STATE OF NEW JERSEY v. MICHAEL JONES

NOT FOR PUBLICATION WITHOUT THE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.

MICHAEL JONES,

Defendant-Appellant.

__________________________________________

June 25, 2015

Before Judges Koblitz and Currier.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 06-11-1115.

Joseph E. Krakora, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief).

Angelo J. Onofri, Acting Mercer County Prosecutor, attorney for respondent (Dorothy Hersh, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Michael Jones appeals from the June 6, 2013 order denying his petition for post-conviction relief (PCR). We affirm.

In February 2006, a police investigation following the shooting death of a man in Trenton led the police to believe that defendant had been involved. Jones agreed to a polygraph test during which he gave the name of an individual to the police as being the alleged shooter. The results of the polygraph test revealed that the information given by defendant was false. He thereafter agreed to an interview with detectives. At that time, Jones signed the forms provided by police informing him of his Miranda1 rights and the waiver of those rights. After several hours, he confessed to the shooting and three witnesses corroborated his involvement.

On February 14, 2008, Jones pled guilty to the amended charge of aggravated manslaughter, N.J.S.A. 2C:11-4. In conformity with the plea offer, Jones was sentenced on September 16, 2008 to incarceration for fifteen years, with an 85% period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. A second indictment was dismissed.

In October 2009, defendant's excessive sentence appeal was denied and the sentence affirmed. State v. Jones, No. A-1655-08 (App. Div. October 21, 2009). A PCR petition was filed by Jones pro se on March 10, 2010 and thereafter a brief was filed by assigned counsel. Jones asserted that his trial counsel was constitutionally ineffective because he did not preserve defendant's right to appeal the denial of the motion to dismiss the indictments, and failed to file motions to suppress defendant's confession and the out-of-court identifications of him.

Judge Thomas W. Sumners, Jr. held three days of evidentiary hearings and denied relief in a comprehensive written opinion on June 6, 2013. The judge reviewed the evidence presented against Jones and determined that he had failed to prove that he was denied the effective assistance of counsel. He further found that defendant had made an informed decision with the proper assistance of counsel to plead guilty and denied the PCR petition. This appeal followed.

Jones raises the following issues on appeal

POINT I

DEFENDANT'S CONVICTIONS MUST BE REVERSED BECAUSE TRIAL COUNSEL FAILED TO SEEK SUPPRESSION OF DEFENDANT'S CONFESSION AND/OR THE OUT-OF-COURT IDENTIFICATIONS, AND/OR FAILED TO PRESERVE THE MOTION FOR DISMISSAL OF THE INDICTMENTS ON APPEAL.

"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 or 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 the context of a guilty plea, defendant must satisfy the second prong by demonstrating that, but for his counsel's unprofessional errors, he would have refused to plead guilty and would instead have insisted on going to trial. State v. McDonald, 211 N.J. 4, 30 (2012); State v. Difrisco, 137 N.J. 434, 457 (1994).

In turning to defendant's specific arguments, we note that trial counsel filed motions to dismiss both indictments. Those motions were denied2 and are not a basis for this appeal other than defendant's contention that as part of the plea agreement trial counsel did not preserve the right to appeal the judge's decision. Judge Sumners' ruling as to this argument and the others regarding the failure to file motions to suppress the confession and out-of-court identification are intertwined.

Trial counsel testified as to the concentrated involvement defendant had in every step of the preparation of his case and plea negotiations with the prosecutor. Counsel stated he spoke to defendant on a daily basis and family members were very involved as well. Defendant and his attorney discussed the potential issues with his confession and witness identifications of him as the shooter and agreed on the most effective use of these issues as arguments to the state in order to obtain a more favorable plea deal. Counsel stated they were successful in negotiating a more favorable deal than had originally been offered and if they had not received a favorable plea offer, the motions would have been filed.

Judge Sumners noted the credibility of trial counsel. He found him responsive to questions, not defensive as to the alleged ineffectiveness allegations, and commented on his overall candor with the court. "He was confident, but not boastful, that he provided effective counsel given the [defendant's] confession and witnesses [identifying him as the shooter], yet [counsel was still] able to negotiate a favorable plea agreement."

On the other hand, the judge found a lack of credibility on the part of defendant. At the PCR hearing, defendant acknowledged lying to the judge about shooting the victim when he gave a factual basis for his plea. Jones said he had lied to the police when he accused another man of being the shooter. He had stated during his plea colloquy that he was satisfied with the services and advice of his counsel, but now claimed the representation to have been constitutionally ineffective.

Where, as here, the judge conducts an evidentiary hearing, we must uphold the judge's factual findings, "'so long as those findings are supported by sufficient credible evidence in the record.'" State v. Rockford, 213 N.J. 424, 440 (2013)(quoting State v. Robinson, 200 N.J. 1, 15 (2009)). Additionally, we defer to a trial judge's findings that are "'substantially influenced by [the trial judge's] opportunity to hear and see the witnesses and to have the "feel" of the case, which a reviewing court cannot enjoy.'" Ibid. (alteration in original)(quoting Robinson, supra,, 200 N.J. at 15). We owe particular deference to the trial judge's credibility determinations. See State v. Locurto, 157 N.J. 463, 470-71 (1999).

Defendant has not proven by a preponderance of the evidence that he was denied effective assistance of counsel. Trial counsel explained the agreement he and defendant had in using the issues with the confession and out of court identification as leverage to procure a more favorable plea offer. Their strategy was effective and defendant accepted the State's plea offer and pled guilty.

Affirmed.

1 Miranda v. Arizona, 384 U.S 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

2 The motions to dismiss the indictments were heard and decided by a different judge than the PCR judge.