Opinion
DOCKET NO. A-3818-10T4
02-21-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. OMAR JONES, a/k/a OMAR BROWN, SHAWN JAMES, OMAR SMITH, and SHAWN PROVOLON, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Jennifer L. Gottschalk, Designated Counsel, on the brief). Geoffrey D. Soriano, Somerset County Prosecutor, attorney for respondent (James L. McConnell, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad and Sapp-Peterson.
On appeal from the Superior Court of New
Jersey, Law Division, Somerset County,
Indictment No. 08-08-0630.
Joseph E. Krakora, Public Defender, attorney
for appellant (Jennifer L. Gottschalk,
Designated Counsel, on the brief).
Geoffrey D. Soriano, Somerset County
Prosecutor, attorney for respondent (James
L. McConnell, Assistant Prosecutor, of
counsel and on the brief).
PER CURIAM
Defendant, Omar Jones, appeals the September 28, 2010 order of Judge Paul Armstrong denying his petition for post-conviction relief (PCR) without an evidentiary hearing. He claims ineffective assistance of trial counsel in failing to investigate his claim of racial profiling, which defendant claims was the basis of his August 1, 2008 motor vehicle stop that ultimately led to his guilty plea after he voluntarily withdrew his suppression motion. We affirm.
Defendant pled guilty to first-degree possession of a controlled dangerous substance with intent to distribute, N.J.S.A. 2C:35-5a(1) and 2C:35-5b(1) (Count One); third-degree hindering apprehension, N.J.S.A. 2C:29-3b (Count Two); and second-degree eluding, N.J.S.A. 2C:29-2b (Count Three). The State moved for imposition of a discretionary extended term, which the court rejected. On June 26, 2009, the court sentenced defendant to an aggregate custodial term of fourteen years with a minimum fifty-four-month period of parole ineligibility, together with fines and penalties.
Defendant filed no direct appeal. Instead, several months later, he filed a pro se PCR motion. Counsel was appointed to represent him and an amended verified PCR petition was filed on July 7, 2010. Judge Armstrong conducted oral argument on the motion on September 16, 2010 and, at its conclusion, denied the motion. In doing so, the judge found defendant failed to make the requisite showing entitling him to police records that plaintiff contends are relevant to his claim of racial profiling. The judge noted the submission by the Warren Township Police Chief of an affidavit in which the chief explains that the use of the terminology "selective enforcement" within his department refers to a procedure employed to enforce traffic laws rather than racial profiling.
Citing State v. Ballard, 331 N.J. Super. 529 (App. Div. 2000), Judge Armstrong reiterated the requirement that a defendant claiming racial profiling must present credible evidence of such a claim before discovery is permitted and that defendant's claim was predicated "in its entirety upon the arresting officer[']s usage of the term 'selective enforcement.'" The judge found the ineffective-assistance-of-counsel claims lacked merit, concluding that trial counsel's failure to pursue an "otherwise unmeritorious claim" did not result in prejudice to defendant.
On appeal, defendant raises the following points for our consideration:
POINT I
DEFENDANT WAS DEPRIVED OF EFFECTIVE ASSISTANCE OF TRIAL COUNSEL WHEN HE ENTERED HIS GUILTY PLEA; BY NOT HAVING AN ATTORNEY WHO REPRESENTED HIM COMPETENTLY IN THE TRIAL COURT, DEFENDANT'S CONVICTION WAS NOT PROPERLY ENTERED AND SHOULD NOW BE REVERSED.
POINT II
DEFENDANT HAS MET THE BURDEN OF SHOWING THAT THE CONDUCT OF WARREN TOWNSHIP POLICE CONSTITUTED UNLAWFUL "SELECTIVE ENFORCEMENT," WARRANTING PRODUCTION OF THE DISCOVERY HE SEEKS TO PROVE HIS CLAIM.
POINT III
THE INTERESTS OF JUSTICE MANDATE A REMAND FOR A FULL EVIDENTIARY HEARING ON ALL ISSUES RAISED IN THIS APPEAL OF THE DENIAL OF POST-CONVICTION RELIEF.
We have considered the points raised in light of the record, arguments set forth in the briefs and applicable legal principles. We conclude the points raised by defendant are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm for the reasons expressed in Judge Armstrong's cogent and well-reasoned September 16, 2010 oral opinion. We add the following brief comments on the issue of racial profiling.
Defendant's claim of racial profiling arises in the context of his PCR petition. Our Court has previously held that "only in the unusual case will a PCR court invoke its inherent right to compel discovery." State v. Marshall, 14 8 N.J. 89, 270, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). Thus, "[t]he filing of a petition for PCR is not a license to obtain unlimited information from the State, but a means through which a defendant may demonstrate to a reviewing court that he was convicted or sentenced in violation of his rights." Ibid.
Here, as Judge Armstrong observed, defendant's mere assertion of racial profiling did not justify disclosure of police records. Ballard, supra, 311 N.J. Super. at 542. The underlying offense to which he pled guilty arose out of a motor vehicle stop after police observed defendant tailgating. When directed to pull over, he commenced to elude police, eventually pulling over after police observed him committing additional motor vehicle violations. During the course of the chase, suspected narcotics were discarded from the vehicle and later recovered by a witness, and upon defendant's arrest, additional narcotics were retrieved from his vehicle. Although defendant claims that while being held in the Somerset County Jail, he learned from sixteen other minority males that they too had been detained by Warren Township Police in traffic stops on Route 78, he presented no affidavits from any of these individuals that their arrests were racially motivated. In short, defendant's unsupported contentions do not establish a colorable claim of racial profiling warranting discovery into Warren Township police files. Ibid.
Finally, defendant voluntarily chose to plead guilty without a negotiated sentence. Additionally, he received the benefit of the sentencing court's denial of the State's motion for imposition of an extended sentence.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION