STATE OF NEW JERSEY v. EDDIE LONG

NOT FOR PUBLICATION WITHOUT THE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.

EDDIE LONG, a/k/a EDDIE L. MILES,

SHORTY MILES, EDDIE MYLES, MILES,

EDDIE L. MYLES, JR.,

Defendant-Appellant.

____________________________________

January 22, 2014

Submitted January 8, 2014 Decided

Before Judges Waugh and Nugent.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Accusation No. 09-06-2295.

Joseph E. Krakora, Public Defender, attorney for appellant (Charles H. Landesman, Designated Counsel, on the brief).

Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Jason Magid, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Eddie Long appeals the Law Division's June 24, 2011 order dismissing his petition for post-conviction relief (PCR). We affirm.

I.

We discern the following facts and procedural history from the record on appeal.

On June 24, 2009, Long pled guilty to an accusation charging him with third-degree possession with intent to distribute a controlled dangerous substance, phencyclidine (PCP), within 1,000 feet of a school, contrary to N.J.S.A. 2C:35-7. In conformity with the plea offer, Long was sentenced on July 10 to incarceration for eight years, with a forty-three month period of parole ineligibility. Long also agreed to forfeit $597 seized at the time of his arrest. The custodial sentence was concurrent with a similar sentence on a second accusation and the sentence on a pending violation of probation.

Long filed a pro se PCR petition on December 30, 2009. The petition was supplemented by assigned counsel. Long asserted that the sentence was excessive and that his trial counsel was constitutionally ineffective because he failed to investigate his earlier claims of innocence and failed to argue mitigating circumstances at sentencing.

Without hearing oral argument, the PCR judge issued a letter opinion on June 23, 2011, explaining his reasons for denying relief. With respect to the allegation that trial counsel was ineffective because she failed to conduct a proper investigation of the charges against Long, the judge detailed the evidence against Long and determined that he failed to present a prima facie case of ineffective assistance of counsel. The implementing order was entered on June 24, and this appeal followed.

II.

Long raises the following issues on appeal:

POINT I: THE PCR JUDGE SHOULD HAVE CONDUCTED A HEARING ON DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF RATHER THAN TO DECIDE THIS MATTER ON THE PAPERS.

POINT II: DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL BY HIS TRIAL ATTORNEY BECAUSE HIS ATTORNEY FAILED TO INVESTIGATE THE DEFENDANT'S CLAIM OF INNOCENCE.

"Post-conviction relief is New Jersey's analogue to the federal writ of habeas corpus." State v. Preciose, 129 N.J. 451, 459 (1992). Under Rule 3:22-2(a), a criminal defendant is entitled to post-conviction relief if there was a "[s]ubstantial denial in the conviction proceedings of defendant's rights under the Constitution of the United States or the Constitution or laws of the State of New Jersey." "A petitioner must establish the right to such relief by a preponderance of the credible evidence." Preciose, supra, 129 N.J. at 459. "To sustain that burden, specific facts" that "provide the court with an adequate basis on which to rest its decision" must be articulated. State v. Mitchell, 126 N.J. 565, 579 (1992).

Claims of constitutionally ineffective assistance of counsel are well suited for post-conviction review. R. 3:22-4(a)(2); Preciose, supra, 129 N.J. at 460. In determining whether a defendant is entitled to such relief, New Jersey courts apply the test articulated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984), and United States v. Cronic, 466 U.S. 648, 658-60, 104 S. Ct. 2039, 2046-47, 80 L. Ed. 2d 657, 667-68 (1984). Preciose, supra, 129 N.J. at 463; State v. Fritz, 105 N.J. 42, 58 (1987).

Under the first prong of the Strickland test, a "defendant must show that [defense] counsel's performance was deficient." Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Under the second prong, a defendant must demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.

In demonstrating that counsel's performance was deficient under the first prong of Strickland, a defendant must overcome "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694) (internal quotation marks omitted). Further, because prejudice is not presumed, ibid., in satisfying the second prong, a defendant must typically demonstrate "how specific errors of counsel undermined the reliability of the finding of guilt." Cronic, supra, 466 U.S. at 659 n.26, 104 S. Ct. at 2047, 80 L. Ed. 2d at 668; see also Roe v. Flores-Ortega, 528 U.S. 470, 482, 120 S. Ct. 1029, 1037, 145 L. Ed. 2d 985, 998 (2000). There must be "a probability sufficient to undermine confidence in the outcome." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.

Long first argues that he was entitled to oral argument on his application for PCR and that the trial judge erred in deciding the case on the papers. In State v. Parker, 212 N.J. 269, 280-82 (2012), the Supreme Court outlined the considerations governing a PCR judge's consideration of whether to allow oral argument.

Rule 3:22 contains no explicit statement with respect to whether a defendant is entitled to present oral argument in support of his petition for post-conviction relief. There are two reported decisions of the Appellate Division that have commented on this omission. Each panel had a different emphasis and reached differing results.

 
In State v. Flores, 228 N.J. Super. 586, 588 (App. Div. 1988), certif. denied, 115 N.J. 78 (1989), the defendant was convicted at trial of aggravated manslaughter and possession of a sawed-off shotgun and sentenced to an aggregate term of nineteen years. After his conviction and sentence were affirmed on direct appeal and this Court denied certification, the defendant filed a timely petition for post-conviction relief in which he elected to represent himself. Id. at 589. His petition focused primarily on challenges to the sentence he had received, and the trial judge denied the petition after reviewing the papers. Ibid. The appellate panel rejected the defendant's argument that the trial court had erred in disposing of the matter on the papers, noting that while it had no "doubt that it was within the power of the court to require oral argument, we discern no statutory or procedural provision compelling it to adopt this course." Id. at 590. It affirmed the order of the trial judge that denied post-conviction relief. Id. at 597.

 
In State v. Mayron, 344 N.J. Super. 382, 384 (App. Div. 2001), the defendant was convicted at trial of murder and kidnapping and sentenced to life in prison for murder, with a thirty-year period of parole ineligibility and a consecutive thirty years in prison with a fifteen-year period of parole ineligibility on the kidnapping conviction. His conviction and sentence were affirmed on direct appeal, and certification was denied. Ibid. The defendant thereafter filed a timely petition for post-conviction relief, asserting several grounds for his claim that he had been denied the effective assistance of counsel during his trial. Ibid. The trial judge denied the defendant's petition based solely on a review of the papers, without having heard oral argument. Id. at 385. The appellate panel noted the absence of a specific directive within Rule 3:22 with respect to oral argument and concluded that the decision whether to grant oral argument on a petition for post-conviction relief rested "within the sound discretion of the post-conviction relief court." Id. at 386-87.

 
Although this view is in accord with Flores, supra, the appellate panel in Mayron continued, however, that "there should be a significant presumption in favor of oral argument [i]n light of what is at stake for a defendant[.]" Id. at 387. It observed that "[t]he issues at stake on an initial petition for post-conviction relief are no less significant than those typically presented when the court rules ensure oral argument." Id. at 386. It noted several factors that a trial judge should weigh when deciding whether to hear oral argument or to dispense with it. It included within those factors "the apparent merits and complexity of the issues . . ., whether argument of counsel [would] add to the written positions . . ., and in general, whether the goals and purposes of the post-conviction procedure are furthered by oral argument." Id. at 387. It thus declined to address the substantive merits of the defendant's arguments with respect to whether he was entitled to post-conviction relief and remanded the matter to the trial court for the purpose of that oral argument. Id. at 388.

 
Although we agree that those are appropriate factors and recognize the residuum of discretion that rests within our trial judges in weighing those factors, we stress that in considering each, they should be approached with the view that oral argument should be granted. Just as when determining whether a defendant is entitled to an evidentiary hearing in connection with his petition for post-conviction relief the facts should be "view[ed] in the light most favorable to a defendant," State v. Preciose, 129 N.J. 451, 463 (1992), so too, in determining whether to entertain oral argument, the facts should be viewed through the same generous lens.

Although the better practice might have been to allow oral argument in this case, we are satisfied that the PCR judge did not abuse his "residuum of discretion" in deciding this case on the merits. It is not a complex case and, as discussed below, Long's arguments were clearly without merit.

In setting out the factual background of the charges against Long, the judge detailed the information the police received from a confidential informant concerning drug purchases from someone named "Eddie," the informant's identification of Long as "Eddie," and the investigating officers' surveillance of Long's participation in multiple drug transactions while sitting outside the residence for which they had already obtained a search warrant. When the police executed the warrant, Long was arrested outside the residence and found to have $597 cash in his pocket. The police found one container of PCP, empty containers with traces of PCP, and related paraphernalia during the search inside the residence.

Although Long asserted that there were witnesses who could have provided him with a defense, he submitted no affidavits or certifications from any such witnesses. Based upon an unsworn report by an investigator, Long specifically asserted that Shanell Jackson, his wife, could have testified that he was outside of the residence and had no drugs on him when he was arrested. As the PCR judge correctly observed, such testimony would have been consistent with the observations made by the police at the time of Long's arrest. More importantly, it would not detract from the facts that Long had a significant amount of cash when he was arrested and that he was observed by the police officers selling containers of PCP similar to the containers found inside the house.

We agree with Judge Thomas A. Brown, Jr., that Long failed to present a prima facie case of ineffective assistance of counsel.1 Even assuming that trial counsel's investigation was deficient, there is no support in the record for Long's argument that a more thorough investigation would have resulted in a different outcome. The evidence against Long was overwhelming, and the State's plea offer precluded the possibility of consecutive sentences.

We find Long's remaining arguments to be without merit and not warranting discussion in a written opinion. R. 2:11-3(e)(2).

1 Because Long failed to present a prima facie case under Strickland, he was not entitled to an evidentiary hearing. Preciose, supra, 129 N.J. at 462-64.