STATE OF NEW JERSEY v. TIMOTHY MURPHY

NOT FOR PUBLICATION WITHOUT THE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-4677-15T2

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

TIMOTHY MURPHY,

     Defendant-Appellant.
_______________________________

              Submitted October 30, 2017 – Decided November 29, 2017

              Before Judges Sabatino and Rose.

              On appeal from Superior Court of New Jersey,
              Law Division, Union County, Indictment No. 95-
              09-1004.

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

              Thomas K. Isenhour, Acting Union County
              Prosecutor, attorney for respondent (Milton S.
              Leibowitz,     Special     Deputy     Attorney
              General/Acting   Assistant    Prosecutor,   of
              counsel and on the brief).

PER CURIAM
      Defendant Timothy Murphy appeals from a May 25, 2016 order

denying his petition for post-conviction relief ("PCR") following

an evidentiary hearing.        We affirm.

      We incorporate by reference the facts and procedural history

set forth in our prior opinions.               Briefly, following bifurcated

jury trials, defendant was convicted of armed robbery and the

offense of certain persons not to have weapons, among other

charges.     Defendant was sentenced as a persistent offender to an

aggregate fifty-year prison term with a twenty-year period of

parole ineligibility.

      Defendant's conviction and sentence were upheld on direct

appeal.     State v. Murphy, No. A-2573-98 (App. Div. Jan. 20, 2000).

The Supreme Court denied certification.            State v. Murphy, 
164 N.J.
 560 (2000).

      Defendant thereafter filed the present PCR petition alleging

he   had    been   denied    effective       assistance   of   counsel    by   two

successive attorneys who represented him before and then at trial.

In essence, defendant alleges his attorneys' performances were

deficient by failing to inform defendant he faced an extended-term

sentence if he did not plead guilty prior to trial.

      The   first   PCR     judge   denied     defendant's     petition   without

holding an evidentiary hearing.               We affirmed that denial in an

unpublished opinion.         State v. Murphy, No. A-1678-10 (App. Div.

                                         2                                A-4677-15T
2 Oct. 24, 2012).        The Supreme Court granted certification and

summarily reversed and remanded for a hearing.               State v. Murphy,


213 N.J. 533 (2013).

      The second PCR judge permitted oral argument, but decided an

evidentiary hearing was not required, and denied defendant's PCR

petition essentially for the same reasons set forth by the first

PCR judge.      Defendant appealed.          Determining the Court intended

the   term,    "hearing,"   to    mean       an   "evidentiary   hearing"     with

testimony, we vacated and remanded the matter to the trial court

with instructions to complete a testimonial hearing.                    State v.

Murphy, No. A-1960-13 (App. Div. Dec. 18, 2015).

      On May 25, 2016, the second PCR judge conducted an evidentiary

hearing.      Defendant and both of his former attorneys testified at

the hearing.

      Defendant's first attorney ("pretrial counsel") testified he

had been an assistant deputy public defender for approximately

nine years when his representation of defendant in this case began

in 1995.      By that time, he had represented "[h]undreds, probably

up to a thousand" clients.            Pretrial counsel did not have an

independent recollection of his representation of defendant, which

occurred more than twenty years prior to his testimony.

      During    the   course     of   his     representation     of    defendant,

pretrial counsel met with defendant four times.                       One of the

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meetings, held at the Monmouth County Jail on a holiday, lasted

approximately ninety minutes.      Pretrial counsel did not have an

independent recollection of the meeting, but testified "it would

have been [his] practice" to review the State's plea bargain

approval form ("plea form") and the discovery in this matter,

which was "not that big," consisting of six pages of police

reports, the indictment, and defendant's "rap" sheet.          As pretrial

counsel explained, "[i]t would have been [his] practice to go over

everything."

     Specifically, as to the plea form, pretrial counsel was

"almost 100 percent positive" he reviewed with defendant the

State's offer, that is, a plea of guilty to the first-degree

robbery and fourth-degree certain persons offenses.           In exchange,

the State had recommended an eighteen-year prison term with a six-

year period of parole ineligibility, dismissal of the remaining

counts, and waiver of an extended term. Pretrial counsel testified

further "it would have been [his] practice" to explain to defendant

the meaning of the State's offer to "waive [an] extended term."

Specifically,   if   defendant   were   sentenced   to   a   discretionary

extended term as a persistent offender, "his exposure would be

between [twenty years] to life."

     During the court proceeding the day after receiving the

State's plea offer, defendant rejected it.               Pretrial counsel

                                   4                               A-4677-15T2
contemporaneously     completed   a     trial   memorandum    indicating

defendant did not accept the State's offer, which was noted as

"[eighteen] with a six aggregate" but did not include waiver of

the extended term.       Shortly thereafter, defendant's file was

transferred to another attorney who represented defendant at trial

("trial counsel").

     In his file transfer memo, pretrial counsel noted, among

other things, "[d]efendant can be very abusive.        He rejected all

offers.   Unfortunately, he has a record and the case is fairly

strong    against    him."   Although    pretrial   counsel    did    not

specifically note that defendant was facing an extended term,

counsel "had a concern that [defendant] was looking at some serious

time."

     Trial counsel testified that he has practiced as a criminal

defense attorney since 1971.      From 1979 to 1998, he was employed

as a public defender, and represented "thousands" of clients.

Trial counsel could not recount the number of times he met with

defendant, but recalled meeting him at the Monmouth County Jail.

Trial counsel was "sure [he] discussed [with the defendant] the

plea . . . and sentencing exposure."       He was aware defendant was

extended term eligible, and would have reviewed the plea offer

with defendant even if defendant were adamant he wanted a trial.

Trial counsel "always made it [his] practice to explain the plea

                                   5                             A-4677-15T2
[offer] . . . even if [clients] indicated in no uncertain terms

they were not going to plead [guilty]."

     Trial counsel testified further that even if his client did

not want to discuss a plea bargain, counsel would respond, "you're

going to hear it from me anyway."             Given the strength of the

State's case against defendant, trial counsel "probably would have

urged him to consider taking a plea."               Trial counsel had no

specific recollection of informing defendant he was extended-term

eligible, "but that would have been something that struck [him]

as significant to discuss with an accused."

     Defendant testified in his own behalf at the PCR hearing and

denied    either   attorney   had   advised   him   he    was   extended-term

eligible.    On cross-examination, defendant admitted he did not

inform the trial court he first learned he was extended-term

eligible on the day of sentencing.        Defendant claimed he "didn't

want to be belligerent because [he] still needed the mercy of the

judge."

     Defendant also acknowledged he had informed the trial court,

on the first day of trial, he was dissatisfied with trial counsel

for his failure to file pretrial motions.                Notwithstanding the

court's admonishments, defendant interrupted the trial judge to

request a postponement of trial and new counsel, which the court

denied.

                                      6                               A-4677-15T2
      At the conclusion of the evidentiary hearing on May 25, 2016,

the   PCR   court      rendered     an   oral    decision     denying      defendant's

petition.      This appeal followed.

      Defendant argues in a single point:

                    THE   PCR   COURT   ERRED   IN   ITS
                    DETERMINATION THAT THE TESTIMONY
                    PRESENTED    AT   THE    EVIDENTIARY
                    HEARING FAILED TO SUBSTANTIATE A
                    CLAIM OF INEFFECTIVE ASSISTANCE FOR
                    PRETRIAL COUNSEL'S SILENCE ON THE
                    ISSUE     OF      EXTENDED      TERM
                    EL[]IGIBILITY AND TRIAL COUNSEL'S
                    MISADVICE   REGARDING    DEFENDANT'S
                    PENAL EXPOSURE AT TRIAL.

      Our     review    of    a   PCR    claim   after    a   court     has   held    an

evidentiary     hearing       "is   necessarily        deferential    to    [the]    PCR

court's factual findings based on its review of live witness

testimony."      State v. Nash, 
212 N.J. 518, 540 (2013); see also

State v. O'Donnell, 
435 N.J. Super. 351, 373 (App. Div. 2014) ("If

a court has conducted an evidentiary hearing on a petition for

PCR, we necessarily defer to the trial court's factual findings.").

Where an evidentiary hearing has been held, we should not disturb

"'the   PCR    court's       findings    that    are    supported     by   sufficient

credible evidence in the record.'"               State v. Pierre, 
223 N.J. 560,

576 (2015) (quoting Nash, supra, 
212 N.J. at 540).                    We review any

legal conclusions of the trial court de novo.                    Nash, supra, 212




                                           7                                   A-4677-15T
2 N.J. at 540-41; State v. Harris, 
181 N.J. 391, 419 (2004), cert.

denied, 
545 U.S. 1145, 
125 S. Ct. 2973, 
162 L. Ed. 2d 898 (2005).

       "[A] defendant asserting ineffective assistance of counsel

on PCR bears the burden of proving his or her right to relief by

a preponderance of the evidence."      State v. Gaitan, 
209 N.J. 339,

350 (2012), cert. denied, 
568 U.S. 1192, 
133 S. Ct. 1454, 
185 L. Ed. 2d 361 (2013).     A defendant must prove 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 v. Washington, 
466 U.S. 668, 687-88, 
104 S. Ct. 2052, 2064, 
80 L. Ed. 2d 674, 693 (1984); State v. Fritz,


105 N.J. 42, 58 (1987) (adopting the Strickland two-part test in

New Jersey).

       A defendant must also prove counsel's "deficient performance

prejudiced the defense."     Strickland, supra, 
466 U.S.  at 687, 
104 S. Ct.  at 2064, 
80 L. Ed. 2d    at 693.       Prejudice is established by

showing    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.    Thus, petitioner must establish that counsel's performance

was deficient and petitioner suffered prejudice in order to obtain

                                   8                             A-4677-15T2
a reversal of the challenged conviction.           Id. at 687, 
104 S. Ct. 
at 2064, 
80 L. Ed. 2d    at 693; Fritz, supra, 
105 N.J. at 52.

      The PCR court found both defense attorneys credible, while

finding   defendant   was     not   credible    "at   all."     Referencing

defendant's   three   prior    convictions,     the   court   observed   that

"someone who has been previously convicted of a crime is less

likely to honor the oath requiring truthfulness than a person who

had   never   been    convicted."     The      court's   consideration     of

defendant's prior convictions in this manner was proper.                  See

N.J.R.E 609; State v. Sands, 
76 N.J. 127, 136 (1978).

      Further, the PCR court cited its opportunity to observe

defendant in response to the prosecutor's questioning regarding

his capacity to express dissatisfaction with trial counsel when

it suited him.   Specifically, the PCR court juxtaposed defendant's

on-the-record complaint to the court that trial counsel failed to

file pretrial motions, with defendant's silence when he allegedly

learned he was extended-term eligible. The PCR court also rejected

defendant's rationale, that he did not want to appear belligerent

by raising the extended-term issue, concluding "[a]nd it became

abundantly clear to me at that point that [defendant] will say

whatever he needs to say to put forth his position."

      Moreover, the PCR court accepted both counsels' "general

practice" of advising defendant he was extended-term eligible,

                                      9                             A-4677-15T2
finding this practice was more credible than defendant's denial.

N.J.R.E. 406(a) supports the PCR court's findings that both counsel

"acted in conformity with [their] habit or routine practice."       Id.

Thus, the PCR court properly considered counsels' testimony about

their routine practices in dealing with clients in determining

their credibility.

     We see no reason to disturb the PCR court's factual and

credibility   findings.    Those   findings   are   entitled   to   our

deference.    State v. Robinson, 
200 N.J. 1, 15 (2009).

     Affirmed.




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