STATE OF NEW JERSEY v. SHAWN MYRON CUSTIS

NOT FOR PUBLICATION WITHOUT THE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-3942-18T3

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

SHAWN MYRON CUSTIS,
a/k/a SHAWN CUSTIC,
SHAWN CUSTIE, and
SHAWN HUSTIS,

     Defendant-Appellant.
_________________________

                   Submitted November 16, 2020 – Decided December 18, 2020

                   Before Judges Currier and Gooden Brown.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Burlington County, Indictment No. 92-03-
                   0169.

                   Joseph E. Krakora, Public Defender, attorney (Karen A.
                   Lodeserto, Designated Counsel, on the brief).

                   Scott A. Coffina, Burlington County Prosecutor,
                   attorney for respondent (Nicole Handy, Assistant
                   Prosecutor, of counsel and on the brief).
PER CURIAM

      Defendant appeals from the February 13, 2019 Law Division order

denying his petition for post-conviction relief (PCR) following an evidentiary

hearing. We affirm.

      In 1992, defendant entered a negotiated guilty plea to second-degree

robbery,  N.J.S.A. 2C:15-1(a)(1), and third-degree escape,  N.J.S.A. 2C:29-5. He

was sentenced in 1993 to an aggregate ten-year term of imprisonment, with a

three-year period of parole ineligibility.1     Defendant did not appeal his

conviction or sentence.      Thereafter, in 2016, defendant's 1993 robbery

conviction was used to enhance a sentence imposed on a subsequent first-degree

robbery conviction. As a result, in 2017, defendant filed an untimely PCR

petition seeking to vacate the 1993 conviction, alleging that the attorney who

represented him during the plea was ineffective.         Specifically, defendant

asserted that "[e]ven though [he] really didn't do the crime[,]" his plea counsel,

Deputy Public Defender Ann Manning, had pressured him by representing that




1
  At the time of sentencing, six charges were dismissed in accordance with the
plea agreement, consisting of first-degree robbery,  N.J.S.A. 2C:15-1(a)(1);
second-degree burglary,  N.J.S.A. 2C:18-2(a)(1); two counts of second-degree
aggravated assault,  N.J.S.A. 2C:12-1(b)(1); third-degree terroristic threats,
 N.J.S.A. 2C:12-3(b); and third-degree theft,  N.J.S.A. 2C:20-3(a).
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he would receive a time served sentence and probation if he pled guilty or face

a life sentence if he did not.

      Following the assignment of PCR counsel and the submission of multiple

supporting briefs and certifications, the PCR judge found excusable neglect for

the late filing to justify relaxing the five-year time bar contained in Rule 3:22-

12(a)(1).2 The judge also conducted an evidentiary hearing 3 on January 14,

2019, during which John Poindexter, III, testified for the State and defendant



 2 Rule 3:22-12(a)(1) imposes a five-year deadline for first petitions, which is
subject to extension "due to [a] defendant's excusable neglect[,]" where " there
is a reasonable probability that if the defendant's factual assertions were found
to be true enforcement of the time bar would result in a fundamental injustice[.]"
To support his claim of excusable neglect, defendant certified that during the
1992 plea hearing, "the judge [had] told [him] that by taking the plea, [he] was
. . . waiving[ his] right to appeal" and he did not learn until 1998 that "[he] could,
in fact, appeal." Defendant explained that when he attempted to file a petition
for PCR in 1998, he was informed by "the Burlington County Superior Court
Clerk" that "no record of [his 1993] conviction could be located." However,
when the 1993 conviction was used "to enhance" a subsequent sentence, "[he]
realized" that the record existed.
3
  The State argues in its merits brief that the judge erred in finding excusable
neglect to relax the time bar and erred in conducting an evidentiary hearing.
However, the State has not cross-appealed. "[I]n order to attack the actions
below which were adverse to [a party], [the party] must pursue a cross-appeal."
Franklin Disc. Co. v. Ford,  27 N.J. 473, 491 (1958) (citing Liberty Title & Trust
Co. v. Plews,  6 N.J. 28, 45 (1950) and R. 1:2-6). When a brief addresses issues
not raised on cross-appeal, "review is . . . confined to the sole issue raised on
[appellant's] appeal[.]" Mondelli v. State Farm Mut. Auto. Ins. Co.,  102 N.J. 167, 170 (1986).
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testified on his own behalf. Poindexter testified he was a licensed attorney since

1977 and began handling cases as a pool attorney for the Office of the Public

Defender (OPD) in 1989, after leaving his position as a staff attorney with the

OPD. Poindexter explained that "a case would be pooled out" because of "some

type of conflict that the public defender would have in the case." Regarding

defendant's case, Poindexter authenticated his handwriting and signature on the

plea form executed in connection with defendant's 1992 plea and confirmed that

his signature was indicative of the fact that he had represented defendant during

the plea proceedings as well as the fact that defendant had signed the plea form. 4

Poindexter acknowledged that while he did not remember "the details

surrounding [the] case" given the passage of time, he did remember representing

defendant and confirmed that he would never sign a plea form for a defendant

he did not represent.

      During his testimony, defendant admitted that Poindexter had appeared on

the day of his plea and had filled out the plea form, which he (defendant) had

signed. However, defendant claimed that Poindexter was only "filling in" for

Manning, who "took over everything" because defendant "wasn't answering the



4
  The executed plea form was admitted into evidence at the hearing. Given the
age of the case, transcripts and other records were unavailable.
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questions right for [the judge] to accept the plea." According to defendant, after

the plea colloquy was disrupted, he was taken "in the back" where Manning

explained to him that "unless [he] . . . [said] that [he] did what they want[ed

him] to plead guilty to" he would not "be going home on the day of sentence."

Defendant stated that when they returned to the courtroom and the plea colloquy

resumed, "Manning was just asking questions and all [he] had to say was yes or

no." Defendant testified that when he was sentenced to "ten with three[,]"

instead of probation with time served as Manning had promised, he caused "a

scene" and was removed from the courtroom.           Manning, whom defendant

testified had also represented him at sentencing, told him she did not "know

what happened," but she was "going to take care [o]f it." However, he "never

really heard from her since."

      Defendant explained the inconsistency between his testimony and his

certifications, stating that in his PCR petition, he had identified Manning as the

only attorney who had represented him because she was the only attorney who

had promised that he would be sentenced to "time served" and he "did [not] get

what was promised."      On cross-examination, defendant acknowledged that

question twelve of the plea form indicated that the State recommended a

"[s]entence not to exceed ten years." However, defendant testified that question


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twelve was blank when he signed the form and entered the plea. Further,

according to defendant, although he had "a couple [prior] convictions" at the

time, he did not think it was "suspicious" that Manning had promised he would

not go to prison on a second-degree conviction because "unlike today, you

wasn't [sic] getting time like that."

      Following the hearing, the judge denied PCR. In a written decision, the

judge reviewed the factual background and procedural history of the case, made

factual findings from the testimony elicited at the evidentiary hearing, applied

the applicable legal principles, and concluded defendant failed to establish a

prima facie case of ineffective assistance of counsel. Specifically, the judge

found defendant failed to show by a preponderance of the credible evidence that

counsel's performance fell below the objective standard of reasonableness set

forth in Strickland v. Washington,  466 U.S. 668, 687 (1984), and adopted by our

Supreme Court in State v. Fritz,  105 N.J. 42, 49-53 (1987), or that defendant

was prejudiced as required under the second prong of the Strickland/Fritz test.

      In evaluating the credibility of the witnesses, the judge described

Poindexter's testimony as "highly credible." In contrast, the judge described

defendant's testimony as "at times, rambling, evasive, and not fully responsive

to specific questions posed to him." The judge continued:


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           The court finds that [defendant's] general demeanor and
           lack of responsiveness to questions posed at the hearing
           negatively impacted the credibility of his testimony.
           [Defendant's] varying assertions of the events at the
           plea hearing are not credible when contrasted with the
           credible testimony of Mr. Poindexter on the same
           issues. [Defendant's] testimony that an experienced
           attorney, Anne Manning, who removed the case from
           the [OPD] due to an apparent legal conflict would, at
           any time, "fill in" for a conflict pool attorney, is lacking
           any reasonable basis or merit. Having heard the
           arguments proposed by [defendant], the court finds
           many of the details surrounding [defendant's]
           description of his representation not credible.
           [Defendant's] multiple certifications and in court
           testimony are inconsistent. The plea forms associated
           with the case were obviously signed and filled out by
           the pool attorney, John Poindexter III, assigned through
           the [OPD] . . . . Neither Mr. Poindexter nor any
           representation by him [was] referenced in any filings
           by [defendant] prior to his testimony at the evidentiary
           hearing. In consideration of [defendant's] general lack
           of credibility and the associated testimony in the case,
           the court reasonably cannot find any credible error,
           unprofessional conduct, or deficiency by counsel
           during the representation of [defendant].

                 ....

           Insofar as the court has no credible basis to support the
           first prong under Strickland, there can be no finding
           that [defendant] was unduly prejudiced and did not
           receive the appropriate benefits conferred to him by
           counsel.

The judge entered a memorializing order and this appeal followed.



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      On appeal, defendant raises the following single point for our

consideration:

            PCR COUNSEL WAS INEFFECTIVE IN FAILING
            TO REVIEW COURT DOCUMENTS AND
            DETERMINE THE LAWYER WHO REPRESENTED
            [DEFENDANT] DURING HIS PLEA HEARING.

      "[T]here can be no question that a defendant is entitled to effective and

competent assistance of counsel" when counsel is appointed for a PCR

petitioner. State v. McIlhenny,  333 N.J. Super. 85, 87 (App. Div. 2000). In

addition to the constitutional right to counsel, "Rule 3:22-6(d) imposes an

independent standard of professional conduct upon an attorney representing a

defendant in a PCR proceeding." State v. Hicks,  411 N.J. Super. 370, 376 (App.

Div. 2010). The Rule provides:

            Counsel should advance all of the legitimate arguments
            requested by the defendant that the record will support.
            If defendant insists upon the assertion of any grounds
            for relief that counsel deems to be without merit,
            counsel shall list such claims in the petition or amended
            petition or incorporate them by reference. Pro se briefs
            can also be submitted.

            [R. 3:22-6(d).]

      In State v. Webster,  187 N.J. 254, 257 (2006), our Supreme Court held

that PCR counsel must "investigate the claims urged by the client," and "should

advance all of the legitimate arguments that the record will support." See also

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                                       8
State v. Rue,  175 N.J. 1, 18 (2002) (recognizing "the critical nature of faithful

and robust representation of a defendant at a PCR proceeding"). If a defendant

shows that his PCR attorney's representation was deficient under the standards

imposed by the Rule, the Strickland test is irrelevant. Rue,  175 N.J. at 4; Hicks,

 411 N.J. Super. at 376.      "The remedy for counsel's failure to meet the

requirements imposed by Rule 3:22-6(d) is a new PCR proceeding." Hicks,  411 N.J. Super. at 376.

      Here, unlike Hicks, where it was apparent that PCR counsel had failed to

meet his obligations, we cannot conclude on the record before us that PCR

counsel failed to discharge the responsibilities specified under Rule 3:22-6(d),

and that a remand for a new hearing is required. Defendant argues "[t]he PCR

court found [his] testimony incredible because he was making allegations

against the wrong lawyer" but if PCR counsel had "carefully reviewed the

documents involved in [defendant's] matter," counsel "would have learned plea

counsel was not Ms. Manning, but rather Mr. Poindexter." However, given

defendant's insistence that Manning was the only attorney who promised him a

time served sentence, it is unclear whether the purported lack of proof before

the trial court was the result of PCR counsel's failure to engage in a reasonable




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investigation and effort, or the failure of defendant to provide any facts upon

which to base an investigation.

      Furthermore, just as we have disfavored ineffective-assistance-of-trial-

counsel claims on direct appeal, we are loathe to entertain an ineffective-

assistance-of-PCR-counsel claim on appeal from the denial of a first PCR

petition.     Ineffective-assistance-of-trial-counsel    claims    are   generally

inappropriate for consideration on direct appeal because they "involve

allegations and evidence that lie outside the trial record." State v. Preciose,  129 N.J. 451, 460 (1992). Likewise, here, defendant's claim that his PCR counsel

was ineffective relies on evidence outside the PCR record presented to and

considered by the PCR judge.        Therefore, we shall not reach defendant's

ineffective assistance claim.

      Affirmed.




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