STATE OF NEW JERSEY v. CHARLES MURPHY

NOT FOR PUBLICATION WITHOUT THE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.

CHARLES MURPHY,

Defendant-Appellant.

________________________________________

December 28, 2015

Submitted November 17, 2015 Decided

Before Judges Yannotti and Guadagno.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 12-04-1178.

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

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Jane Deaterly Plaisted, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Charles Murphy appeals from an order entered by the Law Division on August 1, 2014, denying his petition for post-conviction relief (PCR). We affirm.

Defendant was charged under Essex County Indictment No. 12-04-1178 with third-degree unlawful possession of a firearm, N.J.S.A. 2C:39-5b (count one); and fourth-degree unlawful possession of knives, N.J.S.A. 2C:39-5d (counts two, three and four). On December 21, 2012, defendant pled guilty to count one. The State agreed to recommend a custodial sentence of five years, with three years of parole ineligibility.

At the plea hearing, defendant admitted that he left a backpack under a car that contained an Airsoft gun, and he did not have a permit to possess that weapon. Defendant acknowledged that the gun was operable and capable of being fired. The incident report prepared by the Essex County Sheriff's Department, which was contained in the Pre-Sentence Report (PSR), indicates that the backpack had been found under a car in the parking lot of the Essex County Courthouse.

Defendant was sentenced in accordance with the plea to five years of incarceration, with three years of parole ineligibility. The court dismissed the other charges in Indictment No. 12-04-1178. According to the State, a charge of possession of a weapon by a convicted felon was brought in a companion indictment, and also was dismissed as part of the plea. The court also imposed appropriate fines and penalties. Defendant did not file a direct appeal.

On January 29, 2014, defendant filed a PCR petition, alleging that he was denied the effective assistance of counsel. The court appointed counsel to represent defendant and counsel filed a brief arguing: (1) defendant was denied the effective assistance of counsel because his attorney did not file a motion to suppress the statement defendant gave to the police and failed to argue on defendant's behalf at sentencing; (2) defendant was entitled to an evidentiary hearing on his petition; and (3) the claims are not subject to any procedural bar. Defendant also raised additional arguments in a pro se supplemental brief.

On August 1, 2014, the court heard oral argument on the petition, after which the court placed its decision on the record. The court found that defendant's plea counsel was not ineffective at sentencing. The court noted that, even if counsel sought findings on mitigating factors one and two, it was not reasonably probable that a shorter sentence would have been imposed. The court did not make any finding on defendant's claim that his attorney erred by failing to make a suppression motion. The court entered an order dated August 1, 2014, denying PCR. This appeal followed.

On appeal, defendant raises the following arguments

POINT I

THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED BECAUSE THE PCR COURT'S FINDINGS OF FACT AND CONCLUSIONS OF LAW WERE DEFICIENT AND UNACCEPTABLE.

POINT II

THE PCR COURT'S FINDINGS SUMMARILY DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND [THE] MATTER REMANDED FOR AN EVIDENTIARY HEARING BECAUSE TRIAL COUNSEL'S FAILURE TO PRESENT A MITIGATING FACTOR ARGUMENT AT SENTENCING AND HIS FAILURE TO FILE A PRETRIAL MOTION TO SUPPRESS DEFENDANT'S STATEMENT SATISFIED [RULE] 3:22 PRIMA FACIE INEFFECTIVE ASSISTANCE OF COUNSEL STANDARDS.

POINT III

THE COURT'S RULING DENYING POST-CONVICTION RELIEF VIOLATED DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.

We are convinced from our review of the record that these arguments are entirely without merit. We are convinced that defendant failed to establish a prima facie case of ineffective assistance of counsel, and he was not entitled to an evidentiary hearing on his petition.

Here, the PCR court correctly determined that, in order to establish that he was denied the effective assistance of counsel as guaranteed by the Sixth Amendment to the United States Constitution, defendant must satisfy the two-part test established by the Supreme Court of the United States in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984).

Under Strickland, a defendant first must show that his attorney's handling of the matter "fell below an objective standard of reasonableness." Strickland, supra, 466 U.S. at 688, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. A defendant also must show that there exists 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. Our Supreme Court had adopted the Strickland test for consideration of ineffective-assistance-of-counsel claims raised under the New Jersey Constitution. State v. Fritz, 105 N.J. 42, 58 (1987).

Defendant claims that his attorney was ineffective at sentencing because he merely asked the court to accept the negotiated plea. Defendant claims that his attorney should have sought findings on mitigating factors one, N.J.S.A. 2C:44-1b(1) (defendant's conduct neither caused nor threatened serious harm); and two, N.J.S.A. 2C:44-1b(2) (defendant did not contemplate that his conduct would cause or threaten serious harm). Defendant contends the existing record supported these findings and would have justified imposition of a less severe sentence than the sentence imposed by the court.

At sentencing, the judge noted that defendant had pled guilty to possession of a handgun, specifically, an Airsoft pellet handgun. Defendant was fifty-nine years old when sentenced. He is a high school graduate. He is single and the father of two children. The judge noted that defendant has a lengthy criminal record, which includes eighteen arrests as an adult and eight prior indictable convictions. The judge pointed out that defendant had previously been given the opportunity for probation. He had also been previously sentenced to State prison.

Based on defendant's criminal record, the sentencing judge found aggravating factors three, N.J.S.A. 2C:44-1a(3) (risk that defendant will commit another offense); six, N.J.S.A. 2C:44-1a(6) (extent of defendant's prior criminal record and the seriousness of the offenses of which he has been convicted); and nine, N.J.S.A. 2C:44-1a(9) (need to deter defendant and others from violating the law). The judge found no mitigating factors. The judge sentenced defendant in accordance with the plea.

Defendant contends that findings on mitigating factors one and two were warranted because the handgun he possessed was "non-lethal." He further contends that findings on other mitigating factors could have been justified by defendant's "long history of mental health issues" which is discussed in the defendant's Pre-Sentence Report (PSR). We disagree.

The PCR judge correctly found that, even if counsel erred by failing to argue for findings on mitigating factors one and two, defendant had not established a reasonable probability that those findings would have been made and a shorter sentence imposed. The judge aptly noted that the air gun was a prohibited weapon, it posed a threat of non-lethal harm, and possession of that weapon was a crime under N.J.S.A. 2C:39-5b(1).

The judge pointed out that the air gun posed a threat of harm, even if potentially less lethal than other weapons. Thus, the judge correctly determined that, even if counsel had raised these issues, the same sentence would have been imposed, particularly in light of the findings of aggravating factors three, six and nine, based on defendant's extensive criminal record.

Furthermore, while defendant asserted in the PCR court that his history of mental health issues would have justified findings of certain mitigating factors, specifically N.J.S.A. 2C:44-1b(3) (defendant acted under strong provocation); four, N.J.S.A. 2C:44-1b(4) (substantial grounds to excuse or justify defendant's conduct, though failing to establish a defense), and eight, N.J.S.A. 2C:44-1b(8) (defendant's conduct was the result of circumstances unlikely to recur). There is, however, no indication on this record that defendant's mental health issues played any role in his possession of the weapon.

Defendant further argues that plea counsel was ineffective because counsel failed to file a motion to suppress the statement he gave to the police. As noted, the PCR court did not specifically address this claim. Nevertheless, as the State notes, in order to prevail on this claim, defendant has to satisfy both prongs of the Strickland test, and also show that the suppression motion has merit. State v. Goodwin, 173 N.J. 583, 600 (2002).

Defendant failed to present the PCR court with evidence showing that counsel would have had a well-founded basis to seek suppression of his statement. In the supplemental certification filed with the PCR court, defendant stated in conclusory fashion that he was "pressured and coerced" into making the statement. Defendant failed, however, to present sufficient facts to support that assertion.

We also note that the PSR indicates that defendant had been provided with his Miranda warnings before he made the statement. Defendant failed to allege specific facts that would have supported an argument that the statement was not given knowingly, intelligently and voluntarily. State v. Hreha, 217 N.J. 368, 382 (2014). Thus, defendant did not establish that a motion to suppress would have had merit.

Defendant further argues that the PCR court erred by denying his petition without a hearing. A hearing on a PCR petition is required only when a defendant establishes a prima facie case in support of PCR, there are material issues of disputed fact that cannot be resolved based on the existing record, and the court determines an evidentiary hearing is required to resolve the claims presented. State v. Porter, 216 N.J. 343, 354 (2013) (citing R. 3:22-10(b)).

Here, there were no material issues of disputed fact relative to the claims asserted, and defendant failed to establish a prima facie case of ineffective assistance of counsel. The PCR court correctly determined that an evidentiary hearing was not required.

In view of our decision, we need not address the State's contention that defendant's claim regarding his sentence is barred by R. 3:22-4, since it essentially constitutes a claim that the sentence is excessive and should have been raised on direct appeal.

Affirmed.