STATE OF NEW JERSEY v. DERRICK WASHINGTON

NOT FOR PUBLICATION WITHOUT THE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.

DERRICK WASHINGTON,

Defendant-Appellant.

___________________________________

September 9, 2014

Submitted August 6, 2014 Decided

Before Judges Waugh and Accurso.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 10-06-1211.

Joseph E. Krakora, Public Defender, attorney for appellant (Kevin G. Byrnes, Designated Counsel, on the brief).

Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Gioiella Mayer, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Derrick Washington appeals the Law Division's January 3, 2013 order dismissing his petition for post-conviction relief (PCR). We reverse and remand to the Law Division for an evidentiary hearing.

We discern the following facts and procedural history from the record on appeal. In June 2010, Washington was indicted and charged with the following offenses: third-degree possession of a controlled dangerous substance (CDS), contrary to N.J.S.A. 2C:35-10(b)(3) (count one); third-degree possession of CDS, with intent to distribute, contrary to N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(a)(1) (count two); third-degree possession of CDS, with intent to distribute on or near school property, contrary to N.J.S.A. 2C:35-7 and N.J.S.A. 2C:35-5(a)(1) (count three); third-degree distribution of CDS, on or near school property, contrary to N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3) (count four); third-degree distribution of CDS on or near school property, contrary to N.J.S.A. 2C:35-7 and N.J.S.A. 2C:5-(a)(1) (count five).

Washington filed a motion to suppress the evidence seized at the time of his arrest. Following an evidentiary hearing, that motion was denied on August 5, 2011. On October 17, Washington pled guilty to count three of the indictment, third-degree possession on or near school property with intent to distribute. On December 11, he was sentenced to incarceration for five years, with a three-year period of parole ineligibility.

In May 2012, Washington filed a pro se PCR petition, alleging ineffective assistance of counsel and seeking to withdraw his guilty plea. Assigned counsel supplemented the papers filed by Washington. Following oral argument on January 3, 2013, the judge denied relief and dismissed the petition. He also filed a very brief written opinion. This appeal followed.

Washington raises the following issues on appeal:

POINT I: THE DEFENDANT IS PROCEDURALLY AUTHORIZED TO PETITION THE COURT FOR POST-CONVICTION RELIEF.

POINT II: THE DEFENDANT IS ENTITLED TO SET ASIDE HIS PLEA AGREEMENT.

A. THE DEFENDANT IS ENTITLED TO RELIEF BASED ON A MANIFEST INJUSTICE.

B. TRIAL COUNSEL'S INEFFECTIVE-NESS RESULTED IN A MANIFEST INJUSTICE.

POINT III: THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S FAILURE TO PROTECT THE DEFENDANT'S FUNDAMENTAL CONSTITUTIONAL RIGHTS.

POINT IV: THE DEFENDANT SHOULD BE GRANTED RELIEF OR THE MATTER SHOULD BE REMANDED FOR AN EVIDENTIAL HEARING.

"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 (citations omitted). "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, 49-50 (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.

A defendant seeking post-conviction relief is not entitled to an evidentiary hearing unless he presents a prima facie case of ineffective assistance of counsel. Preciose, supra, 129 N.J. at 462-64. "As in a summary judgment motion, courts should view the facts in the light most favorable to a defendant to determine whether a defendant has established a prima facie claim." Id. at 462-63 (emphasis omitted).

Washington contends that his defense attorney did not adequately communicate with him or investigate his case. With respect to the suppression hearing, Washington contends that specific witnesses would have testified that the police entered his aunt's house to search for evidence without consent. In support of his assertion, he submitted a certification from his aunt to the effect that the police entered and searched her house without her consent. He submitted a certification from another potential witness, who certified that he saw the police throw Washington to the ground, take keys from his pocket, enter the apartment building, and use the keys to enter the apartment in which the drugs were found, after trying other doors first. The record also contains documents supporting Washington's assertion that he was dissatisfied with his assigned counsel and attempted to obtain new counsel in 2010.

The PCR judge denied relief without a hearing. His brief opinion failed to mention or analyze the witness certifications provided by Washington. In particular, there was no discussion of whether the testimony of the witness who observed his arrest would have undercut the police testimony that Washington himself consented to the search. The judge also failed to mention or analyze the implications of the documents that reflect Washington's attempts to have new counsel assigned to represent him prior to the suppression hearing.

Viewing Washington's submission in the light most favorable to him, as Preciose requires, we have determined that he has satisfied the requirements for a plenary hearing to develop a fuller record on which to evaluate his claims as to both the first and second Strickland prongs. Consequently, we reverse the order on appeal and remand for further proceedings consistent with this opinion. Inasmuch as the PCR judge has already expressed his views on the merits of Washington's claims, we direct that the matter be assigned to a different judge on remand.

Reversed and remanded.