STATE OF NEW JERSEY v. SHAWN HARLAN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0360-11T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SHAWN HARLAN,

Defendant-Appellant.

_______________________________

November 14, 2012

 

Submitted October 22, 2012 - Decided

 

Before Judges Fasciale and Maven.

 

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 07-07-1228.

 

Joseph E. Krakora, Public Defender, attorney for appellant (Michele A. Adubato, Designated Counsel, on the brief).

 

Marlene Lynch Ford, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Supervising Assistant Prosecutor, of counsel; Sarah Mielke, Special Assistant Prosecutor, on the brief).

PER CURIAM

Defendant appeals from a March 2, 2011 order denying both his petition for post-conviction relief (PCR) and motion to vacate his guilty plea. Defendant contends that his plea counsel in 2007 was ineffective by failing to: (1) request a pretrial Wade1 hearing; (2) challenge the veracity of a concerned citizen; (3) assert a diminished capacity defense; and (4) fully inform defendant of the implications and consequences of his plea. We affirm.

On March 17, 2007, defendant entered a Blockbuster video store; approached a store manager, who claimed defendant had a knife in his hand; and demanded money from the cash registers. Surveillance cameras captured the incident.2 The store manager viewed a photo lineup that police detectives prepared and narrowed the field to two possible culprits, one of whom was defendant. In April 2007, a "concerned citizen," who remained anonymous, informed police that on the night of the incident, defendant admitted robbing someone. The concerned citizen identified defendant in a photo lineup. While police officers investigated the robbery, defendant's landlord informed police that defendant had stolen $16,000 from her home. The landlord permitted detectives to enter her garage, where defendant stored some personal items. Detectives found a green coat matching the description of the coat worn by defendant in the surveillance video. Thereafter, Elizabeth Paez, then-defendant's girlfriend, informed police that she witnessed defendant commit the crime.3

In March 2007, defendant pled guilty to two counts of third-degree aggravated assault, N.J.S.A. 2C:12-1b.4 Subsequently, in November 2007, defendant entered a plea of guilty to first-degree robbery, N.J.S.A. 2C:15-1;5 and third-degree theft, N.J.S.A. 2C:20-3.6 Defendant testified that he robbed the store while using a knife and stole in excess of $500 from the landlord.7 In exchange for the guilty plea, the State recommended that the court dismiss the remaining counts of the first indictment. In December 2007, the judge sentenced defendant in accordance with the plea agreement to an aggregate prison term of eighteen years to run concurrently and to pay $87498 in restitution. Defendant did not file a direct appeal.

In April 2010, defendant filed a pro se PCR petition. The court then appointed counsel who subsequently filed a supplemental PCR petition.9 In general, defendant argued that his plea counsel was ineffective and that his guilty plea should be vacated.

On March 2, 2011, Judge Ronald E. Hoffman, J.S.C., conducted oral argument, denied the petition, and issued a nine-page oral opinion. Judge Hoffman found that defendant failed to establish a prima facie case of ineffective assistance of counsel.10 The PCR judge stated:

[D]efendant has the burden of proving both prongs of the [Strickland/Fritz] test. . . .

 

Where [defendant has] entered a guilty plea . . . the prejudice requirement is satisfied only if . . . defendant can show that there is a reasonable probability that but for counsel's errors[,] he would not have pleaded guilty and would have insisted on going to trial. . . . [D]efendant has to make more than bald assertions in order to establish a prima facie claim of ineffectiveness. . . .

 

[Defendant's] first [alleged deficiency] is a failure to request a pretrial Wade hearing. . . . There has to be a demonstration that there was some evidence of impermissible suggestiveness in the identification process. . . . Here[,] we don't really have an identification. We have a situation where the field was narrowed to two, but there was no definitive identification by the store clerk. . . .

 

I'm not satisfied that under this set of facts . . . that failure to request a Wade hearing rises to the level of ineffective assistance of counsel. There really isn't any argument or evidence presented by the defense that there was any impermissible suggestiveness in the procedure . . . .

 

[Defendant's] second allegation is that [his] attorney . . . failed to proceed to ascertain the identity of the concerned citizen . . . . The identity of this concerned citizen is privileged. [T]o pierce the privilege[,] . . . defendant has to make a . . . "strong showing of need" . . . for the disclosure . . . . Here[,] there isn't any strong showing of need that's made by . . . defendant . . . . The evidence against . . . defendant here is somewhat overwhelming. . . . I'm not satisfied that counsel represented . . . defendant ineffectively with regard to not pursuing the identity of the concerned citizen.

 

[Defendant's third allegation] is that defense counsel should have pursued a defense of diminished capacity based upon . . . defendant's history with controlled dangerous substances. Here[,] we don't have any proof of his alleged shortcomings and of his alleged shortcomings interfering with his ability to purposely or knowingly commit the offenses in question. I'm not satisfied that there's merit to that argument.

 

[Defendant's] fourth allegation is that [defendant] was not fully informed . . . of the implications and consequences of his plea. . . . We have a situation where . . . defendant pled guilty to a first degree robbery in return for which three offenses or [c]ounts in that [i]ndictment were dismissed. He pled guilty to a couple other charges, a few other charges with other charges being dismissed. . . . Defense counsel prevailed basically in reducing that $16,000 claim to one of $5000. There wasn't any objection to that by . . . defendant at the time of the sentence. . . . He got the benefit of good negotiation or argument, advocacy, by his attorney . . . . I don't feel that there's any merit to . . . defendant's claim . . . .

 

I'm not satisfied that a prima facie case has been made. The pleadings here, the petition is bare bones. There isn't any supplemental evidence. . . . I'm not satisfied that . . . defendant[,] based upon the evidence here[,] has satisfied either or both prongs of the Strickland[/]Fritz test . . . . I'm going to deny the petition for [PCR].

 

Addressing the application to withdraw the guilty plea, [the court is guided by the four factors in] State [v.] Slater, 198 N.J. 145 (2009)[11] . . . that have to be . . . proven in this matter. . . . [F]rom reviewing the paperwork[, it] is overwhelmingly to the contrary that [defendant had] a weapon. There isn't any colorable claim of innocence here that would warrant withdrawal of a guilty plea.

 

The plea bargain is entitled to some degree of finality. [D]efendant certainly benefited from the plea agreement, . . . significantly limiting his exposure, getting a lot of concurrent time as opposed to consecutive time that he might have received had there been a trial and had there been a conviction on the other [i]ndictments . . . . So[,] he received the benefit of a bargain. . . . There would be prejudice to the State in the event the plea was allowed to be withdrawn at the present time. Witnesses[' memories] fade, time has elapsed, witnesses might be unavailable.

 

There has to be a demonstration when an application to withdraw a plea is made at this stage of the proceeding that there would be a manifest injustice if the petition wasn't granted, and I can't conclude under all of the facts in this case that . . . defendant has met his burden of demonstrating that there would be a manifest injustice. So[,] I am going to deny the application to withdraw the guilty plea that was previously entered.

On appeal, defendant raises the following points:

 

POINT I

THE INADEQUATE INVESTIGATION, PREPARATION, AND PERFORMANCE OF DEFENSE COUNSEL VIOLATED DEFENDANT'S RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL GUARANTEED UNDER THE UNITED STATES AND NEW JERSEY CONSTITUTIONS.

 

A. Failure of Counsel to Make Reasonable Investigations.

 

B. Failure of Counsel to File a Motion to Suppress.

 

C. Failure of Counsel to Challenge the Information and Credibility of a "Concerned Citizen."

 

D. Failure to Assert the Claim of Diminished Capacity.

 

E. Entry of Retraxit Plea to First Degree Robbery Without Fully Being Informed of Consequences of Plea.

 

F. Prejudice.

 

POINT II

IT WAS ERROR FOR THE PCR COURT TO DENY PETITIONER'S MOTION TO VACATE HIS GUILTY PLEA.

 

POINT III

THE PCR COURT ERRED IN NOT GRANTING PETITIONER AN EVIDENTIARY HEARING ON HIS PCR PETITION.

 

We have carefully considered the arguments made by defendant in light of the record and applicable legal principles and conclude that his arguments are without sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(2). We conclude that an evidentiary hearing was not required, State v. Preciose, 129 N.J. 451, 462 (1992), and affirm for the reasons expressed by Judge Hoffman in his March 2, 2011 oral opinion. We add the following brief comments with respect to the suppression issue that Judge Hoffman did not explicitly address.

Defendant contends that plea counsel's failure to move to suppress the coat that police officers seized in the landlord's garage constitutes ineffective assistance of counsel. We disagree.

"Consent to a search may be obtained not only from the owner of the property to be searched but also 'from a third party who possesses common authority over the property, or from a third party whom the police reasonably believe has authority to consent.'" State v. Kelley, 271 N.J. Super. 44, 48 (App. Div. 1994) (citations omitted) (quoting State v. Maristany, 133 N.J. 299, 305 (1993)). A police "officer need have only a reasonable belief that the consenting party has sufficient control over the property to consent to its being searched." State v. Crumb, 307 N.J. Super. 204, 243 (App. Div. 1997), certif. denied, 153 N.J. 215 (1998).

Here, the landlord owned and resided in the home where officers seized the coat. Further, the landlord permitted officers into the garage, an area of the home which, at the very least, she "possesse[d] common authority over." Kelley, supra, 271 N.J. Super. at 48. Last, in dealing with the landlord, officers had a "reasonable belief that [she] ha[d] sufficient control over the property to consent to its being searched." Crumb, supra, 307 N.J. Super. at 243.

A

ffirmed.

1 United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967).

2 The video, however, did not indicate whether the perpetrator used a knife.

3 Another individual, Justin Metzger, also informed police that defendant admitted committing the robbery.

4 These charges (Indictment Number 07-01-0095) derive from a separate incident where defendant struck a female victim in the head with a bottle. Defendant's PCR petition and brief, however, focus on the guilty pleas for first-degree robbery and third-degree theft.

5 On July 31, 2007, an Ocean County grand jury returned Indictment Number 07-07-1228 charging defendant with first-degree robbery, N.J.S.A. 2C:15-1 (Count I); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d (Count II); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d (Count III); and third-degree witness tampering, N.J.S.A. 2C:28-5a (Count IV). The judge dismissed Counts II, III, and IV.

6 On September 25, 2007, an Ocean County grand jury returned Indictment Number 07-09-1575 charging defendant with third-degree theft, N.J.S.A. 2C:20-3.

7 Defendant disputed the $16,000.

8 The judge ordered defendant to pay $3000 under Indictment Number 07-01-0095, $349 under Indictment Number 07-07-1228; and $5000 under Indictment Number 07-09-1575. On May 4, 2009, Judge Den Uyl, J.S.C., entered an amended judgment of conviction vacating $5000 out of the total $8749 in restitution, thereby reducing the total amount owed to $3749.

9 It is not clear from the record when defense counsel filed the supplemental PCR petition.

10 Defendant must satisfy a two-prong test for ineffective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); see State v. Fritz, 105 N.J. 42, 58 (1987) (adopting Strickland test). First, a defendant must show that defense counsel performed deficiently. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed 2d at 693. Second, a 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.

11 The four factors are: "(1) whether the defendant has asserted a colorable claim of innocence; (2) the nature and strength of defendant's reasons for withdrawal; (3) the existence of a plea bargain; and (4) whether withdrawal would result in unfair prejudice to the State or unfair advantage to the accused." Slater, supra, 198 N.J. at 157-58.