STATE OF NEW JERSEY v. SHAWN L. WHITE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0147-10T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SHAWN L. WHITE, a/k/a BIZ,

Defendant-Appellant.

________________________________________________________________

November 28, 2011

 

Submitted November 1, 2011 - Decided

 

Before Judges Carchman and Fisher.

 

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 09-11-1942.

 

Joseph E. Krakora, Public Defender, attorney for appellant (Frank J. Pugliese, Assistant Deputy Public Defender, of counsel and on the brief).

Edward J. DeFazio, Hudson County Prosecutor, attorney for respondent (Stephanie Davis Elson, Assistant Prosecutor, on the brief).

 

Appellant filed a pro se supplemental brief.

PER CURIAM

Following a jury trial, defendant was convicted of third-degree possession of a controlled dangerous substance - phencyclidine (PCP), N.J.S.A. 2C:35-10a(1). The judge sentenced defendant to a six-year term of imprisonment. On appeal, defendant challenges the sentence and claims that he was denied effective assistance of counsel when his attorney withdrew a previously filed motion for suppression of evidence. We affirm defendant's conviction and the judge's determination that defendant was a persistent offender but remand for further proceedings regarding his sentence and also conclude that his claim regarding ineffective assistance of counsel is premature.

We briefly set forth the relevant facts adduced at trial. On August 2, 2009, Jersey City police officers Greg Wojtowicz and Shawn Butler were driving on Randolph Avenue in a marked vehicle, when at 4:18 p.m., they encountered a white Nissan Maxima that was stopped in front of a home on Randolph Avenue and was blocking the passage of traffic. The driver, later identified as defendant, was talking with a pedestrian standing next to his vehicle while two other pedestrians were standing near the rear passenger side. The officers stopped their vehicle, illuminated its overhead lights and approached either side of the Maxima on foot.

According to Wojtowicz, as he walked towards the Maxima, he could see through the rear window that the driver was "fidgeting with some kind of an object in the center console." The officer then observed the driver throw an object out of the passenger side window. Wojtowicz retrieved the object, "a small glass bottle with a black top," from the sidewalk and noticed "a strong odor of PCP emanating from the bottle." 1 The officers called for assistance, upon the arrival of the other police vehicle, defendant was removed from the Maxima and placed under arrest for possession of "drug paraphernalia."

At the time of his arrest, defendant was searched, and nothing of evidential value was found on his person. An on-scene search of the vehicle's central console led to the discovery of "an air freshener bottle with a liquid inside." According to Wojtowicz, the bottle of air freshener was seized because it too "was emanating [the odor of] PCP." At headquarters, both the bottle and the air freshener container were placed into evidence; the liquid contents of the air freshener bottle were poured into a tin can, pursuant to the police department's protocol for storing hazardous materials.

According to the officer, at the time of defendant's arrest, the officer believed that defendant had made "an attempt to conceal the drug by pouring it into an auto expression fresh liquid spray bottle."

Christopher Robatea, a sergeant with the Jersey City Police Department, testified as an expert witness on the subject of "packaging, use, and distribution of . . . illegal narcotics . . . in New Jersey." Robatea indicated that PCP in Jersey City is typically sold in liquid form, and it emits an "[e]xtremely distinct" odor. It is typically ingested by smoking a cigarette that has been "dipped inside the liquid." Although Robatea is aware that sometimes the liquid PCP is diluted with tap water in order to "generate[] more profit," he has never seen anyone use air freshener as a cutting agent. In the sergeant's opinion, the glass bottle with the black cap "recovered as a result of the arrest from Mr. White" "would have the capability of holding about 2 ounces of the liquid . . . PCP which is capable of generating approximately forty dosages." The sergeant further opined that "your typical or average buyer" would not have in his or her possession as many as "40 hits of PCP." Finally, the sergeant opined that "defendant pour[ed] the PCP into the air freshener" "to conceal the evidence and mask the odor."

Ms. Hogger testified as an expert witness in the field of forensic chemistry. She examined the liquid contents of the tin can the Jersey City Police Department had submitted for suspected PCP. After subjecting the liquid to a chemical testing, she concluded that it contained PCP and that the liquid itself weighed 130.40 grams.

At the conclusion of the State's case, the court read to the jury the parties' stipulation that at the time of defendant's arrest, he was within 1,000 feet of Public School Number 41.

Although defendant did not produce any notice of motion or other accompanying papers, according to the Promis/Gavel records produced by defendant, a motion to suppress was filed on January 4, 2010, and thereafter withdrawn without explanation. The withdrawal of that motion forms the basis of defendant's claim of ineffective assistance of counsel.

Defendant urges that we determine the issue of ineffective assistance of counsel, claiming that the extant record is sufficient to resolve the issue. See State v. Castagna, 187 N.J. 293, 313 (2006); State v. Allah, 170 N.J. 269, 285 (2002). As a general rule, claims of ineffective assistance of counsel are best considered on applications for post-conviction relief (PCR), see Rule 3:22-2, because such claims cannot ordinarily be addressed fairly without the presentation of proofs found outside the trial record. State v. McQuaid, 147 N.J. 464, 484 (1997); State v. Lewis, 389 N.J. Super. 409, 416 (App. Div.), certif. denied, 190 N.J. 393 (2007); State v. Abdullah, 372 N.J. Super. 252, 277 (App. Div. 2004). Rather, PCR affords a defendant the opportunity to develop a record at a hearing where counsel can explain the reasons for his or her conduct and inaction and where the trial judge can rule upon the claims, including the issue of prejudice. State v. Sparano, 249 N.J. Super. 411,419 (App. Div. 1991).

The claim of ineffective assistance of counsel is premised on a violation of the Sixth Amendment right to counsel. U.S. Const. amend. VI; Allah, supra, 170 N.J.at 282-84 (citing Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2063, 80 L. Ed. 2d 674, 692 (1984)). Defendant alleges that counsel was ineffective due to an inexplicable failure to assert defendant's Fourth Amendment rights regarding the search. We are constrained to adjudicate that issue on direct appeal because, as we have noted, counsel's actions are at issue.

When addressing an ineffective assistance of counsel claim, the critical inquiry is "whether 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." State v. Fritz, 105 N.J. 42, 58 (1987); State v. Holmes, 290 N.J. Super. 302, 310 (App. Div. 1996) (quoting Strickland, supra, 466 U.S. at 686, 104 S. Ct. at 2064, 80 L. Ed. 2d at 692-93). First, the defendant must show that counsel's performance was deficient. This requires a showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. In other words, the defendant must show that counsel's errors deprived the defendant of a trial with a reliable result. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.

The failure of defense counsel to conduct adequate pretrial preparation renders him or her ineffective, regardless of the quality of his or her performance at trial. Fritz, supra, 105 N.J. at 63-64. Where the ineffective assistance of counsel claim is based on a failure to file a constitutionally-based suppression motion, a defendant must also show that his Fourth Amendment claim is meritorious. State v. O'Neal, 190 N.J. 601, 629 (2007). Defendant must prove actual prejudice, in that there is a reasonable probability that the verdict would have been different absent the excludable evidence. Kimmelman v. Morrison, 477 U.S. 365, 375, 106 S. Ct. 2574, 2583, 91 L. Ed. 2d 305, 319 (1986).

Here, defendant seeks to bypass any consideration of the first prong of Strickland. We will not do so. We deem the appropriate resolution to be a deferral of defendant's claim to a PCR proceeding, at which time a full record can be developed to assess both prongs of Strickland.

As to the substantive issue raised by defendant regarding his sentence, we conclude that we must remand for a statement of reasons as to the sentence imposed. We do not focus on the finding that defendant is a persistent offender but consider the reasons for the judge's rejection of defendant's claims of mitigating factors as well as the judge's weighing of such factors. We offer the following considerations in anticipation of the remand.

The trial judge concluded that defendant was a persistent offender and qualified for a discretionary extended term under N.J.S.A. 2C:44-3a. Defendant was sentenced to a term of six years on his conviction for third-degree possession of a controlled substance. The judge found three aggravating factors under N.J.S.A. 2C:44-1a: (3) the risk of defendant's committing future crimes; (6) the extent of the prior record; and (9) the need to deter. No mitigating factors were found.

Defendant challenges the judge's decision to sentence defendant to the discretionary extended term. Defendant notes that even when the criteria for persistent offender are established, the judge has discretion to not impose an extended term. State v. Dunbar, 108 N.J. 80, 87 (1987). The Supreme Court has anticipated that "relatively few convictions will warrant" persistent offender extended terms, id. at 89, but has also noted that the judge has the discretion to impose any sentence ranging from the bottom of the ordinary term to the top of the extended term. State v. Pierce, 188 N.J. 155, 169-70 (2006).

The conclusion that a particular defendant is a persistent offender under N.J.S.A. 2C:44-3a is predicated on a factual determination that may be made by the judge. See Apprendi v. New Jersey, 530 U.S. 466, 488, 120 S. Ct. 2348, 2361-62, 147 L. Ed. 2d 435, 453-54 (2000). Proof of prior convictions provides the factual predicate rendering a defendant eligible for sentencing as a persistent offender. In this case, the prosecutor noted that defendant had two prior convictions within the ten-year period preceding sentencing for the present offense, including "a prior 1000 foot case"; in addition, defendant was previously found guilty of endangering the welfare of a child and is a Megan's Law registered sex offender. The judge concluded that defendant met the requirements for an extended term and granted the State's motion. The judge's determination that defendant qualified as a persistent offender was supported by competent evidence in the record.

Defendant also asserts that the judge's conclusion that no mitigating factors applied violates State v. Dalziel, 182 N.J. 494 (2005). In Dalziel, the Supreme Court held that "where mitigating factors are amply based in the record before the sentencing judge, they must be found" and must be "part of the deliberative process." Id. at 504-05. Defendant argues that there are at least two mitigating factors, specifically N.J.S.A. 2C:44-1b: (1) the defendant's conduct did not cause serious harm; and (2) the defendant did not contemplate that his conduct would cause serious harm. When fact-finding on these two mitigating factors, the judge must "be guided by the facts surrounding the defendant's offense." State v. Molina, 114 N.J. 181, 185 (1989). It is improper to focus on what could have happened.

Defendant alleges that the judge failed to provide a sufficient qualitative analysis in support of his determination of the length of the sentence. A sentencing court must state the aggravating and mitigating factors that are used to determine a defendant's eligibility for an extended term and its length. The judge must be clearly convinced that the aggravating circumstances substantially outweigh the mitigating ones. State v. Pennington, 154 N.J. 344, 356 (1998). "Without such a statement, appellate review becomes difficult, if not futile. To provide an intelligible record for review, the trial court should identify the aggravating and mitigating factors, describe the balance of those factors, and explain how it determined defendant's sentence." State v. Kruse, 105 N.J. 354, 360 (1987). Merely enunciating the factors does not provide insight into the sentencing decision, which is supposed to involve a qualitative analysis. Id. at 363. However, there is no requirement that the trial court explicitly reject each and every mitigating factor argued by a defendant. State v. Bieniek, 200 N.J. 601, 609 (2010); see also State v. Pillot, 115 N.J. 558, 565-66 (1989) (determining that although trial judge's statement of reasons for imposing sentence could have been clearer, it was "possible in the context of this record to extrapolate without great difficulty the court's reasoning").

At the time of sentencing, the judge provided the following statement of reasons: "On your plea of guilty2 to Indictment 1942 of the 09 term, the sentence of the Court is you'll be sentenced to six years' New Jersey State Prison. I find Aggravating Factors 3, 6, and 9. I do not find mitigating factors." The judge provided no further explanation of his decision.

The sentence imposed falls within the discretionary parameters of the Code and does not shock the judicial conscience. State v. Roth, 95 N.J. 334, 364-65 (1984). Rather than shocking, the sentence closely conforms to the dictates of our collective judicial conscience. Six years is not the maximum sentence and in fact falls less than halfway between the minimum and maximum possible sentences.

However, the judge's statement is inadequate. See Kruse, supra, 105 N.J. at 357-58, 363 (finding a sentencing decision inadequate, despite the fact that the judge provided cursory explanations of his decisions regarding aggravating and mitigating factors). It is not possible in the context of this record to extrapolate without great difficulty the court's reasoning. Pillot, supra, 115 N.J. at 565-66. The judge's determination in this case is "disturbing" because there was no acknowledgement of defendant's alleged mitigating factors. Seeidat 565. The facts of the case as determined during the trial showed that defendant did not harm anyone, and defendant was found not guilty on all charges that he intended to harm others. The jury's findings notwithstanding, defendant provided little in support of his argument for the mitigating factors. To bolster his argument that he did not harm and did not intend to harm, he stated that he possessed the PCP for personal use as a painkiller. Although defendant's presentation of mitigating factors was wanting, the judge's failure to provide any explanation for his conclusion requires a remand for resentencing so the sentencing judge can articulate the reasons for his sentencing decision.

We affirm defendant's conviction and remand for a statement of reasons for the sentence imposed. The remand shall be completed within thirty days. We retain jurisdiction.

1 During the trial, Linda Hogger, the Chief Forensic Chemist in the Hudson County Prosecutor's Office Forensic Laboratory characterized the odor of PCP as "distinct" and noted that it "stinks really bad."

2 We do not understand the judge's reference to a plea. Defendant was found guilty of this crime after trial. He did not plead guilty.