STATE OF NEW JERSEY v. JUSTIN BREGOFF

NOT FOR PUBLICATION WITHOUT THE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.

JUSTIN BREGOFF,

Defendant-Appellant.

_______________________________

April 3, 2014

Submitted December 3, 2013 Decided

Before Judges Ostrer and Carroll.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment Nos. 07-02-0138 and 07-02-0141.

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

Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Meredith L. Balo, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant appeals from a July 5, 2011 order denying his petition for post-conviction relief (PCR) without an evidentiary hearing or oral argument. We affirm.

I.

On April 9, 2007, defendant pleaded guilty to drug-related offenses in two separate indictments. He admitted that on October 20, 2006, he distributed marijuana within 1000 feet of a school, N.J.S.A. 2C:35-7. Defendant testified that he gifted the marijuana to another person, refusing the suggestion that he sold it. Defendant did not identify the recipient, although the indictment charged in other counts that the recipient was a juvenile, C.C., who was then eight days shy of fifteen years old. Defendant was thirty-one. When asked if he was within 1000 feet of school property, defendant answered, "Evidently. Yes, [s]ir." His attorney confirmed that a middle school was within 1000 feet, and that she reviewed maps with defendant.

Defendant also admitted that on November 2, 2006, he possessed over one ounce of marijuana with the intent to distribute, N.J.S.A. 2C:35-5(a)(1) and -5(b)(11). He testified he possessed the marijuana in his home with the intent to sell it.

The record reflects that the marijuana was seized pursuant to a search warrant. The judge asked, "You understand depending on the facts of your case your attorney might be able to ask me to prevent the [S]tate from using some or all the evidence they have against you based on procedural or constitutional grounds. That's called a suppression motion." Defendant responded affirmatively, and acknowledged that by pleading guilty, he was waiving that right and "there will not be any motions." The court also reviewed in detail the mandatory penalties and fines that would be imposed for sentencing. Defendant indicated his understanding by asking, "What are the approximate fines, approximate total, $2,500?" He also asked if he could pay the fines over four years. The judge said parole would arrange a payment schedule.

In return for his guilty pleas to those third-degree crimes, the State recommended concurrent terms, respectively, of three years and four years, each with a minimum period of parole ineligibility (MPI) of eighteen months. The State also agreed to dismiss the remaining charges in the two indictments, including a second-degree public facility charge, N.J.S.A. 2C:35-7.1, and third-degree distribution of marijuana to a juvenile within a school zone, N.J.S.A. 2C:35-7, and -8, which, upon the State's application, would have subjected defendant to twice the prison term and twice the MPI otherwise applicable to a school zone offense.

At his sentencing hearing on June 8, 2007, defendant asserted that he was enticed to sell marijuana by a police "decoy" who was "badgering [him] longer than a year on a weekly and sometimes daily basis." Defendant sought a sentence of probation conditioned on time served, drug treatment, and community service. The court sentenced defendant in accord with his plea agreement, noting that these were defendant's third and fourth indictable convictions, and that he had performed poorly on probation. In the judgments of conviction, the court expressly found aggravating factors three and nine, N.J.S.A. 2C:44-1(a)(3) (risk of reoffending), and -1(a)(9) (need to deter). Defendant did not file a direct appeal.

Defendant filed a pro se PCR petition dated August 31, 2009, four months before his mandatory release date. His sole claim was that his sentence was excessive.

After the appointment of counsel, defendant filed a supplemental certification dated May 15, 2011. He alleged various discrepancies in the discovery materials pertaining to the police investigation of his offenses. He described the role of cooperating witnesses, without expressly alleging that they entrapped him into committing the offenses.

Defendant stated that a woman working with the Summit Police, Cynthia Collette, provided him with "the $350 buy money." He admitted he intended to buy marijuana in order to distribute it to Collette, stating, "Ms. Collette was the only person that knew I was going to buy marijuana because the marijuana was for her. . . . Ms. Collette came from the police department with the $350 buy money."

Defendant asserted that another cooperating witness, apparently the juvenile designated C.C. in one of the indictments, "had been trying to coerce me to sell him marijuana for several months and tried to make it look like I sold him marijuana when I did not sell him anything." Defendant asserted, "Mr. [C] was supposed to be a 14 year old boy but the police described him as a white man with a full beard." Defendant alleged that C.C. was falsely identified as a "crime victim" in the State's request for the search warrant of his home, because C.C. was already "working for the police."

Defendant stated that he asked his trial attorney to "file a motion to suppress the statements the police say I made and the evidence that was recovered but she never did." Defendant did not attach the warrant, the supporting affidavit, or any other evidence pertaining to the search, nor did he include evidence of the statements he made to police.1

Defendant also alleged that his trial attorney did not inform him that he would be liable for close to $3000 in fines and penalties. He claimed that had he known, he would not have pleaded guilty. Finally, defendant asserted, "I wanted to appeal my sentence and told my attorney to file an appeal on my behalf." As we have noted, no appeal was filed.

Based on these assertions, defendant argued, in a brief prepared by counsel, that he was denied effective assistance of counsel. He contended that trial counsel should have investigated discrepancies in the discovery in order to procure "a more favorable plea offer." He also argued that trial counsel was ineffective by failing to file a Miranda2 motion, or a motion to suppress the evidence seized pursuant to the search warrant, based on discrepancies in the description of the informant.

Defendant also argued there was an insufficient factual basis for his plea. Expanding on his certification, he claimed his attorney was ineffective by failing to file a requested appeal challenging the factual basis of his plea.

The PCR court denied defendant's petition on the papers by order filed July 5, 2011. The court set forth its reasons in a four-paragraph preamble to its order. The court found that the transcript of the plea hearing and the plea forms, which defendant acknowledged reading and understanding, demonstrated that defendant understood he would be liable for the fines and penalties imposed.

The court also found that defendant knowingly and voluntarily waived any suppression motion at the plea hearing. Moreover, he had not alleged facts, even if true, that "would have led to any new evidence, a different result, or a successful motion to suppress." The court found that there was a sufficient factual basis to support the guilty plea.

This appeal followed. Defendant presents one point for our consideration: "DEFENDANT WAS ENTITLED TO AN EVIDENTIARY HEARING ON HIS CLAIMS THAT HIS PLEA COUNSEL WAS INEFFECTIVE." Defendant argues that his counsel was ineffective by: failing to file a motion to suppress his statements and the evidence seized pursuant to the warrant, and by failing to file an appeal.

In a handwritten pro se supplemental brief, which defendant certified as true, defendant renewed his claims that counsel was ineffective by: failing to investigate the role of informants and discrepancies in the police reports; failing to investigate the fabrication of evidence regarding the locations of the school zones and public facilities relevant to his alleged crimes; and failing to file a motion to suppress. Defendant also challenged the factual basis of his plea. In the course of his submission, defendant admitted that he had "two ounces of marijuana in my own apartment . . . that police informants, co-conspiriters [sic] then, really, had me buy." He stated, "It was not my intent to sell anything. This marijuana and I were alone in my bed-room [sic], my roommate knew nothing about it." Defendant asserted that further investigation could have revealed that the search warrant was obtained based on false statements.

Defendant also argued for the first time that he was in a "dream like, almost comatose state" when he pleaded, because he was under the influence of lithium and Klonopin. At sentencing, defendant stated that he asked his attorney to file a motion to withdraw his plea, but "she lied and said that I could not change, could not withdraw my plea."

II.

We review the PCR judge's legal conclusions de novo. State v. Harris, 181 N.J.391, 420-21 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). Where the court does not hold an evidentiary hearing, we may exercise de novo review over the factual inferences the trial court has drawn from the documentary record. Id.at 421. Thus, it is within our authority "to conduct a de novo review of both the factual findings and legal conclusions of the PCR court." Ibid.

We apply the well-settled two-prong test for determining whether defendant was entitled to PCR. SeeStrickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984) (defendant must establish (1) that his counsel's performance was deficient and he made errors so serious that counsel was not functioning as guaranteed by the Sixth Amendment and (2) that defendant was prejudiced such that there existed a reasonable probability that, but for counsel's unprofessional errors, the result would have been different); State v. Fritz, 105 N.J. 42, 58 (1987) (adopting Strickland standard).

Where a defendant, as a result of attorney ineffectiveness, accepts a guilty plea instead of going to trial, the petitioner may satisfy the prejudice prong in a challenge to a conviction arising from the plea, by showing "a reasonable probability that, but for counsel's errors, he [or she] would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 210 (1985). See alsoState v. Gaitan, 209 N.J.339, 351 (2012), cert. denied, ___ U.S.___, 133 S. Ct. 1454, 185 L. Ed. 2d 361 (2013).

In reviewing such claims, courts apply a strong presumption that defense counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, supra, 466 U.S.at 690, 104 S. Ct.at 2066, 80 L. Ed. 2d at 695. "[C]omplaints 'merely of matters of trial strategy' will not serve to ground a constitutional claim of inadequacy . . . ." Fritz, supra, 105 N.J.at 54 (quoting State v. Williams, 39 N.J.471, 489, cert. denied, 374 U.S. 855, 83 S. Ct. 1924, 10 L. Ed. 2d 1075 (1963)).

A petitioner is obliged to establish the right to relief by a preponderance of the credible evidence. State v. Preciose, 129 N.J.451, 459 (1992). The court must consider the "petitioner's contentions indulgently and view the facts asserted by him [or her] in the light most favorable to him [or her]." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J.199 (1999). However, "a petitioner must do more than make bald assertions that he was denied the effective assistance of counsel." Ibid. A court need not hold a hearing if "the defendant's allegations are too vague, conclusory, or speculative to warrant" one. State v. Marshall, 148 N.J.89, 158, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). See alsoR.3:22-10(e)(2).

Applying these principles, we discern no merit in defendant's argument that trial counsel was ineffective by failing to move to suppress his statements to police, or the evidence seized pursuant to a search warrant. Defendant must show that a suppression motion would have succeeded. SeeState v. O'Neal, 190 N.J.601, 619 (2007) ("It is not ineffective assistance of counsel . . . not to file a meritless motion . . . ."); State v. Fisher, 156 N.J.494, 501 (1998) ("[W]hen counsel fails to file a suppression motion, the defendant . . . must prove that his Fourth Amendment claim is meritorious."). That, he has failed to do.

A search warrant is presumed valid, and defendant would have had to shoulder the burden to establish it was not. SeeState v. Evers, 175 N.J.355, 381 (2003). Yet, defendant presents nothing but bald, conclusory allegations that the search warrant was the product of false statements. Defendant does not present the evidence upon which the judge relied, nor competent proof of its falsity.

Defendant's claim regarding a potential Miranda motion fares no better. He provides us no competent evidence of the statements, let alone proof that the motion may have succeeded. Moreover, based on the record before us, it appears defendant stated, "You got me," without the prompting of a question, and before he was in custody. See State v. P.Z., 152 N.J. 86, 102 (1997) ("The predicate requirements of Miranda are that the defendant must be in custody and the interrogation must be carried out by law enforcement."); State v. Bohuk, 269 N.J. Super. 581, 594 (App. Div.) (noting that voluntary statements "not elicited through interrogation," even if made by a suspect in custody, are admissible), certif. denied, 136 N.J. 29, cert. denied, 513 U.S. 865, 115 S. Ct. 183, 130 L. Ed. 2d 117 (1994).

We turn next to defendant's claims that his attorney failed to investigate. Adequate preparation is the hallmark of effective counsel. "Indeed, counsel has a duty to make 'reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.' A failure to do so will render the lawyer's performance deficient." State v. Savage, 120 N.J. 594, 618 (1990) (quoting Strickland, supra, 466 U.S. at 691, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695). See also Rolan v. Vaughn, 445 F.3d 671, 682 (3d Cir. 2006) (observing that where counsel failed to conduct any pretrial investigation, counsel's trial strategy was "uninformed" and not entitled to a presumption of deference).

However, "[i]n any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments." Strickland, supra, 466 U.S. at 691, 104 S. Ct. 2066, 80 L. Ed. 2d at 695. "Thus, when a petitioner claims his trial attorney inadequately investigated his case, he 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." Cummings, supra, 321 N.J. Super. at 170.

Here, defendant has failed to demonstrate what an investigation may have revealed, and how it would have so weakened the State's case that he would have gone to trial, rather than plead guilty. Defendant claims that there were various discrepancies in the police reports, but he has not included the reports in the record.

We recognize that a defendant may be deprived of effective assistance of counsel when an attorney fails to file an appeal. See Roe v. Flores-Ortega, 528 U.S. 470, 477, 120 S. Ct. 1029, 1035, 145 L. Ed. 2d 985, 995 (2000) ("We have long held that a lawyer who disregards specific instructions from the defendant to file a notice of appeal acts in a manner that is professionally unreasonable."). However, defendant has provided nothing but a conclusory statement that he "told [his] attorney to file an appeal on [his] behalf." He does not state when or how he made this request, let alone provide any documentary evidence of the request. His claim is insufficient to trigger further inquiry.

Defendant's arguments that he did not present a sufficient factual basis for his plea, and that he was unaware that he would be liable for fines and penalties of almost $3000 are belied by the record of his plea hearing. Any further comment is not warranted in a written opinion. R. 2:11-3(e)(2).

Finally, we do not reach defendant's arguments, presented for the first time in his pro se supplemental brief, that he lacked the mental capacity to plea because of the influence of medication; and that his attorney was ineffective by failing to move before sentencing to withdraw his plea. However, we note that the trial judge expressly asked defendant at his plea hearing whether he had "taken any drugs . . . or medication today that would in any way interfere with [his] understanding," and defendant responded in the negative. We also do not reach defendant's argument that his attorney was ineffective for failing to pursue an entrapment defense. See State v. Florez, 134 N.J. 570, 583-84 (1994) (discussing elements of statutory and due process entrapment). None of these arguments were presented to the trial court. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) (noting generally that appellate courts will decline to hear issues "not properly presented to the trial court" unless the questions on appeal address the trial court's jurisdiction, or concern "matters of great public interest") (internal quotation marks and citation omitted).

Defendant's remaining arguments, to the extent we have not specifically addressed them, lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

1 Defendant's brief in support of his PCR petition asserts that when police presented defendant with the search warrant, he said, "'You got me.'" He apologized to his roommate, and told police they "'found it all.'" Defendant's brief also asserts that a police report, which apparently was attached to the brief, stated that defendant read and signed a Miranda form at the police station after his arrest, and made "several incriminating statements." Those statements are not identified, nor are they included in the record before us.

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