STATE OF NEW JERSEY v. JOSEPH WILLIAMS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1745-09T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOSEPH WILLIAMS,

Defendant-Appellant.

June 17, 2011

Submitted May 16, 2011 - Decided

Before Judges Sabatino and Alvarez.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment Nos. 06-09-1529, 06-09-1595.

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

Edward J. DeFazio, Hudson County Prosecutor, attorneyfor respondent(Stephanie DavisElson, Assistant Prosecutor, on the brief).

PER CURIAM

On January 10, 2007, defendant Joseph Williams entered guilty pleas to a charge of possession with intent to distribute a controlled dangerous substance within 1000 feet of a school zone, N.J.S.A. 2C:35-7, and a separate conspiracy to distribute a controlled dangerous substance, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:35-5(a)(1). On May 11, 2007, he also entered a guilty plea to bail jumping, N.J.S.A. 2C:29-7. In accord with these agreements, he was sentenced to an aggregate term of five years subject to twelve months of parole ineligibility. He now appeals the denial of his application for post-conviction relief (PCR). We affirm.

Defendant asserts trial counsel was ineffective because she did not properly explain the charges against him, failed to file a suppression motion on the conspiracy charge and/or fully investigate the underlying facts, wrongly advised him his only option was to plead guilty because he would inevitably be found guilty at trial, and failed to inform the court of the reason he was absent from the initial sentence hearing, which would have raised a viable defense to the charge of bail jumping. Cast in general terms, his points on appeal are:

POINT ONE

THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO DETERMINE THE MERITS OF HIS CONTENTION THAT HE WAS DENIED THE RIGHT TO THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL

A. THE PREVAILING LEGAL PRINCIPLES REGARDING CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL, EVIDENTIARY HEARINGS AND PETITIONS FOR POST CONVICTION RELIEF

B. THE TIME BAR OF R. 3:22-4 CONCERNING THE OPPORTUNITY TO RAISE CERTAIN ISSUES PREVIOUSLY DOES NOT APPLY TO APPELLANT'S CASE

C. COUNSEL WAS INEFFECTIVE

D. DEFENDANT'S POST-CONVICTION RELIEF COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL

As a result of these errors, defendant contends he did not knowingly, voluntarily, and intelligently enter his guilty pleas and that therefore they should be vacated. As a result, he asserts that his circumstances meet the four-prong test found in State v. Slater, 198 N.J. 145 (2009). In a thorough and cogent thirteen-page opinion on July 29, 2009, Judge Kevin G. Callahan denied relief. We affirm essentially for the reasons set forth in his decision, with only brief comments on the issues he addressed with respect to defendant's trial counsel.

Additionally, defendant avers on appeal that his PCR counsel, who represented him before Judge Callahan, violated the principles embodied in Rule 3:22-6(d), outlining counsel's responsibilities in the face of what he or she feels is a meritless petition, because, despite filing a letter brief, counsel did not appear for oral argument on the application. Defendant reasons this omission establishes he did not receive the requisite effective assistance of counsel: without oral argument, so goes his theory, there is no evidence that he received the benefit of having his case independently reviewed by a trained legal professional. State v. Hicks, 411 N.J. Super. 370, 377 (App. Div. 2010). We conclude this point also lacks merit.

The same general principles apply to defendant's criticisms of both his trial counsel and his PCR attorney. A defendant must establish two elements to prove ineffective assistance of counsel. First, he must demonstrate that counsel's performance was deficient. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). An attorney's performance is deficient when he or she makes "errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Ibid. Second, a defendant must establish counsel's deficiency prejudiced the defense by demonstrating 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. A reasonable probability is one that undermines confidence in the outcome. Ibid. New Jersey has adopted the Strickland test. See State v. Fritz, 105 N.J. 42, 58 (1987).

There is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance[.]" Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694. To rebut this presumption, a defendant must prove counsel's actions did not amount to "'sound trial strategy.'" Id. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694-95 (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S. Ct. 158, 164, 100 L. Ed. 83, 93 (1955)). "[A] petitioner must do more than make bald assertions that he was denied the effective assistance of counsel." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).

"'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 decisions about trial strategy should not be characterized as ineffective merely because they did not produce the desired result. See id. at 37-38. Moreover, defendant bears the burden of proving, by a preponderance of the evidence, that counsel's decisions about trial strategy were not within the broad spectrum of competent legal representation. Fritz, supra, 105 N.J. at 52.

As to his claim that a motion to suppress should have been filed on the conspiracy charge, defendant does not explain why such a motion was likely to be successful. Simply asserting that his trial counsel should have done so, without reference to supporting evidence, is not enough. Cummings, supra, 321 N.J. Super. at 170. In fact, the record reveals the co-defendant was confronted by police after they observed her selling drugs. She readily admitted possession and told police additional contraband could be found in the apartment she shared with defendant. When police went to defendant's apartment, he let them in. He then agreed there were drugs in his home, took police into his bedroom, and pointed out where the drugs could be found, next to a television set. This was a consent search and, therefore, was constitutional. See, e.g., State v. Comicz, 188 N.J. 285, 305 (2006). The issue amounts to nothing more than a bare, unsupported allegation. Cummings, supra, 321 N.J. Super. at 170. Investigation of the circumstances which resulted in the charges would have been similarly meaningless. The drugs were found on defendant's person in one case and in his bedroom in the other. This claim fails for the same reason. Ibid.

As Judge Callahan noted, at the time the pleas were taken, defendant established the requisite factual basis after the charges were explained to him in open court. He acknowledged his understanding of the offenses and his satisfaction with counsel. Nothing in the plea transcript indicates defendant was confused regarding the charges or had been told his only option was to enter a guilty plea. These allegations are not supported by the record.

On the bail jumping issue, defendant now asserts his efforts to detoxify from drug addiction made him ill and unable to appear in court for sentencing. When he entered his guilty plea on that offense, however, defendant said nothing about the reason he failed to appear. At sentencing, he did say he was "sick" on the original date, but offered no facts explaining his failure to contact the court after that date. Hence, this claim also lacks support in the record.

With respect to Slater, in order to establish the basis for withdrawal of a guilty plea, a defendant must first assert "a colorable claim of innocence." Slater, supra, 198 N.J. at 157-58. We need not discuss the remaining factors as, on this score alone, defendant cannot satisfy the requisite standard. No colorable claim of innocence is being made, and it is required by Slater. Ibid.

Before the PCR judge, defendant advanced the argument that the exception, or affirmative defense, to school zone charges contained in N.J.S.A. 2C:35-7 was applicable in his case. An individual raising the statutory defense must have been found in possession of the narcotics inside his home, whereas when defendant was found with seventy bags of heroin, he was outside his residence. At the plea hearing, defendant testified he was in front of his home and acknowledged buying the drugs to share with his girlfriend. Therefore, the N.J.S.A. 2C:35-7 defense does not apply.

As to defendant's Hicks claim, the record does not bear out the assertion that PCR counsel did not comply with Rule 3:22-6(d) or was otherwise ineffective. PCR counsel filed a thirteen-page letter brief vigorously advancing defendant's legal and factual claims. He also filed a six-page amended verified petition in support of PCR. Accordingly, the record leads us to conclude that, even in the absence of oral argument, the case was independently reviewed by a trained legal professional. Hicks, supra, 411 N.J. Super. at 376.

Furthermore, as the July 20, 2009 transcript reveals, it was the court that advised defendant's PCR attorney oral argument was not necessary. The only reason a record exists in this regard is because the judge was unable to cancel the writ bringing defendant to court, and extended him the courtesy of explaining that he would issue a decision based solely on the written submissions. Counsel's absence was not the result of any dereliction on his part, but the product of the court's review of the written submissions and a subsequent directive. Because PCR counsel adequately presented the arguments in writing, nothing further was needed. Under these circumstances, the requirements of the rule and of Hicks have been satisfied.

Affirmed.