STATE OF NEW JERSEY v. BRIAN M. YOHNNSON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

BRIAN M. YOHNNSON,

Defendant-Appellant.

_______________________________________________________

March 24, 2014

 

Submitted March 4, 2014 Decided

 

Before Judges Fisher and Espinosa.

 

On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 04-12-1319.

 

Joseph E. Krakora, Public Defender, attorney for appellant (Stefan Van Jura, Assistant Deputy Public Defender, of counsel and 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 appeals the denial of his post-conviction relief (PCR) petition because, among other things, the PCR judge made credibility findings without conducting an evidentiary hearing. Because that credibility finding played a role in the judge's ruling on a disputed fact question, we reverse and remand for an evidentiary hearing.

In 2004, defendant was indicted on four counts of first-degree robbery, N.J.S.A. 2C:15-1(a). Defendant moved for the suppression of statements he gave, after his arrest, to police during a lengthy and, at times, unrecorded interrogation, some of which preceded the reading to defendant of all his Miranda1 rights.2 At the conclusion of a July 2005 evidentiary hearing at which an interrogating officer and defendant testified the trial judge denied the motion. The following month, defendant entered into a negotiated plea agreement, which called for: the amendment of two of the four counts to second-degree robbery; defendant's guilty plea to those amended counts as well as two unamended counts of first-degree robbery; and the State's recommendation of an aggregate fifteen-year prison sentence.

On October 21, 2005, defendant was sentenced to a fifteen-year prison term, subject to an eighty-five percent parole bar, on one of the first-degree robbery convictions, and lesser concurrent terms on the other convictions. Defendant waived his right to appeal the judgment of conviction but reserved the right to appeal the order denying his suppression motion.

Defendant appealed the denial of his suppression motion. The details regarding the delay in the reading of Miranda warnings to defendant and the interrogation of defendant that both preceded and followed those warnings, are spelled out in our prior opinions, as well as the Supreme Court's opinion. Briefly, by way of an unpublished opinion, we concluded that because of the trial judge's insufficient findings of fact we were "in no position to endorse the judge's conclusion that defendant voluntarily waived his rights to counsel and to remain silent prior to confessing." State v. Yohnnson, No. A-3406-05 (App. Div. Sept. 7, 2007) (slip op. at 14). We vacated the order that denied suppression and remanded for further findings. Ibid.

The trial judge heard additional testimony and, on June 25, 2008, issued a written opinion containing additional findings of fact; the judge again denied suppression. Defendant appealed, and we reversed, holding that the evidence was "too insubstantial to uphold a finding that the State proved beyond a reasonable doubt that the pre-warning interrogation did not undermine 'defendant's ability to assert his right to remain silent and his ability to knowingly, voluntarily, or intelligently waive that right.'" State v. Yohnnson, No. A-5915-07 (App. Div. May 19, 2009) (slip op. 39) (quoting State v. O'Neill, 193 N.J. 148, 184 (2007)). We reversed the order denying suppression, vacated the judgment of conviction, and remanded for trial. Ibid.

The State filed a petition for certification, which the Supreme Court granted. 201 N.J. 145 (2009). The Court later reversed and reinstated the judgment of conviction. Yohnnson, supra, 204 N.J. at 65.

On November 22, 2011, defendant filed a pro se PCR petition, arguing his attorney was ineffective with regard to the advice given at the time defendant entered into the negotiated plea agreement. As the PCR judge described the argument in her written opinion, defendant claimed his trial attorney "failed to discuss the implications with him of taking a guilty plea rather than going to trial. He indicates that, had he known the potential outcome, he would have taken his case to trial." Specifically, as appointed PCR counsel orally argued in the trial court, defendant claimed his trial attorney did not discuss with him the chance of success if he went to trial and challenged the interrogating police officer's credibility as a means of offsetting the admissible confession. In other words, defendant could have challenged the officer's credibility for the purpose of persuading the jury that the confession should be given no weight because it was produced by overbearing police conduct. He argues in support of his PCR petition that a discussion of the viability of such an approach at trial, when compared with any other evidence the State may have had, never occurred.3

In response, the State obtained the certification of defendant's trial attorney, who asserted that, after denial of the suppression motion, he and defendant

discussed the likelihood of prevailing on appeal of that decision. We also discussed that likelihood of prevailing at trial based upon the [c]ourt's decision which would allow the jury to hear his inculpatory statement to police. I advised Mr. Yohnnson that it was my opinion that there was a strong likelihood of prevailing on appeal. We were both concerned, however, that if he lost at trial and on appeal, he would likely receive a sentence greater than he would receive as the result of a negotiated plea. As a result a plea agreement was negotiated on his behalf.

 

Although stated in broad generalities, defendant's trial attorney did not state in his certification whether or not he and defendant discussed the viability of a defense based on an attack on the investigating officer's credibility along the lines mentioned above.

The PCR judge did not conduct an evidentiary hearing. By way of a written opinion, the PCR judge outlined the discussions generally described by defendant's trial attorney in his certification, and explained that "[g]iven these discussions . . . it appears that [defendant's trial attorney] provided effective counsel with respect to his advising [d]efendant to accept a guilty plea rather than proceed to trial." This statement represents an inappropriate credibility finding on a disputed question that the judge was not empowered to make absent an evidentiary hearing and defendant's right to confront and cross-examine the author of the certification. State v. Preciose, 129 N.J. 451, 462-63 (1992); State v. Gaitan, 419 N.J. Super. 365, 370 n.3 (App. Div. 2011), rev d on other grounds, 209 N.J. 339 (2012), cert. denied, __ U.S. __, 133 S. Ct. 1454, 185 L. Ed. 2d 361 (2013); State v. Pyatt, 316 N.J. Super. 46, 51 (App. Div. 1998), certif. denied, 158 N.J. 72 (1999).

We are mindful that the PCR judge also stated that she "in no way relie[d] solely on the credibility of this certification." This choice of language demonstrates that the judge considered in part trial counsel's credibility in the disposition of the PCR petition. That is, this sentence contains the judge's acknowledgement that she had made a finding "on the credibility of this certification." And the use of the word "solely" that she "in no way relie[d] solely" on her view of the certification's credibility demonstrates that the judge's belief in the credibility of counsel's certification played some undefined role in the determination. Even if there was, as the judge observed, "a plethora of evidence" to corroborate her view that trial counsel was effective,4 the decision was based at least in part on the judge's decision that trial counsel's certification was credible and defendant's contentions were not. Because she relied in part on her finding that a statement that had not been subjected to cross-examination was credible, the PCR judge's determination cannot stand.

We reverse the order denying post-conviction relief and remand for an evidentiary hearing. We do not retain jurisdiction.

1Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

2The State could not prove that all Miranda warnings were provided to defendant at the time of his arrest, although the interrogating officer was told and assumed that they were. See State v. Yohnnson, 204 N.J. 43, 47 (2010).

3We note that in this appeal PCR appellate counsel argues defendant was denied the effective assistance of PCR trial counsel because this factual argument was not memorialized in a sworn statement. The PCR judge did not, however, deny relief for that reason, instead opting to rule on the merits. Accordingly, although we agree defendant's arguments should have been supported by his sworn statement as to what his attorney did or did not tell him prior to entering his guilty plea, our disposition of that argument would merely lead to a conclusion that PCR trial counsel was ineffective. We have instead chosen to approach the matter as did the PCR judge, and we have assumed that what PCR trial counsel argued in open court could have been supported by defendant's certification.

4This evidence consists mainly, if not entirely, of the plea colloquy, which was not the most searching of examinations. The only aspect of the plea colloquy that deals with the extent to which defendant may have been advised by counsel consisted of defendant's affirmative answer to the trial judge's question whether defendant "had enough time to talk to [his] lawyer or any other trusted person about the case?" That defendant may have had sufficient time to speak with his attorney prior to pleading guilty does not illuminate the content of those discussions.