STATE OF NEW JERSEY v. GREGORY LAWNIK

NOT FOR PUBLICATION WITHOUT THE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.

GREGORY LAWNIK,

Defendant-Appellant.

____________________________________

June 23, 2014

Submitted March 5, 2014 Decided

Before Judges Waugh and Accurso.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 08-01-0002.

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

Andrew C. Carey, Acting Middlesex County Prosecutor, attorney for respondent (Brian D. Gillet, Special Deputy Attorney General/ Acting Assistant Prosecutor, and Susan L. Berkow, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).

Appellant filed pro se supplemental briefs.

PER CURIAM

Defendant Gregory Lawnik appeals the Law Division's June 7, 2012 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.

In 2002, Lawnik was convicted of violating N.J.S.A. 2C:35-9, which provides that a person who distributes a controlled dangerous substance, such as heroin, is strictly liable for the death, caused by the drug involved, of the person to whom it was distributed. He was sentenced to incarceration for sixteen years, subject to an eighty-five-percent period of parole ineligibility.

Lawnik appealed, and we confirmed his conviction, but remanded for resentencing in accordance with our opinion in State v. Natale, 373 N.J. Super. 226, 235 (2004), aff'd in part and rev'd in part, 184 N.J. 458 (2005). State v. Lawnick, No. A-6177-02 (June 16, 2005). The Supreme Court denied Lawnik's petition for certification. State v. Lawnick, 185 N.J. 268 (2005). The Court granted the State's cross-petition and remanded for resentencing based upon its affirmance of our Natale opinion, which affirmed in part and reversed in part our decision. State v. Lawnick, 185 N.J. 261 (2005).

Lawnik filed his first PCR petition in December 2005. It was heard and dismissed on July 11, 2006. Lawnik appealed the order dismissing his petition.

While the appeal was pending, the prosecutor preparing the State's brief noted an issue involving a case decided on July 26, 2006, several days after Lawnik's first PCR petition was dismissed. In State v. Morrison, 188 N.J. 2, 18-20 (2006), the Supreme Court held that a person does not violate N.J.S.A. 2C:35-5(a) by sharing jointly possessed CDS with the other possessor.1 As a result, the Court also determined that a death resulting from such sharing cannot form the basis for prosecution under N.J.S.A. 2C:35-9. As we noted in our decision affirming the direct appeal, Lawnik had admitted to the police that he supplied the decedent with a mixing spoon and needle and then injected the victim with the victim's heroin. Lawnick, supra, No. A-6177-02 (slip op. at 4). The prosecutor contacted Lawnik's PCR attorney to raise the issue and subsequently contacted the head of the PCR unit at the Office of the Public Defender.

After considerable discussion, the prosecutor and public defender reached a proposed agreement, which called for Lawnik to plead guilty to an accusation charging him with fourth-degree obstruction of justice, N.J.S.A. 2C:29-1, based on his conduct following the death of the purported victim. In exchange, Lawnik was to be released on his own recognizance pending the entry of the guilty plea, and once he pled guilty, he was to be sentenced to time served, the conviction resulting from the earlier indictment was to be vacated and the indictment dismissed, and Lawnik was to withdraw his appeal of the denial of his PCR.

Lawnik was released on his own recognizance on October 10, 2007. On January 3, 2008, Lawnik waived indictment and pled guilty to obstruction of justice by misleading the police concerning the location of the decedent's body, which he had buried in the backyard of the house where the death occurred. He also waived any claim of double jeopardy. The plea judge went through the terms of the plea thoroughly with Lawnik and established that there was a factual basis for the plea. The judge then sentenced Lawnik to time served, retroactive to the date of the first sentence. She also vacated the judgment of conviction and dismissed the indictment. Lawnik withdrew his appeal on July 25, 2008, and an order of dismissal was entered by the clerk on August 11.

On February 25, 2011, Lawnik filed his second PCR petition, arguing that his plea counsel was ineffective. The matter was fully briefed and oral argument was heard on May 17, 2012. Following oral argument, the PCR judge delivered an oral decision explaining his reasons for denying relief and dismissing the petition. The implementing order was entered on June 7. This appeal followed.

II.

Lawnik makes the following arguments on appeal through counsel:

POINT I: THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF PLEA COUNSEL.

POINT II: THE LOWER COURT ORDER MUST BE REVERSED SINCE THE PLEA COURT LACKED JURISDICTION.

Lawnik makes the following additional arguments in a pro se brief:

POINT ONE: SUBSTANTIAL DENIAL IN THE CRIMINAL PROCEEDINGS OF DEFENDANT'S RIGHTS UNDER THE CONSTITUTION OF THE UNITED STATES OR THE CONSTITUTION OR LAWS OF THE STATE OF NEW JERSEY.

A. Defendant received ineffective assistance of counsel as a result of counsel's acts or omissions that denied defendant of substantial rights guaranteed under the US or NJ Constitutions or the laws of NJ.

B. Defendant received ineffective assistance of counsel from counsel's advice that denied his rights under the US or NJ Constitution or NJ statutory law pursuant to Double Jeopardy.

C. Defendant received ineffective assistance of counsel from counsel's omission to advise the defendant of his substantial rights under the NJ laws on mandatory joinder.

POINT TWO: THE TRIAL COURT LACKED JURISDICTION.

"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.

Finally, 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).

Lawnik argues that his plea counsel was ineffective because she failed to inform him that the doctrine of mandatory joinder barred the filing of the accusation against him. Rule 3:15-1(b) states:

Except as provided by [Rule] 3:15-2(b), a defendant shall not be subject to separate trials for multiple criminal offenses based on the same conduct or arising from the same episode, if such offenses are known to the appropriate prosecuting officer at the time of the commencement of the first trial and are within the jurisdiction and venue of a single court.

This rule was incorporated into N.J.S.A. 2C:1-8(b), which reads as follows:

Except as provided in subsection c. of this section, a defendant shall not be subject to separate trials for multiple criminal offenses based on the same conduct or arising from the same episode, if such offenses are known to the appropriate prosecuting officer at the time of the commencement of the first trial and are within the jurisdiction and venue of a single court.

Pursuant to the mandatory joinder rule, all crimes known to the prosecutor arising out of a single drug transaction must be joined and any omitted offense will be barred. State v. Williams, 172 N.J. 361, 368 (2002); State v. Veney, 409 N.J. Super. 368, 383 (App. Div. 2009).

In State v. Yoskowitz, 116 N.J. 679, 701 (1989), the Supreme Court identified four criteria a defendant must satisfy to invoke the mandatory joinder rule:

(1) the multiple offenses are criminal; (2) the offenses are based on the same conduct or arose from the same episode; (3) the appropriate prosecuting officer knew of the offenses at the time the first trial commenced; and (4) the offenses were within the jurisdiction and venue of a single court.

We disagree with Lawnik's premise that the mandatory joinder rule would have barred prosecution for obstruction of justice. He was convicted of distributing heroin to the victim and held strictly liable for his resulting death. The accusation charged him with obstruction of justice, a totally unrelated crime, between April 4 and October 2, 1999. At least one of his conversations with a police officer took place on May 25, almost two months after the victim "disappeared," but was actually dead and buried in Lawnik's backyard. Consequently, the offenses were "factually distinct in terms of time . . . and victim," and not part of the same episode. State v. Pillot, 115 N.J. 558, 567 (1989). In addition, although Lawnik pled guilty to the accusation before the indictment was dismissed, one was clearly replacing the other.

Even if plea counsel's representation was defective, Lawnik has not demonstrated that he was harmed. In anticipation of the plea, Lawnik was released from prison on his own recognizance. The State also agreed not to defend the earlier conviction and not to seek an indictment charging a different homicide charge, such as manslaughter. N.J.S.A. 2C:11-4. It is by no means clear that, had he rejected the State's proposal, Lawnik would have been released from incarceration and subjected to no further prosecution.

Lawnik also argues that the trial court lacked jurisdiction to vacate his earlier conviction, dismiss the underlying indictment, and accept the guilty plea absent a remand from this court. While we agree that the better procedure would have been for the trial court to have waited for a remand order, R. 2:9-1, we do not find the procedural irregularity a basis for setting aside the trial court's action under the unique circumstances of this case.

Having reviewed the additional arguments raised on appeal, we find them to be without merit and not warranting discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.

1 In reaching its decision, the Court relied on principles established in State v. Lopez, 359 N.J. Super. 222, 233 (App. Div.), certif. granted sub nom., State v. Garcia, 177 N.J. 576, appeal dismissed per stipulation, 178 N.J. 372 (2003), a case decided after Lawnik's conviction but before our decision on his direct appeal. The issue had not previously been raised in this case.