STATE OF NEW JERSEY v. A.J. ELDRIDGE

NOT FOR PUBLICATION WITHOUT THE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.

A.J. ELDRIDGE,

Defendant-Appellant.

_______________________________

September 15, 2014

Submitted July 8, 2014 Decided

Before Judges Espinosa and Kennedy.

On appeal from Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 09-09-0810.

Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief).

Jennifer Webb-McRae, Cumberland County Prosecutor, attorney for respondent (G. Harrison Walters, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant appeals from an order of the Law Division denying his petition for post-conviction relief (PCR). We affirm essentially for the reasons expressed in Judge Darrell M. Fineman s thorough written opinion.

On September 30, 2009, a Cumberland County Grand Jury returned an indictment charging defendant with first-degree murder, contrary to N.J.S.A. 2C:11-3(a)(1) or (2) (count one); second-degree possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-4(a) (count two); second-degree unlawful possession of a handgun, contrary to N.J.S.A. 2C:39-5(b) (count three); and second-degree aggravated arson, contrary to N.J.S.A. 2C:17-1(a)(2) (count four). On November 30, 2009, defendant entered a plea of not guilty to the charges in the indictment.

Pursuant to a plea bargain, on June 13, 2011, defendant retracted his plea of not guilty and entered a plea of guilty on count one to the amended charge of aggravated manslaughter, contrary to N.J.S.A. 2C:22-4(a), and on count four to the amended charge of third-degree arson, contrary to N.J.S.A. 2C:17-1(b)(2). In return for the plea, the State agreed to amend the indictment, as noted, and to recommend a custodial sentence of twenty-five years, subject to an eighty-five percent period of parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C: 43-7.2, on count one, and a consecutive custodial sentence of five years on count four. The remaining charges would be dismissed.

During the plea hearing, defendant repeatedly stated, "I know what I'm doing" and "I agree to take the plea." Further, defendant acknowledged that he had adequate time to consult with counsel and was satisfied with his advice and services. Defendant then placed on the record a factual basis for the plea. He stated that on January 12, 2009, he fired a .45 caliber handgun into the bathroom of his girlfriend's apartment, killing her, and then lit the apartment on fire.

Prior to sentencing, defendant moved to withdraw his guilty plea and relieve his counsel. Judge Fineman granted defendant's motion to relieve counsel and defendant thereafter hired a new attorney. On December 12, 2011, defendant's new attorney argued that prior counsel failed to challenge defendant's pre-indictment statements to police as violating Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), and that the court should vacate defendant's plea so that he might do so. Judge Fineman denied the motion and sentenced defendant pursuant to the terms of the plea agreement.

Defendant did not file an appeal, but petitioned for PCR on May 29, 2012. Judge Fineman denied the petition without an evidentiary hearing following oral argument and set forth his findings and conclusions in a sixteen page written opinion on Mach 19, 2013. Judge Fineman, opined, in pertinent part, as follows:

[T]he petitioner must show that his motion to suppress would likely have succeeded had it been raised by trial counsel. It is not ineffective assistance of counsel for defense counsel not to file a meritless motion, or . . . to waive the hearing on the motion to suppress. State v. O Neal, 190 N.J. 601, 619 (2007).

In the present matter, the petitioner initially claimed that his trial counsel offered ineffective assistance for failing to file a Miranda motion to suppress statements he made to police and all evidence that was recovered as a result of those statements. In order to succeed on a PCR based upon the failure of trial counsel to file a motion, the petitioner must not only show ineffective assistance but also that his Miranda motion would likely have succeeded.

. . . .

Under Miranda v. Arizona, [supra,] an individual who is questioned while in police custody must be informed of his right to remain silent, the right to have counsel present during questioning, the right to the appointment of counsel if he cannot afford it, and the right to invoke his rights at any time during the interrogation. The defendant may waive these rights provided the waiver is made voluntarily, knowingly, and intelligently.

. . .

An explicit waiver is preferable, but a defendant s waiver may be implied. Waiver need not take a designated legal form nor need it be expressed in designated legal terminology. State v. Freeman, 223 N.J. Super. 92, 107 (App. Div. 1988) (citing State v. Yough, 49 N.J. 587, 596 (1967)).

. . .

[A] waiver of Miranda warnings may be ineffective if law enforcement officers use a 'question-first, warn-later' approach. In State v. O'Neill, 193 N.J. 148, 154 (2007), the police questioned a suspect about his role in planning the robbery of a cab driver who was shot and killed. Once the defendant made incriminating statements, the officers advised him of his Miranda rights. Ibid.

. . .

The O'Neill court indicated a number of factors that should be considered in deciding whether a statement made after a suspect received Miranda is admissible. These factors include:

(1)[T]he extent of questioning and the nature of any admissions made by defendant before being informed of his Miranda rights; (2) the proximity in time and place between the pre- and post-warning questioning; (3) whether the same law enforcement officers conducted both the unwarned and warned interrogations; (4) whether the officers informed defendant that his pre-warning statements could not be used against him; and (5) the degree to which the post-warning questioning is a continuation of the pre-warning questioning.

[Id. at 181.]

. . .

'[Q]uestion-first, warn-later' doctrine does not apply where the defendant has not made any incriminating statements prior to receiving the warning. In State v. Yohnson, 204 N.J. 43, 47-48 (2010), a suspect was questioned for nearly three hours regarding robberies after police mistakenly believed he had been read his Miranda rights. Police stopped the interrogation after the suspect intimated that he wanted a lawyer. Id. at 48. After he told police he wanted to speak to them again, he was subsequently informed of his rights and confessed. Ibid. The court found the case distinguishable from O'Neill because the defendant did not actually offer any incriminating statements and applied the totality of the circumstances test to find the confession admissible. Id. at 64-65.

. . . .

Petitioner has not demonstrated that he likely would have succeeded in his petition. It is undisputed that Eldridge was read his Miranda warnings. Therefore, the petitioner must show that the State would not have been able to prove that he effectively waived his constitutional rights. Examining the totality of the circumstances surrounding the interrogation, the petitioner failed to show that he did not knowingly and voluntarily waive his rights. Five minutes into the interrogation, he was read his rights, stated that he understood them, and proceeded to answer questions. He remained calm during the first two hours and freely provided information regarding the victim and his own whereabouts. The detectives calmly questioned him and did not make any threats in order to force him to provide information. The friendly and empathetic approach the detectives took did not render the confession involuntary. State v. DiFrisco, 118 N.J. 253, 257 (1990). The interrogation was not overly lengthy and a break was taken just over an hour into it. In addition, the Court must consider that Eldridge had a number of previous encounters with the law making him more familiar with his Miranda rights. See State v. Presha, 163 N.J. 304, 313 (2000). Petitioner's only allegation in his certification as to the knowing and voluntary nature of his waiver is that they did not advise him of his rights until after he provided a confession.

However, review of the audio recording of the interrogation revealed that the State Police did not utilize a 'question-first, warn-later' approach. Petitioner correctly asserts that he was questioned before being advised of his rights, but these questions, were merely background questions . . . .

Based upon the totality of the circumstances, this Court concludes that petitioner did make any showing in this petition to warrant an evidentiary hearing. He failed to offer evidence showing that he did not knowingly and voluntarily waive his constitutional rights and would not have likely succeeded on a Miranda motion. Because he would not likely have succeeded, trial counsel's failure to file such a motion is strategically defensible. Moreover, Petitioner has not alleged that that he would have turned down the plea agreement based solely on the filing of the motion regardless of its outcome. Therefore, the Court concludes that the petitioner has failed to meet his burden to show ineffective assistance of counsel.

This appeal followed.

Defendant argues on appeal that the PCR court erred in denying his petition without an evidentiary hearing. We find no merit to these contentions, Rule 2:11-3(e)(2), and therefore affirm substantially for the reasons stated by Judge Fineman in his thorough written decision of March 19, 2013. Suffice it to say, 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.

Affirmed.