STATE OF NEW JERSEY v. CHRISTOPHER DESA

NOT FOR PUBLICATION WITHOUT THE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-4622-18T3

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

CHRISTOPHER DESA,

     Defendant-Appellant.
___________________________

                    Argued telephonically September 22, 2020 –
                    Decided September 30, 2020

                    Before Judges Yannotti, Haas, and Mawla.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Middlesex County, Indictment No. 15-02-
                    0180.

                    Steven E. Braun, Designated Counsel, argued the cause
                    for appellant (Joseph E. Krakora, Public Defender,
                    attorney; Steven E. Braun, on the brief).

                    Joie D. Piderit, Assistant Prosecutor, argued the cause
                    for respondent (Yolanda Ciccone, Middlesex County
                    Prosecutor, attorney; Joie D. Piderit, of counsel and on
                    the brief).
PER CURIAM

      Defendant appeals from an April 18, 2019 Law Division order, which

denied his petition for post-conviction relief (PCR) without an evidentiary

hearing. We affirm.

      We incorporate herein the procedural history and facts set forth in State

v. Desa, No. A-5226-14 (App. Div. June 8, 2017), certif. denied,  231 N.J. 539

(2017). The following facts are pertinent to the present appeal.

      Following a multi-day trial, the jury convicted defendant of first-degree

robbery, fourth-degree theft by unlawful taking, second-degree eluding a law

enforcement officer, third-degree resisting arrest, two counts of second-degree

aggravated assault by causing injury to another while fleeing or attempting to

elude a law enforcement officer, third-degree criminal mischief, and fourth-

degree possession of an imitation firearm. (slip op. at 1). The trial judge

sentenced defendant to an aggregate term of thirty-eight years in prison, subject

to the No Early Release Act (NERA),  N.J.S.A. 2C:43-7.2. Id. at 2.

      Defendant appealed his conviction and sentence.       Ibid. We affirmed

defendant's convictions, but ordered the trial judge to merge the conviction for

second-degree eluding into the two convictions for second-degree aggravated




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assault. Id. at 3. On remand, the court sentenced defendant to an aggregate term

of twenty-nine years in prison, subject to NERA.

      Defendant filed a PCR petition and argued that his attorney provided him

with ineffective legal assistance.      Specifically, defendant alleged that his

attorney: (1) had a conflict of interest with him because of a "contingency fee

arrangement"; (2) failed to instruct him not to plead guilty to charges in another

matter in which defendant was represented by a different attorney; (3) failed to

provide him with discovery or call an alibi witness; (4) erred by not calling an

expert witness to testify at trial; (5) failed to challenge the cell phone tracking

evidence the State presented at trial; and (6) did not adequately represent him at

sentencing.

      The judge considered and rejected each of these contentions. The judge

concluded that defendant failed to satisfy the two-prong test of Strickland v.

Washington,  466 U.S. 668, 687 (1984), which requires a showing that trial

counsel's performance was deficient and that, but for the deficient performance,

the result would have been different.

      In a thorough oral opinion, the judge first reviewed defendant's claim that

his trial attorney entered into an impermissible contingency fee arrangement

with him. As the judge noted, R.P.C. 1.5(d)(2) states that "[a] lawyer shall not


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enter into an arrangement for, charge, or collect . . . a contingent fee for

representing a defendant in a criminal case."

      Here, defendant's attorney agreed to represent defendant in two separate

criminal matters in Somerset and Middlesex Counties, including the present

case. In return, defendant agreed to pay his attorney $100,000. However, th e

parties' agreement specifically stated that "it is anticipated that the [$100,000]

will be paid out of any settlement proceeds recovered in" a civil matter defendant

had filed against Piscataway Township, the Piscataway Police Department, and

a police officer for injuries he sustained when the officer shot defendant as he

began to elude the law enforcement officers who were trying to apprehend him.

In other words, defendant's attorney, who was representing him in the civil

action, assumed the risk that he might never be paid for representing defendant

in the criminal matter. Thus, payment was not contingent on whether defense

counsel was successful at defendant's trial on the charges involved in this case.

      Under these circumstances, the judge found that defendant did not have a

contingency fee agreement with his attorney in the criminal matter. Because the

agreement did not violate R.P.C. 1.5(d)(2), the judge concluded that defense

counsel did not have an impermissible conflict of interest and rejected

defendant's contention to the contrary.


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      The judge also rejected defendant's argument that his attorney should have

instructed him not to plead guilty to unrelated theft charges pending against him

in Middlesex County. Because he pled guilty to those charges before the jury

convicted him in the present case, and defendant was incarcerated for this entire

period, defendant claims he received only gap-time credits in the present matter

for the time he served in jail after his guilty plea, rather than jail credits.

Defendant asserts that if he had waited to plead guilty to the theft charges until

the day he was sentenced in the present case, he would have received jail credits

for all of the time he spent incarcerated.

      However, defendant was represented by a different attorney in connection

with the Middlesex County theft charges. There is nothing in the record to

indicate that defendant's attorney in this case was responsible in any way for

defendant's decision to plead guilty to those charges in advance of his trial in

the present matter. As the trial judge found, defendant received all of the jail

and gap-time credits due him at the time of sentencing in both matters.

Therefore, the judge ruled that defendant's attorney was not ineffective for

actions defendant and a different attorney took regarding the theft charges.

      The judge next rejected defendant's assertion that his attorney should have

provided him with discovery that would have enabled him to locate an alibi


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witness known only as "Dee." As the judge observed, defendant did not provide

an affidavit or certification from "Dee," or anyone else with first-hand

knowledge of the matter, stating what testimony this individual would have

provided if counsel had been able to locate him and call him as a witness.

Therefore, the judge found that defendant's claim lacked merit.

         In his petition, defendant also argued that his attorney was ineffective

because he did not call an expert witness at trial. Defendant alleged that he was

"in shock" when he committed the offenses for which he was convicted because

he was injured when the police officer shot him. Defendant claims that an expert

would have been able to corroborate this assertion. Once again, however,

defendant did not provide an affidavit or certification from an expert to support

this proposed defense. Accordingly, the judge rejected his argument on this

point.

         Defendant acknowledged that his attorney filed both a motion to suppress

evidence at trial, and a motion to sever the charges. Although he stated in his

petition that he was dissatisfied with the results of these motions, defendant did

not raise these issues on direct appeal.       Therefore, the judge found that

defendant's arguments were barred by Rule 3:22-4.




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      Defendant also argued that his attorney was ineffective because he did not

argue against the imposition of consecutive sentences and did not present

mitigating factors in support of a lower sentence. However, the sentencing

transcript revealed that the attorney argued "that to run any sentence in this case

consecutively is not warranted." In addition, defendant did not identify any

specific mitigating factors that the attorney should have pressed at the time of

sentencing. Moreover, we affirmed defendant's consecutive sentences on direct

appeal, although we did order that one of the charges should have been merged,

which resulted in a reduced sentence for defendant. Therefore, defendant could

not establish either prong of the Strickland test.

      Because defendant failed to establish a prima facie case of ineffective

assistance of counsel on any of his claims, the judge determined that an

evidentiary hearing was not required. This appeal followed.

      On appeal, defendant raises the same arguments that he unsuccessfully

presented to the PCR judge. Defendant contends:

            POINT I

            AN EVIDENTIARY HEARING SHOULD HAVE
            BEEN HELD TO DETERMINE WHETHER TRIAL
            DEFENSE COUNSEL HAD A CONFLICT OF
            INTEREST BECAUSE OF A CONTINGENCY FEE
            ARRANGEMENT.


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            POINT II

            DUE    TO TRIAL   DEFENSE   COUNSEL'S
            MALFEASANCE, DEFENDANT RECEIVED A
            SENTENCE   WHICH    WAS   EFFECTIVELY
            CONSECUTIVE TO OTHER CHARGES.
            POINT III

            TRIAL DEFENSE COUNSEL FAILED TO PROVIDE
            DISCOVERY, FAILED TO DISCUSS THE
            DISCOVERY WITH DEFENDANT, AND FAILED
            TO ADEQUATELY PREPARE DEFENDANT FOR
            HIS TRIAL TESTIMONY.

            POINT IV

            TRIAL DEFENSE COUNSEL FAILED TO
            CONDUCT AN INVESTIGATION AND FAILED TO
            CONSULT AN EXPERT WITNESS.

            POINT V

            TRIAL DEFENSE COUNSEL FAILED TO
            PROPERLY CHALLENGE THE CELL PHONE
            TRACKING IN THE MOTION TO SUPPRESS AND
            THE TIMELINE IN THE MOTION TO SEVER.

            POINT VI

            TRIAL DEFENSE COUNSEL FAILED TO ARGUE
            FOR CONCURRENT SENTENCES AND FAILED
            TO PROVIDE MITIGATING FACTORS.

      When petitioning for PCR, the defendant must establish, by a

preponderance of the credible evidence, that he or she is entitled to the requested

relief. State v. Nash,  212 N.J. 518, 541 (2013); State v. Preciose,  129 N.J. 451,

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459 (1992). To sustain that burden, the defendant must allege and articulate

specific facts that "provide the court with an adequate basis on which to rest its

decision." State v. Mitchell,  126 N.J. 565, 579 (1992).

      The mere raising of a claim for PCR does not entitle the defendant to an

evidentiary hearing and the defendant "must do more than make bald assertions

that he was denied the effective assistance of counsel." State v. Cummings,  321 N.J. Super. 154, 170 (App. Div. 1999).        Rather, trial courts should grant

evidentiary hearings and make a determination on the merits only if the

defendant has presented a prima facie claim of ineffective assistance, material

issues of disputed facts lie outside the record, and resolution of the issues

necessitates a hearing. R. 3:22-10(b); State v. Porter,  216 N.J. 343, 355 (2013).

We review a judge's decision to deny a PCR petition without an evidentiary

hearing for abuse of discretion. Preciose,  129 N.J. at 462.

      To establish a prima facie claim of ineffective assistance of counsel, the

defendant is obliged to show not only the particular manner in which counsel's

performance was deficient, but also that the deficiency prejudiced his right to a

fair trial. Strickland,  466 U.S.  at 687; State v. Fritz,  105 N.J. 42, 58 (1987).

There is a strong presumption that counsel "rendered adequate assistance and

made all significant decisions in the exercise of reasonable professional


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judgment." Strickland,  466 U.S.  at 690. Further, because prejudice is not

presumed, Fritz,  105 N.J. at 52, the defendant must demonstrate "how specific

errors of counsel undermined the reliability" of the proceeding. United States

v. Cronic,  466 U.S. 648, 659 n.26 (1984).

      Moreover, such acts or omissions of counsel must amount to more than

mere tactical strategy. Strickland,  466 U.S.  at 689. As the Supreme Court

observed in Strickland,

            [a] fair assessment of attorney performance requires
            that every effort be made to eliminate the distorting
            effects of hindsight, to reconstruct the circumstances of
            counsel's challenged conduct, and to evaluate the
            conduct from counsel's perspective at the time.
            Because of the difficulties inherent in making the
            evaluation, a court must indulge a strong presumption
            that counsel's conduct falls within the wide range of
            reasonable professional assistance; that is, the
            defendant must overcome the presumption that, under
            the circumstances, the challenged action "might be
            considered sound trial strategy."

            [Strickland,  466 U.S.  at 689 (quoting Michel v.
            Louisiana,  350 U.S. 91, 101 (1955)).]

      When a defendant claims that trial counsel inadequately investigated his

case, "he 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." Porter,  216 N.J. at 353


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(quoting Cummings,  321 N.J. Super. at 170). In addition, deciding which

witnesses to call to the stand is "an art," and we must be "highly deferential" to

such choices. State v. Arthur,  184 N.J. 307, 321 (2005) (quoting Strickland,  466 U.S. at 689).

      Having considered defendant's contentions in light of the record and the

applicable law, we affirm the denial of defendant's PCR petition substantially

for the reasons detailed at length in the trial judge's thorough oral opinion. We

discern no abuse of discretion in the judge's consideration of the issues, or in his

decision to deny the petition without an evidentiary hearing. We are satisfied

that the trial attorney's performance was not deficient, and defendant provided

nothing more than bald assertions to the contrary.

      Affirmed.




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