STATE OF NEW JERSEY v. SHAREEF HOLDER

NOT FOR PUBLICATION WITHOUT THE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-4610-18

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

SHAREEF HOLDER, a/k/a
PUMPKIN HOLDER,
SHAREEF T. HOLDER,

          Defendant-Appellant.


                   Submitted February 22, 2021 – Decided April 23, 2021

                   Before Judges Sabatino and Currier.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Middlesex County, Indictment No. 14-01-
                   0021.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (David A. Gies, Designated Counsel, on the
                   briefs).

                   Gurbir S. Grewal, Attorney General, attorney for
                   respondent (Regina M. Oberholzer, Deputy Attorney
                   General, of counsel and on the brief).
PER CURIAM

        Defendant Shareef Holder appeals from the March 15, 2019 order denying

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

the reasons that follow, we affirm.

        On September 28, 2013, at approximately 9:53 p.m., New Brunswick

police stopped defendant's silver Mercedes Benz SUV after observing it pass by

with substantial front-end damage that appeared to be the result of a recent

accident. Defendant initially got out of his vehicle but then re-entered it and

fled the scene at a high rate of speed, traveling more than 100 miles per hour.

        Shortly thereafter, defendant collided with three other vehicles at an

intersection. The collision killed the twenty-two-year-old driver of one of the

cars.

        Police officers reported that defendant did not have any significant

injuries; however, he appeared to be "under the influence of either narcotics or

drugs" because his "speech was slurred and his motor skills were very slow."

Officers at the scene also detected the odor of marijuana coming from

defendant's car and observed a glass vial of marijuana in plain view on the front

passenger floor of the car.




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      Defendant was taken to a local hospital where an initial blood sample was

drawn without a warrant. Officers later obtained a warrant to take a second

blood sample from defendant and to search his car.

      During their search of the car, officers found 948 glassine packets of

heroin, twenty-five bags of marijuana, a digital scale, and two cell phones.

Defendant's blood sample tested positive for marijuana metabolites and reflected

a BAC of .138. A mechanical inspection of defendant's car concluded the crash

was not the result of any mechanical issues.

      Defendant was charged in an indictment with: (1) first-degree aggravated

manslaughter in violation of  N.J.S.A. 2C:11-4(a)(1); (2) first-degree aggravated

manslaughter in violation of  N.J.S.A. 2C:11-4(a)(2); (3) second-degree eluding

in violation of  N.J.S.A. 2C:29-2(b); (4) third-degree possession of heroin in

violation of  N.J.S.A. 2C:35-10(a)(1); (5) second-degree possession of heroin

with intent to distribute in violation of  N.J.S.A. 2C:35-5(a)(1) and  N.J.S.A.

2C:35-5(b)(2); and (6) fourth-degree possession of marijuana with intent to

distribute in violation of  N.J.S.A. 2C:35-5(a)(1) and  N.J.S.A. 2C:35-5(b)(12).

      Defendant subsequently moved to suppress the two blood samples and the

drug evidence taken from his car. Following a hearing, the State advised it did

not intend to rely on the first blood draw evidence. The trial court denied


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defendant's motion to suppress the second blood sample and evidence seized

from the car pursuant to the warrant. The court found there was "probable cause

. . . that . . . defendant was driving while intoxicated" and "probable cause to

authorize the search of [defendant's] trunk[,]" thus the warrant—and the

evidence obtained thereunder—were valid.

      Defendant pled guilty to one count of first-degree aggravated

manslaughter and one count of second-degree possession of heroin with intent

to distribute.   In exchange, the State agreed to dismiss the remainder of

defendant's charges and recommended a sentence of twenty-one years in state

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

aggravated manslaughter charge and a concurrent twelve-year term with a forty-

five-month parole disqualifier for the drug charge.

      During the sentencing hearing, defendant declined to speak on his own

behalf although the judge gave him the opportunity to do so. Defense counsel

emphasized for the court defendant's "undiagnosed educational learning

disabilit[ies][,]" the "tragedies in his life[,]" and "the fact that he [had] a child"

in arguing he should receive an eighteen-year prison sentence.

      In sentencing defendant, the judge recognized the tragic circumstances of

the case and stated he had "no doubt that one of [defendant's] prime motivations


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in fleeing [was] the fact that [he was] carrying 900 plus decks of heroin in [his ]

car." The judge found aggravating factor three, the risk defendant will commit

another offense,  N.J.S.A. 2C:44-1(a)(3), was applicable given his "long history

of indictable offenses for a 29-year-old man." Defendant's criminal history also

supported finding aggravating factor six, the extent of defendant's prior criminal

record,  N.J.S.A. 2C:44-1(a)(6). In finding aggravating factor nine, the need for

deterring defendant and others,  N.J.S.A. 2C:44-1(a)(9), the judge stated the

"grievous manner" in which defendant acted "put[] . . . the entire public at risk

of serious injury and death [and it could] simply not be tolerated."

      The judge found no mitigating factors were applicable and concluded the

aggravating factors "preponderate[d]." He sentenced defendant in accordance

with the terms of the plea deal. The judge commented that if the State had

recommended any lesser sentence, he was "not sure [he] would have agreed to

go along with it[,]" as the twenty-one year term of incarceration was "at the low

end of what [was] reasonable."

      Thereafter, defendant appealed his convictions and sentence, arguing: (1)

the drugs in his trunk should have been suppressed because the search was not

supported by probable cause; and (2) his sentence was excessive because the

court failed to properly consider the mitigating factors. State v. Holder, No. A-


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0497-15 (App. Div. Mar. 1, 2017) (slip op. at 5). We rejected defendant's

arguments and affirmed, holding the search of his trunk was supported by

probable cause and his sentence was "well within the permissible range, . . .

supported by credible evidence in the record, and [did] not shock the judicial

conscience." Id. at 10, 12-13.

      Defendant subsequently filed a pro se PCR petition and an amended

petition through counsel. Defendant argued he was deprived of the effective

assistance of counsel because: (1) he was "promised that [he] would not receive

a sentence of over [ten] years[;]" and (2) his trial counsel failed to present the

sentencing judge with "mitigating factors, [defendant]'s background and history

of problematic upbringing." Defendant also filed a certification in support of

his PCR petition asserting trial counsel did not tell him that he could have

written a letter to the judge or asked his family members to write letters to the

judge on his behalf.

      On March 15, 2019, the PCR judge issued a comprehensive written

opinion denying defendant's PCR petition without an evidentiary hearing.

      The judge found defendant's argument that he was promised a sentence

not to exceed ten years' incarceration "inconsistent with the records, . . . not to

mention . . . at odds with the facts which include the death of the victim caused


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while . . . defendant was eluding police, and he was then found to have over 900

decks of heroin in his car." The judge also rejected defendant's argument that

trial counsel failed to inform him that he or his family members could have

written letters to the judge, concluding: (1) "defendant was provided the

opportunity to speak at [his] sentencing[;]" (2) the "traumatic past that

[defendant]'s witnesses would have discussed at sentencing was discussed in the

[presentence] report and highlighted in [this court's unpublished opi nion] as

well[;]" and (3) defense counsel "did argue for [eighteen] years instead of . . .

[twenty-one] years . . . , referenced the tragedies in [defendant]'s life, and even

some education and potential autism disorders at sentencing."

      In rejecting defendant's argument that his sentence would have been

reduced if the court had considered the fact that his child was in the neonatal

intensive care unit (NICU) at the time of his arrest, the judge concluded: "As

found by [the sentencing judge], [defendant] fled from the police and ultimately

caused the death . . . of [the victim] because he had 948 packets of heroin in his

trunk, not because he was under the stress of having a child in the NICU."

(emphasis in original).

      Defendant presents the following arguments for our consideration on

appeal:


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            I.   THE FAILURE OF DEFENSE COUNSEL TO
            BRING RELEVANT INFORMATION TO THE
            SENTENCING COURT'S ATTENTION IN ORDER
            TO DETERMINE THE WEIGHT TO BE AFFORDED
            SUCH INFORMATION IS NOT BARRED FROM
            PCR REVIEW BY RULE 3:22-5

            II. WHEN    PCR  COUNSEL DOES NOT
            ADVANCE A MEANINGFUL ARGUMENT IF
            AVAILABLE, THEN THE MATTER SHOULD BE
            REMANDED

            III. DEFENDANT DEMONSTRATED A PRIMA
            FACIE INEFFECTIVENESS CLAIM WHERE HE
            SHOWED THAT HIS TRIAL ATTORNEY DID NOT
            ADDRESS THE STRESS HE WAS UNDER DUE TO
            HIS CHILD'S HEALTH AND THE CAUSAL
            CONNECTION IT HAD TO THE DEATH
            ATTRIBUTABLE TO HIS CONDUCT

            IV. THE   PCR   JUDGE    ABUSED  HER
            DISCRETION IN CONCLUDING THAT AN
            EVIDENTIARY HEARING WAS UNNECESSARY

      The standard for determining whether trial counsel's performance was

ineffective for purposes of the Sixth Amendment was formulated in Strickland

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

State v. Fritz,  105 N.J. 42, 58 (1987). To prevail on a claim of ineffective

assistance of counsel, defendant must meet the two-pronged test establishing

both that: (1) counsel's performance was deficient and he or she made errors that

were so egregious that counsel was not functioning effectively as guaranteed by


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the Sixth Amendment 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 687, 694.

      Defendant contends his trial counsel was deficient in not advising the

sentencing court that he was under stress because of a sick child. He asserts that

stress caused him to drink and drive and ultimately resulted in the accident. He

argues that the sentencing judge would have imposed a lesser sentence if

apprised of that information.

      However, the sentencing judge was clear that he would not have agreed to

a lesser sentence and the evidence was sufficient to conclude defendant fled

from police at an excessive rate of speed because of the enormous quantity of

drugs in his car. Therefore, defendant cannot establish his sentence would have

been any different if the court had been advised of his child's medical status;

thus, he cannot show he was prejudiced under the second prong of the

Strickland-Fritz test.

      Without addressing any procedural bars raised by the State, we are

satisfied the PCR court's denial of the petition was supported by the credible

evidence in the record. Defendant did not demonstrate his trial counsel was


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ineffective under the Strickland-Fritz test nor has he shown his PCR counsel

was ineffective. Therefore, he was not entitled to an evidentiary hearing. Any

remaining arguments not addressed lack sufficient merit to warrant discussion

in a written opinion. R. 2:11-3(e)(2).

      Affirmed.




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