STATE OF NEW JERSEY v. JASON A. LEONARD

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JASON A. LEONARD,

Defendant-Appellant.

__________________________________

October 25, 2016

Submitted July 27, 2016 Decided

Before Judges Leone and O'Connor.

On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 09-12-1169.

Joseph E. Krakora, Public Defender, attorney for appellant (Mark Zavotsky, Designated Counsel, on the brief).

Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Jennifer B. Paszkiewicz, Assistant Prosecutor, of counsel; Linda A. Rinaldi, on the brief).

PER CURIAM

Defendant Jason A. Leonard appeals the May 13, 2014 order denying his petition for post-conviction relief (PCR), claiming ineffective assistance of counsel. We affirm.

I.

On August 18, 2009, defendant was arrested in Burlington City within 1000 feet of a school. He was in possession of cocaine and marijuana. He later admitted he possessed the cocaine with intent to sell it. Defendant was charged in Indictment No. 09-12-1169 with third-degree possession of cocaine with intent to distribute within 1000 feet of a school, N.J.S.A. 2C:35-7 ("count two"); two counts of second-degree possession of a controlled dangerous substance ("CDS"), respectively cocaine and marijuana, with intent to distribute within 500 feet of a playground, N.J.S.A. 2C:35-7.1(a); third-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(3); third-degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1); and fourth-degree possession of marijuana with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(12).

On December 3, 2009, defendant's public defender filed a notice of motion to suppress the physical evidence seized from the August 18, 2009 arrest. The public defender filed a brief in support of this motion on August 16, 2010.

On June 9, 2010, officers obtained a search warrant for defendant's home. The search found marijuana and an operable .45 caliber Colt handgun in a safe. Defendant later admitted he had control over the gun, had prior felonies, and knew it was illegal to possess the gun. Defendant was arrested and charged with second-degree possession of a handgun, second-degree possession of firearm while committing a CDS offense, and three CDS offenses. A charge of second-degree certain persons not to have a weapon ("certain persons count"), N.J.S.A. 2C:39-7(b)(1), was pending indictment.

Another public defender ("plea counsel") took over defendant's case. The prosecutor proposed a global resolution. Plea counsel negotiated a plea deal. Pursuant to the plea deal, on September 21, 2010, defendant entered a guilty plea to count two of Indictment No. 09-12-1169, and to the certain persons count in Accusation No. 2010-09-0968-A. The other eleven counts were dismissed. A condition of the plea deal was that the previously-filed motion to suppress would be withdrawn.

At the June 10, 2011 sentencing hearing, plea counsel requested defendant be sentenced in accordance with the plea agreement. Pursuant to the plea agreement, the court sentenced defendant on the certain persons count to six years in prison with five years of parole ineligibility, and on count two to a concurrent five years in prison with two and one-half years of parole ineligibility. Pursuant to the plea agreement, defendant waived his right to file a direct appeal.

Defendant filed a pro se PCR petition on June 10, 2013. PCR counsel was appointed and filed an amended petition with an accompanying brief. On May 13, 2014, the PCR court denied defendant's motion without an evidentiary hearing.

Defendant appeals, arguing

POINT I DEFENDANT'S PETITION FOR POST CONVICTION RELIEF SHOULD NOT BE BARRED AS HAVING HAD THE POTENTIAL OF BEING HEARD IN PRIOR PROCEEDINGS BECAUSE NO RECORD EXISTED TO MAKE THAT ADJUDICATION AND BECAUSE THE INTERESTS OF JUSTICE REQUIRE HIS CLAIMS BE HEARD.

POINT II DEFENDANT HAS SUBMITTED PRIMA FACIE EVIDENCE REQUIRING HE BE GRANTED AN EVIDENTIARY HEARING ON POST CONVICTION RELIEF.

POINT III DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL ENTITLING HIM TO POST CONVICTION RELIEF.

Counsel was ineffective for failing to move to suppress the illegal search of the defendant.

Counsel was ineffective for failing to investigate the facts of the case and argue applicable mitigating factors at sentencing.

II.

As the PCR court did not conduct an evidentiary hearing, we "conduct a de novo review." 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). We must hew to this standard of review.

To show ineffective assistance of counsel, a defendant must satisfy the two-pronged test of Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), adopted in State v. Fritz, 105 N.J. 42, 59 (1987). First, "[t]he defendant must demonstrate first that counsel's performance was deficient, i.e., that 'counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment.'" State v. Parker, 212 N.J. 269, 279 (2012) (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). The defendant must overcome a "strong presumption that counsel rendered reasonable professional assistance." Ibid. Second, "a defendant must also establish that the ineffectiveness of his attorney prejudiced his defense." Id. at 279. "The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 279-80 (quoting Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698).

A PCR court need not grant an evidentiary hearing unless "a defendant has presented a prima facie [case] in support of post-conviction relief." State v. Marshall, 148 N.J. 89, 158, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997) (alteration in original) (citation omitted). "To establish such a prima facie case, the defendant must demonstrate a reasonable likelihood that his or her claim will ultimately succeed on the merits." Ibid. The court must view the facts "'in the light most favorable to defendant.'" Ibid. (citation omitted); accordR. 3:22-10(b).

III.

Defendant argues that plea counsel was ineffective because counsel failed to pursue a suppression motion filed by defendant's previous public defender. When a defendant claims trial counsel was ineffective for failing "to file a suppression motion, the defendant not only must satisfy both parts of the Strickland test but also must prove that his Fourth Amendment claim is meritorious." State v. Goodwin, 173 N.J. 583, 597 (2002) (quoting Kimmelman v. Morrison, 477 U.S. 365, 375, 106 S. Ct. 2574, 2583, 91 L. Ed. 2d 305, 319 (1986)).

A.

Defendant presented a PCR certification asserting as follows. On August 18, 2009, defendant and his brother were standing on the sidewalk waiting for a bus in Burlington City. Two Burlington City police officers approached the men, and asked them a "number of questions," including whether they were members of a street gang. The officers then asked defendant and his brother to raise their shirts to see if they were armed. The men did as requested, and no weapons were discovered. The officers requested to see and photograph defendant's tattoos, and kept asking if they were in a gang.

According to defendant, the officers inquired what the men were doing in Burlington City, and asked them for identification. Defendant said they had been visiting his sister who lived nearby, and were currently waiting for a bus. Defendant showed the officers his bus pass. Defendant and his brother had no formal identification with them, but told the officers their names and dates of birth. Defendant expressed concern about missing the bus, and the officers said they would hold the bus. Several more officers arrived, made the men walk away from the sidewalk to a wall, and stood between the men and the sidewalk. Defendant did not feel free to leave or end his conversation with the police. One of the officers told defendant that he had outstanding warrants, and placed him under arrest.

However, the Burlington City police report stated as follows. Defendant and his brother were in a high-crime area. They were wearing gang attire, namely red and black beads around their neck, red and black bandanas, red shoe laces, and tattoos that are known to be associated with the Bloods street gang.1 Officer Clifford Wingo and another officer approached them. When asked, defendant and his brother admitted they were part of the Bloods street gang.2 Defendant further admitted he was a member of the "Sex, Money, Murder" set of the Bloods. Officer Wingo, who was familiar with the activities of the Bloods and other street gangs in the area, checked for outstanding warrants and found that defendant was wanted on four outstanding warrants. When defendant was advised of the outstanding warrants and was being arrested, he became very nervous and divulged that he had "stuff" on him. The search incident to arrest revealed defendant had fifty baggies of off-white rock cocaine, twenty-two baggies of marijuana, and $135.

The PCR court found the two officers "conducted a field inquiry that escalated into an investigatory stop" based on the admission by defendant and his brother of gang membership, and their presence in a high-crime area.

The Fourth Amendment of the United States Constitution and Article I, Paragraph 7 of the New Jersey Constitution both guarantee "[t]he right of the people to be secure . . . against unreasonable searches and seizures." U.S. Const. amend. IV; N.J. Const. art. I, 7. However, "law enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, [or] by putting questions to him if the person is willing to listen." State v. Shaw, 213 N.J. 398, 410 (2012) (quoting Florida v. Royer, 460 U.S. 491, 497, 103 S. Ct. 1319, 1324, 75 L. Ed. 2d 229, 236 (1983) (plurality opinion)). Such "field inquiry" does not "tread[] on constitutional rights." Ibid.

Defendant argues that wearing the colors of the Bloods street gang did not provide the officers with an adequate reason to approach defendant and his brother and ask them questions. However, a field inquiry may be conducted "'without grounds for suspicion,'" as long as the subject is not chosen "for impermissible reasons such as race." State v. Rodriguez, 172 N.J. 117, 126 (2002) (citation omitted).

Defendant contends that articulable suspicion was required once he and his brother told the officers they were waiting for a bus and showed a bus pass, and that "[f]urther detention" was unwarranted. However, reasonable and articulable suspicion is only required to detain a suspect, and a field inquiry does not constitute detention. "A field inquiry is not considered a seizure 'in the constitutional sense so long as the officer does not deny the individual the right to move.'" Rodriguez, supra, 172 N.J. at 126 (citation omitted). "[A] seizure occurs 'only when, by means of physical force or a show of authority, [the suspect's] freedom of movement is restrained' and 'only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.'" State v. Tucker, 136 N.J. 158, 164 (1994) (alteration in original) (citation omitted).

Here, defendant has not alleged the two officers used physical force or a show of authority, or prevented him from walking away or stopping the conversation, before he admitted he was a member of the Bloods street gang. Nor does defendant claim the questioning was "harassing, overbearing, or accusatory in nature," before he made that admission. State v. Gibson, 218 N.J. 277, 291 (2014) (citation omitted). Thus, the two officers did not violate the Fourth Amendment by approaching defendant and his brother and asking them questions, which resulted in their admission that they were members of the Bloods street gang.

Both the United States Constitution and the New Jersey Constitution afford police officers the authority to "conduct an investigatory stop if, based on the totality of the circumstances, the officer ha[s] a reasonable and particularized suspicion to believe that an individual has just engaged in, or was about to engage in, criminal activity." State v. Stovall, 170 N.J. 346, 356 (2002) (citing Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880, 20 L. Ed. 2d 889, 906 (1967)). The State argues that the admission by defendant and his brother that they were members of the Bloods street gang, corroborated by their wearing of that gang's attire, and coupled with the high-crime nature of the area, gave the officers reasonable suspicion to detain them for further investigation.3

There are factors providing some support for that view. We have observed that "the Bloods [is] a notorious violent street gang," State v. Tindell, 417 N.J. Super. 530, 558 (App. Div. 2011), and that "[t]he 'Bloods' is a criminal gang," State v. Dorsainvil, 435 N.J. Super. 449, 455 n.5 (App. Div. 2014).4

A person commits a crime if he

solicits or recruits another to join or actively participate in a criminal street gang with the knowledge or purpose that the person who is solicited or recruited will promote, further, assist, plan, aid, agree, or attempt to aid in the commission of criminal conduct by a member of a criminal street gang.

[N.J.S.A. 2C:33-28(a); see N.J.S.A. 2C:33-29(a) (defining "criminal street gang").]

According to defendant, the officers asked if he and his brother were recruiting for a gang and promoting membership in a gang.

We have commented in another context that "[a]lthough evidence of membership in a street gang is not . . . evidence of actual criminal activity, it is at the very least strongly suggestive of such activity." State v. Goodman, 415 N.J. Super. 210, 227 (App. Div. 2010), certif. denied, 205 N.J. 78 (2011). Other courts have held that "[k]nowledge of gang association . . . is a permissible component of the articulable suspicion required for a Terry stop." United States v. Feliciano, 45 F.3d 1070, 1074 (7th Cir.), cert. denied, 516 U.S. 853, 116 S. Ct. 153, 133 L. Ed. 2d 97 (1995); see, e.g., United States v. Am, 564 F.3d 25, 30 (1st Cir. 2009). "[A]lthough gang affiliation is 'not necessarily determinative by itself, . . . gang connection further supports the reasonableness of [an officer's suspicion].'" United States v. Guardado, 699 F.3d 1220, 1223-24 (10th Cir. 2012) (citation omitted).

Moreover, "the reputation or history of an area" as a high crime area is relevant to determine the validity of a Terry stop. State v. Pineiro, 181 N.J. 13, 26 (2004); e.g., State v. Gamble, 218 N.J. 412, 433 (2014).

On the other hand, the Legislature has not made it a crime simply to be a member of a gang. Cf. N.J.S.A. 2C:33-29 (making it a higher-graded crime to commit a crime "while knowingly involved in criminal street gang activity"); N.J.S.A. 2C:5-2 (conspiracy). See Goodman, supra, 415 N.J. Super. at 226. Moreover, "a high-crime area does not mean that residents in that area have lesser constitutional protection from random stops." Shaw, supra, 213 N.J. at 420; see Gibson, supra, 218 N.J. at 297 ("The constitutional right to be free from arbitrary arrest is not suspended in high-crime neighborhoods[.]").

The PCR court determined it was "not clear whether Defendant's motion to suppress the CDS found in his possession would have been meritorious" because a court "could have found the officers possessed reasonable suspicion that the men were engaged in criminal activity."5

B.

We need not address whether the officers had reasonable suspicion, whether a motion to suppress would have been meritorious, or whether plea counsel's performance was deficient.

[A] court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.

[Marshall, supra, 148 N.J. at 261 (quoting Strickland, supra, 466 U.S. at 697, 104 S. Ct. at 2069, 80 L. Ed. 2d at 699).]

Here, defendant has not shown that plea counsel's negotiation of the plea agreement in exchange for not litigating the suppression motion was prejudicial, because defendant does not allege he would have rejected the global plea offer which also covered other, more serious counts. After the motion to suppress was filed regarding defendant's August 18, 2009 drug charges, defendant was arrested on June 9, 2010, in an entirely separate criminal episode that resulted in several second-degree weapons charges and drug charges. The motion to suppress the drugs seized on August 18, 2009 could not help defendant defend against those June 9, 2010 charges.

Plea counsel negotiated a global plea bargain. In exchange for agreeing to withdraw the motion to suppress, and defendant's guilty plea to two counts, the plea bargain resulted in the dismissal of eleven other counts, including several other second-degree counts, on which additional prison terms might have been imposed. The plea deal also required the prosecutor to recommend a low-range six-year sentence for defendant's second-degree offense of convicted persons not to have weapons, and a concurrent sentence on defendant's offense of third-degree possession of cocaine with intent to distribute within 1000 feet of a school, even though they involved separate criminal episodes.

As the PCR court found, "[i]f counsel had pursued the motion [to suppress], the favorable global resolution offer provided by the prosecutor would have been withdrawn and Defendant would have been exposed to a much longer custodial sentence on the weapons charges."

In the context of a guilty plea, the defendant must show "'there is a reasonable probability that, but for counsel's errors, [the defendant] would not have pled guilty and would have insisted on going to trial.'" State v. Nu ez-Vald z, 200 N.J. 129, 139 (2009) (citation omitted); accord Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 210 (1985). Defendant's certification alleged he "would have liked to have had the court consider the merits of the suppression motion." However, defendant's certification did not allege he would have rejected the global plea bargain and would have insisted on going to trial, particularly on his multiple second-degree weapons offenses from the separate criminal episode. Absent such a certification, defendant cannot show the prejudice required to demonstrate that plea counsel was ineffective. Therefore, we reject defendant's first ineffectiveness of counsel claim.

IV.

Defendant next argues he was prejudiced because plea counsel did not investigate and argue any mitigating factors at sentencing. "[T]he failure to present mitigating evidence or argue for mitigating factors" can be ineffective assistance of counsel where "mitigation evidence was withheld from the sentencing court." State v. Hess, 207 N.J. 123, 153-54 (2011). However, "[t]he record before us contains no indication of any similar withholding from the trial court of information that could bear on the court's sentencing analysis." State v. Friedman, 209 N.J. 102, 121 (2012). Defendant's certification adds little if anything to the information known to the sentencing judge.

Moreover, "[w]hen 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." State v. Porter, 216 N.J. 343, 353 (2013) (quoting State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999)); see R. 3:22-10(c). Defendant failed to do so.

In any event, defendant asserts that plea counsel should have advanced mitigating factors one, two, eleven, and twelve. However, defendant has not shown any of those factors applied here.

Mitigating factor one applies if a "defendant's conduct neither caused nor threatened serious harm." N.J.S.A. 2C:44-1(b)(1). Similarly, mitigating factor two applies if a "defendant did not contemplate that his conduct would cause or threaten serious harm." N.J.S.A. 2C:44-1(b)(2). Defendant argues that both mitigating factors one and two applied, adding "he was merely waiting for a bus at the time of his arrest" and he "has never been convicted of a violent crime or harm to another."

Plea counsel was not ineffective for failing to raise these meritless arguments at sentencing. Defendant pled guilty to possession of cocaine with intent to distribute. "Distribution of cocaine can be readily perceived to constitute conduct which causes and threatens serious harm." State v. Tarver, 272 N.J. Super. 414, 435 (App. Div. 1994). When writing the statute under which defendant pled guilty, the Legislature found "the unlawful use, manufacture and distribution of controlled dangerous substances continues to pose a serious and pervasive threat to the health, safety and welfare of the citizens of this State." N.S.J.A. 2C:35-1.1(b) (emphasis added). Therefore, mitigating factors one and two did not apply to defendant, even if we ignore defendant's firearms conviction.

Mitigating factor eleven applies where "imprisonment of the defendant would entail excessive hardship to himself or his dependents." N.J.S.A. 2C:44-1(b)(11). Defendant certified that incarceration would complicate his family situation because most of his extended family is on the west coast. However, defendant also certified this family does not visit him even "under normal circumstances."

Defendant additionally certified that he was very close to his ten-year-old son. However, defendant does not explain why during his incarceration he could not keep in touch with his son by visits, letters, or phone calls. Defendant also fails to claim in his certification that he was providing monetary or emotional support to his son. Thus, mitigating factor eleven is not applicable. See State v. Dalziel, 182 N.J. 494, 505 (2005).

Mitigating factor twelve considers defendant's "willingness . . . to cooperate with law enforcement authorities." N.J.S.A. 2C:44-1(b)(12). Defendant argues that he "undoubtedly cooperated with law enforcement authorities" by answering the officers' questions and "accept[ing] responsibility by pleading guilty to the accusation." However, this mitigating factor applies only to defendants who are willing to provide assistance to law enforcement, such as by "identif[ying] other perpetrators or assist[ing] in solving other crimes." State v. Read, 397 N.J. Super. 598, 613 (App. Div. 2008), certif. denied, 196 N.J. 85 (2008); see, e.g., Dalziel, supra, 182 N.J. at 498, 505 06 (testimony against co-defendant); State v. Henry, 323 N.J. Super. 157, 166 67 (App. Div. 1999) (same). It does not apply to every defendant who answers police questions about his own charged conduct or enters a guilty plea. Read, supra, 397 N.J. Super. at 613 (questioning whether a confession qualifies as "cooperation" under N.J.S.A. 2C:44-1(b)(12)). Defendant makes no claim he provided law enforcement officers any information to assist them in identifying others involved or solving other crimes.

Failure to present mitigating evidence or argue for mitigating factors only constitutes ineffective assistance of counsel when "'there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Hess, supra, 207 N.J. at 154 (quoting Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698). Because the cited mitigating circumstances are inapplicable to defendant, he cannot make such showing.6

Defendant has failed to demonstrate a prima facie case of ineffectiveness of counsel. Therefore, he was not entitled to an evidentiary hearing.

Affirmed.

1 Defendant's briefs on PCR and in this appeal acknowledged this "gang attire" caused the officers to approach defendant and his brother.

2 Defendant never denied in his certification that he admitted to the officers he was in a gang. In fact, PCR counsel conceded in the PCR brief, the PCR motion hearing, and his appellate brief that defendant informed the officers he was a gang member.

3 If so, the remaining steps leading to the seizure of the drugs appear to be justified. "[I]t is well established that an officer may ask a suspect to identify himself in the course of a Terry stop." Hiibel v. Sixth Judicial Dist. Court, 542 U.S. 177, 186, 124 S. Ct. 2451, 2457, 159 L. Ed. 2d 292, 303 (2004). After defendant identified himself, a warrant check showed defendant had outstanding arrest warrants. That gave the officers the right to arrest defendant. The officers had the right to conduct a search incident to that arrest, which led to the discovery of the drugs.

4 We cited the New Jersey Department of Law & Public Safety Division of State Police, Intelligence Section, Gangs in New Jersey: Municipal Law Enforcement Response to the 2010 NJSP Survey ("Survey") 26, 52 (2010), http://www.njsp.org/info/pdf/ gangs_in_nj_2010.pdf). According to the State Police survey, "[v]iolent crime was more likely to be attributed to the Bloods street gang than any of the state's other 'Top 14' gangs." Id. at 36. In addition, the survey reported that "[t]he Bloods engage in a wide range of narcotics crimes at every level of various distribution chains." Id. at 39-42, 56-57. According to the survey, "Sex Money Murder [is] the most prevalent Bloods set in the state." Id. at 40, 59.

5 The incident was apparently filmed by police video cameras. However, defendant has not provided us with the videos.

6 Thus, we need not address the PCR court's finding that defendant's claims regarding mitigating are barred under Rule 3:22-4 because they were not raised on direct appeal, or defendant's new argument that appellate counsel was ineffective for not raising those claims on direct appeal.