STATE OF NEW JERSEY v. MICHAEL T. WILFONG

NOT FOR PUBLICATION WITHOUT THE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 T. WILFONG,

Defendant-Appellant.

_________________________________________

February 11, 2016

Before Judges Guadagno and Vernoia.

On appeal from the Superior Court of New Jersey, Law Division, Morris County, Indictment No. 10-04-0445.

Joseph E. Krakora, Public Defender, attorney for appellant (Anthony J. Vecchio, Designated Counsel, on the brief).

Fredric M. Knapp, Morris County Prosecutor, attorney for respondent (Paula Jordao, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Michael Wilfong appeals from an October 10, 2014 Law Division order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. R. 3:22-1. We affirm.

I.

We previously set forth the facts in this matter in State v. Wilfong, No. A-5542-10 (App. Div. May 23, 2013), certif. denied, 217 N.J. 52 (2014), and summarize the pertinent facts as follows.

Defendant was charged in an indictment with third-degree receiving stolen property, N.J.S.A. 2C:20-7(a), second-degree eluding, N.J.S.A. 2C:29-2(b)(2), and third-degree resisting arrest, N.J.S.A. 2C:29-2(a)(2).

During defendant's jury trial, the evidence established that

at approximately 10:30 p.m. on December 5, 2009, Morristown police officer Anthony O'Brien (O'Brien) was on duty in a marked patrol car when he activated its overhead lights and siren to effectuate a motor vehicle stop of a BMW because it was traveling with its lights out. The BMW pulled into a parking lot and O'Brien stopped the patrol car behind it. O'Brien shined a spotlight into the BMW and observed a large individual with long, curly, wavy hair in the driver's seat.

O'Brien exited his vehicle, stood for two or three seconds, and the BMW left at a high rate of speed. O'Brien returned to his patrol car, followed the BMW, and radioed police headquarters that he was in pursuit of the BMW. Morristown Detective Keith Hudson (Hudson) joined the pursuit in his vehicle and followed directly behind the BMW, with O'Brien trailing Hudson.

The BMW traveled on a series of roads in residential and commercial areas, at times exceeding seventy miles per hour. The BMW ignored stop signs and crossed double yellow lines on the roadways. With the officers in pursuit, the BMW drove around a sharp corner in the roadway, where Hudson lost sight of it for two seconds and then saw the BMW had crashed into a tree in front of a residence.

Hudson and O'Brien exited their vehicles and approached the BMW. Morristown police officer Joseph Heuneman (Heuneman), who had been alerted to the pursuit of the BMW, was also present. Hudson and O'Brien approached the BMW and observed the driver's side door was open, the passenger side door was closed, the air bags had deployed, and no one was in the vehicle.

Heuneman did not see anyone in the BMW. He immediately sprinted to the rear of the residence, anticipating that the driver of the BMW may have fled in that direction. Immediately upon arriving in the rear of the residence, Heuneman observed defendant attempting to climb over a fence. Heuneman yelled to the defendant, "stop, police," but defendant ran away. Defendant slipped on the snow and fell onto the ground. Heuneman leapt on top of defendant and advised him that he was under arrest.

O'Brien had observed footprints in the snow leading from the driver's side door. He followed the footprints toward the rear of the residence and heard Heuneman say "stop police." He observed Heuneman on top of the defendant attempting to place defendant in handcuffs. Defendant refused to place his hands behind his back, and used force to prevent the officers from placing him in handcuffs. O'Brien and Hudson assisted Heuneman in handcuffing defendant. Defendant was wearing distinctive black gloves with yellow palms when he was taken into custody.

After defendant was in custody, O'Brien tracked the footprints in the snow from the crash site to the location where defendant was apprehended. O'Brien confirmed that the footprints did not go off in another direction. The snow in the surrounding area was not otherwise disturbed and there were no other unidentified footprints near the crash site.

It was later determined that the BMW was a loaner car from a Morristown car dealership. It was driven off of the dealership's lot without authorization on November 25, 2009. Defendant was never a customer of the dealership and was not authorized by the dealership to use the vehicle.

The police investigated the BMW for fingerprints. Two latent fingerprints were found in the vehicle, but neither matched defendant. There was no forensic evidence admitted during the trial linking defendant to the BMW.

Defendant was examined by a nurse upon his admission into the Morris County Jail on the evening of his arrest. The examination did not reveal that defendant had any apparent injuries or signs of trauma.

Defendant was convicted of each of the charges in the indictment. He was sentenced as a persistent offender under N.J.S.A. 2C:44-3 on the second-degree eluding charge to a custodial term of eighteen years, with a nine-year period of parole ineligibility. Defendant was sentenced to a five-year custodial term on the third-degree receiving stolen property charge, and eighteen months on the fourth-degree resisting arrest charge. The court ordered the sentences to be served concurrently.

Defendant's convictions and sentences were affirmed on appeal. State v. Wilfong, supra, slip op. at 23. His petition for certification was denied. State v. Wilfong, 217 N.J. 52 (2014).

Defendant filed a pro se PCR petition challenging the sufficiency of the evidence presented at trial and alleging ineffective assistance of counsel. After the appointment of PCR counsel, the court heard oral argument and, in a written opinion, denied defendant's petition without an evidentiary hearing. This appeal followed.

II.

On appeal, defendant argues

POINT I.

THE TRIAL COURT ERRED IN NOT GRANTING DEFENDANT AN EVIDENTIARY HEARING ON HIS PETITION FOR POST CONVICTION RELIEF WHERE DEFENDANT WAS DEPRIVED OF EFFECTIVE ASSISTANCE OF COUNSEL BECAUSE OF TRIAL COUNSEL'S FAILURE TO PROPERLY PREPARE FOR TRIAL AND INADEQUATE CROSS-EXAMINATION OF OFFICER O'BRIEN.

A. AN EVIDENTIARY HEARING IS REQUIRED TO DETERMINE WHETHER TRIAL COUNSEL OBTAINED THE INVENTORY LOGS PRIOR TO DEFENDANT'S TRIAL.

B. AN EVIDENTIARY HEARING IS REQUIRED TO DETERMINE WHETHER TRIAL COUNSEL OBTAINED THE INVENTORY LOGS AFTER DEFENDANT'S TRIAL AND THEN FAILED TO FILE A MOTION FOR A NEW TRIAL.

POINT II.

DEFENDANT'S ARGUMENT IS NOT BARRED BY RULE 3:22-4 AS IT COULD NOT HAVE BEEN REASONABLY RAISED ON DIRECT APPEAL AND THE DENIAL OF DEFENDANT'S CLAIM WOULD RESULT IN A FUNDAMENTAL INJUSTICE.

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 (2013) (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. It must be demonstrated that counsel's handling of the matter "fell below an objective standard of reasonableness," 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 687-88, 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. A petitioner 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. "The error committed must be so serious as to undermine the court's confidence in the jury's verdict or result reached." State v. Chew, 179 N.J. 186, 204 (2004) (citing Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698).

A petitioner must establish both prongs of the Strickland standard in order to obtain a reversal of the challenged conviction. Strickland, supra, 466 U.S. 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.

We review the legal conclusions of a PCR court de novo. State v. Harris, 181 N.J. 391, 420 (2004) (citing Micken-Thomas v. Vaughn, 355 F.3d 294, 303 (3d Cir. 2004)), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). The de novo standard of review applies to mixed questions of fact and law. Harris, supra, 181 N.J. at 420. Where an evidentiary hearing has not been held, it is within our authority "to conduct a de novo review of both the factual findings and legal conclusions of the PCR court." Id. at 421. We apply that standard here.

We first address defendant's argument that the court erred in finding that his sufficiency of the evidence claim was barred under Rule 3:22-4 because it could have been raised on direct appeal. In part, defendant's pro se PCR petition alleged there was insufficient evidence to establish that he was the driver of the BMW and that he could not properly be convicted of second-degree eluding because there was no evidence that anyone was injured during the BMW's flight from the police.

On appeal, defendant does not challenge the PCR court's conclusion that defendant's sufficiency of the evidence arguments were barred under Rule 3:22-4. Defendant does not dispute that the arguments could have been raised on his direct appeal and does not contend the arguments fall within the three exceptions to Rule 3:22-4. See State v. Reevey, 417 N.J. Super. 134, 147-48 (App. Div. 2010) (holding that a ground for relief not raised on direct appeal is barred under Rule 3:22-4(a) unless the court finds an applicable exception under subsections (1), (2), or (3) of the rule), certif. denied, 206 N.J. 64 (2011). It therefore is unnecessary to decide whether the court erred in concluding that Rule 3:22-4 barred defendant's sufficiency of the evidence arguments.

Defendant also argues that he was entitled to post-conviction relief because his counsel was ineffective. He asserts that his counsel failed to confront the police officers at trial regarding a property inventory log that did not list the gloves O'Brien testified defendant was wearing at the time of his arrest. Defendant contends the State relied on O'Brien's testimony to explain the lack of defendant's fingerprints within the BMW. He claims his counsel failed to obtain the property inventory log prior to trial or, if he obtained it, he failed to use it to challenge O'Brien's testimony that defendant was wearing gloves when he was arrested. Defendant contends that introduction of the property inventory log at trial would have undermined the State's explanation about the absence of defendant's fingerprints in the BMW.

The court found defendant's ineffective assistance of counsel claim was barred under Rule 3:22-4(a) because it could have been raised on direct appeal. We disagree. Defendant's claim that counsel failed to obtain the property inventory log, or incorrectly decided not to introduce it during trial, is dependent upon facts outside of the trial record and therefore was not appropriate for resolution on direct appeal. See State v. Preciose, 129 N.J. 451, 460 (1992) ("Our courts have expressed a general policy against entertaining ineffective-assistance-of-counsel claims on direct appeal because such claims involve allegations and evidence that lie outside of the trial record."). Rule 3:22-4 therefore did not bar defendant's ineffective assistance of counsel claim.

Although the trial court found that defendant's ineffective assistance of counsel claim was barred under Rule 3:22-4, it decided defendant's claim on the merits. The court concluded that defendant did not meet his burden under the second prong of the Strickland standard, finding that even assuming counsel's failures fell below the requisite objective standard of reasonableness, defendant did not demonstrate that there was a reasonable probability the outcome of the trial would have been different. In our assessment of whether the outcome would have been different, "we are guided, in part, by the standard applicable to claims of newly discovered evidence, that is, 'that the evidence "would probably change the jury's verdict if a new trial were granted."'" State v. Allegro, 193 N.J. 352, 370 (2008) (quoting State v. Ways, 180 N.J. 171, 187 (2004)).

Based upon our review of the record, we are not persuaded there is a reasonable probability that introduction of the property inventory log would have changed the outcome of defendant's trial. The absence of defendant's fingerprints in the BMW was of little consequence. The fingerprint expert testified that there were many reasons defendant's fingerprints might not have been present in the BMW, only one of which was that defendant might have been wearing gloves. As a result, to the extent defendant would have relied upon the property inventory log to establish he was not wearing gloves, the evidence demonstrated numerous other reasons his fingerprints were not found in the BMW.

Moreover, there was substantial evidence unrelated to the absence of fingerprints that defendant was the driver of the BMW. Hudson and O'Brien observed only one person in the BMW. Hudson lost sight of the vehicle for only two seconds before observing that it had crashed into the tree. Hudson and O'Brien immediately approached the vehicle and observed the driver's side door open with no one inside. O'Brien followed a single set of the footprints leading from the driver's side door to defendant's location behind the residence. Further investigation by O'Brien revealed the footprints did not go in any other direction, the snow in the surrounding area was not otherwise disturbed, and there were no other unidentified footprints near the BMW.

Heuneman sprinted to the rear of the residence and saw defendant attempting to climb over a fence. Defendant was within approximately 100 to 150 feet of the crash site at the end of the trail of footprints O'Brien tracked in the snow. When Heuneman yelled, "stop, police," defendant immediately attempted to flee. It was undisputed that defendant was the person the officers found behind the residence immediately following the car chase and crash.

The evidence that defendant was the driver of the BMW was compelling and overwhelming. We are convinced defendant has not demonstrated there is a reasonable probability that, had his counsel obtained the property inventory log and introduced it during trial, the outcome of his trial would have been different. See, e.g., Allegro, supra, 193 N.J. at 369-71; State v. Goodwin, 173 N.J. 583, 601 (2002)

Defendant did not satisfy the second prong of the Strickland standard and therefore did not establish a prima facie case of ineffective assistance of counsel. State v. Jones, 219 N.J. 298, 310 (2014). The court correctly denied defendant's request for an evidentiary hearing. Id. at 311; see also R. 3:22-10(b) ("A defendant shall be entitled to an evidentiary hearing only upon the establishment of a prima facie case in support of [PCR] . . . .").

Affirmed.