STATE OF NEW JERSEY v. DESMOND D. GRIER

NOT FOR PUBLICATION WITHOUT THE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-2829-19

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

DESMOND D. GRIER,

     Defendant-Appellant.
________________________

                   Submitted October 18, 2021 – Decided December 3, 2021

                   Before Judges Rothstadt and Natali.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Salem County, Indictment No. 15-10-0493.

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

                   Kristin J. Telsey, Acting Salem County Prosecutor,
                   attorney for respondent (David Galemba, Assistant
                   Prosecutor, of counsel and on the brief).

PER CURIAM
      Defendant Desmond D. Grier appeals from the December 9, 2019 denial

of his petition for post-conviction relief (PCR) without an evidentiary hearing.

We affirm.

      In 2016, defendant was convicted by a jury of having committed third-

degree possession of a controlled dangerous substance,  N.J.S.A. 2C:35-10(a)(1).

He was sentenced in the extended term to eight-years. Defendant appealed his

conviction and sentence, arguing the following two points:

             POINT I

             THE TRIAL COURT VIOLATED [DEFENDANT'S]
             SIXTH AMENDMENT RIGHT TO COUNSEL BY
             FAILING TO HOLD A HEARING ON WHETHER
             [DEFENDANT] WAS COMPET[E]NT TO SERVE AS
             HIS     OWN     ATTORNEY.       ACCORDINGLY,
             [DEFENDANT'S]      CONVICTION        MUST   BE
             REVERSED AND THE MATTER REMANDED FOR
             A NEW TRIAL. U.S. CONST., AMENDS. VI AND
             [XIV]; [N.J.] CONST., ART. 1, ¶10. (NOT RAISED
             BELOW)

             POINT II

             [DEFENDANT'S] SENTENCE MUST BE VACATED
             AND    THE     CASE   REMANDED      FOR
             RESENTENCING BECAUSE THE TRIAL COURT
             ENGAGED IN IMPERMISSIBLE JUDICIAL FACT-
             FINDING WHEN IT IMPOSED AN EXTENDED
             TERM    SENTENCE    ON    [DEFENDANT'S]
             CONVICTION FOR POSSESSION OF COCAINE IN
             VIOLATION OF THE SIXTH AMENDMENT OF


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            THE UNITED STATES CONST[ITUTION]. (NOT
            RAISED BELOW)

            [State v. Grier, A-2408-16 (App. Div. Mar. 6, 2018)
            (slip op. at 4).]

      We affirmed in an unpublished opinion. Id. slip op. at 2. The Supreme

Court denied defendant's petition for certification. State v. Grier,  235 N.J. 312

(2018).

      For our purpose, the facts leading to defendant's conviction need not be

repeated here.

      On February 7, 2019, defendant filed his first PCR pro se petition in which

he raised the same arguments he raised on direct appeal and added that his

sentence should be vacated because of trial counsel's ineffective assistance as

demonstrated by "counsel['s] fail[ure] to raise an argument for a mistrial after

[the] jury failed to reach a unanimous decision on two accords."             In a

supplemental brief filed by counsel that incorporated defendant's earlier

contentions, defendant also argued that trial counsel failed to file a motion to

suppress "because any bench warrant issued was issued without jurisdiction and

because police officers did not . . . have probable cause to arrest and search."

      On December 9, 2019, the PCR judge denied defendant's petition, setting

forth her reasons in a comprehensive, eleven-page written decision.


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      On appeal, defendant raises only the following argument:

            POINT I

            THIS MATTER MUST BE REMANDED FOR THE
            APPOINTMENT OF NEW PCR COUNSEL AS
            SUPPORT WAS NOT PROVIDED FOR ANY OF
            THE ARGUMENTS RAISED BY [DEFENDANT] IN
            HIS PRO SE PETITION, LEAVING THE PCR
            COURT UNABLE TO PROPERLY ADDRESS
            THOSE ISSUES.

      According to defendant, the PCR judge "could not grant an evidentiary

hearing or even properly render an opinion . . . because PCR counsel failed to"

address and supplement defendant's pro se arguments and "simply threw a line

in his brief" stating that defendant seeks relief from his judgment of conviction

"'for the reasons enumerated in his previously filed pro se petition.'" He also

contends that he did not have the opportunity to supplement his pro se arguments

at oral argument because his PCR counsel waived his appearance at the hearing.

Also, he asserts that PCR counsel "failed to subject the prosecution's case to

meaningful adversarial testing" and that his representation "amount[ed] to no

representation at all." As an example, defendant points to PCR counsel's alleged

incorrect assertions regarding the validity of the warrant that led to defendant's

arrest and subsequent search.




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      In addition, defendant cites to State v. Hicks,  411 N.J. Super. 370, 377

(App. Div. 2010) and argues that the lack of certification by the PCR counsel

requires a presumption that "counsel did not make a meaningful effort to comply

with the requirements of [Rule] 3:22-6[d]." In support, defendant suggests that

PCR counsel did not communicate with him to "develop arguments and provide

details" to support the PCR application. As a result, defendant concludes, the

PCR judge "penalized" him by denying his petition because "his PCR counsel

failed to properly argue his pro se issues with supporting evidence."

      We conclude from our review that defendant's arguments on appeal do not

challenge the PCR judge's determination of his petition, other than to raise issues

about PCR counsel's failure to represent him adequately. Moreover, it appears

that some if not all of defendant's contentions rely upon "allegations and

evidence that lie outside the . . . record." State v. Preciose,  129 N.J. 451, 460

(1992). Such claims are not amenable to review by us and, as provided in Rule

3:22-4(b)(2)(c), they are best considered in the first instance in a second PCR

petition. For that reason, we will not consider them now.

      Affirmed.




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