STATE OF NEW JERSEY v. FRED LEHMAN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3247-08T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

FRED LEHMAN,

Defendant-Appellant.

___________________________________

January 31, 2011

Submitted January 5, 2011 - Decided

Before Judges Axelrad and J. N. Harris.

On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 04-07-0839.

Yvonne Smith Segars, Public Defender, attorney for appellant (Robert Brigliadoro, Designated Counsel, on the brief).

Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Alexis R. Agre, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Fred Lehman appeals from the denial of his application for post-conviction relief (PCR) without an evidentiary hearing. He raises the following arguments for our consideration:

POINT I: THE TRIAL COURT'S DENIAL OF DEFENDANT'S PETITION FOR POST CONVICTION RELIEF SHOULD BE REVERSED BECAUSE THE DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

A. THE DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL AS TRIAL COUNSEL FAILED TO MOVE TO SUPPRESS THE EVIDENCE SEIZED FROM HIS MOTOR VEHICLE.

B. THE DEFENDANT WAS DENIED THE RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL WHEN HIS POST CONVICTION RELIEF ATTORNEY FAILED TO ARGUE THAT THERE WAS NO PROBABLE CAUSE FOR THE DEFENDANT'S ARREST AND FAILED TO ARGUE THAT INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS BASED UPON ALLEGATIONS AND EVIDENCE OUTSIDE THE RECORD CANNOT BE DISPOSED OF WITHOUT A HEARING.

POINT II: NOTWITHSTANDING THE MERITS OF DEFENDANT'S ARGUMENTS, THE PETITION FOR POST CONVICTION RELIEF SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING WHEREIN DEFENDANT COULD HAVE ESTABLISHED HIS INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM.

We have considered these arguments in light of the record and

applicable legal standards. None of the issues is of sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). We affirm, substantially for the reasons expressed by Judge Thomas S. Smith, Jr., and add the following comments.

Defendant was indicted by a Burlington County Grand Jury for one count of third-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10(a)(1). He agreed to plead guilty to the indictment in exchange for the State's recommendation of a two-year period of probation, conditioned upon 180 days of imprisonment in the Burlington County Jail, to be served as a reverse-split sentence.

In his sworn plea allocution, defendant expressed a factual basis for the plea, and stated that he understood the terms of the arrangement with the State. He further noted that he was not forced or coerced in any way to plead guilty. Most importantly, he indicated that he had adequate time to discuss the matter with his attorney, his attorney had answered all questions posed, and he was satisfied with his attorney's legal representation.

The transcript reflects that on the morning of the plea allocution (which occurred in the afternoon, after lunch), defense counsel initially indicated that the parties could not reach a satisfactory agreement, and "[defendant] will be filing a suppression motion and [defense counsel] will have that motion filed by the end of the week." Immediately, it was made apparent that the then-pending plea offer by the State might not "be on the table on a later date." This engendered further discussions between defendant and his attorney, which resulted in the afternoon acceptance of the bargain as presented.

At sentencing, the Law Division honored the bargained-for reverse-split sentence, and imposed a probationary term with 180 days to be served in jail, but "if probation is successfully completed, [the] jail term may be vacated." Although we have not been provided with the judgment determining that defendant violated probation, the parties agree that he did so, and defendant served the incarcerative portion of the sentence.

On May 23, 2007, defendant filed a pro se application for PCR. After counsel was assigned to represent him, the matter was considered by Judge Smith on July 18, 2008. Defendant claimed that his conviction was tainted by the ineffective assistance of counsel insofar as defense counsel had failed to move to suppress evidence collected by the police at the time of his arrest.

In a written opinion issued on August 14, 2008, Judge Smith determined that defendant had failed to present a prima facie claim that would necessitate an evidentiary hearing, and that defense counsel's conduct appeared to be "well within the standard of reasonableness and professional assistance as enunciated in Strickland1 given the likelihood of success and the favorable sentence received by the defendant." Accordingly, defendant's application for PCR was denied. This appeal followed.

The Law Division must grant a defendant an evidentiary hearing on a claim of ineffective assistance of counsel whenever a prima facie case has been established by a defendant. State v. Marshall, 148 N.J. 89, 157-58, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997); State v. Preciose, 129 N.J. 451, 462 (1992); State v. Moore, 273 N.J. Super. 118, 126-27 (App. Div.), certif. denied, 137 N.J. 311 (1994).

To establish a case of ineffective assistance of counsel, a

defendant must satisfy the two prongs of the Strickland/Fritz2 paradigm. First, a defendant must show that counsel was actually deficient. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). Second, he must show 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.

When evaluating whether a defendant has presented a prima facie case, the PCR judge "should view the facts in the light most favorable to a defendant." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). If, under this two-part inquiry, the PCR judge determines that the defendant could possibly be entitled to relief, the defendant is entitled to an evidentiary hearing unless "the court perceives that holding an evidentiary hearing will not aid the court's analysis of whether the defendant is entitled to post-conviction relief, or that the defendant's allegations are too vague, conclusory, or speculative to warrant an evidentiary hearing, then an evidentiary hearing need not be granted." Marshall, supra, 148 N.J. at 158 (internal citations omitted).

In light of the evidence surrounding the timing of defendant's plea, and the tactical choice that was made to accept what appeared then to be a generous plea offer in lieu of pursuing an attenuated and futile challenge to the search, we are confident that defendant's attorney adequately represented him. Moreover, nothing in the record suggests that PCR counsel neglected to raise a meritorious issue the alleged absence of probable cause for defendant's arrest that would have impelled the necessity for an evidentiary hearing, much less the grant of defendant's application for PCR. It is clear to us that Judge Smith correctly determined that an evidentiary hearing was unnecessary, that defendant did not suffer the ineffective assistance of counsel, and that defendant was not entitled to post-conviction relief.

A

1 Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L.

Ed.2d 674 (1984).

2 Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland test for application in New Jersey).