STATE OF NEW JERSEY v. SHILOH LANCE SMITH

NOT FOR PUBLICATION WITHOUT THE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.

SHILOH LANCE SMITH,

Defendant-Appellant.

__________________________________________

November 30, 2015

Submitted November 10, 2015 Decided

Before Judges St. John and Vernoia.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 09-02-00284.

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

Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Joie Piderit, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Shiloh Smith appeals from an order entered by the Law Division on December 3, 2013, denying his petition for post-conviction relief (PCR). We affirm.

I.

Defendant was charged under Middlesex County Indictment No. 09-02-00270 with two counts of second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b (counts one and two); second-degree unlawful use of a body vest, N.J.S.A. 2C:39-13 (count four); fourth-degree possession of prohibited devices, N.J.S.A. 2C:39-3f (count five); and fourth-degree resisting arrest, N.J.S.A. 2C:29:2a(2) (count six).1

Defendant was further charged under Middlesex County Indictment No. 09-02-00284 with two counts of second-degree certain persons not to possess weapons, N.J.S.A. 2C:39-7b (counts one and two).

Defendant was tried before a jury. At the trial, the State presented evidence which established that on November 8, 2008, New Brunswick Police Sergeant Middleton and Officer Dakin were on patrol in an unmarked vehicle. They passed a Honda automobile being driven by co-defendant Reynolds. They observed defendant in the front passenger seat. The officers were familiar with defendant and Reynolds from prior interactions in the community over an approximately ten-year period.

After the officers passed, Reynolds pulled the Honda away from the location where it had been stopped and followed directly behind the unmarked police vehicle. The officers observed the Honda turn into a parking lot. At that time, Sergeant Middleton directed Officer Dakin to stop their vehicle. Sergeant Middleton exited the vehicle and walked into the lot where the Honda had been parked. Officer Dakin turned the police vehicle around in the street so he could drive it into the parking lot.

Sergeant Middleton approached the Honda. He saw Reynolds and defendant exit the Honda and walk toward the vehicle's trunk. Reynolds opened the trunk. Officer Dakin pulled the police vehicle into the lot and parked behind the Honda. Sergeant Middleton and Officer Dakin observed Reynolds and defendant rummage through the trunk of the vehicle as if they were looking for something. When Reynolds saw Sergeant Middleton, he fled on foot. Sergeant Middleton chased Reynolds for thirty or forty seconds and apprehended him in a nearby alleyway.

As Sergeant Middleton chased Reynolds, Officer Dakin exited the police vehicle and directed defendant, who was near the open trunk to the Honda, to remain where he was standing. Defendant fled on foot when Officer Dakin returned to his vehicle to retrieve a radio. Officer Dakin chased defendant, but abandoned the pursuit without leaving the parking lot because he wanted to secure the Honda.

Officer Dakin returned to the Honda. He observed a large handgun protruding from under a white leather jacket located in the open trunk. After Sergeant Middleton returned to the parking lot with Reynolds in custody, Officer Dakin found a second handgun in the white leather jacket. Defendant was apprehended and arrested a short time later by other officers. Defendant was wearing a bullet-proof vest.

At the close of the State's case, the court dismissed the second-degree unlawful use of a body vest charge. Defendant was convicted of one count of second-degree unlawful possession of a weapon, fourth-degree resisting arrest, and one count of second-degree certain persons not to have weapons. Defendant was found not guilty of the remaining charges. Defendant was sentenced to an extended term as a persistent offender, N.J.S.A. 2C:44-3a, to an aggregate custodial term of fourteen years, with a seven-year period of parole ineligibility.

Defendant appealed. In an unpublished opinion, we affirmed defendant's convictions and sentence. State v. Smith, No. A-6203-09 (App. Div. Feb. 10, 2012) (slip op. at 21). The Supreme Court denied defendant's petition for certification. State v. Smith, 212 N.J. 105 (2012).

Defendant subsequently filed a petition for PCR alleging he was denied the effective assistance of trial counsel. The PCR court entered an order dated December 3, 2013, denying the petition for reasons set forth in a December 2, 2012 oral opinion. This appeal followed.

II.

On appeal, defendant argues

POINT I

THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE MATTER REMANDED FOR AN EVIDENTIARY HEARING BECAUSE DEFENDANT MADE A PRIMA FACIE SHOWING OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL UNDER THE STRICKLAND TEST

POINT II

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

The Sixth Amendment to the United States Constitution and Article I, Paragraph 10 of the New Jersey Constitution guarantee that a defendant in a criminal proceeding has the right to the assistance of counsel in his defense. The right to counsel includes the "right to the effective assistance of counsel." State v. Nash, 212 N.J. 518, 541 (2012) (quoting Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2063, 80 L. Ed. 2d 674, 692 (1984)).

In Strickland, the Court established a two part test, later adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987), to determine whether a defendant has been deprived of the effective assistance of counsel. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; Fritz, supra, 105 N.J. at 58. Under the first prong of the Strickland standard, a petitioner "must show that counsel's performance was deficient." Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. It must be demonstrated that counsel's representation "fell below an objective standard of reasonableness," id. at 688, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; Fritz, supra, 105 N.J. at 60-61, and that "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.

Under the second prong of the Strickland standard, a defendant "must show that the deficient performance prejudiced the defense." Ibid. There must be 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. Defendant must demonstrate that "counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.

A petitioner must establish both prongs of the Strickland standard in order to obtain a reversal of the challenged conviction. Id. at 697, 104 S. Ct. at 2069, 80 L. Ed. 2d at 699; Fritz, supra, 105 N.J. at 52; Nash, supra, 212 N.J. at 542. A failure to satisfy either prong of the Strickland standard requires the denial of a petition for PCR. Strickland, supra, 466 U.S. at 700, 104 S. Ct. at 2071, 80 L. Ed. 2d at 702; State v. Parker, 212 N.J. 269, 280 (2012).

Defendant argues his trial counsel was ineffective because she failed to make a pretrial motion to dismiss the possessory offenses.2 Defendant did not, however, establish any deficiency in the State's proofs before the grand jury that warranted a dismissal of these charges. See State v. Saavedra, 222 N.J. 39, 57 (2015) ("[a] court 'should not disturb an indictment if there is some evidence establishing each element of the crime to make out a prima facie case.'") (quoting State v. Morrison, 188 N.J. 2, 12 (2006)). Defendant did not demonstrate there were any meritorious arguments which would have supported a successful motion to dismiss the possessory offenses.

We are convinced the PCR court correctly concluded that trial counsel was not deficient by failing to make a motion which would have been unsuccessful. State v. Worlock, 117 N.J. 596, 625 (1990) ("[t]he failure to raise unsuccessful legal arguments does not constitute ineffective assistance of counsel."). Because defendant did not demonstrate that a motion to dismiss would have been successful, he also failed to establish a "reasonable probability" that, "but for" his trial counsel's purported error, the "result of the proceeding would have been different." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.

Defendant next argues trial counsel was ineffective by failing to object to Sergeant Middleton's testimony regarding his gang and drug crime related job duties. The PCR court found that defendant's argument was procedurally barred under Rule 3:22-5 and that defendant failed to establish either prong of the Strickland standard. In our decision on defendant's direct appeal, we noted his argument that "he was unduly prejudiced when the State was permitted, without objection, to elicit testimony from Sergeant Middleton that his assignment was with the Street Crimes Unit, which concentrated on" gang and drug activities. Smith, supra, slip op. at 18.

Rule 3:22-5 bars the assertion of a ground in support a PCR petition if it is "identical or substantially equivalent to that adjudicated previously on direct appeal." State v. Marshall, 173 N.J. 343, 351 (2002) (citations omitted). On defendant's direct appeal, we decided that admission of Sergeant Middleton's testimony did not constitute "error, plain or otherwise," and that there was "virtually nothing the jury could infer [from the testimony] to link [defendant] with drug and gang-related activity." Smith, supra, slip op. at 19. In doing so, we ruled on an issue "substantially equivalent" to a ground relied upon by defendant in support of his PCR petition. Marshall, supra, 173 N.J. at 351.

Defendant bases his claim that counsel was deficient upon the contention that counsel's failure to object to the introduction of Sergeant Middleton's testimony "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. On the direct appeal, however, we held that the testimony was properly admitted as evidence. Smith, supra, slip op. at 19. That holding is conclusive here as to defendant's burden under the first prong of the Strickland standard. We are convinced the PCR court correctly found that trial counsel was not deficient when she failed to object to the introduction of evidence that was admissible.

On defendant's direct appeal, we also addressed the issue of whether the introduction of the testimony resulted in any prejudice to the defendant. Ibid. Defendant's claim on direct appeal, that he was prejudiced by the introduction of the evidence, is identical to a ground relied upon in support his PCR petition.

To satisfy the second prong of the Strickland standard, defendant must demonstrate that, "but for" his trial counsel's purported error, the "result of the proceeding would have been different." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. Defendant argues that, if his counsel objected to Sergeant Middleton's testimony, the result of the trial would have been different. On direct appeal, we addressed the identical argument and concluded defendant did not suffer prejudice when the "jury merely heard Sergeant Middletown recite his job description and describe his duties on the night in question." Smith, supra, slip op. at 19.

We are convinced the PCR court correctly found our decision on the direct appeal was "conclusive" on the issue of whether defendant established prejudice under the second prong of the Strickland standard. R. 3:22-5. Because we found defendant did not suffer any prejudice as a result of Sergeant Middleton's testimony, the PCR court correctly concluded defendant did not sustain his burden under the second prong of the Strickland standard. A failure to satisfy either prong of the Strickland standard requires the denial of a petition for PCR. Parker, supra, 212 N.J. at 280.

Defendant next argues that his trial counsel was ineffective because she failed to object to the prosecutor's request to comment about defendant wearing a bullet proof-vest. This argument is without sufficient merit to warrant discussion in a written opinion, other than to note the following. R. 2:11-3(e)(2). While defendant's counsel did not object to the prosecutor's request, that failure did not cause any prejudice to defendant because the prosecutor's request was denied by the court. As a result, defendant could not satisfy the prejudice prong of the Strickland standard based upon his trial counsel's failure to object to the prosecutor's request.

We are, therefore, convinced that the PCR court correctly determined that defendant had not established a prima facie case of ineffective assistance of counsel. He failed to satisfy either prong of the Strickland standard. Accordingly, the PCR court correctly found that an evidentiary hearing was not required. State v. Porter, 216 N.J. 343, 354 (2013).

Affirmed.

1 Co-defendant Jabril Reynolds ("Reynolds") was jointly charged in counts one, two, five, and six. Reynolds was individually charged in count three. The charges against Reynolds were resolved prior to defendant's trial.

2 The possessory offenses were charged in counts one, two, and five of Indictment No. 09-02-00270 and in counts one and two of Indictment No. 09-02-00284.