STATE OF NEW JERSEY v. KEVIN MULDROW

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1727-11T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KEVIN MULDROW,

Defendant-Appellant.

______________________________

December 20, 2012

Submitted December 12, 2012 - Decided

Before Judges Sapp-Peterson and Haas.

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 07-12-2035.

Joseph E. Krakora, Public Defender, attorney for appellant (Glenn D. Kassman, Designated Counsel, on the brief).

Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Monalisa Tawfik, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Kevin Muldrow appeals from an April 12, 2011 order denying his petition for post-conviction relief (PCR). We affirm.

I.

Defendant was charged in a five-count Hudson County indictment with possessing a handgun without a permit, N.J.S.A. 2C:39-5b (count one); possessing a handgun for an unlawful purpose, N.J.S.A. 2C:39-4a (count two); eluding, N.J.S.A. 2C:29-2b (count three); certain persons not to have a weapon, N.J.S.A. 2C:39-7b (count four); and hindering apprehension, N.J.S.A. 2C:29-3b(4).

Pursuant to a plea bargain, defendant pled guilty to a second-degree certain persons not to have a weapon charge, N.J.S.A. 2C:39-7b, and the State agreed to recommend that defendant be sentenced to five years in prison, with a five-year period of parole ineligibility. On February 17, 2010, Judge Kevin G. Callahan sentenced defendant in accordance with the terms of the negotiated plea.1 Defendant did not file a direct appeal from his conviction and sentence.

On May 20, 2010, defendant filed a petition for PCR. He alleged he was denied the effective assistance of counsel because his trial attorney failed to investigate whether the handgun was operational, whether his fingerprints were on the weapon, and whether any witnesses could be identified who could exculpate defendant or provide "mitigating information." On March 17, 2011, Judge Callahan held oral argument and determined an evidentiary hearing was not required. On April 12, 2011, the judge issued a comprehensive written opinion in which he denied defendant's petition for PCR.

Judge Callahan's opinion sets forth the facts underlying the offense for which defendant was convicted. On June 22, 2007, the police received a tip from a confidential informant that defendant was in possession of several firearms and that he drove a burgundy Chrysler 300. On June 26, 2007, a number of officers observed defendant driving that vehicle and attempted to pull him over. Defendant refused to stop and a pursuit began. During the pursuit, two officers saw defendant throw an automatic handgun from his vehicle. The handgun was recovered and the police were ultimately able to apprehend defendant.

During his plea colloquy, defendant told Judge Callahan the handgun was a "real working weapon." He also admitted he had previously been convicted of a predicate offense, which made him a "certain person" who was prohibited from possessing a handgun under N.J.S.A. 2C:39-7b. At sentencing, defendant again acknowledged the handgun was "operable" and that he was not asking for a hearing on that issue. Based upon defendant's testimony, Judge Callahan found no basis for defendant's claim that his trial counsel was ineffective and he denied defendant's petition for PCR. This appeal followed.

II.

On appeal, defendant raises the following arguments:

POINT I

THE PCR COURT ABUSED ITS DISCRETION IN CONCLUDING THAT DEFENDANT'S CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL WERE MERITLESS WITHOUT PROVIDING DEFENDANT WITH AN EVIDENTIARY HEARING IN THIS MATTER.

A. The Standard for Ineffective Assistance of Counsel Applies to Pleas as Well as Trials.

B. Counsel has a Duty to Conduct Reasonable Investigations.

C. Defendant was Entitled to an Evidentiary Hearing on his Claim of Ineffective Assistance of Counsel.

Our review of the record convinces us that the judge acted properly in denying defendant's petition for PCR. Defendant's arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We nevertheless add these brief comments.

To establish a deprivation of the Sixth Amendment right to the effective assistance of counsel, a defendant must demonstrate that: (1) counsel's performance "fell below an objective standard of reasonableness," such that he or she "was not functioning as the 'counsel' guaranteed . . . by the Sixth Amendment," and (2) "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." State v. Hess, 207 N.J. 123, 146 (2011) (citing Strickland v. Washington, 466 U.S. 668, 687-88, 694, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984)).

Courts, in reviewing such claims, apply a highly deferential standard by adopting the strong presumption that defense counsel exercised "reasonable professional judgment" and sound strategy in fulfilling his or her responsibilities. Hess, supra, 207 N.J. at 147 (citing Strickland, supra, 466 U.S. at 689-90, 104 S. Ct. at 2065-66, 80 L. Ed. 2d at 694-95). "[I]n order to establish a prima facie claim, a [defendant] must do more than make bald assertions that he was denied the effective assistance of counsel. He must allege facts sufficient to demonstrate counsel's alleged substandard performance." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).

Defendant has presented no legally competent evidence in support of his claim regarding trial counsel's alleged inadequate investigation. Defendant admitted the handgun was operable both at the time of the plea and at sentencing. The police officers who were pursuing defendant saw him throw the handgun from his car and they were able to recover it. Therefore, there was no need for trial counsel to investigate whether defendant's fingerprints were on the weapon. Even if defendant's fingerprints were not on the weapon, a motion to suppress would not have successful because the police saw him throw the handgun they recovered out of his car. Finally, defendant never identified any possible witnesses who could have "exculpated" him or provided any "mitigating" circumstances regarding the offense. Under these circumstances, we discern no basis for disturbing the judge's denial of defendant's petition for PCR.

Defendant also argues that Judge Callahan erred by denying his request for an evidentiary hearing on his petition. Because defendant failed to present a prima facie case of ineffective assistance of counsel, an evidentiary hearing was not required. State v. Preciose, 129 N.J. 451, 462 (1992).

1 Defendant was charged in a separate accusation with jumping bail, N.J.S.A. 2C:29-7, and he was also separately charged with a violation of probation. Defendant also pled guilty to these offenses and received concurrent sentences.