STATE OF NEW JERSEY v. WAYNE J. DAVENPORT, JR
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APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0428-16T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
WAYNE J. DAVENPORT, JR.,
a/k/a WAYNE J. DAVENPORT,
Defendant-Appellant.
_____________________________
Submitted December 21, 2017 – Decided March 13, 2018
Before Judges Rothstadt and Gooden Brown.
On appeal from Superior Court of New Jersey,
Law Division, Salem County, Indictment Nos.
11-03-0117 and 11-04-0234.
Joseph E. Krakora, Public Defender, attorney
for appellant (John A. Albright, Designated
Counsel, on the brief).
John T. Lenahan, Salem County Prosecutor,
attorney for respondent (Derrick Diaz,
Assistant Prosecutor, of counsel and on the
brief).
PER CURIAM
Defendant, Wayne J. Davenport, Jr., appeals from the denial
of his petition for post-conviction relief (PCR) without an
evidentiary hearing. For the reasons that follow, we affirm.
Defendant was charged in an indictment and convicted by a
jury of third-degree possession of a controlled dangerous
substance (CDS), cocaine,
N.J.S.A. 2C:35-10(a)(1); third-degree
distribution of CDS, cocaine,
N.J.S.A. 2C:35-5(b)(5); third-degree
distribution of CDS, cocaine, within 1000 feet of a school,
N.J.S.A. 2C:35-7; and second-degree distribution of CDS, cocaine,
within 500 feet of public housing,
N.J.S.A. 2C:35-7.1. After his
conviction, defendant pled guilty to committing third-degree
possession of CDS, marijuana, with intent to distribute,
N.J.S.A.
2C:35-5(b)(11), as charged in a separate indictment. The
sentencing court imposed an aggregate sentence of fourteen years'
imprisonment, with a five-year period of parole ineligibility.
Defendant appealed and, in an unpublished opinion, we
affirmed his convictions, but remanded his sentence only for merger
of certain counts. State v. Davenport, No. A-2003-12 (App. Div.
Mar. 18, 2014) (slip op. at 14). The Supreme Court denied
defendant's petition for certification. State v. Davenport,
219 N.J. 631 (2014). On remand, the trial court entered an amended
judgment of conviction to reflect the merger of the counts that
we directed in our opinion.
2 A-0428-16T4
The facts underlying defendant's convictions are set forth
in our earlier opinion and need not be repeated at length here.
See Davenport, slip op. at 4-7. Suffice it to say for purposes
of this opinion that the evidence at trial established, among
other things, that defendant sold CDS (cocaine) to an undercover
police officer while inside a car that the officer testified was
located within 1000 feet of a school and 500 feet of public
housing. Defendant's trial counsel stipulated that the location
the officer testified about was within those zones and the trial
court charged the jury that it could accept or reject the
stipulated facts in their consideration of the evidence.
Defendant filed a PCR petition on May 8, 2015, in which he
argued his trial counsel provided ineffective assistance. Among
his numerous contentions, defendant argued that counsel was
ineffective by stipulating, without defendant's consent, that the
place of the alleged offenses took place within 500 feet of public
housing and 1000 feet of a school. PCR counsel filed a brief and
amended petition in February 2016. In this brief, defendant
argued, among other contentions, that trial counsel was
ineffective because he did not challenge the State's allegations
about the offenses taking place within a school zone or near public
housing, nor did he seek the appropriate charge to the jury about
"the unreliability of distance estimates."
3 A-0428-16T4
The PCR court denied defendant's petition, without an
evidentiary hearing, by order dated June 24, 2016, and issued a
seventeen-page written decision setting forth its reasons. In the
court's decision, it found that many of defendant's contentions
were procedurally barred under Rule 3:22-3 and Rule 3:22-4 as
having already been raised on appeal or that they could have been
raised, but were not. The court found defendant's other claims
were unsustainable because he did not establish that, even if
counsel erred, the outcome of the trial would have been different,
or they were without merit or belied by the record.
Addressing defendant's PCR claims arising from his trial
counsel's failure to challenge the location of the alleged offenses
being near public housing or a school, the PCR court found that
defendant, through counsel, stipulated at trial to the proximity
of the offenses' location to both public housing and a school.
According to the PCR court, the agreement to stipulate was "a
strategy-based decision by counsel, [because] the defense advanced
by counsel at trial was misidentification and not a lack of proof
as to the elements of the crime." Moreover, the PCR court found
that the trial judge properly instructed the jury that it was free
to accept or reject the stipulation in reaching its verdict. Also,
as a result of the stipulation, defendant's argument on PCR that
counsel should have sought a charge on the unreliability of
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distance estimates was without any merit. Similarly, the PCR
court found defendant's contention that counsel should have sought
dismissal of the school zone and public housing counts was
unsupported by any evidence that such motions would have been
successful. It also found defendant's argument that there was a
lack of specificity necessary to sustain his conviction for those
offenses meaningless in light of the stipulation made at trial.
Defendant presents the following issues for our consideration
in his appeal.
POINT I
THE LOWER COURT ERRED IN DENYING
DEFENDANT'S PETITION FOR POST-
CONVICTION RELIEF WITHOUT AFFORDING
HIM AN EVIDENTIARY HEARING BECAUSE
HE ESTABLISHED A PRIMA FACIE CASE OF
TRIAL COUNSEL'S INEFFECTIVENESS
FOR, AMONG OTHER THINGS,
STIPULATING TO MULTIPLE ESSENTIAL
ELEMENTS OF THE DISTRIBUTION
OFFENSES CHARGED WITHOUT HIS
CONSENT (AND WITHOUT ANY
CONSULTATION AT ALL).
A. THE PCR JUDGE'S
CONCLUSION THAT TRIAL COUNSEL'S
STIPULATION THAT THE DRUG
TRANSACTION AT ISSUE IN THIS CASE
OCCURRED IN SCHOOL AND PUBLIC
HOUSING ZONES WAS "INVARIABLY A
STRATEGY-BASED DECISION" IS NOT
SUPPORTED BY ANY EVIDENCE IN THE
RECORD BECAUSE NO EVIDENTIARY
HEARING WAS CONDUCTED.
5 A-0428-16T4
B. DEFENDANT'S FACTUAL
CONTENTION THAT HE DID NOT AUTHORIZE
HIS TRIAL COUNSEL TO STIPULATE TO
MULTIPLE ESSENTIAL ELEMENTS OF THE
OFFENSES CHARGED IS UNDISPUTED IN
THE RECORD.
The standard for determining whether counsel's performance
was ineffective for purposes of the Sixth Amendment was formulated
in Strickland v. Washington,
466 U.S. 668, 687 (1984), and adopted
by our Supreme Court in State v. Fritz, l
05 N.J. 42, 49 (l987).
In order to prevail on a claim of ineffective assistance of
counsel, defendant must meet the two-prong test of establishing
both that: (l) counsel's performance was deficient and he or she
made errors that were so egregious that counsel was not functioning
effectively as guaranteed by the Sixth Amendment to the United
States Constitution; and (2) the defect in performance prejudiced
defendant's rights to a fair trial such that there exists a
"reasonable probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been different."
Strickland,
466 U.S. at 687, 694.
In reviewing claims of ineffective assistance of counsel,
courts apply a strong presumption that defense counsel "rendered
adequate assistance and made all significant decisions in the
exercise of reasonable professional judgment." Id. at 690.
"[C]omplaints 'merely of matters of trial strategy' will not serve
6 A-0428-16T4
to ground a constitutional claim of inadequacy . . . ." Fritz,
105 N.J. at 54 (citations omitted). The act or omission complained
of must amount to more than mere tactical strategy. See
Strickland,
466 U.S. at 699.
PCR claims arising from trial counsel's strategic decisions
cannot be considered in isolation and a miscalculation does not
automatically establish ineffectiveness. "The quality of
counsel's performance cannot be fairly assessed by focusing on a
handful of issues while ignoring the totality of counsel's
performance in the context of the State's evidence of defendant's
guilt." State v. Castagna,
187 N.J. 293, 314 (2006) (citing State
v. Marshall,
123 N.J. 1, 165 (1991)). Generally, "strategic
miscalculations or trial mistakes are insufficient to warrant
reversal 'except in those rare instances where they are of such
magnitude as to thwart the fundamental guarantee of [a] fair
trial.'" Id. at 314-15 (alteration in original) (citations
omitted).
"[A]n otherwise valid conviction will not be overturned
merely because the defendant is dissatisfied with his or her
counsel's exercise of judgment during the trial." State v.
Allegro,
193 N.J. 352, 367 (2008) (quoting Castagna,
187 N.J. at
314). Although the parameters of such conduct are not easily
defined, "there is a strong presumption that counsel's conduct
7 A-0428-16T4
falls within the wide range of reasonable professional assistance
[and that, t]o rebut that strong presumption, a defendant must
establish that trial counsel's actions did not equate to sound
trial strategy." Id. at 366 (alteration in original) (quoting
Castagna,
187 N.J. at 314). Critically important to the analysis
is that the conduct must be judged "on the facts of the particular
case, viewed as of the time of counsel's conduct." Id. at 366-67
(quoting Castagna,
187 N.J. at 314).
We conclude from our review of the record that defendant
failed to make a prima facie showing of ineffectiveness of trial
counsel within the Strickland-Fritz test. We agree with the PCR
court that trial strategy was the dominant consideration in
stipulating to the offenses being committed near public housing
and in a school zone in light of the fact that the theme of
defendant's defense was undisputedly misidentification and not
that the offenses, if committed, were carried out in a different
location.
Even if counsel's agreeing to the stipulation was not
strategic, defendant did not offer any proof that without the
challenged testimony the result of the trial would have been
different. See State v. Jones,
219 N.J. 298, 309-10 (2014). As
pointed out by defendant in his brief to us, the evidence at trial
included testimony by a police officer about the location of the
8 A-0428-16T4
drug purchase he made from defendant in a car in which he was
"mere inches away" from defendant. In his PCR petition, defendant
offered no facts to dispute that the location was not within a
school zone or in proximity to public housing. See id. at 311-12
("In order for a claim of ineffective assistance of counsel to
entitle a PCR petitioner to an evidentiary hearing, 'bald
assertions' are not enough—rather, the defendant 'must allege
facts sufficient to demonstrate counsel's alleged substandard
performance.'" (quoting State v. Porter,
216 N.J. 343, 355
(2013))). Without such evidence, defendant cannot demonstrate
that trial counsel's decision to stipulate to the location would
have changed the trial's outcome. Defendant therefore did not
meet his burden to "undermine [our] confidence in [his]
conviction." State v. Echols,
199 N.J. 344, 359 (2009) (citing
Strickland,
466 U.S. at 694).
As defendant failed to prove a prima facie claim of
ineffective assistance of counsel, we agree with the PCR court
that an evidentiary hearing was not warranted. See State v.
Preciose,
129 N.J. 451, 462-63 (1992).
Affirmed.
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