STATE OF NEW JERSEY v. CHRISTOPH H. EDWARDS

 

(NOTE: The status of this decision is Published.)

                                 NOT FOR PUBLICATION WITHOUT THE
                                APPROVAL OF THE APPELLATE DIVISION
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                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-4573-17T1

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

CHRISTOPH H. EDWARDS,
a/k/a MARK A. EDWARDS,
CHRIS ADAMS, CHRISTOPH
FRANKLIN, SHARIF JONES,
and CHRISTOPH THOMPSON,

   Defendant-Appellant.
———————————————

                   Submitted October 17, 2019 – Decided December 11, 2019

                   Before Judges Nugent and Suter.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Essex County, Indictment No. 14-11-2761
                   and 14-12-2838.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Kimmo Hussain Abbasi, Designated
                   Counsel, on the brief).

                   Theodore N. Stephens II, Acting Essex County
                   Prosecutor, attorney for respondent (Frank J. Ducoat,
             Special Deputy Attorney General/Acting Assistant
             Prosecutor, of counsel and on the brief).

PER CURIAM

        Defendant Christoph Edwards appeals from the denial of his petition for

post-conviction relief (PCR) without an evidentiary hearing. For the reasons

that follow, we affirm.

        Defendant pleaded guilty to charges in two separate indictments. Under

indictment 14-11-2761, he pleaded guilty to first-degree robbery (count one),

 N.J.S.A. 2C:15-1, and second-degree possession of a firearm for an unlawful

purpose (count three),  N.J.S.A. 2C:39-4. Count two of that indictment was

dismissed.    Under indictment 14-12-2838, defendant pleaded guilty to two

counts of first-degree robbery (counts two and three),  N.J.S.A. 2C:15-1. Counts

one, four and five were dismissed. The sentencing court imposed an aggregate

twelve-year sentence of incarceration with an eighty-five percent period of

parole ineligibility under the No Early Release Act (NERA),  N.J.S.A. 2C:43- -

7.2.1


1
  Defendant was sentenced to ten years in prison with a five-year period of
parole ineligibility under count three of indictment 14-11-2761. He was
sentenced to twelve years in prison subject to NERA on count one of indictment
14-11-2761 and on counts two and three of indictment 14-12-2838. Each
sentence was concurrent to the other and to a separate indictment in Union
County, number 14-06-0550.
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      Defendant did not file a direct appeal from his convictions or sentence.

      The facts underlying defendant's convictions were acknowledged by him

at his plea allocution. For indictment 14-11-2761, defendant testified that on

February 15, 2014, he went to a convenience store on Stuyvesant Avenue in

Irvington with the purpose of robbing it. He did not have a permit for the

handgun that he brandished at the store clerk.      Defendant agreed that the

handgun was operable, meaning that it was capable of being fired. He admitted

taking money from the cash register.

      For indictment 14-12-2838, defendant testified that on March 5, 2014, he

and two accomplices agreed to rob a grocery store on Mount Vernon Avenue in

Irvington. Defendant testified he knew one of the accomplices had a gun.

Defendant and that accomplice robbed money and cell phones from the store,

not intending to return either. The accomplice brandished the gun in the store.

Defendant admitted that "[w]e all knew [the co-conspirator] had a gun . . . ."

      Defendant advised the court during the plea that he was not forced or

threatened to enter into it. He explained to the court he was "copping out to a

lesser term right now basically." Defendant said "yes" that he was satisfied with

his attorney and "no" that he did not need more time to speak with his attorney.

Defendant said "yes I am" when the court asked him if he was entering his plea


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"freely and voluntarily." Defendant acknowledged to the court that he had

reviewed the plea forms with his attorney, all the answers were true and his

attorney had answered all his questions to his satisfaction. The trial court foun d

defendant's guilty plea was entered "freely and voluntarily," that this was "after

the advice of competent counsel with whom the defendant is satisfied" and that

defendant admitted the offenses. The court accepted the guilty plea.

      Defendant filed a PCR petition on September 23, 2016. A brief and

certification were submitted on behalf of defendant in January 2017 alleging

ineffective assistance of counsel.

      The Law Division judge denied defendant's petition by order dated

February 23, 2018. The court found that the plea colloquy—during which

defendant stated that no one forced or threated him to enter the plea —showed

that defendant's attorney did not pressure him to plead guilty.

      The court rejected defendant's claim that his trial attorney should have

challenged the applicability of NERA to his convictions. Defendant pleaded

guilty to robbery, which was the type of offense to which NERA applied. It also

rejected his claim he used a toy gun during the February 15, 2016 robbery

because that was not supported by defendant's statements at the plea hearing




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where he specifically acknowledged the gun he used was operable, meaning it

was capable of being fired.

       The court found no evidence offered by defendant that he was under the

influence of drugs or asthma medication when he gave a statement to the police.

The court noted defendant "voluntarily went to the police headquarters to be

interviewed[,]" was given the Miranda2 warnings, stated that he understood his

rights and gave a statement. The detective's report did not indicate defendant

was impaired when he gave the statement.        The court concluded "it was

reasonable for plea counsel not to request a Miranda hearing."

        The court found the transcript of the plea did not support defendant's

claim that his counsel pressured him to say that he knew the accomplice had a

gun. Defendant stated that they all knew the accomplice had a gun.

       Defendant's claim his attorney should have filed an excessive sentence

appeal did not support post-judgment relief. Defendant received the benefit of

the plea bargain because his sentences were less than the statutory maximum

exposure of twenty years each and were imposed concurrently.




2
    Miranda v. Arizona,  384 U.S. 436 (1966).


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      The court found defendant entered his plea "knowingly, voluntarily and

intelligently" based on the record. Because defendant failed to make a prima

facie showing that his counsel was constitutionally ineffective, the PCR court

found the time bar in Rule 3:22-4(c) applied because the claims could have been

raised on appeal. This also meant defendant was not entitled to an evidentiary

hearing.

      Defendant presents the following issue for our consideration in his appeal:

            THE POST-CONVICTION RELIEF COURT ERRED
            IN DENYING THE DEFENDANT'S PETITION FOR
            POST-CONVICTION      RELIEF    WITHOUT
            AFFORDING HIM AN EVIDENTIARY HEARING
            TO FULLY ADDRESS HIS CONTENTION THAT HE
            FAILED TO RECEIVE ADEQUATE LEGAL
            REPRESENTATION FROM PLEA COUNSEL.

      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 a claim of ineffective assistance of counsel,

defendant must meet the two-prong test of establishing both 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


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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 errors, the result of the proceeding would

have been different." Strickland,  466 U.S.  at 694.

      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 for the reasons set forth in Judge Richard T. Sules'

comprehensive written decision filed February 23, 2018. We add only a few

brief comments.

      Defendant's allegations are supported only by self-serving assertions and

bare allegations. See State v. Cummings,  321 N.J. Super. 154, 170 (App. Div.

1999). ("[A] petitioner must do more than make bald assertions that he was

denied the effective assistance of counsel."). In fact, they are inconsistent with

statements he made under oath when pleading guilty.           These unsupported

assertions are inadequate to provide post-judgment relief.

      Defendant did not appeal his guilty plea or sentence. Many of the issues

defendant is raising now could have been raised in a direct appeal. Defendant

is precluded from raising an issue on PCR that could have been raised on direct

appeal. State v. McQuaid,  147 N.J. 464, 483 (1997).


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          Defendant does not allege that he wanted a trial; he requests resentencing

to twelve years without NERA.           However, 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). Because defendant does not

allege he would not have pleaded guilty, this is not a basis for post-judgment

relief.

          Defendant has not shown he was denied the effective assistance of counsel

because his attorney did not pursue an excessive sentencing appeal. The NERA

argument was based on his claim he had a toy gun but this was contradicted by

defendant's testimony at the plea hearing. Defendant has not argued it was

reasonably probable the sentencing judge would have reduced the negotiated

sentence on any other basis.

          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 Law Division judge correctly concluded


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that an evidentiary hearing was not warranted. See State v. Preciose,  129 N.J.
 451, 462-63 (1992).

      Affirmed.




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