defendant advances, these are the most relevant facts pertaining to Indictment No. 02-03-0320, which was the subject of the jury trial. During the April 22, 2002 arraignment/status conference conducted pursuant to Rule 3:9-1(c), the judge arraigned defendant on the record and then asked the prosecutor to describe the terms of the State's plea offer. The prosecutor responded by stating on the record that in return for defendant's pleas of guilty to counts two and three, the State would recommend a concurrent sentence of ten years imprisonment with a fifty-eight-month parole disqualifier.

On July 28, 2003, during one of the twenty-five court proceedings that preceded the trial, defense counsel informed Judge Subryan that he had not received a copy of complaint number 009465. The court clerk was able to produce an exact duplicate from the computer and provided it to defendant. A few days later, defense counsel notified the judge that defendant was in possession of the original complaint, which revealed that the charge on complaint number 009465 was for the disorderly persons offense of possession of drug paraphernalia. The trial began on August 5, 2003 and concluded a week later. The State presented evidence establishing that on the afternoon of October 26, 2001, members of the Paterson police department were positioned in the area of Governor and Carroll Streets awaiting defendant's return to his apartment at 50 Carroll Street in anticipation of executing the search warrant they had obtained to search defendant's apartment and his Nissan Pathfinder automobile.

Shortly after 1:30 p.m., police observed the Nissan driving toward them. After defendant parked the vehicle, he emerged carrying a black plastic bag and entered apartment 1-M. When defendant exited the apartment a little while later, police secured him and entered the apartment. During the search, Detective Ivette Otero recovered the black plastic bag, which contained five bricks of heroin. The bricks consisted of a total of 249 glassine envelopes filled with heroin.

At sentencing, the judge found the existence of aggravating factors three, the risk defendant would commit another offense, N.J.S.A. 2C:44-1(a)(3); six, the extent of defendant's prior record, N.J.S.A. 2C:44-1(a)(6); nine, the need for deterrence, N.J.S.A. 2C:44-1(a)(9); and eleven, the imposition of a fine or penalty without a term of imprisonment could be perceived as merely a cost of resorting to unlawful practices, N.J.S.A. 2C:44-1(a)(11). The judge found no mitigating factors and imposed the sentence that we have already described.

We now turn to Indictment 02-09-1170. On March 8, 2004, during the plea colloquy pertaining to count thirteen, defendant stated under oath that on May 7, 2002, he was in possession of a .22 caliber handgun while in the course of distributing CDS, the latter being a violation of N.J.S.A. 2C:35-5(a)(1).

During his guilty plea to count two, defendant was asked by his attorney whether he was aware that the lab report specified that the heroin seized from him weighed more than one-half ounce. The following discussion then occurred:

DEFENDANT: That's what the report says, yes.

[DEFENSE COUNSEL]: Do you question the report by the New Jersey State police chemist?

DEFENDANT: I don't question anything right now.

[DEFENSE COUNSEL]: So if the report did say that it was a certain weight which entered into a second-degree range, you would accept that, am I correct?

DEFENDANT: I have no way of telling, so yes, I accept it.

The judge accepted defendant's guilty pleas and imposed the sentence we have already described.

On February 14, 2007, defendant filed the PCR petition that is the subject of this appeal. At the conclusion of the hearing, Judge Subryan rejected each of defendant's claims as either procedurally barred, substantively without merit, or both.

II.

To establish a prima facie case of ineffective assistance of counsel, defendant must demonstrate a reasonable likelihood of succeeding under the two-prong test established by Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). First, defendant must show that defense counsel's performance was indeed deficient. Second, defendant must demonstrate that there exists "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 precepts of Strickland have been adopted by New Jersey. State v. Fritz, 105 N.J. 42, 58 (1987).

Prejudice is not presumed. Id. at 61. Defendant must demonstrate "how specific errors of counsel undermined the reliability" of the proceeding. United States v. Cronic, 466 U.S. 648, 659 n.26, 104 S. Ct. 2039, 2047 n.26, 80 L. Ed. 2d 657, 668 n.26 (1984).

"'Judicial scrutiny of counsel's performance must be highly deferential,' and must avoid viewing the performance under the 'distorting effects of hindsight.'" State v. Norman, 151 N.J. 5, 37 (1997) (quoting Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694). Thus, an attorney's strategy decision should not be characterized as ineffective assistance merely because the decision did not produce the desired result. Id. at 37-38. Moreover, defendant bears the burden of proving, by a preponderance of the evidence, that counsel's strategy decisions were not within the broad spectrum of competent legal representation. Fritz, supra, 105 N.J. at 52.

We first consider defendant's arguments regarding trial counsel, which are presented as eleven separate arguments labeled I(A) through I(K). In point I(A), defendant maintains that Judge Subryan erred when he rejected defendant's claim that trial counsel rendered ineffective assistance because he "never advised" defendant that the State had tendered a plea offer. This argument is entirely devoid of merit, as the transcript of the April 22, 2002 arraignment/status conference demonstrates that defendant was present when the plea offer was being discussed. We thus reject the claim advanced in Point I(A).

In point I(B), defendant asserts that because he was "never arraigned on either the original complaint or the duplicate complaint" underlying Indictment 02-03-0320, the trial court lacked jurisdiction over him and trial counsel rendered ineffective assistance because he failed to file a motion challenging the court's jurisdiction. Defendant also asserts that trial counsel never received copies of the original complaint; and, according to defendant, counsel knew that the State did not have copies of that complaint either and counsel wrongly neglected to file a motion to dismiss the charges.

The record reveals that on July 28, 2003, defendant complained that he had not been provided with a copy of complaint number 009465, which charged defendant with a disorderly persons offense; however, in point I(B), defendant alleges a different violation, namely that he was never arraigned on Indictment 02-03-0320. The record of the proceedings on April 22, 2002 establishes the invalidity of defendant's assertion that he was not provided with a copy of, and was not arraigned on, Indictment 02-03-0320. The record shows that trial counsel was, in fact, served with a copy and that defendant was present when his counsel said, "I acknowledge receipt of the indictment. . . ." We thus reject the claim defendant advances in point I(B).

In point I(C), defendant maintains that trial counsel's failure to move for suppression of the evidence on Indictment 02-03-0320 constituted ineffective assistance, because had such motion been filed, it would have been granted, thereby avoiding the trial and the risk of conviction. As the State correctly observes, a search conducted pursuant to a warrant is presumed valid, and the defendant bears the burden of demonstrating the invalidity of such warrant. State v. Valencia, 93 N.J. 126, 133 (1983).

Other than maintaining that "[d]espite the existence of a search warrant, a motion to suppress might nonetheless have proved successful," defendant offers no argument to support his broad claim that such motion could have succeeded. He also argues, with no citation to the record, that the warrant was impermissibly broad. Defendant has presented no arguments that could overcome the presumption of validity that attaches to a warrant. See ibid. In light of the absence of any grounds to challenge the validity of the warrant, had such motion been filed, it would have failed. "It is not ineffective assistance of counsel for defense counsel not to file a meritless motion . . . ." State v. O'Neal, 190 N.J. 601, 619 (2007). We thus reject the claim defendant advances in point I(C).

In point I(D), defendant maintains that trial counsel was ineffective for failing to provide him with copies of the pretrial discovery on Indictment 02-03-0320. As Judge Subryan noted during the PCR hearing, defendant was present at the July 28, 2003 pretrial conference during which trial counsel acknowledged that discovery was complete. Defendant never asked for a copy of the discovery then or afterward. Moreover, defendant fails to demonstrate how such purported failure to provide him with discovery affected his trial.

Thus, defendant has failed to satisfy either prong of the Strickland standard, as he failed to demonstrate that trial counsel neglected to provide him with the discovery, and has likewise failed to demonstrate that if there was such a deficiency, it affected the outcome of his trial. A defendant must "do more than make bald assertions." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Defendant has failed to satisfy the Strickland standard, and we thus reject the claim he advances in point I(D).

In point I(E), defendant maintains that trial counsel was ineffective due to his failure to obtain a transcript of the October 29, 2001 arraignment/status conference. According to defendant, the transcript would have shown that an arraignment on Indictment 02-03-0320 did not in fact occur and "that the 'duplicate' complaint was fraudulently created." This claim lacks sufficient merit to require discussion in a written opinion, and we decline to consider it. R. 2:11-3(e)(2).

In point I(F), defendant asserts that trial counsel rendered ineffective assistance because he failed to send the heroin involved in Indictment 02-03-0320 for independent testing. He contends such testing would have established that the quantity was not, as the State alleged, more than one-half ounce and that the State therefore would not have been able to prove him guilty of a second-degree quantity at trial.

As we held in Cummings, defendants are prohibited from making bald assertions about what the evidence could have, or might have, revealed had particular lines of investigation been pursued. Supra, 321 N.J. Super. at 170. Instead, a defendant must present an affidavit or certification demonstrating exactly what such investigation would have yielded had it be pursued. Ibid. Applying the holding of Cummings here, we decline to consider defendant's claim in the absence of a laboratory report establishing that the heroin weighed less than the State laboratory reported. We will not engage in speculation that independent testing might have produced a different result. Ibid. We thus reject the claim defendant advances in Point I(F).

In point I(G), defendant maintains that trial counsel was ineffective because he stipulated at trial to the admissibility of the lab report, and that by such stipulation, he was prevented from arguing to the jury that the drugs weighed less than the amount reflected in the report. For the reasons we have already discussed in the preceding paragraph, this claim is meritless. We decline to consider it further.

In point I(H), defendant maintains that because his attorney knew defendant possessed all five copies of the original complaints underlying Indictment 02-03-0320, counsel's failure to raise the issue immediately adversely impacted defendant's trial. Defendant maintains that his attorneys misrepresented the facts to the court concerning their knowledge of the original complaints that had been missing; the attorneys, according to defendant, "stated to Judge Subryan that neither of them knew [defendant] possessed all five sheets of the original complaint until July 30, 2003." In support of his claim that his attorneys knew all along that defendant was in possession of the complaints at an earlier stage than counsel acknowledged, defendant points to so-called "independent evidence." We fail to see how any of these facts would have made a difference to the outcome of the trial. Whether defendant was in possession of the complaints a few days earlier than his attorneys described to the court is of no consequence to the proofs the State ultimately produced at trial. Defendant has failed to satisfy either of the two prongs of Strickland. We thus reject the claim defendant advances in point I(H).

In point I(I), defendant contends that trial counsel provided ineffective assistance because counsel never advised him that the State had offered him a plea offer in connection with Indictment 02-09-1170. This claim is meritless. As the record demonstrates, defendant was asked during the plea colloquy whether his attorney and the State "ha[d] worked out a plea agreement on [his] behalf" and "[whether he was] here today to enter guilty pleas to counts two, thirteen and fourteen of Indictment 02-09-1170." Defendant answered "yes," thereby acknowledging that the guilty plea he was about to enter was the result of plea negotiations between his attorney and the prosecutor.

Shortly thereafter, at the judge's request, the prosecutor described the terms of that plea agreement in detail, and defense counsel agreed that "those are the parameters as I understand them." The judge then asked defendant whether that was also his understanding of the plea offer, to which defendant answered "yes." When the judge asked defendant to restate "in [his] own words . . . what the plea offer is from the State," defendant accurately answered "twenty-year sentence with a ten-year parole ineligibility."

Thus, as is beyond dispute from the record, defendant agreed that his attorney had negotiated the plea agreement that he accepted. We reject defendant's claim in point I(I) that trial counsel never advised him of the terms or content of the proposed plea agreement.

In point I(J), defendant maintains that trial counsel rendered ineffective assistance because he failed to file a motion to dismiss Indictment 02-09-1170, to which defendant entered a negotiated plea of guilty. Defendant maintains that the assistant prosecutor who presented the case to the Grand Jury improperly "presented the charge concerning possession of a weapon in the course of committing the drug offenses immediately after the Grand Jury had returned an indictment on the drug counts." He maintains that this procedure violates the principles articulated in State v. Ragland, 101 N.J. 33 (1985), reconsidered, 105 N.J. 189 (1986), and accordingly trial counsel rendered ineffective assistance when he failed to move for dismissal of the indictment.

In Ragland, the Court addressed the circumstance where a defendant is tried sequentially before the same jury, first on a charge that requires a finding that the defendant unlawfully possessed a firearm and next on a charge of certain persons not to possess a weapon. Id. at 34-35. The Court held it is improper for the judge, in the jury charge on certain persons not to possess weapons, to direct the jury to conclude from its guilty finding on the first charge that the weapons possession element is conclusively established for purposes of the sequential trial involving certain persons not to possess weapons. Id. at 35-36.

The transcript of the Grand Jury proceeding demonstrates that after the Grand Jury had apparently voted to return an indictment on the drug distribution charges, the prosecutor made the following remarks:

Now, in addition to those charges, . . . at this time, keeping in mind the testimony of Detective Trommelen [that defendant was in possession of a firearm], we'd ask you to consider the following charge of certain persons not to have weapons. [Prosecutor then proceeds to read the provisions of N.J.S.A. 2C:39-7(b) to the grand jurors.]

Now, keeping in mind the testimony of Detective Trommelen, I have for you four items that I'll mark S-1 through 4 inclusive. Let me explain on the record what these are. These are fo[u]r certified Judgments of Convictions from Mr. Stevens. [Prosecutor then proceeds to summarize the provisions of each of the four.]

So, we'd ask that you consider those [Judgments of Conviction] in determining whether there is probable cause to indict [defendant] for certain persons not to have weapons, specifically a firearm. Does anybody have any questions? Seeing none, you're free to deliberate.

Nothing in the assistant prosecutor's presentation to the Grand Jury runs afoul of the principles of Ragland. The prosecutor did not instruct the jury that they were obliged to find, in connection with the certain persons not to possess weapons charge, that defendant did indeed possess a weapon merely because they had already returned an indictment on the charge of weapons possession during a CDS offense, N.J.S.A. 2C:39-4.1. Instead, the prosecutor merely asked the Grand Jury to incorporate by reference the testimony that they had already heard on the subject of defendant's possession of a weapon. So viewed, the prosecutor's remarks are a far cry from the "directed verdict" the Court condemned in Ragland, where the judge had instructed the jury it "must" find the defendant guilty of the certain persons offense in light of its earlier conclusion that the defendant was in possession of a weapon. Ibid. Thus, assuming, for the sake of discussion, that the rule of Ragland is applicable to Grand Jury proceedings, which we need not decide, we conclude that no Ragland violation occurred here. We reject this claim for the same reason that we rejected the claim advanced in Point I(F).

In point I(K), defendant maintains that trial counsel rendered ineffective assistance when he failed to send the heroin that was the subject of Indictment 02-09-1170 for independent weighing and testing. He maintains that had the heroin been less than 0.50 ounce, he would have been able to plead guilty to a third-degree offense, rather than a second-degree offense. Further, he argues that because the weight found by the State laboratory was barely over one-half ounce (0.56 ounce), counsel had an obligation to submit the CDS for independent analysis. Defendant maintains that counsel's failure to do so constituted ineffective assistance. We reject this claim for the same reason that we rejected the claim advanced in Point I(F).

III.

In Point II, defendant maintains that his plea of guilty to count thirteen of Indictment 02-09-1170 lacked a factual basis and the court erred when it held to the contrary. Count thirteen was based upon a violation of N.J.S.A. 2C:39-4.1(a), which provides that a person is guilty of that offense if he "has in his possession any firearm while in the course of committing, attempting to commit, or conspiring to commit a violation of [the drug distribution offenses enumerated]." He maintains that the drug offense to which he pled guilty, N.J.S.A. 2C:35-5(a)(1), is not an offense enumerated among the predicate offenses that are specified in N.J.S.A. 2C:39-4.1(a). For that reason, he argues that his guilty plea lacked a factual basis and the PCR judge's refusal to vacate his conviction must be reversed.

This argument is meritless. Defendant pled guilty not only to N.J.S.A. 2C:35-5(a)(1); he also pled guilty to a violation of N.J.S.A. 2C:35-7, which is one of the predicate offenses enumerated in N.J.S.A. 2C:39-4.1(a). Thus his argument is substantively without merit. It is also procedurally barred, as this claim could have been, but was not, raised on direct appeal. R. 3:22-4. We thus reject the claim defendant advances in Point II.

IV.

In Point III, defendant maintains that even if none of the errors he alleged in his petition individually entitled him to relief, the cumulative effect of such errors entitles him to reversal. As no errors were committed, let alone cumulative errors, this claim is meritless.

V.

In Point IV, defendant maintains that the sentence imposed

was "excessive, illegal and unconstitutional." As Judge Subryan correctly observed, defendant challenged both sentences as excessive on direct appeal, and both were remanded for resentencing, at which time the judge imposed the same sentence. The record is silent as to whether defendant initiated a subsequent sentencing appeal. He certainly had the opportunity to do so. Having failed to raise an excessive sentencing claim on a subsequent direct appeal, defendant is procedurally barred from raising such claim in the context of a PCR proceeding. R. 3:22-4. We thus affirm Judge Subryan's rejection of defendant's excessive sentencing claims.

VI.

In Point V, defendant claims he was cajoled and pressured into pleading guilty and that counsel was ineffective in not providing information concerning defendant's potential sentencing exposure. The record demonstrates that when defendant entered pleas of guilty to Indictment 02-09-1170, he informed the judge that he was pleading guilty because he had indeed participated in the crimes and was entering guilty pleas because he was in fact guilty. He also said he was not forced to plead guilty, he was doing so of his own free will, no one had threatened him and he had been promised nothing as an inducement to plead guilty other than what had already been placed on the record in open court. Thus, defendant has not presented a prima facie claim of ineffective assistance of counsel that would warrant relief, as he has not demonstrated the reasonable likelihood of succeeding under the Strickland test. We thus reject the claim defendant advances in Point V.

VII.

In Point VI, defendant maintains the judge erred in deeming his petition procedurally barred. As the State correctly argues, and as our discussion has already established, Judge Subryan only deemed one of defendant's many claims procedurally barred under Rule 3:22-4, and the judge was correct when he so ruled. We thus decline to consider the claim defendant advances in Point VI.

VIII.

In Point VII, defendant maintains that Judge Subryan's order denying his petition must be reversed because his claims are not procedurally barred under Rule 3:22-5. If Judge Subryan found that some of defendant's claims are procedurally barred by Rule 3:22-5, because they were already expressly adjudicated on direct appeal, any finding by Judge Subryan to that effect would be of no consequence, whether Judge Subryan was correct or not. We so conclude because we have already found all of defendant's claims to be substantively without merit. Therefore, any procedural bars would be of no consequence. We thus reject the claim defendant advances in Point VII.

IX.

In Point VIII, defendant maintains that the judge erred by

refusing to grant an evidentiary hearing. As defendant has failed to establish a prima facie case of ineffective assistance of counsel, he was not entitled to an evidentiary hearing. State v. Preciose, 129 N.J. 451, 462 (1992).

 
Affirmed.

(continued)

(continued)

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A-6108-07T4

April 29, 2010