STATE OF NEW JERSEY v. STEVEN FOWLER

NOT FOR PUBLICATION WITHOUT THE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-5321-15T2

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

STEVEN FOWLER,

     Defendant-Appellant.
______________________________

              Submitted January 8, 2018 – Decided April 16, 2018

              Before Judges O'Connor and Vernoia.

              On appeal from Superior Court of New Jersey,
              Law Division, Essex County, Indictment Nos.
              91-06-3262, 95-10-3280, 95-10-3289, and
              Accusation No. 97-01-0070.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Andrew R. Burroughs,
              Designated Counsel, on the brief).

              Christopher S. Porrino, Attorney General,
              attorney for respondent (Evgeniya Sitnikova,
              Deputy Attorney General, of counsel and on
              the brief).

PER CURIAM

        Defendant Steven Fowler appeals from a May 24, 2016 order

denying his petition for post-conviction relief (PCR), which
alleged the ineffective assistance of two attorneys.   One

represented defendant in connection with charges arising out of

a 1991 indictment (Indictment No. 91-06-3262), and the other in

connection with charges arising out of two 1995 indictments

(Indictment No. 95-10-3280 and Indictment No. 95-10-3289) and a

1997 accusation (Accusation No. 97-10-0070).   We affirm.

                                 I

    With respect to the 1991 indictment, defendant pled guilty

to second-degree possession with intent to distribute a

controlled dangerous substance (CDS), 
N.J.S.A. 2C:35-5(b)(2),

and third-degree distribution of CDS within 1000 feet of school

property, 
N.J.S.A. 2C:35-7(a).   On January 16, 1992, he was

sentenced in the aggregate to a five-year term of imprisonment;

a judgment of conviction was entered the same day.   Defendant

did not file a direct appeal.

    As for the 1995 indictments, defendant pled guilty to

second-degree possession with intent to distribute a controlled

dangerous substance, 
N.J.S.A. 2C:35-5(b)(2); two counts of

second-degree possession of a weapon by a convicted felon,


N.J.S.A. 2C:39-7(a); second-degree possession of a weapon for an

unlawful purpose, 
N.J.S.A. 2C:39-4(a); third-degree distribution

of a controlled dangerous substance, 
N.J.S.A. 2C:35-5(b)(3); and


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third-degree distribution of a controlled dangerous substance

within 1000 feet of school property, 
N.J.S.A. 2C:35-7(a).     With

respect to the accusation, on March 7, 1997, defendant pled

guilty to third-degree possession with intent to distribute a

controlled dangerous substance within 1000 feet of school

property, 
N.J.S.A. 2C:35-7(a).

    On March 7, 1997, defendant was sentenced to a five-year

term of probation on the charges arising out of the 1995

indictments and the 1997 accusation.   The sentence on each

charge ran concurrently to the others.   The remaining charges in

the indictments and accusation were dismissed, and a judgment of

conviction was entered the same day.   Defendant did not file a

direct appeal.

    For the balance of the opinion, we refer to the convictions

arising out of the 1995 indictments and the 1997 accusation as

the "1997 convictions," and refer to the attorney who

represented him in these matters as "1997 counsel."     Likewise,

we refer to the convictions arising out of the 1991 indictment

as the "1992 convictions" and the attorney who represented him

as "1992 counsel."

    In 1999, a federal jury convicted defendant of conspiracy

to distribute in excess of fifty grams of cocaine, 21 U.S.C. §


                                 3
                                                           A-5321-15T2
841(a)(1) and 21 U.S.C. § 846.   On August 18, 1999, defendant

was sentenced to life in prison, pursuant to 21 U.S.C. §

841(b)(1)(A).   Among other things, this statute provides a

person convicted of 21 U.S.C. § 841(a)(1) and 21 U.S.C. § 846

who has had at least two previous felony drug convictions must

serve a life sentence.

     It is not disputed that, in imposing sentence, the federal

judge relied on defendant's 1990 conviction for possession of

cocaine, the 1992 conviction for possession with intent to

distribute, 
N.J.S.A. 2C:35-5(b)(2), and either the 1997

conviction for third-degree distribution of a controlled

dangerous substance within 1000 feet of school property,


N.J.S.A. 2C:35-7(a), or third-degree possession with intent to

distribute a controlled dangerous substance within 1000 feet of

school property, 
N.J.S.A. 2C:35-7(a).1   The Fourth Circuit Court

of Appeals affirmed the conviction and sentence.   In his appeal,

defendant did not challenge the applicability of the sentencing

enhancement provision of 21 U.S.C. § 841(b)(1)(A).   Defendant's

petition for certiorari to the United States Supreme Court was

denied.


1
   It is not clear from the record which of the two 1997
convictions the federal judge relied upon when sentencing
defendant.

                                 4
                                                           A-5321-15T2
    Defendant claims he filed a pro se petition for PCR on or

about June 20, 2002, asserting both his 1992 and 1997 counsel

were ineffective and the court lost the petition.   Defendant

does not have proof such petition was actually filed.    We note

that in the petition he filed in 2012, defendant states he did

not file any previous petitions.    However, we also observe that

in a certification he executed on September 9, 2014, defendant

stated his first petition for post-conviction relief was

"drafted" in "2007 and 2008," and in the record there is a copy

of a petition for PCR that was stamped by the Appellate Division

as "received" on November 2, 2007.

    In any event, not hearing from the court after filing a

petition in 2002, defendant claims he sent correspondence to the

court inquiring about the status of such petition between 2005

and 2007, but never received a response.   Then, on October 12,

2012, defendant filed the within petition.    After he was

assigned counsel, defendant filed various certifications and

both he and PCR counsel filed briefs.

    The allegations of ineffective assistance defendant

asserted before the PCR court are the same as those he maintains

on appeal.   They are: (1) neither the 2002 nor 2012 petition for

PCR is time-barred under Rule 3:22-12(a)(1); (2) 1997 counsel


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ignored defendant's claim he did not possess a sufficient

quantity of drugs to sustain a conviction for third-degree

distribution on or near school property, 
N.J.S.A. 2C:35-7(a);

(3) 1997 counsel induced defendant to plead guilty by advising

the ensuing convictions from such plea would not result in an

enhancement of the sentence on the federal drug charge and,

further, such convictions could be expunged; (4) defendant did

not plead guilty to the 1997 convictions knowingly and

voluntarily because of 1997 counsel's erroneous advice; (5) both

1992 and 1997 counsel failed to file a suppression motion

challenging the warrantless search of defendant's home; (6) the

factual bases defendant provided when he pled guilty to

distribution within 1000 feet of a school in 1992 and 1997 were

insufficient; and (7) 1997 counsel failed to investigate and

vigorously advocate on defendant's behalf.

    In a lengthy, comprehensive written opinion, Judge Martin

G. Cronin carefully analyzed each contention and determined all

were groundless; on May 24, 2016, Judge Cronin entered an order

denying defendant's request for post-conviction relief.

                               II

    On appeal, defendant asserts the following arguments for

our consideration:


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                                                          A-5321-15T2
POINT I - DEFENDANT'S PETITION FOR POST-
CONVICTION RELIEF IS NOT PROCEDURALLY
BARRED.

    (1) THE PCR COURT RELIED ON THE
    WRONG DECISIONAL RULE TO FIND
    DEFENDANT'S PETITION WAS
    PROCEDURALLY BARRED.

    (2) DEFENDANT IS ENTITLED TO
    RELAXATION OF THE PROCEDURAL BAR.

    (3) AS DEFENDANT RAISES A
    CONSTITUTIONAL CLAIM, HIS PETITION
    AS IT RELATES TO [INDICTMENT NO.
    91-6-3262] MAY BE CONSIDERED.

    (4) DEFENDANT'S FAILURE TO FILE A
    DIRECT APPEAL WAS DUE TO HIS
    RELIANCE ON HIS ATTORNEY'S
    MISLEADING AND ERRONEOUS ADVICE.

POINT II – PLEA COUNSEL WAS INEFFECTIVE.

POINT III – THE FACTUAL BASES FOR
DEFENDANT'S GUILTY PLEAS WERE DEFICIENT.

    (1) INDICTMENT NO. 91-06-3262.

    (2) ACCUSATION NO. 87-01-0070.

POINT IV – AS DEFENDANT'S ATTORNEY
AFFIRMATIVELY MISLED HIM ABOUT THE
COLLATERAL CONSEQUENCES OF ENTERING A GUILTY
PLEA, DEFENDANT'S GUILTY PLEA WAS NOT
VOLUNTARILY, INTELLIGENTLY, AND KNOWINGLY
MADE.

POINT V- PLEA COUNSEL WAS INEFFECTIVE BY
FAILING TO CHALLENGE THE VALIDITY OF THE
SEARCHES.

    (1)   FIRST SEARCH.


                     7
                                               A-5321-15T2
              (2)    SECOND SEARCH.

         POINT VI – DEFENSE COUNSEL AFFIRMATIVELY
         MISLED DEFENDANT ABOUT THE POSSIBILITY OF
         EXPUNGEMENT IF HE PLED GUILTY.

         POINT VII – DEFENSE COUNSEL FAILED TO
         PROPERLY INVESTIGATE THE CASE.

         POINT VIII – AS THERE ARE GENUINE ISSUES OF
         MATERIAL FACTS IN DISPUTE, AN EVIDENTIARY
         HEARING IS REQUIRED.

    The standard for determining whether counsel's performance

was ineffective for purposes of the Sixth Amendment to the

United States Constitution was formulated in Strickland v.

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

Court in State v. Fritz, 
105 N.J. 42 (l987).    In order to

prevail on a claim of ineffective assistance of counsel,

defendant must satisfy a two-prong test.    The first prong

requires defendant to prove counsel's performance was deficient

and he or she made errors so egregious that counsel was not

functioning effectively as guaranteed by the Sixth Amendment.

Strickland, 
466 U.S.  at 687.

    The second prong requires defendant to prove the defect in

performance prejudiced defendant's rights to a fair trial and

there exists a "reasonable probability that, but for counsel's

unprofessional errors, the result of the proceeding would have

been different."    Id. at 694.   If a defendant has pled guilty,

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                                                           A-5321-15T2
the second prong requires defendant to show "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. Nunez-Valdez, 
200 N.J. 129, 139

(2009) (alteration in original) (quoting State v. DiFrisco, 
137 N.J. 434, 457 (1994)).

    After perusing the record and examining the applicable

legal principles, we are satisfied defendant's arguments have no

merit.   We affirm the denial of defendant's petition for

substantially the same reasons expressed by Judge Cronin in his

well-reasoned opinion.   We highlight the judge's key findings.

    Rule 3:22-12(a)(1)(A) provides no petition for PCR shall be

filed more than five years after the day the judgment of

conviction being challenged was entered, unless the petition

alleges facts showing the delay in filing a timely petition is

due to defendant's excusable neglect and there is a reasonable

probability that if the defendant's factual assertions are found

to be true enforcement of the time bar would result in a

fundamental injustice.

    Here, defendant articulates no basis to relax the clear

time restrictions imposed by this rule.   Even if defendant filed

a petition for post-conviction relief on June 20, 2002, he


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                                                            A-5321-15T2
provides no reason or any explanation whatsoever why he waited

until then to file a petition, which is more than ten years

after the 1992, and more than five years after the 1997,

judgments of conviction were entered.

    Defendant seeks to have the 1992 and 1997 convictions

vacated because of the impact they – or at least one – had upon

the federal judge's decision to impose a life sentence for the

federal drug conviction.   Defendant argues the five-year time

bar in Rule 3:22-12(a)(1)(A) did not start to run until he was

sentenced on the federal drug conviction on August 18, 1999.      He

claims it was on this date he discovered 1997 counsel erred by

advising the convictions emanating from the guilty plea would

not enhance his sentence were he convicted of the federal drug

charge.   Defendant contends he is entitled to the application of

the "discovery rule" utilized in civil matters, see Lopez v.

Swyer, 
62 N.J. 267, 272 (1973) (holding that in the appropriate

case a cause of action will be held not to accrue until the

injured party discovers, or by an exercise of reasonable

diligence and intelligence should have discovered, that he may

have a basis for an actionable claim), and, thus, had until

August 18, 2004, to file his petition.




                                10
                                                           A-5321-15T2
    There is no legal authority that supports defendant's

argument.    To overcome the time restrictions in Rule 3:22-

12(a)(1), in addition to showing a fundamental injustice will

otherwise result, a petitioner must demonstrate he failed to

file his petition on time due to excusable neglect.   Here,

defendant failed to identify what precluded him from filing his

petition on a timely basis.    Thus, defendant was required to

file his petition challenging the 1992 convictions no later than

January 15, 1997, and the 1997 convictions no later than March

6, 2002.    If defendant filed a petition challenging both the

1992 and 1997 convictions on June 20, 2002, it was out of time,

as was the October 12, 2012 petition.

    Turning to defendant's substantive contentions, defendant

claims 1997 counsel ignored his protests he did not possess a

sufficient quantity of drugs to sustain a conviction for

distribution; we note defendant does not state what he claims

was the amount in his possession when arrested.   He also

contends counsel failed to file a suppression motion challenging

the warrantless search of his home.

    Our review of the record reveals there was sufficient

evidence to support a conviction for distribution, and the

police did have a search warrant when they entered and searched


                                 11
                                                            A-5321-15T2
defendant's home.   Defendant admitted to the following when he

pled guilty.

    On May 31, 1995, defendant sold heroin to an undercover

police officer, a sale that was made within 1000 feet of a

school.   Two days later, defendant again sold drugs2 to an

undercover police officer.   Later in the day, the police

searched defendant's home pursuant to a search warrant.     During

that search the police discovered heroin and cocaine in an

amount greater than one-half of an ounce but less than five

ounces.   Defendant acknowledged his home was within 1000 feet of

a school.   He also conceded the police found two handguns in his

home for which he did not have a permit, and that he had

previously been convicted of a crime.   Defendant further

admitted that, on October 22, 1996, he was found in possession

of 1.4 grams of cocaine, all of which he intended to sell, and

that he was within 1000 feet of a school.

    Defendant claims there was an inadequate factual basis to

his plea.   As is evident from what he admitted during the plea

colloquy, this claim is devoid of merit, not to mention it could




2
   The transcript does not identify the kind or quantity of
drugs defendant sold to the officer during this particular
transaction.
                               12
                                                            A-5321-15T2
have been raised on direct appeal and, thus, is a claim barred

by Rule 3:22-4.

    Defendant contends counsel induced him to plead guilty by

advising the convictions resulting from such plea would not

subject him to a sentence enhancement if convicted of the

pending federal charge.   It is not disputed the attorney

representing him in the federal matter (federal counsel)

informed defendant otherwise before he pled guilty to the state

charges.   Federal counsel advised defendant the convictions

emanating from the guilty plea would result in a sentence

enhancement in the federal matter if he were convicted.

Defendant does not address why he rejected federal counsel's

advice and accepted 1997 counsel's opinion on this issue.

    Regardless, and more important, defendant failed to make

any showing that, even if 1997 counsel advised he would be

exposed to a sentence enhancement, there was a reasonable

possibility he would have rejected the plea offer permitting him

to serve a five-year probationary term on these second- and

third-degree offenses, and would have instead opted to go to

trial.   As the plea court noted, if defendant went to trial and

was convicted, he faced up to forty-five years of imprisonment.




                                13
                                                            A-5321-15T2
    Defendant maintains 1997 counsel failed to investigate the

1997 charges and "vigorously advocate" on his behalf.     Other

than making the specific allegations referenced above, defendant

does not identify how counsel failed to do either.   Asserting

speculative deficiencies in representation does not provide a

basis for post-conviction relief.    "[A petitioner] must allege

facts sufficient to demonstrate counsel's alleged substandard

performance. . . .   [H]e 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. Cummings, 
321 N.J. Super. 154, 170 (App. Div. 1999).

    We need not summarize the PCR court's remaining findings.

Suffice to say defendant's substantive contentions lack merit

and, in any event, both the 2002 and 2012 petitions are time-

barred.

    Affirmed.




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                                                           A-5321-15T2