STATEOF NEW JERSEY v. OSHA L. DABNEY a/k/a OMAR GOODING
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APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2747-16T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
OSHA L. DABNEY,
a/k/a OMAR GOODING,
Defendant-Appellant.
____________________________________
Submitted February 6, 2018 – Decided February 23, 2018
Before Judges Carroll and Mawla.
On appeal from Superior Court of New Jersey,
Law Division, Atlantic County, Indictment No.
11-05-1130.
Joseph E. Krakora, Public Defender, attorney
for appellant (Mark Zavotsky, Designated
Counsel, on the brief).
Damon G. Tyner, Atlantic County Prosecutor,
attorney for respondent (Nicole L. Campellone,
Assistant Prosecutor, of counsel and on the
brief).
PER CURIAM
Defendant Osha Dabney appeals from a January 19, 2017 order
denying his petition for post-conviction relief (PCR). We affirm.
An Atlantic County grand jury charged defendant in a nine-
count indictment as follows: third-degree possession of a
controlled dangerous substance (CDS),
N.J.S.A. 2C:35-10(a)(1)
(count one); third-degree possession of a CDS with intent to
distribute,
N.J.S.A. 2C:35-5(a)(1) and
N.J.S.A. 2C:35-5(b)(13)
(count two); third-degree possession of a CDS within 1000 feet of
school property,
N.J.S.A. 2C:35-7 (count three); second-degree
possession of a weapon while in possession of a CDS with intent
to distribute,
N.J.S.A. 2C:39-4.1 (count four); third-degree
unlawful possession of a weapon,
N.J.S.A. 2C:39-3(b) (count five);
third-degree theft,
N.J.S.A. 2C:20-3 (count six); fourth-degree
tampering with physical evidence,
N.J.S.A. 2C:28-6(1) (count
seven); second-degree possession of a CDS within 500 feet of public
housing,
N.J.S.A. 2C:35-7.1 (count eight); and fourth-degree
possession of a weapon by a convicted felon,
N.J.S.A. 2C:39-7
(count nine).
Defendant pled guilty to second-degree possession of a weapon
while in possession of a CDS with intent to distribute,
N.J.S.A.
2C:39-4.1 (count four); and fourth-degree possession of a weapon
by a convicted felon,
N.J.S.A. 2C:39-7 (count nine). Pursuant to
the negotiated plea, defendant agreed to an extended term under
State v. Brimage,
153 N.J. 1 (1998), and was sentenced to an eight-
year prison term subject to a five-year parole disqualifier.
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The facts underlying defendant's conviction were as follows.
On April 13, 2011, members of the Atlantic County Prosecutor's
Office and the Pleasantville Police Department where en route to
execute a search warrant for a residence in which defendant
occupied a room. Before arriving police noticed a tan Lincoln
Navigator from which defendant had conducted drug transactions
according to a confidential informant. Police noticed defendant
in the passenger seat and stopped the vehicle.
The driver of the vehicle would not give consent to a search,
however, police removed the driver and defendant from the vehicle
because they had received a tip defendant was in possession of a
sawed-off shotgun. A police K-9 signaled the possible presence
of narcotics. Therefore, the vehicle was towed and an application
for a warrant to search the vehicle was made.
Police continued to defendant's residence to execute the
warrant for his room, where they recovered the sawed-off shotgun
from behind a chained closet door. A search of defendant's
residence also revealed a scale with white residue believed to be
cocaine.
During his plea colloquy, defendant admitted he had a prior
felony conviction. He admitted to being in possession of the
shotgun. Defendant also admitted he possessed oxycodone without
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a prescription, and that he possessed cocaine with the intent to
distribute or share it with others. Defendant's sentence followed.
Defendant filed a direct appeal from his sentence and we
heard the matter on our excessive sentencing oral argument
calendar. Pursuant to a consent order, defendant's sentence on
count four was remanded based on a misunderstanding of Brimage.
Thus, defendant was re-sentenced to a five-year prison term with
a three year term of parole ineligibility on count four to run
concurrently with the five-year term with five years of parole
ineligibility on count nine.
Defendant filed his PCR petition. In it he argued his plea
counsel and his sentencing counsel were ineffective because there
was no factual basis for the plea, and that trial counsel failed
to file a motion to suppress evidence seized from the search of
the vehicle and his residence. Defendant also argued counsel
never made a motion to dismiss count nine, and that his appellate
counsel was ineffective for only appealing the sentence. Defendant
argued his plea counsel and his sentencing counsel gave incorrect
advice that Brimage applied and therefore his plea was not knowing
and voluntary.
The PCR judge denied defendant's petition without an
evidentiary hearing. She concluded the Brimage issue had been
addressed when defendant appealed his sentence and thus defendant
4 A-2747-16T3
was barred from asserting the claim in his PCR petition. The
judge held the warrants to search defendant's room and the vehicle
defendant occupied were valid, and thus a motion filed by his
trial counsel to suppress the evidence obtained would be meritless.
The judge found a motion to dismiss count nine would not have
prevented the State from presenting evidence to the grand jury to
demonstrate he qualified as a "certain persons" to thus meet the
elements of the offense. The PCR judge determined the remainder
of defendant's claims were barred because they were not brought
on direct appeal. This appeal followed.
On appeal, defendant raises the following arguments:
POINT I – DEFENDANT'S PETITION FOR POST
CONVICTION RELIEF SHOULD NOT BE BARRED BECAUSE
DEFENDANT'S CLAIMS WERE NOT EXPRESSLY
ADJUDICATED BY THE APPELLATE DIVISION.
POINT II – DEFENDANT'S PETITION FOR POST
CONVICTION RELIEF SHOULD NOT BE BARRED BECAUSE
DEFENDANT COULD NOT HAVE BROUGHT HIS CLAIMS
IN A PRIOR PROCEEDING AND THE INTERESTS OF
JUSTICE REQUIRE HIS CLAIMS BE HEARD.
POINT III – DEFENDANT WAS DENIED EFFECTIVE
ASSISTANCE OF COUNSEL ENTITLING HIM TO POST
CONVICTION RELIEF AND AN EVIDENTIARY HEARING.
(a) Counsel was ineffective for
affirmatively misadvising the
defendant as to the penal
consequences of his plea.
(b) Counsel was ineffective for
failing to file a motion to withdraw
defendant's plea once the Appellate
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Court determined the trial court
illegally applied Brimage rules to
his sentence.
I.
The PCR process affords an adjudged criminal defendant a
"last chance to challenge the 'fairness and reliability of a
criminal verdict . . . .'" State v. Nash,
212 N.J. 518, 540 (2013)
(quoting State v. Feaster,
184 N.J. 235, 249 (2005)); see also R.
3:22-1. As to our standard of review, "where the [PCR] court does
not hold an evidentiary hearing, we may exercise de novo review
over the factual inferences the trial court has drawn from the
documentary record." State v. O'Donnell,
435 N.J. Super. 351, 373
(App. Div. 2014) (citing State v. Harris,
181 N.J. 391, 420-21
(2004)).
"Post-conviction relief is neither a substitute for direct
appeal, [Rule] 3:22-3, nor an opportunity to relitigate cases
already decided on the merits, [Rule] 3:22-5." State v. Preciose,
129 N.J. 451, 459 (1992).
Consequently, petitioners may be procedurally
barred from post-conviction relief under Rule
3:22-4 if they could have, but did not, raise
the claim in a prior proceeding, unless they
satisfy one of the following exceptions:
(a) that the ground for relief not
previously asserted could not
reasonably have been raised in any
prior proceeding; or (b) that
enforcement of the bar would result
6 A-2747-16T3
in fundamental injustice; or (c)
that denial of relief would be
contrary to the Constitution of the
United States or the State of New
Jersey.
[Ibid.]
II.
Defendant contends the PCR judge erred in ruling his Brimage
eligibility argument was procedurally barred because his prior
illegal sentence was corrected following his direct appeal.
Defendant argues the true issue on PCR is whether he would have
pled guilty at all but for plea counsel's incorrect Brimage advice.
We agree with defendant that this claim was not procedurally barred
by the appeal, but affirm for different reasons.
Rule 3:22-10(b) provides:
A defendant shall be entitled to an
evidentiary hearing only upon the
establishment of a prima facie case in support
of post-conviction relief, a determination by
the court that there are material issues of
disputed fact that cannot be resolved by
reference to the existing record, and a
determination that an evidentiary hearing is
necessary to resolve the claims for relief.
To establish a prima facie case, defendant
must demonstrate a reasonable likelihood that
his or her claim, viewing the facts alleged
in the light most favorable to the defendant,
will ultimately succeed on the merits.
Furthermore, Rule 3:22-10(e) provides the "court shall not grant
an evidentiary hearing" if: (1) it "will not aid [in] the court's
7 A-2747-16T3
analysis of the defendant's entitlement to post-conviction
relief;" (2) "the defendant's allegations are too vague,
conclusory or speculative; or" (3) the defendant is attempting to
use the hearing to explore or investigate other possible
unsubstantiated PCR claims.
The decision of whether to hold an evidentiary hearing on a
PCR petition is committed to the sound discretion of the PCR judge.
State v. Cummings,
321 N.J. Super. 154, 170 (App. Div. 1999). The
judge should grant an evidentiary hearing and make a determination
on the merits of a defendant's claim only if the defendant has
presented a prima facie claim of ineffective assistance. Preciose,
129 N.J. at 462.
In determining whether a prima facie claim has been
established, the facts should be viewed "in the light most
favorable to a defendant . . . ." Id. at 462-63. Additionally,
"[a] petitioner must establish the right to such relief by a
preponderance of the credible evidence." Id. at 459. "To sustain
that burden, specific facts must be alleged and articulated" to
"provide the court with an adequate basis on which to rest its
decision." State v. Mitchell,
126 N.J. 565, 579 (1992).
To establish ineffective assistance of counsel, defendant
must satisfy a two-prong test:
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First, the defendant must show that counsel's
performance was deficient. This requires
showing that counsel made errors so serious
that counsel was not functioning as the
"counsel" guaranteed the defendant by the
Sixth Amendment. Second, the defendant must
show that the deficient performance prejudiced
the defense. This requires showing that
counsel's errors were so serious as to deprive
the defendant of a fair trial, a trial whose
result is reliable. Unless a defendant makes
both showings, it cannot be said that the
conviction or death sentence resulted from a
breakdown in the adversary process that
renders the result unreliable.
[Strickland v. Washington,
466 U.S. 668, 687
(1984); State v. Fritz,
105 N.J. 42, 52 (1987)
(quoting Strickland,
466 U.S. at 687).]
Counsel's performance is evaluated with extreme deference,
"requiring 'a strong presumption that counsel's conduct falls
within the wide range of reasonable professional assistance
. . . .'" Fritz,
105 N.J. at 52 (alteration in original)(quoting
Strickland,
466 U.S. at 688-89). "To rebut that strong
presumption, a [petitioner] must establish . . . trial counsel's
actions did not equate to 'sound trial strategy.'" State v.
Castagna,
187 N.J. 293, 314 (2006) (quoting Strickland,
466 U.S.
at 689). "Mere dissatisfaction with a 'counsel's exercise of
judgment' is insufficient to warrant overturning a conviction."
Nash,
212 N.J. at 542 (quoting State v. Echols,
199 N.J. 344, 358
(2009)).
9 A-2747-16T3
To demonstrate prejudice, "'actual ineffectiveness' . . .
must [generally] be proved[.]" Fritz,
105 N.J. at 52 (quoting
Strickland,
466 U.S. at 692-93). Petitioner must show the
existence of "a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have
been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome." Ibid. (quoting
Strickland,
466 U.S. at 694). Indeed,
[i]t is not enough for [a] defendant to show
that the errors had some conceivable effect
on the outcome of the proceeding. Virtually
every act or omission of counsel would meet
that test and not every error that conceivably
could have influenced the outcome undermines
the reliability of the result of the
proceeding.
[Strickland,
466 U.S. at 693 (citation
omitted).]
In the context of a guilty plea, defendant must show "that
(i) counsel's assistance was not 'within the range of competence
demanded of attorneys in criminal cases,' and (ii) 'that 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. DiFrisco,
137 N.J. 434, 457 (1994)
(alteration in original) (citations omitted), (quoting Tollet v.
Henderson,
411 U.S. 258, 266 (1973); Hill v. Lockhart,
474 U.S. 52, 59, (1985)). Defendant must also show "a decision to reject
10 A-2747-16T3
the plea bargain would have been rational under the circumstances."
Padilla v. Kentucky,
559 U.S. 356, 372 (2010); see State v. Maldon,
422 N.J. Super. 475, 486 (App. Div. 2011).
Here, given the severity and the number of the charges in the
grand jury indictment, it was unlikely defendant would have
obtained a better result had he gone to trial. Setting aside the
indictment as a whole, the charges to which defendant pled guilty
alone would have exposed him to significantly worse consequences.
Indeed, as the State points out, although defendant was not
eligible under Brimage, he could have been sentenced to ten years
in prison for each of the two second-degree counts to which he
pled guilty. Moreover, defendant was eligible for an extended
term of incarceration. For these reasons, we reject defendant's
argument that he would have wanted to withdraw his plea and proceed
to trial in the absence of Brimage.
Additionally, we reject defendant's argument his counsel was
ineffective for failing to file a motion to withdraw his guilty
plea. In State v. Slater,
198 N.J. 145, 157-58 (2009), the Supreme
Court stated:
We hold that trial judges are to consider and
balance four factors in evaluating motions to
withdraw a guilty plea: (1) whether the
defendant has asserted a colorable claim of
innocence; (2) the nature and strength of
defendant's reasons for withdrawal; (3) the
existence of a plea bargain; and (4) whether
11 A-2747-16T3
withdrawal would result in unfair prejudice
to the State or unfair advantage to the
accused.
Defendant concedes he has not asserted a colorable claim of
innocence as required by Slater. Therefore, a motion to withdraw
his plea would not have succeeded, and his counsel was not
ineffective for failing to file one.
We reject defendant's argument his counsel was ineffective
because there was a lack of a factual basis for the plea. The PCR
judge recounted her review of the transcript of the plea proceeding
and concluded the judge who accepted defendant's plea had followed
the guidelines in Rule 3:9-2, and assured there was an adequate
factual basis. The PCR judge noted the judge at the time of the
plea ensured defendant "had a complete understanding of the
situation" when he replied to the questions regarding the factual
basis. The PCR judge further noted the judge who took the plea
"also reviewed the plea forms with his attorney and signed them
each in turn."
Our review of the transcript of defendant's plea demonstrates
he voluntarily admitted the shotgun was in his room and that he
possessed the weapon. Defendant admitted that he had been
convicted in 2003 of possession of a CDS with intent to distribute,
which constituted a prior felony conviction. Thus, defendant
admitted he was a certain persons to meet the elements of N.J.S.A.
12 A-2747-16T3
2C:39-7. Defendant also admitted he possessed oxycodone pills,
for which he did not have a prescription, and that he had cocaine,
which he intended to share. This testimony provided the factual
basis to support the guilty plea on both counts of defendant's
conviction. We agree with the PCR judge a motion to withdraw the
plea for lack of a factual basis would not have been successful.
Similarly, we agree with the PCR judge a motion to dismiss
count nine of the indictment would have been meritless. The judge
addressed this argument as follows:
Defendant maintains that his attorney should
have contested count nine of the indictment
because the State presented evidence of his
prior crimes to bias the grand jury to indict
him. However, defendant's prior conviction
was used to establish the predicate offense,
which prohibited him from possessing a
firearm, one of the counts of the indictment.
There is . . . nothing precluding the State
from presenting evidence as to why the
defendant was what they call a certain person
not allowed by law to possess weapons of any
sort and, in fact, they are obligated to do
so, particularly at the grand jury level. One
of the elements of a certain persons offense
is that the offender has a prior felony
conviction.
Finally, the motion to dismiss has no support.
[Defendant] advances nothing except a bald
assertion and, taking all of the above into
consideration, that motion to dismiss
obviously would also have been meritless.
As we have noted, defendant provided the factual basis for
the certain persons charge, namely, by testifying to his 2003
13 A-2747-16T3
conviction for possession of CDS with intent to distribute. The
PCR judge correctly found a motion to dismiss count nine of the
indictment would have been meritless and this argument lacks merit
to warrant further discussion in a written opinion. R. 2:11-
3(e)(1)(E).
Finally, we agree with the PCR judge that defendant failed
to demonstrate his counsel was ineffective for failing to file a
motion to suppress the evidence obtained pursuant to the search
warrants for the vehicle and his residence. The PCR judge held
the following:
First, the search warrant is valid. It is
based on an investigation by the detective on
the case who used a confidential informant to
. . . purchase crack cocaine from the
defendant [] three times while under constant
surveillance. It also informed him that
defendant was actively seeking to purchase a
firearm. Two of those times defendant had
used the tan Lincoln Navigator he was stopped
in during his arrest in order to me[et] (sic)
. . . the [confidential informant] and
distribute the drugs from the vehicle. Prior
to all three of those purchases the
confidential informant was searched for
contraband and monies and then was under
constant supervision before and during the
sale. During the first sale the confidential
informant was asked to meet the defendant in
his home. The surveillance team observed
defendant leave his residence to meet the CI
outside, and a hand-[to]-hand (sic) exchange
was observed. On another occasion a similar
occurrence transpired, but instead of meeting
the confidential informant on foot the
defendant entered the tan Lincoln Navigator
14 A-2747-16T3
. . . . The confidential informant then
entered the vehicle and exited after a few
minutes with another folded paper containing
crack cocaine, and . . . this same scenario
again occurred about . . . a couple of weeks
later . . . .
Based upon the above[,] Detective Taggart
collected enough proof to reach the probable
cause threshold and obtain a search warrant
for the building. Any motion trying to
[in]validate (sic) that search warrant would
have been meritless.
Along these lines a motion to suppress the
evidence obtained for the warrantless search
of the Lincoln Navigator would also have been
meritless. It was used in two of the three
drug transactions in which defendant was
observed distributing the drugs. It is
obvious how this meets the reasonable
suspicion standard as to there being
criminally-related objects in the vehicle
subject to search.
Defendant has advanced no basis for us to disagree with the
PCR judge's findings. The record amply supports the judge's
findings a motion to suppress the evidence obtained from the
vehicle and defendant's room would have been meritless. For these
reasons, defendant has failed to establish a prima facie showing
of ineffective assistance of counsel.
Affirmed.
15 A-2747-16T3
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