STATE OF NEW JERSEY v. DAQUAN PRIVOTT

NOT FOR PUBLICATION WITHOUT THE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.

DAQUAN PRIVOTT,

Defendant-Appellant.

________________________________

April 10, 2014

Submitted March 24, 2014 - Decided

Before Judges Parrillo and Harris.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 07-12-1064.

Joseph E. Krakora, Public Defender, attorney for appellant (Jennifer B. Barr Swift, Designated Counsel, on the brief).

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

PER CURIAM

Defendant Daquan Privott appeals from an order of the Law Division denying his petition for post-conviction relief (PCR). We affirm.

Charged with three counts of first-degree armed robbery, N.J.S.A. 2C:15-1; three counts of fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(4); one count of third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); and one count of second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a), defendant pled guilty to one count of armed robbery. In exchange for his guilty plea, the State agreed to dismiss the remaining seven counts and to recommend an eleven-year sentence with an eighty-five percent parole disqualifier, pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant was sentenced in accordance with the plea agreement, which included a five-year period of parole supervision upon release.

The facts elicited at the guilty plea hearing established that, as pre-arranged, on August 22, 2007, defendant and his cohort, Fabian Ramos, approached three customers in the parking lot of Dunkin' Donuts in Hillside. Although neither defendant possessed an actual firearm, Ramos was armed with a starter pistol and defendant held a cell phone in his hand in a manner simulating a handgun. According to defendant, Ramos demanded money from the victims, who complied and handed over cell phones and a wallet to the perpetrators. While fleeing the scene, Ramos fired the starter pistol to further scare off the victims.

Defendant never appealed his judgment of conviction. However, he filed a timely PCR petition, in which he alleged counsel was ineffective for failing to: (1) interview witnesses who gave conflicting accounts as to who fired the starter pistol; (2) move for a Wade1 hearing; (3) challenge the guilty plea to proceed without a factual basis; (4) inform defendant of NERA's five-year parole supervision period; and (5) file a direct appeal. Following argument, the PCR judge denied the petition, reasoning:

[T]he five-year period of special parole supervision was explained to [defendant] in detail including what would happen if he violated the parole . . . . [Defendant] indicated under oath that he

Understood . . . . [Defendant] also stated under oath that he read and understood the supplemental plea form for NERA cases which sets forth the five-year period of special parole. [Defendant] stated that his attorney explained everything in the form to him and answered whatever questions he had

. . . .

2. . . . [Defendant] under oath sets forth a factual basis for the crime he was pleading guilty to. The defendant out of his own mouth admitted to all of the elements of the crime. For example:

Q. And how did you use your cell phone to make it look like a real gun?

A. I just held it.

Q. You held it in your hand or you held it in your pocket?

A. I held it down in my hand.

. . . .

3. In the petition, [defendant] argues that if counsel had filed an appeal, [defendant] would have won the appeal based on the inadequate factual basis and the failure to disclose the special period of parole. For the reasons set forth in Paragraphs 1 and 2 above, this argument is without merit.

4. [Defendant] has not met his burden of showing that failure to ask for a Wade Hearing amounted to ineffective assistance of counsel by his trial attorney. First, there is no showing of suggestiveness which is a pre-requisite showing to entitle a defendant to a Wade Hearing. Second, there is a written record of how the photo-spread was administered and what the witness said.

It was provided in discovery[] . . . .

. . . .

[Defendant] alleges that trial counsel was ineffective by not interviewing the witnesses arguing that if the witnesses were interviewed, potential information could have been obtained that would have gotten [defendant] a better deal. This is pure speculation. PCR counsel never interviewed these witnesses. The state of the record was that there was doubt who fired the starter pistol.

On appeal, defendant raises the following issues:

I. THE JUDGE BELOW ERRED IN DENYING AN EVIDENTIARY HEARING BECAUSE DEFENDANT ESTABLISHED A REASONABLE LIKELIHOOD THAT HIS CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL WOULD ULTIMATELY SUCCEED ON THE MERITS REGARDING COUNSEL'S FAILURE TO OBJECT TO THE LACK OF A FACTUAL BASIS.

II. THE JUDGE BELOW ERRED IN DENYING AN EVIDENTIARY HEARING BECAUSE DEFENDANT ESTABLISHED A REASONABLE LIKELIHOOD THAT HIS CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL WOULD ULTIMATELY SUCCEED ON THE MERITS REGARDING DEFENDANT'S CLAIM THAT TRIAL COUNSEL FAILED TO FILE AN APPEAL.

III. THE JUDGE BELOW ERRED IN DENYING AN EVIDENTIARY HEARING BECAUSE DEFENDANT ESTABLISHED A REASONABLE LIKELIHOOD THAT HIS CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL WOULD ULTIMATELY SUCCEED ON THE MERITS REGARDING DEFENDANT'S CLAIM THAT TRIAL COUNSEL FAILED TO INVESTIGATE.

IV. THE JUDGE BELOW ERRED IN DENYING AN EVIDENTIARY HEARING BECAUSE DEFENDANT ESTABLISHED A REASONABLE LIKELIHOOD THAT HIS CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL WOULD ULTIMATELY SUCCEED ON THE MERITS REGARDING THE WADE HEARING.

V. DEFENDANT WAS ENTITLED TO AN EVIDENTIARY HEARING ON HIS CLAIMS.

We find no merit to any of these contentions, Rule 2:11-3(e)(2), and therefore affirm substantially for the reasons stated by Judge Peim in his order of September 9, 2011. We add only the following comments.

It is axiomatic that in order for defendant to

obtain relief based on ineffective assistance grounds, he is

obliged to show not only the particular manner in which counsel's performance was deficient, but also that the deficiency prejudiced his right to a fair trial. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 58 (1987). We are persuaded that the alleged deficiencies here clearly fail to meet either the performance or prejudice prong of the Strickland test.

Defendant's first claim on appeal is that counsel was ineffective for allowing the guilty plea to be entered without an adequate factual basis establishing the "deadly weapon" requirement of first-degree robbery. We disagree.

N.J.S.A. 2C:15-1 defines first-degree robbery as, "in the course of committing a theft," . . . "the actor attempts to kill anyone, or purposely inflicts or attempts to inflict serious bodily injury, or is armed with, or uses or threatens the immediate use of a deadly weapon." N.J.S.A. 2C:15-1(b) (emphasis added). Further, N.J.S.A. 2C:11-1 defines a deadly weapon as

any firearm or other weapon, device, instrument, material or substance, whether animate or inanimate, which in the manner it is used or is intended to be used, is known to be capable of producing death or serious bodily injury or which in the manner it is fashioned would lead the victim reasonably to believe it to be capable of producing death or serious bodily injury[.]

[N.J.S.A. 2C:11-1(c) (emphasis added).]

There are two elements, therefore, that must be proven: "[the] defendant must use a 'firearm or other weapon, device, instrument, material or substance;' . . . [and] the manner in which that item is fashioned must lead the victim reasonably to believe it capable of producing death or serious bodily injury." State v. Hutson, 107 N.J. 222, 227 (1987).

In his plea allocution, defendant expressly and specifically acknowledged that he utilized his cell phone in such a way that a person would reasonably believe that he possessed a firearm at the time of the robbery. Indeed, his simulation of the cell phone in a manner designed to resemble a firearm clearly creates the impression that defendant was armed and intended to inflict serious bodily injury on his victims. The fact that he claims no threatening words accompanied his actions matters not since the simulation of a firearm alone suffices to satisfy the statutory requirement. See State v. Chapland, 187 N.J. 275, 291-92 (2006). Having therefore provided an adequate factual basis for the guilty plea to first-degree robbery, counsel was not deficient in failing to object thereto.

Defendant's next claim of ineffectiveness is that "trial counsel should have filed a direct appeal as [defendant] specifically requested." To support such a claim, defendant must demonstrate two critical elements. Roe v. Flores-Ortega, 528 U.S. 470, 480, 484, 120 S. Ct. 1029, 1036, 1038, 145 L. Ed. 2d 985, 997, 999 (2000). First, defendant must show that his attorney failed to consult him about filing an appeal where "there is reason to think either (1) that a rational defendant would want to appeal (for example, because there are nonfrivolous grounds for appeal), or (2) that this particular defendant reasonably demonstrated to counsel that he was interested in appealing." Id. at 480, 120 S. Ct. at 1036, 145 L. Ed. 2d at 997. Second, a defendant must show that there was "a reasonable probability that, but for counsel's deficient failure to consult with him about an appeal, he would have timely appealed." Id. at 484, 120 S. Ct. at 1038, 145 L. Ed. 2d at 999.

The only evidence that defendant advances that he informed trial counsel of his desire to appeal is his own certification on June 28, 2011 and a June 6, 2008 Appeal Rights Form certification, which simply informed defendant of his right to appeal. However, defendant's endorsement of a form that certifies his acknowledgment of a right to appeal is not an affirmative assertion of that right. Indeed, the record is devoid of any evidence that defendant discussed his intention to appeal with his attorney and was rebuffed. While defendant claims that his efforts to file an appeal as within time indicate that he instructed his trial counsel to do so, he provides no evidence to support his contention that he gave such an instruction, rendering his claim nothing more than a bald, unsubstantiated assertion.

Furthermore, we discern no viable grounds for appeal. In the first place, defendant's guilty plea necessarily reduced the scope of potentially appealable issues. Moreover, defendant offered a sufficient factual basis supporting his guilty plea to first-degree robbery and was fully informed of all the NERA implications of such a plea. Indeed, as the PCR judge stated, the plea deal struck by counsel was quite generous, given that, despite the three victims involved, defendant was allowed to plead guilty to only one count of armed robbery and secured the dismissal of the seven remaining counts in the indictment.

As noted, defendant's remaining contentions are without merit and do not warrant discussion in this opinion. R. 2:11-3(e)(2).

1 United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967).