Opinion
DOCKET NO. A-2785-16T1
10-31-2018
STATE OF NEW JERSEY, Plaintiff-Respondent, v. LARRY J. ANDERSON, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Karen A. Lodeserto, Designated Counsel, on the briefs). Scott A. Coffina, Burlington County Prosecutor, attorney for respondent (Nicole Handy, Assistant Prosecutor, of counsel and on the briefs).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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. Before Judges Alvarez and Currier. On appeal from Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 13-05-0336. Joseph E. Krakora, Public Defender, attorney for appellant (Karen A. Lodeserto, Designated Counsel, on the briefs). Scott A. Coffina, Burlington County Prosecutor, attorney for respondent (Nicole Handy, Assistant Prosecutor, of counsel and on the briefs). PER CURIAM
On June 12, 2018, we remanded defendant Larry J. Anderson's post-conviction relief (PCR) petition based on ineffective assistance of counsel to the trial court in order to allow his trial counsel to be called to testify and be cross-examined. After conducting the remand hearing, on August 29, 2018, the Law Division judge found that the first prong of Strickland v. Washington, 466 U.S. 668, 687 (1984) had been satisfied—that counsel's performance was deficient because he failed to file a suppression motion on behalf of defendant. See also State v. Fritz, 105 N.J. 42, 58 (1987). The judge further found, however, that the second prong was not satisfied because defendant suffered no prejudice from the omission, and thus no prima facie case requiring a full-blown evidentiary hearing was necessary. See Strickland, 466 U.S. at 687; Fritz; 107 N.J. at 58. He denied the petition, and we now affirm.
By way of context, immediately before his trial on a charge of second-degree burglary, N.J.S.A. 2C:18-2(a)(1), and other offenses, defendant entered an "open" guilty plea. On January 16, 2015, the judge sentenced defendant to five years state prison, subject to eighty-five percent parole eligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The charges arose from defendant and a co-defendant having twice burglarized a particular property. On the second occasion, defendant removed two shotguns from the premises.
The New Jersey State Police supplemental investigation report recites in pertinent part:
We learned information from a confidential source that [defendant] and Clarence Burchell committed the Burglary and [defendant] was in possession of the stolen guns.
Upon arrival, Rose Anna Nelson, answered the door, and stated [defendant] was in his room. [Defendant] came outside shortly thereafter. [He] was advised that there was an active warrant for his arrest . . . . [Defendant] was also advised that he was a suspect in an investigation, and was then read his rights as per Miranda.[] I asked [defendant] if he was in possession of anything that did not belong to him. [He] stated that there were two guns in his bedroom closet. [Defendant] was then read the NJ Consent to Search Form in its entirety, and he agreed to the search of his residence by signing the form. . . .
Once at the station, [defendant] agreed to provide a videotaped statement. . . . [Defendant] was read his rights as per Miranda and signed the card stating same. . . .
. . . [Defendant] stated they were driven to the residence by a friend . . . . They walked around to the back of the residence and entered through the back door, which was unlocked. [Defendant] stated they both entered the residence but went into separate rooms once inside. [Defendant] stated that once he entered, he observed two shotguns leaning up against a wall. [Defendant] grabbed the shotguns and yelled to [ ] Burchell, "I got two guns out here." and then left the
residence. [Defendant] then grabbed a tarp he found on the ground and used it to cover the guns. . . .
During the interview, [defendant] was shown a picture of the residence . . . [and] identified this house to be the one they entered and signed the copy of the picture. . . . [Defendant] identified the individual in the photograph to be [ ] Burchell, and signed a copy of the picture. . . . [Defendant] also admitted to going to the residence in August of 2012, and removed several pieces of scrap metal from the yard.
Miranda v. Arizona, 384 U.S. 436 (1966).
In another contemporaneous State Police supplemental report, the author indicated that defendant "was developed as a suspect[,]" and that when the officer escorted defendant to the interview room, he was advised of his Miranda rights, which defendant claimed he understood.
The State contends that the Mirandized statement made by defendant corroborates the narrative in the police report. Defendant claimed in that statement he assumed the state police were at his home solely to serve a municipal warrant. He had not realized the serious repercussions that would result from his taking the weapons and thus openly admitted to having them.
We were not provided with a transcript of defendant's statement. --------
In contrast to this version of events, in the certification defendant submitted in support of the PCR petition, he alleged that when the police arrived at his home, one of the officers went to the back door and asked his then five- year-old son if he could enter. The child let the officer into the home, and he walked through the house to the front door and admitted the other officers. Defendant certified he "was set upon by the police and removed from the house in handcuffs." He further claimed that police searched the property and found two shotguns in one of the closets. Finally, he alleged that after finding the guns, the police asked him for permission to search, and that he does not recall either giving them permission or signing forms consenting to a search.
During the PCR hearing, the judge heard from trial counsel, initially by way of a certification, and on remand, by way of testimony. Trial counsel testified that had the circumstances been as defendant now represents them, he would have filed a motion to suppress. He said, however, that at no time did defendant provide him with any information that would have led him to doubt the legality of the search and the admissibility of defendant's statements. Trial counsel's focus was on the operability of the weapons, based on his conversations with his client. To defendant, their rusty appearance made that a possible defense.
The record belies defendant's claim that his post-plea version of the facts was ever mentioned to counsel. Indeed, it is fair to characterize his claims as mere bare allegations that do not constitute a basis for post-conviction relief, and do not rise to the level of a prima facie showing of ineffective assistance of counsel. See State v. Cummings, 321 N.J. Super. 154, 169-70 (App. Div. 1999). Even viewing the facts in the light most favorable to defendant, nothing explains the congruence of his initial statement with the investigation reports, and his failure to mention to his attorney his belated assertion that the state police obtained consent to enter from a five-year-old child, and did not obtain consent to search. Defendant's recollection is simply not supported by anything in the record or by common sense. Accordingly, albeit for a different reason, we agree with the Law Division judge's conclusion that no post-conviction relief is warranted.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION