STATE OF NEW JERSEY v. JOHNNIE HOLLOWAY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1867-11T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOHNNIE HOLLOWAY,

Defendant-Appellant.

________________________________________________________________

March 15, 2013

Submitted March 4, 2013 - Decided

Before Judges Parrillo and Maven.

On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment Nos. 08-10-0715 and 08-10-0716.

Joseph E. Krakora, Public Defender, attorney for appellant (Suzannah Brown, Designated Counsel, on the brief).

Geoffrey D. Soriano, Somerset County Prosecutor, attorney for respondent (James L. McConnell, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Johnnie Holloway appeals from an order of the Law Division denying his petition for post-conviction relief (PCR). We affirm.

Defendant appeared before Judge Edward M. Coleman, and pursuant to a plea agreement, pled guilty on Indictment 08-10-0715 to second degree possession of a firearm while in the course of committing certain offenses, N.J.S.A. 2C:39:4.1(a) (count one), and third degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(2) (amended count two). On Indictment 08-10-0716, defendant pled guilty to second degree certain persons not to have weapons, N.J.S.A. 2C:39-7(b) (count two). Lastly, defendant pled guilty to two violations of probation. At sentencing, the trial judge imposed the following sentence: on Indictment 08-10-0715, a seven-year term of imprisonment on count one and a consecutive four-year term of imprisonment on count two; and on Indictment 08-10-0716, a concurrent seven-year term of imprisonment with five years of parole ineligibility. The judge also terminated defendant s previously imposed probationary terms and resentenced him to four years in state prison on the earlier third degree convictions and eighteen months on the fourth degree conviction. It was ordered that the resentenced terms be served concurrent with each other and with the terms imposed on the latest convictions. The court imposed the appropriate assessments and penalties.

Defendant withdrew the filed direct appeal. Defendant filed a pro se petition for PCR, supplemented by PCR counsel's brief. The petition generally contended that trial counsel was ineffective because he failed to challenge the issuance of the search warrants, request the identity of the confidential informant, investigate any witnesses, and failed to file any motions to suppress defendant's statement and the evidence seized. Defendant also claimed that the trial court erred in issuing the search warrant and counsel failed to challenge the warrant. As a result of these errors, Defendant claims that his plea was not voluntarily given.

After oral argument, on March 30, 2011, Judge John H. Pursel issued a seventeen-page written opinion denying defendant's PCR petition. After determining that the petition was timely filed, the court considered defendant's contentions on the merits and rejected them. The judge stated that:

This court finds that [p]etitioner's arguments claiming ineffective assistance of trial counsel are unfounded. Dealing with [p]etitioner's claims individually, the court makes the following determinations:

(1) There is no jurisdictional concern or probable cause arising from the issuance of the search warrant by a Middlesex County judge for property located in Somerset County. A Superior Court [j]udge has [statewide] jurisdiction. Petitioner fails to provide any legal basis to the contrary;

(2) There is no ineffective assistance of counsel resulting from a failure to request the identity and background of the confidential information used in the investigation. The identity of a confidential informant is privileged under N.J.R.E. 515. Petitioner fails to assert any basis for disclosing the identity of the confidential informant;

(3) Petitioner fails to identify any witnesses or how those witnesses would have helped his defense or what mitigating factors those witnesses would have provided. A mere assertion that trial counsel should have investigated witnesses without any factual basis does not equate to ineffective assistance of counsel;

(4) Petitioner's counsel alleges in his supplemental brief that the officers allegedly made threats against [p]etitioner's family to induce a statement to the police. He asserts that trial counsel failed to challenge the statement on that basis. However, [p]etitioner's entire statement was recorded. He does not indicate that he was threatened on the tape. He never mentions the threats during his plea or sentencing. His factual basis given at the plea is identical to the statement given to the police. Finally, [p]etitioner never raised this argument in his own pro[]se brief. In addition, by looking at the record, it is apparent that trial counsel made a strategic decision not to pursue an unsuccessful legal argument. It was clear that if trial counsel submitted any motions, the State would withdraw its plea offer;

(5) Petitioner claims that trial counsel should have filed a motion to suppress the .32 caliber revolver and the CDS. Again, it is highly unlikely that trial counsel would have succeeded on that motion. The warrant was supported by an affidavit of probable cause. Defendants bear a heavy burden when challenging a warrant based upon a finding of probable cause. Great deference is extended to the issuing judge's determination of probable cause. State v. Jones, 308 N.J. Super. 15, 26-32 (App. Div. 1998);

(6) Petitioner asserts that trial counsel should have investigated whether the search warrants complied with Attorney General Law Enforcement Directive No. 2002-2 setting out a uniform procedural process for obtaining no-knock warrants and execution of search warrants by multiple law enforcement agencies. First, whether there was a form filled out in the Prosecutor's Office indicating that the search warrant complied with the directives dealing with multiple jurisdictions does not affect the validity of the search warrant. Additionally, that form is not discoverable. Second, the issuing judge made a determination that a "no knock" warrant was prudent in this case based upon the nature of the offense and [p]etitioner's prior history. Again, that determination is subject to high deference. It is unlikely trial counsel would have succeeded on the motion. Additionally, the argument is irrelevant. The officers did not execute the warrant without knocking. The officers used [p]etitioner's own key after he had been arrested.

This appeal followed.

On appeal, defendant raises only one claim:

THE LOWER COURT ERRED IN DENYING [DEFENDANT'S] PETITION WITHOUT HOLDING AN EVIDENTIARY HEARING TO DETERMINE THE MERITS OF HIS CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL.

We find no merit to these contentions, Rule 2:11-3(e)(2), and, therefore, affirm substantially for the reasons stated by Judge Pursel in his thorough written decision of March 30, 2011. Suffice it to say, in order for defendant to obtain relief based on ineffective assistance grounds, he is obliged to show not only the particular manner in which counsel's performance was deficient, but also that the deficiency prejudiced his right to a fair trial. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); see also State v. Fritz, 105 N.J 42, 67 (1987) (adopting the Strickland standard in New Jersey). We are persuaded that the alleged deficiencies here clearly fail to meet either the performance or prejudice prong of the Strickland test.

A