STATE OF NEW JERSEY v. DARVIN CANNON

NOT FOR PUBLICATION WITHOUT THE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-2391-16T3

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

DARVIN CANNON, a/k/a
DARVIN S. CANNON,

     Defendant-Appellant.
____________________________________

              Submitted March 21, 2018 – Decided April 16, 2018

              Before Judges Fuentes and Suter.

              On appeal from Superior Court of New Jersey,
              Law Division, Cumberland County, Indictment
              No. 14-02-0107.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Kevin G. Byrnes, Designated
              Counsel, on the brief).

              Jennifer    Webb-McRae,   Cumberland    County
              Prosecutor, attorney for respondent (Kim L.
              Barfield, Assistant Prosecutor, of counsel and
              on the brief).

PER CURIAM
      Defendant appeals from the November 18, 2016 order that denied

his   petition   for   post-conviction   relief   (PCR)   without     an

evidentiary hearing.    For the reasons that follow, we affirm.

      On February 26, 2014, a man dressed in dark clothing with a

mask and gun went into a convenience store in Bridgeton.      When the

store clerk saw him, she screamed.    He put the gun to her back and

told her to open up the registers.    The storeowner was in the rear

of the business and heard the employee scream.      He looked at the

surveillance monitor and saw an armed robber directing the employee

to go behind the counter.    The owner drew his own weapon.     He and

the robber exchanged gunfire until the robber fled the store.       The

owner's shirt was grazed.     The surveillance video captured this

exchange, showed the robber fall in the parking lot, get up and

run toward a white car.

      When the police responded to the store, they were notified

that defendant was at the hospital with a non-life threatening

gunshot wound to the head.    Although he told the police officers

at the hospital that he was shot in another area of Bridgeton, he

and the clothing he was wearing matched the description of the

armed robber.

      Defendant was indicted on four counts, including first-degree

armed robbery with a handgun, 
N.J.S.A. 2C:15-1 (count one); fourth-

degree aggravated assault, 
N.J.S.A. 2C:12-(1)(b)(4) (count two);

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second-degree possession of a firearm for an unlawful purpose,


N.J.S.A. 2C:39-4(a) (count three); and first-degree attempted

murder, 
N.J.S.A. 2C:5-1 and 
N.J.S.A. 2C:11-3(a)(1) (count four).

     Pursuant to a negotiated agreement with the State, defendant

pled guilty on June 18, 2015 to the first count in the indictment

charging him with first-degree armed robbery.     The State agreed

to dismiss the other three counts.    The sentencing court imposed

the recommended sentence of fifteen-years imprisonment with an

eighty-five percent period of parole ineligibility and five years

of parole supervision under the No Early Release Act (NERA),


N.J.S.A. 2C:43-7.2.   Defendant did not file a direct appeal from

his conviction or sentence.

     Defendant filed a PCR petition on November 30, 2015, alleging

ineffective assistance of counsel.   He claimed his counsel advised

him to plead guilty although he wanted to go to trial.     He also

wanted a change in venue and claimed the court lacked jurisdiction.

     Defendant's PCR attorney filed a letter brief where he alleged

that defendant's trial counsel did not review all of the discovery

with him, including the videotape of the incident, did not look

at the videotape, and did not complete investigation of the case.

He contended the plea was not entered knowingly and voluntarily.

Defendant requested an evidentiary hearing.



                                 3                         A-2391-16T3
     In September 2016, the PCR court allowed defendant to submit

a certification in support of his PCR petition.     In defendant's

October 19, 2016 certification, he contended that he never received

a complete copy of discovery and was not shown the surveillance

tape footage of the robbery.   He argued his trial counsel insisted

that he plead guilty and accept the fifteen-year sentence.         He

alleged his trial attorney failed to file pretrial motions.

     Defendant's PCR petition was heard on November 18, 2016.    The

PCR judge denied the petition after considering the oral arguments

of counsel.   Defendant alleges that his trial counsel told him

before the plea hearing that she had not viewed the videotape.

The PCR court found that even if counsel and defendant did not

view the videotape before the plea, defendant did not allege there

was a discrepancy between what the tape was purported to show and

what it did show.   There was no showing the tape deviated in any

meaningful way from what was represented at the time defendant

entered his guilty plea.   Thus, even if defendant could show that

his counsel's performance were deficient, defendant did not show

that he was prejudiced.

     Defendant presents the following issues for our consideration

in his appeal.




                                 4                          A-2391-16T3
            POINT I

            THE DEFENDANT WAS DENIED THE RIGHT TO
            EFFECTIVE ASSISTANCE OF TRIAL COUNSEL AS
            GUARANTEED BY THE SIXTH AMENDMENT TO THE
            UNITED STATES CONSTITUTION AND ART. I, PAR.
            10 OF THE NEW JERSEY CONSTITUTION.

            POINT II

            THE GUILTY PLEA WAS NOT ENTERED KNOWINGLY AND
            VOLUNTARILY AS REQUIRED BY THE LAW.

            POINT III

            THE DEFENDANT IS ENTITLED TO AN EVIDENTIARY
            HEARING.

We are not persuaded by any of these arguments and affirm.

     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 (1984), and adopted by

our Supreme Court in State v. Fritz, l
05 N.J. 42 (l987).                  In order

to prevail on an ineffective assistance of counsel claim, defendant

must meet a two-prong test by establishing 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



                                         5                                 A-2391-16T3
errors, the result of the proceeding would have been different."

Strickland, 
466 U.S.  at 687, 694.

     In the plea bargain context, "a defendant must prove 'that

there is a reasonable probability that, but for counsel's errors,

[he or she] would not have pled guilty and would have insisted on

going to trial,'"         State v. Gaitan, 
209 N.J. 339, 351 (2012)

(alteration in original) (quoting State v. Nuñez-Valdéz, 
200 N.J.
 129, 139 (2009)), and that "a decision to reject the plea bargain

would have been rational under the circumstances."                Padilla v.

Kentucky, 
559 U.S. 356, 372 (2010).

     We agree with the PCR court that defendant failed to show a

prima facie case of ineffective assistance.              The State provided

discovery      to   defendant's   counsel,   including     the   surveillance

videotape.      Defendant acknowledged that before he pled guilty, he

knew that his attorney had not viewed the tape.

     We agree with the PCR court that even if his trial attorney

did not look at the videotape and even if this were deficient

performance, defendant failed to show a reasonable probability the

results   of    the   proceedings   would    have   been   different.      The

videotape purported to show defendant coming into the store dressed

in dark clothes with a gun and threatening the employee.                   The

storeowner and defendant shot at each other, and defendant left

the store.     Defendant never alleged that there was any discrepancy

                                      6                               A-2391-16T3
between what the tape purported to show and what it actually

showed.      "[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) (alteration in original) (quoting State v.

Cummings, 
321 N.J. Super. 154, 170 (App. Div. 1999)).             Defendant

did   not   meet   his   burden   of   showing   factually   that   further

investigation of the videotape would have made a difference.

      We are satisfied 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.           Accordingly, the PCR

court correctly concluded that an evidentiary hearing was not

warranted.    See State v. Preciose, 
129 N.J. 451, 462-63 (1992).

      We conclude that defendant's further arguments are without

sufficient merit to warrant discussion in a written opinion.                R.

2:11-3(e)(2).

      Affirmed.




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