STATE OF NEW JERSEY v. DASHAWN GREENE

NOT FOR PUBLICATION WITHOUT THE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-3102-16T1

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

DASHAWN GREENE, a/k/a SHAWN
GREEN, DASWN GREENE, SEAN
GREENE, SHAWN GREENE, DARREL
McMILLAN and ANTHONY MIDDLETON,

     Defendant-Appellant.
________________________________

              Submitted April 10, 2018 – Decided May 15, 2018

              Before Judges Fasciale and Moynihan.

              On appeal from Superior Court of New Jersey,
              Law Division, Middlesex County, Indictment No.
              12-01-0190.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (David J. Reich, Designated
              Counsel, on the brief).

              Andrew C. Carey, Middlesex County Prosecutor,
              attorney for respondent (Patrick F. Galdieri,
              II, Assistant Prosecutor, of counsel and on
              the brief).

PER CURIAM
    Defendant      appeals    the      denial      of     his   petition      for     post-

conviction relief (PCR), arguing:

            THE TRIAL    COURT ERRED IN DENYING [DEFENDANT'S]
            PETITION     FOR [PCR] WITHOUT AN EVIDENTIARY
            HEARING      CONCERNING   HIS   CLAIM  THAT   HIS
            COUNSEL'S      FAILURE TO EXERCISE REASONABLE
            DILIGENCE     TO SECURE HIS ADMISSION TO DRUG
            COURT AS      AN ALTERNATIVE TO INCARCERATION
            VIOLATED     HIS CONSTITUTIONAL RIGHT TO THE
            EFFECTIVE    ASSISTANCE OF COUNSEL.

We conclude these arguments are meritless and affirm.

    Absent an evidentiary hearing, our review of the factual

inferences drawn by the PCR court from the record is de novo.

State v. Blake, 
444 N.J. Super. 285, 294 (App. Div.), certif.

denied, 
226 N.J. 213 (2016).           Likewise, we review de novo the PCR

court's legal conclusions.            Ibid.

    To establish a PCR claim of ineffective assistance of counsel,

a defendant must satisfy the test formulated in Strickland v.

Washington, 
466 U.S. 668, 687 (1984), and adopted by our Supreme

Court in State v. Fritz, 
105 N.J. 42, 58 (1987), first by showing

"that   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); then by proving he suffered prejudice due to counsel's

deficient   performance,         Strickland,        
466 U.S.  at   687,   691-92.

Defendant   must   show     by    a    "reasonable         probability"       that       the


                                            2                                       A-3102-16T1
deficient performance affected the outcome.            Fritz, 
105 N.J. at
 58.

      Defendant    pleaded    guilty    in   June   2013   to   third-degree

possession   with    intent    to      distribute   controlled    dangerous

substances in a school zone.            
N.J.S.A. 2C:35-7(a).       The plea

agreement provided defendant would be sentenced to a six-year

prison term during which he would he ineligible for parole for

three years.1     The judge noted defendant had a pending Drug Court

application; although defendant had been legally accepted, he was

not clinically cleared.         The judge set sentencing for early

September, deducing that would allow enough time to resolve the

clinical issue which defense counsel said was going to be "worked

out very shortly."    Defendant acknowledged that the plea agreement

was not contingent upon his acceptance into Drug Court and that

if he failed to appear for sentencing he would face a ten-year

prison sentence, for half of which he would be parole ineligible.

See State v. Subin, 
222 N.J. Super. 227, 238-40 (App. Div. 1988)

(approving plea agreement terms that provide for an increased

sentence when a defendant fails to appear for sentencing).




1
  The record is not clear, but the judge surmised defendant was
subject to a mandatory extended–term sentence under 
N.J.S.A.
2C:43-6(f) – to which defendant agreed.

                                       3                             A-3102-16T1
     Notwithstanding    the   issuance   of   a   bench   warrant   for

defendant's failure to appear on the September sentencing date,

sentencing was rescheduled five times to allow defendant to resolve

the Drug Court application issues; as the judge recognized, on

each of those adjourned dates, defendant was advised by the judge

"in the presence of his attorney . . . [that] he needed to get

this information" for the Drug Court.2    The judge later recounted:

"[E]ach time we came to [c]ourt, in the presence of his client,

[c]ounsel told me, I'm still waiting for [defendant] to give me




2
  The Drug Court clinical evaluator's report of February 4, 2013
noted defendant's diabetes diagnosis and related prescriptions,
and that a doctor in Clifton had prescribed Methadone for
defendant's "back pain related to 'calcium build up,'" without any
knowledge of defendant's heroin use. The evaluator wrote:

          Client was advised that this [c]linician needs
          the following [m]edical [d]ocumentation:

                     A letter advising whether or
                      not he can titrate from the
                      Methadone and be prescribed a
                      non-narcotic medication for
                      pain management issues.
                     Most recent A1C panel that
                      supports his report that his
                      diabetes   is   within   normal
                      range.
                     Updated [m]edication [l]ist
                      for    all    the    biomedical
                      complications he is receiving
                      medication for.



                                  4                            A-3102-16T1
this information so I can [submit it to Drug Court]."    Defendant

appeared in court on February 28, 2014, but fled before sentencing.

As his counsel said at the June 6, 2014 sentencing — after

defendant was arrested on the bench warrant issued on February 28

– "he disappeared.   I couldn't get a hold of him, I didn't know

where he was, he never -- I haven't seen or heard from him except

for today."   The judge meted out an eight-year prison term with

four years of parole ineligibility.3

     Setting aside that defendant was directed to obtain the

necessary documentation for Drug Court and remained incommunicado

with his defense counsel,4 and countenancing defendant's argument

that counsel should "have taken the necessary proactive steps to

obtain a satisfactory resolution" to the Drug Court application

process, defendant has still not produced the documents required

by Drug Court. He has failed to show that counsel's alleged

deficient performance would have changed the result.     In short,

he still has not shown he could have been clinically cleared for


3
  We affirmed the sentence on our excessive sentencing calendar.
State v. Greene, No. A-4920-14 (App. Div. Dec. 15, 2015).
4
  At sentencing, defense counsel told the court, "I've done
everything I could do for him. I even went to Drug Court again
today to see what I can do. They are not going to accept him and
they look very unfavorabl[y], as I know Your Honor does[,] that
. . . he fled the last time."



                                5                           A-3102-16T1
Drug Court.      As the judge found in ruling on defendant's PCR

application: "I don't have any medical records, I don't have any

-- any previous records that [were] the subject of what the TASC[5]

evaluator was looking for and that could have been retrieved and

hadn't been retrieved."       That deficiency also renders meritless

defendant's claim of error for failing to submit a Drug Court

appeal.     He, again, has failed to show a reasonable probability

that the motion would have been successful.          See State v. Roper,


362 N.J. Super. 248, 255 (App. Div. 2003) (holding "[i]n an

ineffective assistance claim based on failure to file a suppression

motion, the prejudice prong requires a showing that the motion

would have been successful").       Defendant's unsubstantiated claims

do not satisfy the second Strickland-Fritz prejudice prong.

       We   determine   the   balance    of   defendant's    arguments     —

especially his claim that he was compelled to plead guilty while

the Drug Court application was still pending — lack sufficient

merit for discussion in this opinion.         R. 2:11-3(e)(2).     We add,

defendant did not present a prima facie case in support of his PCR

application    by   demonstrating    "the     reasonable    likelihood    of

succeeding" under the test set forth in Strickland, to warrant an

evidentiary hearing.      State v. Preciose, 
129 N.J. 451, 462-63



5
    Treatment Assessment Services for the Courts.

                                     6                             A-3102-16T1
(1992); R. 3:22-10(b).   Nor is an evidentiary hearing to be used

to – in defendant's words — "explore" PCR claims.   See State v.

Marshall, 
148 N.J. 89, 157-58 (1997).

    Affirmed.




                                7                         A-3102-16T1