Opinion
DOCKET NO. A-1256-13T4
06-05-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. CARL DALEY, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief). Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Christopher W. Hsieh, Chief Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Lihotz and St. John. On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 02-08-993. Joseph E. Krakora, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief). Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Christopher W. Hsieh, Chief Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Carl Daley appeals from a December 14, 2012 order denying his petition for post-conviction relief (PCR). On appeal, defendant argues:
DEFENDANT'S CONVICTIONS MUST BE REVERSED DUE TO COUNSELS' NOT PURSUING THE SUPPRESSION-
OF-EVIDENCE ISSUE; IN THE ALTERNATIVE, THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE DEFENDANT ESTABLISHED A PRIMA FACIE CASE OF COUNSELS' INEFFECTIVENESS. (Partially Raised Below).
Following review of the record and applicable law, we reject defendant's arguments. We affirm the order denying his petition for PCR relief.
We have detailed the facts of this matter in two unpublished opinions. In State v. Daley, No. A-6436-03 (App. Div. Feb. 28, 2005) (slip op. 2-12), we discussed the search and seizure of evidence by police as well as the pre-trial suppression motion and hearing. Our opinion addressing issues raised by defendant in his direct appeal of his conviction recited the trial evidence. State v. Daley, No. A-4675-05 (App. Div. Dec. 17, 2008) (slip op. 2-11), certif. denied, 198 N.J. 474 (2009).
In his pro se PCR petition, he argued (1) he was denied a fair trial due to prosecutorial misconduct; (2) the search of his apartment was illegal; (3) the search warrant was improperly issued; and (4) he was denied a fair trial because the confidential informant's identity was not revealed. He requested the court vacate his convictions for various drug and weapons offenses, and other crimes. Counsel was appointed. Upon review, the PCR judge, who was also the trial judge, denied relief. This appeal ensued.
We note the PCR challenge asserting prosecutorial misconduct was raised on appeal in Daley, supra, No. A-4675-05, slip op. at 1-2, and the disclosure of the confidential informant was the sole issue addressed in Daley, supra, No. A-6436-03, slip op. at 1-20. Therefore, these matters are barred from further review. R. 3:22-5. Accordingly, this appeal focuses on the denial of PCR based on defendant's assertions trial and appellate counsel were ineffective for not challenging the order denying suppression of evidence.
Although defendant conceded the challenges to the denial of suppression should have been raised on direct appeal, R. 3:22-4 (barring PCR claims if the issues could have, but were not, raised in a prior proceeding), he maintained counsels' ineffective assistance was cognizable in a petition for PCR because trial counsel failed to file a written motion or brief in support of the suppression motion and did not re-present the challenge during trial, and because appellate counsel did not challenge the ruling on appeal. Defendant also argues the court erroneously declined to conduct an evidentiary hearing on the issue.
"'Post-conviction relief is New Jersey's analogue to the federal writ of habeas corpus.'" State v. Goodwin, 173 N.J. 583, 593 (2002) (quoting State v. Preciose, 129 N.J. 451, 459 (1992)). "A petitioner must establish the right to such relief by a preponderance of the credible evidence." Preciose, supra, 129 N.J. at 459.
New Jersey has adopted the two-pronged test handed down by the United States Supreme Court in the companion cases of Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and United States v. Cronic, 466 U.S. 648, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984). See also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting Strickland's two-pronged test for PCR review). To establish a prima facie case of ineffective assistance of counsel, a defendant must prove:
First, . . . that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.
[Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.]
Under the first prong, a defendant must demonstrate "counsel's representation fell below an objective standard of reasonableness." Id. at 688, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Thus, "th[e] test requires the defendant to identify specific acts or omissions that are outside the wide range of reasonable professional assistance . . . ." State v. Jack, 144 N.J. 240, 249 (1996) (citation and internal quotation marks omitted). "'Reasonable competence' does not require the best of attorneys, but certainly not one so ineffective as to make the idea of a fair trial meaningless." State v. Davis, 116 N.J. 341, 351 (1989).
To meet the second prong, "[a] defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Ibid.
In our review, we defer to the PCR judge's findings so long as they are "supported by sufficient credible evidence in the record." State v. Nash, 212 N.J. 518, 540 (2013). See State v. Elders, 192 N.J. 224, 244 (2007) ("A trial court's findings should be disturbed only if they are so clearly mistaken that the interests of justice demand intervention and correction." (citation and internal quotation marks omitted)). Legal conclusions which flow from those facts, however, are reviewed de novo. Nash, supra, 212 N.J. at 540-41.
In his written opinion denying PCR, the PCR judge detailed his findings and conclusions when denying suppression. He found a police officer's forcible entry into defendant's apartment prior to a warrant being issued was legally justified. Rather than submit to arrest, defendant defied police orders, recklessly fled the scene, and injured officers in the process, a strong sign he was engaged in criminal activity. Exigent circumstances showed evidence in his apartment could be destroyed. Further, noises coming from within the apartment were necessarily investigated as there was a need to assure police safety. Therefore, the facts and law supported denial of the suppression motion.
Defendant suggests trial counsel's failure to file a written motion to suppress demonstrates his ineffective assistance. However, upon counsel's oral pre-motion to suppress, the matter was adjourned to allow for evidentiary review, and thereafter a fourteen-day hearing was conducted.
We agree with the PCR judge trial counsel "fully litigat[ed]" the Fourth Amendment challenges during the multi-day suppression hearing. Therefore, the lack of a formal written motion to suppress was inconsequential, as was PCR counsel's failure to raise this issue below. Further, we agree with the judge any attack on the pre-trial order should have been made on appeal, and "defendant now attempts to circumvent the procedural bars of [Rule 3:22-4 and Rule 3:22-5] to issues that either were already raised or that could have been but were not raised in direct appeal. Defendant instead attempts to couch them under a claim of ineffective assistance of counsel."
Regarding defendant's argument his attorneys failed to challenge the suppression ruling, following our review, we determine defendant has merely reiterated his belief the search was illegal and offers no additional authority to demonstrate his position is meritorious or the denial of the suppression motion was factually unsupported or legally flawed. Defendant cannot show a reasonable probability that the outcome of his trial, appeal, or PCR petition would have been different, but for counsels' silence on this point. Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. We conclude defendant's challenges to counsels' performances lack merit, substantially for the reasons identified by the PCR judge in his written opinion. Defendant has failed to present a prima facie case showing either trial or appellate counsel's conduct denied him effective representation.
As defendant's arguments fail to establish a reasonable likelihood of meeting either prong of the Strickland-Fritz test, an evidentiary hearing is not warranted. Preciose, supra, 129 N.J. at 462-63.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION