STATE OF NEW JERSEY v. ELONZIO ODUMS
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1214-16T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ELONZIO ODUMS, a/k/a, ELONZIO
ODUMS, JR., ALONZO ODUMS,
ELONZO BO ODUMS, ROBERT MOORE,
ALPHONSO ODUMS, ALPHONSO MOORE,
ELONZIO II, TYRONE MOORE,
ALFONSO ODUMS, ELONZIO ODUM,
ELONZO B. ODUM, ELONZIO
ODUM II, ELONZO ODUMS, ALONZO
B. ODOMS, and ELANZIO ODUMS,
Defendant-Appellant.
___________________________________
Submitted February 13, 2018 – Decided March 5, 2018
Before Judges Hoffman and Gilson.
On appeal from Superior Court of New Jersey,
Law Division, Essex County, Indictment No.
12-06-1579.
Joseph E. Krakora, Public Defender, attorney
for appellant (Rasheedah Terry, Designated
Counsel, on the brief).
Robert D. Laurino, Acting Essex County
Prosecutor, attorney for respondent (Lucille
M. Rosano, Special Deputy Attorney
General/Acting Assistant Prosecutor, of
counsel and on the brief).
PER CURIAM
Defendant Elonzio Odums appeals from the October 5, 2016 Law
Division order denying his petition for post-conviction relief
(PCR). We affirm.
This case arose from the sale of prescription drugs in Newark
in February 2012. We outlined the relevant facts, and the
appellate issues defendant raised, in our prior opinion affirming
defendant's convictions for third-degree conspiracy,
N.J.S.A.
2C:5-2 (count one), and third-degree possession of a controlled
dangerous substance — Xanax, Oxycodone, and Percocet — with the
intent to distribute,
N.J.S.A. 2C:35-5(a)(1) and (b)(3) (counts
three, six, and nine). See State v. Odums, No. A-5202-13 (App.
Div. Dec. 16, 2015). The trial court merged the conspiracy into
the drug possession counts, then sentenced defendant to three
concurrent extended terms of eight-years imprisonment with four-
years parole ineligibility on the three drug possession counts.
On defendant's direct appeal, we rejected his arguments regarding
the inadmissibility of Detective Christopher Cavallo's testimony
2 A-1214-16T3
and evidence pertaining to defendant's possession of non-
controlled substances.1 Odums, slip op. at 8, 10.
On January 14, 2016, defendant filed a petition for PCR.
Defendant argued ineffective assistance of counsel regarding trial
counsel's (1) failure to object to Detective Cavallo's testimony,
(2) failure to object to evidence pertaining to defendant's
possession of non-controlled substances, and (3) failure to argue
that Oxycodone and Percocet are identical for purposes of the drug
possession charges. The PCR court rejected defendant's first two
arguments, reasoning they were raised and adjudicated on direct
appeal and therefore barred by Rule 3:22-5. The PCR court agreed
with defendant's third argument, and therefore vacated one of
defendant's three convictions and sentences; however, it noted
there was no impact on overall sentencing because the sentences
were concurrent.
On this appeal, defendant presents the following arguments:
POINT I. THE PCR COURT'S ORDER THAT DENIED DEFENDANT'S
PETITION FOR POST-CONVICTION RELIEF MUST BE
REVERSED OR THE MATTER REMANDED BECAUSE
DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF
COUNSEL IN THE PROCEEDINGS BELOW.
A. Pre-Trial Counsel Provided Ineffective
Assistance of Counsel Because Counsel
Failed To Warn Defendant That He Faced A
1
On direct appeal, defendant also argued errors in the jury
charge, verdict, and his sentence; those claims are not at issue
in the instant appeal.
3 A-1214-16T3
Mandatory Extended Term At The Time
Defendant Decided To Proceed To Trial
(Not raised below).
B. Trial Counsel Provided Ineffective
Assistance of Counsel Because Counsel
Failed to Investigate Police Officer Paul
Braswell's Background (Not raised
below).
C. Trial Counsel Provided Ineffective
Assistance of Counsel Because Counsel
Failed to Ask the Court to Amend Count
One Because Its Description Contains
Duplicate Drugs (Not raised below).
D. Trial Counsel Provided Ineffective
Assistance of Counsel Because Counsel
Failed to Object to the Admission of
Other Wrong or Acts Evidence.
E. Trial Counsel Provided Ineffective
Assistance of Counsel Because Counsel
Failed to Object to the Improper Opinion
Testimony Provided by Police Officer
Christopher Cavallo.
F. Sentencing [Counsel] Provided
Ineffective Assistance of Counsel
Because Counsel Failed to Challenge the
Trial Court's Imposition of Multiple
Extended Terms (Not raised below).
G. Appellate Counsel and Post-Conviction
Relief Counsel Provided Ineffective
Assistance of Counsel To The Extent They
Failed To Raise The Claims Set Forth
Above In the Proceedings Below (Not
raised below).
POINT II. THE PCR COURT ABUSED ITS DISCRETION WHEN IT
APPLIED THE PROCEDURAL BAR CONTAINED IN [RULE]
3:22-5 TO DEFENDANT'S INEFFECTIVE ASSISTANCE
OF COUNSEL CLAIMS.
4 A-1214-16T3
POINT III. THE PCR COURT ABUSED ITS DISCRETION WHEN IT
DENIED DEFENDANT'S REQUEST FOR AN EVIDENTIARY
HEARING BECAUSE DEFENDANT ESTABLISHED A PRIMA
FACIE CASE FOR INEFFECTIVE ASSISTANCE OF
COUNSEL.
Regarding Points I. D and E, we agree with the PCR court that
the issues were raised and adjudicated on direct appeal and
therefore barred by Rule 3:22-5. Rule 3:22-5 provides a "prior
adjudication upon the merits of any ground for relief is conclusive
whether made in the proceedings resulting in the conviction or in
any post-conviction proceeding . . . ." Thus, the application of
that standard requires the "[p]reclusion of consideration of an
argument presented in post-conviction relief proceedings . . . if
the issue raised is identical or substantially equivalent to that
adjudicated previously on direct appeal." State v. Marshall,
173 N.J. 343, 351 (2002) (citation omitted).
Defendant made the following arguments on direct appeal: "The
improper admission of other crimes evidence was plain error which
unduly prejudiced defendant and denied him a fair trial" and "[t]he
testimony of Detective Cavallo constituted improper lay opinion
which usurped the province of the jury." Odums, slip op. at 5.
We thoroughly addressed and rejected those arguments on direct
appeal. Id. at 6-10. Defendant's assertions of ineffective
assistance of counsel under Points I. D and E in the instant appeal
are an attempt to re-litigate the arguments he raised on direct
5 A-1214-16T3
appeal. We therefore agree with the PCR court's decision to
decline to consider those issues under Rule 3:22-5.
Defendant failed to raise the remaining points to the PCR
court; regardless, we find defendant failed to show any prejudice
under the Strickland/Fritz2 test and therefore reject defendant's
remaining claims. We briefly address each of those points in
turn.
To establish a prima facie case of ineffective assistance of
counsel, a defendant must satisfy the two-prong test articulated
in Strickland,
466 U.S. at 687, and adopted by the New Jersey
Supreme Court in Fritz,
105 N.J. at 58. "First, the defendant
must show . . . counsel made errors so serious that counsel was
not functioning as the 'counsel' guaranteed . . . by the Sixth
Amendment." Fritz,
105 N.J. at 52 (quoting Strickland,
466 U.S.
at 687). The defendant must then show counsel's "deficient
performance prejudiced the defense." Ibid. To show prejudice,
the defendant must establish by "a reasonable probability" that
the deficient performance "materially contributed to defendant's
conviction." Id. at 58.
"An attorney is entitled to 'a strong presumption' that he
or she provided reasonably effective assistance, and a 'defendant
2
Strickland v. Washington,
466 U.S. 668, 687 (1984); State v.
Fritz,
105 N.J. 42, 58 (1987).
6 A-1214-16T3
must overcome the presumption that' the attorney's decisions
followed a sound strategic approach to the case." State v. Pierre,
223 N.J. 560, 578-79 (2015) (quoting Strickland,
466 U.S. at 689).
"[A] petitioner must do more than make bald assertions that he [or
she] was denied the effective assistance of counsel." State v.
Cummings,
321 N.J. Super. 154, 170 (App. Div. 1999). "[H]e [or
she] 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." Ibid.
Defendant argues his pre-trial counsel provided ineffective
assistance of counsel by advising him that he was subject only to
a discretionary extended term, rather than a mandatory extended
term. However, defendant failed to certify whether the State
offered a plea agreement or what he would have done differently
had he known he was subject to a mandatory extended term rather
than a discretionary extended term. Defendant failed to establish
the alleged misinformation prejudiced his case in any way, and
therefore failed to establish the second prong of the
Strickland/Fritz test.
We note defendant is free to file a second PCR petition
regarding that issue, but must do so before July 19, 2018 to avoid
the time bar under Rule 3:22-12(a)(1). Should defendant choose
7 A-1214-16T3
to file a second PCR petition and provide the proper supporting
affidavit or certification, he may be entitled to a hearing3 to
establish whether the State offered a plea agreement, whether
trial counsel gave inaccurate advice, and whether defendant would
have accepted a plea agreement. See State v. Taccetta,
351 N.J.
Super. 196, 201 (App. Div. 2002).
Defendant next argues his trial counsel provided ineffective
assistance of counsel by failing to investigate misconduct
allegations involving a police officer who transported evidence
in the case to the lab for analysis. Again, defendant presented
only bald assertions that the officer was investigated for
misconduct, and failed to present any evidence the officer was
ever actually terminated or charged with evidence tampering. See
Cummings,
321 N.J. Super. at 170. Moreover, defendant presented
no evidence that the officer did anything wrong in transporting
the evidence against defendant.
3
A plenary hearing would not be required if other available
evidence, such as a hearing transcript, conclusively contradicts
the assertions made in support of a future PCR petition. See
State v. Porter,
216 N.J. 343, 354 (2013) ("The judge deciding a
PCR claim should conduct an evidentiary hearing when there are
disputed issues of material facts related to the defendant's
entitlement to PCR, particularly when the dispute regards events
and conversations that occur off the record or outside the presence
of the judge.").
8 A-1214-16T3
Defendant next argues his trial counsel provided ineffective
assistance of counsel by failing to request an amendment to the
conspiracy count description. We find that even if failing to
request an amended description was an error on defense counsel's
part, the error did not materially contribute to defendant's
conviction. See Fritz,
105 N.J. at 58. The court merged the
conspiracy count with the drug possession counts; therefore, the
court did not sentence defendant separately on the conspiracy
count. Furthermore, the court already vacated one of the drug
possession counts. Accordingly, we find defendant failed to
establish a prima facie case of ineffective assistance of counsel.
Defendant next argues his trial counsel provided ineffective
assistance of counsel by failing to challenge the trial court's
imposition of multiple extended terms. Defendant contends
N.J.S.A. 2C:44-5(a)(2) prohibits the imposition of multiple
extended terms. However,
N.J.S.A. 2C:44-5(a)(2) only prohibits
multiple discretionary extended terms, or a discretionary extended
term in addition to a mandatory extended term, but not multiple
mandatory extended terms. See State v. Robinson,
217 N.J. 594,
597, 612 (2014) (citing State v. Connell,
208 N.J. Super. 688, 697
(App. Div. 1986)). Defendant's sentence consisted of multiple
mandatory extended terms, and was therefore valid; any objection
by defense counsel would have been futile.
9 A-1214-16T3
Defendant next argues his appellate and PCR counsel provided
ineffective assistance of counsel by failing to raise the
additional claims listed under Point I. Because none of
defendant's additional claims establish a prima facie case of
ineffective assistance of counsel, appellate and PCR counsel's
failure to raise those claims was not itself ineffective assistance
of counsel.
Lastly, defendant argues he established a prima facie case
for ineffective assistance of counsel; as a result, the PCR court
should have held an evidentiary hearing. Rule 3:22-10(b) provides
a defendant is only entitled to an evidentiary hearing if he or
she establishes a prima facie case in support of PCR. Moreover,
there must be "material issues of disputed fact that cannot be
resolved by reference to the existing record," and the court must
determine that "an evidentiary hearing is necessary to resolve the
claims for relief." Porter,
216 N.J. at 354 (quoting R. 3:22-
10(b)). "To establish a prima facie claim of ineffective
assistance of counsel, a defendant must demonstrate the reasonable
likelihood of succeeding under the test set forth in
Strickland, . . . which we adopted in Fritz." State v. Preciose,
129 N.J. 451, 463 (1992) (internal citations omitted).
As noted, defendant failed to establish a prima facie case
for any of his ineffective assistance of counsel claims, as he
10 A-1214-16T3
made only bald assertions unsupported by any evidence. See
Cummings,
321 N.J. Super. at 170. Accordingly, the PCR court did
not abuse its discretion in denying an evidentiary hearing.
Affirmed.
11 A-1214-16T3
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