STATE OF NEW JERSEY v. BARRINGTON MCDONALD

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-01637-13T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

BARRINGTON MCDONALD,

Defendant-Appellant.

August 3, 2015

Before Judges Lihotz and Rothstadt.

On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 07-03-0503.

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

James P. McClain, Atlantic County Prosecutor, attorney for respondent (John Santoliquido, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Barrington McDonald appeals from the Law Division's September 3, 2013 denial of his petition for post-conviction relief (PCR) without holding an evidentiary hearing. On appeal, he argues the PCR court improperly denied his petition without an evidentiary hearing because he established a prima facie case of ineffective assistance of counsel based on counsel's failure to adequately investigate and inform defendant about facts important to defendant's decision to plead guilty. We disagree and affirm.

An Atlantic County Grand Jury indicted defendant and charged him with: second-degree assault by automobile while driving in a school zone, N.J.S.A. 2C:12-1(c)(3)(a) (count one); and fourth-degree causing injury while driving privileges were suspended N.J.S.A. 2C:40-22(b) (count two). Defendant was also issued summonses for driving while intoxicated in a school zone, N.J.S.A. 39:4-50(g)(1); driving while suspended, N.J.S.A. 39:3-40; driving while unlicensed, N.J.S.A. 39:3-10; reckless driving, N.J.S.A. 39:4-96; and careless driving, N.J.S.A. 39:4-97.

Defendant pled guilty, pursuant to a plea agreement, to count one of the indictment, driving while intoxicated and driving while suspended in exchange for the dismissal of the remaining charges and the prosecutor's recommendation that he be sentenced on the indictment in the third-degree range to a term of three years in prison. The court sentenced defendant in accordance with the plea agreement to three years imprisonment, and consecutive jail time for his DWI offense, as well as terms of license suspension, fines and penalties. All remaining charges were dismissed. The court sentenced defendant after it first denied his motion to withdraw his guilty plea, in which he argued had he known that the offense was not committed within the school zone as determined by a survey prepared at his request, he would not have pled guilty.

We summarized the facts leading to defendant's indictment and his conviction arising from his striking and injuring a pedestrian on January 14, 2007, in our consideration of defendant's direct appeal and they need not be repeated here. See State v. McDonald, No. A-4937-07 (App. Div. August 25, 2010) (slip op. at 2-3), aff'd, 211 N.J. 4 (2012). In our earlier opinion we affirmed his conviction, rejecting his argument that the offense did not occur in a school zone, but remanded for a hearing on his motion to withdraw his guilty plea only as to driving while suspended. Id. at 2. The Supreme Court affirmed our decision, and also rejected defendant's claims about the location of the offense, as well as his claims of ineffective assistance of counsel because the record before it was "inadequate." McDonald, supra, 211 N.J. at 30.

Defendant filed a pro se petition for PCR, in which he claimed ineffective assistance of counsel based upon counsel failing to perform "proper due diligent pre-trial discovery," and sending a substitute attorney to appear for him at defendant's sentencing, who did not advise defendant of the penal consequences of his guilty plea. On August 16, 2013, the court considered the parties'1 oral arguments and reserved its decision, until August 27, when it issued a written opinion, and later its order, denying defendant's petition.

The PCR judge began his decision by describing "the gravamen of defendant's claim [as being] identical to the basis for his motion to withdraw his guilty plea and for his appeals." Specially, the basis for the PCR petition was "counsel allow[ing] his guilty plea without having first obtained a school zone map in discovery." After considering defendant's argument that counsel failed to obtain a school zone map to demonstrate the offense did not occur in a school zone, the court concluded defendant's argument did not make sense and could not satisfy the two-prong Strickland2 test because it was factually incorrect as the offense did occur within a school zone, as confirmed by the Appellate Division and the Supreme Court. The court continued by assuming if defendant had his own map prior to pleading guilty, rather than the State's, he would not have pled guilty but, rather, sought dismissal of the charge as having occurred outside a school zone. The result would have been the denial of the motion based on the interpretation of the law as expressed by the Supreme Court, which specifically rejected defendant's argument that, based on his measurements of the accident location in relation to the school, the offense did not occur in a school zone. Thus, the PCR court concluded had defendant not pled guilty he would have been convicted regardless of counsel's obtaining a school zone map.

In the present appeal, defendant argues

THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE DEFENDANT ESTABLISHED A PRIMA FACIE CASE OF INEFFECTIVENESS OF COUNSEL, IN THAT TRIAL COUNSEL FAILED TO OBTAIN A SCHOOL ZONE MAP PRIOR TO DEFENDANT'S PLEADING GUILTY.

According to defendant's argument, "irrespective as to whether the accident occurred within 1000 feet of school property, trial counsel's failure to investigate the matter properly, by obtaining a school zone map prior to the guilty plea . . . established a prima facie case of ineffectiveness . . . thereby mandating an evidentiary hearing."

In response, the State argues that Rule 3:22-53 precludes defendant from arguing ineffective assistance based on the school zone issue as defendant was unsuccessful on direct appeal to establish this crime was not committed within that zone. Further, it argues that defendant did not establish that any further investigation of that issue or any other issue would have "led to a result other than defendant's conviction."

We have considered these argument in light of our review of the record and applicable legal principles. We affirm, essentially for the reasons stated by the PCR judge in his written opinion.

Because the PCR court did not conduct an evidentiary hearing, our review is de novo. State v. Harris, 181 N.J. 391, 421 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005).

A PCR proceeding "is a defendant's last opportunity to challenge the fairness and reliability of a criminal verdict in our state system. It is a safeguard intended to ensure that a defendant was not unjustly convicted." State v. O'Neil, 219 N.J. 598, 609-10 (2014) (citations and internal quotation marks omitted). Claims of ineffective assistance of counsel are cognizable on PCR, and must be proven by a preponderance of the evidence. State v. Gaitan, 209 N.J. 339, 350 (2012), cert. denied, ___ U.S. ___, 133 S. Ct. 1454, 185 L. Ed. 2d 361 (2013); Preciose, supra, 129 N.J. at 459.

Courts normally should grant an evidentiary hearing if the defendant establishes a prima facie case of ineffective assistance of counsel. State v. Goodwin, 173 N.J. 583, 596 (2002); Preciose, supra, 129 N.J. at 462. Whether to hold a hearing on a PCR petition is a matter of judicial discretion. R. 3:22-10(b); State v. Jones, 219 N.J. 298, 311 (2014); State v. Preciose, 129 N.J. 451, 462 (1992); State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). A court need not hold a hearing if it perceives that the hearing would be unhelpful in its analysis of the claims asserted. State v. Marshall, 148 N.J. 89, 158, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). On the other hand, hearings may be required where there is a factual dispute on matters outside the trial record, Jones, supra, 219 N.J. at 302, 308-09, with factual disputes viewed "in the light most favorable to the defendant." Id. at 311. "If, with the facts so viewed, the PCR claim has a reasonable probability of being meritorious, then the defendant should ordinarily receive an evidentiary hearing in order to prove his entitlement to relief." Ibid. (citations omitted).

To establish a prima facie claim of ineffective assistance of counsel, a defendant must demonstrate a reasonable likelihood of success under the two-pronged test set forth in Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. at 693, which our Supreme Court adopted in State v. Fritz, 105 N.J. 42, 58 (1987). Goodwin, supra, 173 N.J. at 596; Preciose, supra, 129 N.J. at 463. Pursuant to that test, defendant must show that his counsel's performance was deficient, and that the deficiencies were so serious that they deprived him of a fair trial. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. He must do so by presenting more than "bald assertions" that he was denied the effective assistance of counsel. Cummings, supra, 321 N.J. Super. at 170. "Thus, when a petitioner claims his trial attorney inadequately investigated his case, he must assert the facts that an investigation would have revealed, supported by affidavits or certifications based upon the personal knowledge of the affiant or the person making the certification." Ibid.

As to the first prong, "[j]udicial scrutiny of counsel's performance must be highly deferential." Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694.

A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance . . . .

[Ibid.]

As to the second prong, "[a]n error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment." Id. at 691, 104 S. Ct. at 2066, 80 L. Ed. 2d at 696. Thus, to be successful on the second prong, defendant must show a reasonable probability that but for counsel's errors the outcome of his trial would have been different; "[a] reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. This is "an exacting standard." State v. Allegro, 193 N.J. 352, 367 (2008).

This two-prong analysis applies equally to convictions after a trial or after a defendant pleads guilty. In the context of a PCR petition challenging a guilty plea, the first Strickland prong is satisfied when a defendant establishes a reasonable probability he or she would not have pled guilty but for counsel's errors. Gaitan, supra, 209 N.J. at 351. The second prong is met when a defendant establishes a reasonable probability he or she would have insisted on going to trial. Ibid. "When a defendant has entered into a plea agreement, a deficiency is prejudicial if there is a reasonable probability that, but for counsel's errors, the defendant would not have decided to forego the plea agreement and would have gone to trial. McDonald, supra, 211 N.J. at 30 (citing Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 210 (1985); State v. Nu ez-Vald z, 200 N.J. 129, 139 (2009)).

Whether a defendant pleads guilty or goes to trial, defense counsel has a duty to conduct a reasonable investigation or to make reasonable decisions that a specific investigation is unnecessary. State v. Chew, 179 N.J. 186, 217 (2004). Defense counsel's neglect in conducting adequate pre-trial investigation may give rise to an ineffective assistance of counsel claim. State v. Porter, 216 N.J. 343, 350, 357 (2013) (finding that submitting a certification with specific facts and affidavits from two witnesses established a prima facie case that counsel performed an inadequate investigation for PCR); see also Preciose, supra, 129 N.J. at 456-58, 464 (stating defendant's detailed affidavit provided enough evidence to establish a prima facie case that counsel performed an inadequate investigation for PCR). The failure to conduct an adequate pre-trial investigation may result in the reversal of a conviction. State v. Russo, 333 N.J. Super. 119, 139-41 (App. Div. 2000).

Applying these standards to defendant's petition, and in light of the Court's opinion regarding defendant's school zone argument presented on direct appeal, we find his present argument does not have sufficient merit to warrant extensive discussion in a written opinion. R. 2:11-3(e)(2). Suffice it to say that the premise to defendant's argument is incorrect. Based on the Court's rejection of there being any issue as to the location of the defendant's offense, any investigation by trial counsel would not have changed the outcome. As the Court stated

The Legislature clearly instructed, in its Official Commentary to N.J.S.A. 2C:35-7, that the 1,000-foot radius extends "from the outermost boundary of the school grounds or campus, and not from the perimeter of the school building itself." . . . The Legislature clearly intended to avoid inquiries as to whether various portions of the "grounds or campus" on which a school sits are commonly occupied by students, and to ensure that the entirety of such a property -- here a small urban campus comprising less than a city block -- is within a zone of safety.

Thus, the "factual dispute" . . . an inquiry into whether the portion of the property in dispute that was within 1,000 feet of defendant's accident constituted "school property" -- has been resolved by the Legislature. N.J.S.A. 2C:12-1(c)(3)(a) governs defendant's case, whether defendant's accident took place more than 1,000 feet from all of the "grounds or campus" of the School, so long as it occurred within a 1,000-foot radius of a portion of those grounds. Ibid. Even defendant admits that his accident took place within 1,000 feet of a portion of the property on which the School, church and other facilities are found. There is, in short, no "factual issue" for a jury to decide.

[McDonald, supra, 211 N.J. at 24-25 (citation omitted).]

The PCR court, therefore correctly found defendant did not establish a prima facie claim of ineffective assistance. Under any circumstances, defendant would have been convicted of committing the school-zone offense, whether the State's map or defendant's survey were used, thus blunting defendant's argument he would not have pled guilty. In addition, considering defendant was facing ten years imprisonment, his favorable plea agreement, recommending no more than three years, made it highly unlikely that defendant would have not pled guilty, absent the law clearly supporting his position, which, as both our court and the Supreme Court found, was without any basis.

Affirmed.

1 Defendant was present but represented by assigned counsel.

2 Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).

3 The Rule provides

A prior adjudication upon the merits of any ground for relief is conclusive whether made in the proceedings resulting in the conviction or in any post-conviction proceedings brought pursuant to this rule or prior to the adoption thereof, or in any appeal taken from such proceedings.

[R. 3:22-5.]