STATE OF NEW JERSEY v. HUNTLEY PEARCE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6268-10T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

HUNTLEY PEARCE,

Defendant-Appellant.

____________________________________________

April 2, 2013

Submitted on December 12, 2012 - Decided

Before Judges Fuentes and Hayden.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 98-06-1091.

Joseph E. Krakora, Public Defender, attorney for appellant (Michael C. Kazer, Designated Counsel, on the brief).

John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Catherine A. Foddai, Senior Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Huntley Pearce appeals from the January 7, 2011 Law Division order denying his petition for post-conviction relief (PCR). For reasons that follow, we affirm.

On June 9, 1998, a grand jury indicted defendant for first-degree possession with the intent to distribute marijuana in quantity of twenty-five pounds or more, N.J.S.A. 2C:35-5a(1), -5b(10)(a) (count ten); second-degree conspiracy to possess a controlled dangerous substance with intent to distribute, N.J.S.A. 2C:5-2 (count eleven); fourth-degree possession of over fifty grams of marijuana, N.J.S.A. 2C:35-5b(10)(a)(3) (count fifteen); third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a (counts twelve and thirteen); and second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a (count fourteen).

The evidence presented at trial originated in Kansas, where Renee Grammar was arrested during a routine traffic stop and found to have 261 pounds of marijuana in her car, which she was taking to an unknown location in New Jersey. She agreed to cooperate with law enforcement. Following instructions she received along her journey from a man called Fernando, Grammar arrived at a motel in Fort Lee.

Through the use of a beeper number and a phone number provided by her drug supplier, Grammar contacted the persons to whom she was to deliver the drugs and provided her location. Investigator Thomas Dombrowski of the Bergen County Prosecutor s Office led the New Jersey law enforcement officers who were observing the transaction. Shortly thereafter, defendant, his co-defendant Debbie Moore, Fernando Zamudio, and three young children arrived at the motel parking lot. Zamudio entered Grammar's motel room and obtained the keys to her car. After defendant got into the driver's seat of Grammar's car and Moore and Zamudio entered the vehicle, all three adults were arrested. When the police searched defendant, they found that he possessed the beeper whose number Grammar called from the motel.

After a multi-day trial, a jury convicted defendant and Moore on all counts. Defendant fled the State prior to the jury verdict and was apprehended in California in August 2005. On October 21, 2005, the trial judge merged counts eleven and fifteen into count ten, and sentenced defendant to eighteen years imprisonment with eight years parole ineligibility on the first-degree possession with intent to distribute conviction. On the second-degree endangering the welfare of a child conviction, the judge sentenced defendant to a consecutive term of ten years imprisonment with three years parole ineligibility. On the two convictions for third degree endangering the welfare of a child, he was sentenced to two four-year terms of imprisonment, concurrent to all other sentences.

On direct appeal, we affirmed defendant s convictions but remanded for resentencing. State v. Pearce, No. A-1620-05 (App. Div. Aug. 24, 2007). The Supreme Court denied certification on February 5, 2008. State v. Pearce, 194 N.J. 269 (2008).

On July 7, 2008, at resentencing, Judge Eugene H. Austin found two aggravating factors, defendant s prior record and the need for deterrence, and no mitigating factors. The judge sentenced defendant on the first-degree intent to distribute conviction to a term of sixteen years in prison with five years parole ineligibility. The judge imposed a consecutive term of six years in prison with three years parole ineligibility for his conviction on second-degree endangering the welfare of a child. After appropriately merging the other charges, the aggregate custodial sentence imposed was twenty-two years with eight years parole ineligibility. Defendant did not file a direct appeal.

Defendant filed a pro se PCR petition on November 18, 2009. Subsequently, defendant s counsel filed a supporting brief. Defendant first claimed that he received ineffective assistance of counsel at trial. He contended that his lawyer failed to conduct adequate pretrial preparation, specifically, by not investigating the person who allegedly rented the beeper found in defendant s possession, not locating and identifying another suspect, and not locating and interviewing Grammar or Zamudio. Defendant also alleged that Dombrowski misled the court to obtain a tracking device warrant and that he lied when he testified he received evidence from defendant s person after his arrest. He also argued that Dombrowski gave false testimony to the grand jury and that, as the only witness before the grand jury, his misrepresentations caused defendant s indictment. Defendant did not specify how Dombrowski lied or substantiate any of the purported misrepresentations.

Additionally, defendant claimed that he was denied a fair trial because the trial judge refused his request to adjourn in light of Ms. Moore s approaching due date to give birth. He also claimed he was unfairly prejudiced because during much of the trial 261 pounds of marijuana was placed in close proximity to defendant and Moore. Further, defendant argued that, as he has provided a prima facie case, he was entitled to an evidentiary hearing.

Judge Austin denied defendant s PCR application. On the issue of ineffective assistance of counsel, the judge found defendant had not submitted any evidence that the outcome of the trial would have differed had counsel acted as defendant claimed he should have. Regarding the feasibility of locating and interviewing certain witnesses, the judge observed that two of the witnesses could not be found by the state or federal authorities so defense counsel was not ineffective for being unable to find them. Moreover, defendant had not demonstrated how any of the witnesses, if located, would have aided his defense. The judge also found that defendant had not provided a factual basis to warrant an evidentiary hearing on any of his claims. This appeal followed.

On appeal, defendant raises the following issues for our consideration:

POINT I: THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE MATTER REMANDED FOR A NEW HEARING BECAUSE THE PCR COURT'S FAILURE TO ARTICULATE ADEQUATE FINDINGS OF FACT AND CONCLUSIONS OF LAW VIOLATED ITS RESPONSIBILITIES UNDER STATE V. RUE AND R. 1:7-4, AND VIOLATED THE DEFENDANT'S DUE PROCESS RIGHT TO POST-CONVICTION RELIEF.

POINT II: THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE MATTER REMANDED FOR A FULL EVIDENTIARY HEARING BECAUSE THE DEFENDANT MADE A PRIMA FACIE SHOWING OF INEFFECTIVE ASSISTANCE OF COUNSEL UNDER THE STRICKLAND/FRITZ TEST.

POINT III: THE ORDER DENYING POST-CONVICTION RELIEF VIOLATED DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.

POINT IV: THE DEFENDANT REASSERTS ALL OTHER ISSUES RAISED IN POST-CONVICTION RELIEF.

A: INVESTIGATOR DOMBROWSKI MISLED THE COURT TO OBTAIN A TRACKING DEVICE WARRANT.

B: INVESTIGATOR DOMBROWSKI'S GRAND JURY TESTIMONY MISLED THE GRAND JURORS TO INDICT DEFENDANT.

C: INVESTIGATOR DOMBROWSKI MISREPRESENTED THAT DEFENDANT HANDED/GAVE HIM EVIDENCE AT THE POLICE OFFICE.

D: THE PROSECUTOR'S CONDUCT AT THE GRAND JURY AND AT TRIAL WAS IMPROPER, UNETHICAL AND ILLEGAL.

E: APPELLATE COUNSEL WAS INEFFECTIVE.

F: THE DEFENDANT WAS IMPROPERLY RESENTENCED TO A TERM OF IMPRISONMENT THAT EXCEEDED THE THEN-EXISTING PRESUMPTIVE TERM.

G: THE DEFENDANT SHOULD HAVE BEEN SENTENCED TO A CONCURRENT TERM ON HIS CONVICTION FOR CHILD ENDANGERMENT.

H: TRIAL COUNSEL FAILED TO REQUEST AN ADJOURNMENT OF THE TRIAL IN A TIMELY FASHION DUE TO THE PENDING BIRTH OF A CHILD BY CO-DEFENDANT MOORE AND THE TRIAL COURT FAILED TO HONOR THE ADJOURNMENT REQUEST THUS PREJUDICING DEFENDANT.

I: DEFENDANT'S RIGHT TO A FAIR TRIAL WAS PREJUDICED BECAUSE THE 261 POUNDS OF MARIJUANA REMAINED IN THE COURTROOM IN CLOSE PROXIMITY TO DEFENDANT.
 

Having considered defendant s arguments in light of the applicable legal principles, we find they are without sufficient merit to warrant further discussion. R. 2:11-3(e)(2). We add only the following brief comments.

In order to prevail on a claim of ineffective assistance of counsel, the defendant must prove the following:

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.

[State v. Fritz, 105 N.J. 42, 52 (1987) (quoting Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984)).]

Under the first prong, the defendant must show that counsel's performance "fell below an objective standard of reasonableness," and on appeal, we "must avoid second-guessing defense counsel's tactical decisions" in hindsight. State v. Marshall, 148 N.J. 89, 156-57 (1997) (quoting Strickland, supra, 466 U.S. at 687-89, 104 S. Ct. at 2064-65, 80 L. Ed. 2d at 693-94). Under prong two of the Strickland/Fritz standard, the defendant must show that counsel's ineffective assistance substantially affected the outcome of the jury's deliberation, and defendant has the burden of demonstrating a reasonable probability that any omitted information would have substantially affected the jury's deliberations. State v. Bey, 161 N.J. 233, 252 (1999) (quoting Marshall, supra, 148 N.J. at 250-51).

From our review of the entire record, we are convinced that defendant has not established a prima facie case of ineffective assistance of counsel, as he has not shown his attorneys' performances were deficient or resulted in a substantial likelihood of prejudice to his case. Rather, defendant has submitted a laundry list of alleged deficiencies without one iota of substantiation that counsel s performance was actually lacking or that the alleged deficiencies resulted in undue prejudice to defendant. See State v. Cummings, 321 N.J. Super. 154, 170-71 (1999) (noting that a bare assertion . . . without more, is insufficient to support a prima facie case of ineffectiveness ). We affirm substantially for the reasons expressed in Judge Austin s oral opinion of January 7, 2011.

Affirmed.