STATE OF NEW JERSEY v. MICHAEL MOBLEY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-01648-11T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MICHAEL MOBLEY,

Defendant-Appellant.

___________________________________

June 10, 2014

 

Submitted October 9, 2013 Decided

 

Before Judges Waugh and Nugent.

 

On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 05-10-1470.

 

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

 

Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Marc A. Festa, Senior Assistant Prosecutor, of counsel and on the brief).

 

PER CURIAM

Defendant Michael Mobley appeals the order denying his petition for post-conviction relief (PCR). He contends his petition established a prima facie case that his trial attorney was ineffective in two respects: the attorney failed to present allegedly favorable testimony from two co-defendants, and the attorney's misadvice caused defendant to decline to testify. Having considered defendant's testimony in light of the record and controlling law, we affirm.

I.

A Passaic County grand jury charged defendant and co-defendant Vincent Barbarossa in seven counts of a ten-count indictment with offenses arising out of their possession and distribution of heroin. In the remaining three counts, the grand jury charged Angela Brimley and Herman DeJesus with possessing heroin they purchased from defendant and Barbarossa, and DeJesus with hindering his own apprehension. A petit jury convicted defendant on all seven counts.

After appropriate mergers, the court sentenced defendant to an aggregate extended ten-year custodial term with five years of parole ineligibility on the remaining third-degree offenses: distributing a controlled dangerous substance (CDS), heroin, to Angela Brimley within one thousand feet of school property, N.J.S.A. 2C:35-7 and -5(a), and N.J.S.A. 2C:2-6; distributing a CDS, heroin, to Herman DeJesus within one thousand feet of school property, N.J.S.A. 2C:35-7 and -5(a), and N.J.S.A. 2C:2-6; and possessing a CDS, heroin, with intent to distribute within one thousand feet of school property, N.J.S.A. 2C:35-7 and -5(a).

We affirmed defendant's conviction on direct appeal, State v. Mobley, No. A-1130-06 (App. Div. December 31, 2008). The Supreme Court denied certification. State v. Mobley, 198 N.J. 317 (2009).

One year after the Supreme Court denied defendant's petition for certification, he filed the PCR petition in which he raised the issues now before us. To provide context for these issues, we present the facts that led to defendant's arrest, as recounted in our opinion affirming defendant's convictions and sentence on direct appeal:

Detective Ronald Altman of the Paterson Police Department, the State's principal witness, testified that on July 28, 2005, he observed the transactions and three prior similar transactions involving defendant and co-defendant Vincent Barbarossa from the backseat of an unmarked police vehicle. He did so with the aid of binoculars.

 

Altman testified that he observed people come up to defendant on a street corner in Paterson. Defendant would speak into a "Nextel type of phone" or "walkie talkie" around the same time as Barbarossa, who was on the other side of the street, spoke into a similar device. Barbarossa would then walk behind a residential building and return to the street shortly thereafter, at which time he would give an object to the person who had previously spoken with defendant "in exchange for a sum of money". Barbarossa and defendant would also walk towards each other from time to time, and Barbarossa would "hand over" money to defendant. As noted, Brimley and DeJesus were stopped and arrested after each participated in such a transaction. They did not testify, nor did Detective Bailey, who Altman testified was also involved in the surveillance.

 

Backup or "scoop" unit officers perfected the arrests. Detective Orlando Robinson of the Paterson Police Department testified that he was to "follow the buyer to an area where it was far enough for the arrest team to take them down without the dealer seeing them." He received a detailed description of Brimley from Altman, and followed her. Robinson observed Brimley place "suspected heroin" into her nose and then toss the packet onto the ground. Robinson immediately retrieved the torn glassine envelope, and found trace amounts of heroin therein. Brimley was arrested by other members of the backup team.

 

Robinson also relayed Altman's description of DeJesus to other backup officers who arrested DeJesus. Envelopes containing heroin were found on his person. Defendant and Barbarossa were thereafter arrested. Behind the residence where Barbarossa walked during each transaction, police found a "stash" of envelopes with the "New Arrival" marking in red ink thereon. This marking was identical to those on the envelopes found on the ground where Brimley had been walking and on the person of DeJesus. Cash and walkie-talkies were also found on both defendant and Barbarossa. Defendant's telephone number was "stored" or programmed on Barbarossa's telephone and vice versa.

 

Altman further testified and defendant stipulated that the location where Altman observed defendant was within one thousand feet of school property which was being used as a school.

 

[State v. Mobley, supra, slip op. at 2-4 (footnote omitted).]

Brimley and DeJesus entered guilty pleas but did not testify at defendant's trial. Barbarossa pled guilty and testified at defendant's trial. According to Barbarossa, his was a one-man operation and defendant was not involved in selling drugs with him. Barbarossa admitted that he kept a "stash" of heroin in the basement of his home. He also admitted that he sold thirty or forty bags on the day police arrested him. He denied, however, that he had a walkie-talkie, and he also denied selling drugs with defendant. He testified that he first saw defendant after police had arrested them both and placed them in a police vehicle. Mobley, supra, slip op. at 5.

Defendant's decision not to testify was made a matter of record during the trial.

[Defense Counsel]: Please stand, Mr. Mobley. Mr. Mobley, you're presently before [the Court] on an indictment numbered 05-10-1470, do you understand that?

 

[Defendant]: Yes.

 

[Defense Counsel]: That indictment charges you with seven counts, violation of the New Jersey Controlled Dangerous Substances Act, do you understand that?

 

[Defendant]: Yes.

 

[Defense Counsel]: Now for the past day and a half, the State has presented their evidence. The Prosecutor has rested its case, and now you have an opportunity whether you want to be a witness in this case, do you understand that?

 

[Defendant]: Yes.

 

[Defense Counsel]: And we have discussed this matter a couple of times, have we not?

 

[Defendant]: Yes.

 

[Defense Counsel]: Now is it your desire to testify in this case?

 

[Defendant]: Yes.

 

[Defense Counsel]: You want to be a witness?

 

[Defendant]: No, I want - - you said my desire.

 

[Defense Counsel]: Do you want to testify in this case on your behalf of not?

 

[Defendant]: No.

 

[Defense Counsel]: Is this a voluntary decision?

 

[Defendant]: Yes.

 

[Defense Counsel]: Did anyone force you to make this decision?

 

[Defendant]: No.

 

[Defense Counsel]: I explained to you, did I not, that I could recommend a decision for you but that the decision had to be ultimately yours, it's your own decision, do you understand that?

 

[Defendant]: Yes.

 

[Defense Counsel]: Moreover, if this jury comes back with a verdict of guilty, either on one count, two counts or all seven counts, you cannot complain to this Court or to me that you should have testified in this matter, do you understand that?

 

[Defendant]: Yes.

 

[Defense Counsel]: That this decision is yours. You can change your mind overnight, but right now your decision is that you do not wish to be a witness, am I correct?

 

[Defendant]: Yes.

 

Following the colloquy between defendant and his attorney, the court read to defendant the jury instruction concerning a defendant not testifying at his trial. Defendant asked the court no questions about testifying.

II.

Defendant presents the following points for our consideration in this appeal:

POINT I: THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION THAT HE FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION AT THE TRIAL LEVEL.

 

A. THE PREVAILING LEGAL PRINCIPLES REGARDING CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL, EVIDENTIARY HEARINGS AND PETITIONS FOR POST CONVICTION RELIEF.

 

B. TRIAL COUNSEL FAILED TO ADEQUATELY REPRESENT THE DEFENDANT'S INTERESTS AT TRIAL DUE TO AN INADEQUATE PRETRIAL INVESTIGATION WHICH RESULTED IN NOT CALLING EITHER OR BOTH CO-DEFENDANTS AS DEFENSE WITNESSES.

 

C. TRIAL COUNSEL'S FAILURE TO ADEQUATELY REPRESENT THE DEFENDANT AT THE TRIAL LEVEL EFFECTIVELY PRECLUD[ED] HIM FROM MAKING A KNOWING, INTELLIGENT AND VOLUNTARY DECISION REGARDING HIS RIGHT TO TESTIFY, WHICH RESULTED IN THE DEFENDANT'S DECISION NOT TO TESTIFY AT TRIAL.

We begin our analysis by reviewing the basic principles we follow when considering a defendant's claim that trial counsel was ineffective. To prove ineffective assistance of counsel, a defendant is required to satisfy the Strickland two-part test by demonstrating "counsel's performance was deficient," that is, "that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment"; and "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984); accord State v. Fritz, 105 N.J. 42, 58 (1987).

A defendant who files a PCR petition is not necessarily entitled to an evidentiary hearing. The court need only conduct a hearing under the following circumstances: the defendant establishes "a prima facie case in support of [PCR]"; the court determines "there are material issues of disputed fact that can not be resolved by reference to the existing record"; and the court further determines "that an evidentiary hearing is necessary to resolve [the defendant's] claims for relief." R. 3:22-10(b); see also State v. Preciose, 129 N.J. 451, 462 (1992). "To establish a prima facie case, defendant must demonstrate a reasonable likelihood that his or her claim, viewing the facts alleged in the light most favorable to the defendant, will ultimately succeed on the merits." R. 3:22-10(b).

Defendants cannot establish a prima facie case by making conclusory assertions, unsupported by the record, that trial counsel was ineffective; rather, they must allege specific 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). If a defendant "claims [that] trial [counsel] inadequately investigated his case, [the defendant] must assert the facts that an investigation would have revealed, supported by affidavits or certifications based upon the personal knowledge of the affiant or the person making the certification." Ibid.

Here, defendant has not supported his ineffective-assistance claim with certifications from DeJesus and Brimley. Instead, he asserts that the statements DeJesus and Brimley made when they pled guilty demonstrate that, had they testified, they would have exculpated him. Defendant argues that if his trial attorney had conducted an adequate investigation by interviewing DeJesus and Brimley, then he would have learned that their accounts of purchasing drugs supported his defense that he was not involved in the transactions. We disagree with defendant's argument that the transcripts of co-defendants' guilty pleas, without clarifying certifications, establish a prima facie case that defendant's trial counsel was ineffective.

We begin with DeJesus. During his plea colloquy, he admitted the following facts. On July 28, 2005, in the area of Jefferson and North First Streets in Paterson, he walked up to a black man wearing a white tee shirt and baseball hat who was talking on a cellular phone. DeJesus asked the man, "who got the dope," because DeJesus knew him and knew he was a drug dealer. The man sent DeJesus to a white man at a house on Jefferson Street to "get the dope." The white man took DeJesus to a back yard and sold him heroin.

Defendant points out that DeJesus did not identify defendant during the plea colloquy. He asserts that the State's "failure . . . to elicit such identification testimony . . . suggested the distinct possibility it did not do so because it lacked confidence it would receive a favorable response." From that supposition, defendant reasons that it was critical to call each co-defendant as a defense witness.

Defendant's argument concerning DeJesus warrants little discussion. DeJesus's account of his heroin purchase basically corroborates the account given by the State's main witness, Detective Altman, and undercuts Barbarossa's claim that he was working alone. More importantly, DeJesus knew the man with whom he spoke. Absent a certification addressing that issue, as required by Cummings, supra, 321 N.J. Super. at 170, defendant is unable to establish, prima facie, "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698; Fritz, supra, 105 N.J. at 58.

We turn to Brimley's plea. She admitted that on July 28, 2005, in Paterson, near a building on Jefferson Street, she purchased heroin from co-defendant Vincent Barbarossa. Although she saw no other person in the area, Barbarossa was communicating with someone on a Nextel phone.

Defendant argues that Brimley's testimony not only corroborates his denial of any involvement in the CDS transactions but also contradicts Detective Altman's testimony. The problem with defendant's argument is that Brimley's testimony corroborates Detective Altman's observations of defendant and Barbarossa communicating with Nextel phones, and contradicts Barbarossa's testimony that he was not using a walkie-talkie to communicate with anyone.

Consequently, a defense attorney would have had to make an informed judgment about whether to call Brimley. That could not have been made based solely on the transcript of her guilty plea. Counsel would have had to evaluate many other factors, including whether: Brimley heard what Barbarossa was saying on the phone; she knew defendant; defendant had been in the area on previous occasions when Brimley purchased drugs from Barbarossa; and Brimley might have information that could implicate defendant if disclosed on cross-examination. To make such a determination, counsel had to interview Brimley or speak to her attorney. Defendant's averment that counsel did not do so may indeed satisfy the first part of the Strickland two-part test. Absent a certification from Brimley, however, we cannot conclude on this record whether Brimley's testimony, if presented at trial, would have helped or hurt defendant.

In short, defendant cannot establish a prima facie case based on speculation. Statements made by defendants during guilty plea colloquies are, by their nature, limited. This case illustrates that point. Defendant was required to provide certifications from DeJesus and Brimley to establish a prima facie case that his trial counsel was ineffective for not presenting their testimony at his trial. The limited statements made by DeJesus and Brimley when they pled guilty do not establish that counsel was prima facie ineffective for not doing so. For those reasons, defendant's PCR petition was properly denied without an evidentiary hearing.

Defendant also argues that due to his trial counsel's ineffective representation, he did not make a fully informed decision not to testify. Defendant's argument, which is contradicted by his statements at trial, is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.