Opinion
DOCKET NO. A-3691-12T2
08-10-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. REGGIE A. BROWN, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Frank M. Gennaro, Designated Counsel, on the briefs). Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Jennifer B. Paszkiewicz, Assistant Prosecutor, of counsel and on the brief). Appellant filed a pro se supplemental brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Espinosa and St. John. On appeal from Superior Court of New Jersey, Law Division, Burlington County, Indictment Nos. 05-07-0930; 06-06-0914. Joseph E. Krakora, Public Defender, attorney for appellant (Frank M. Gennaro, Designated Counsel, on the briefs). Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Jennifer B. Paszkiewicz, Assistant Prosecutor, of counsel and on the brief). Appellant filed a pro se supplemental brief. PER CURIAM
Defendant Reggie Brown appeals from a November 21, 2012 order denying his petition for post-conviction relief (PCR). In his PCR petition, defendant contended trial counsel provided ineffective assistance by failing to adequately investigate and file motions. Defendant also asserted ineffective assistance of counsel at sentencing. The PCR judge found defendant's claims lacked merit and denied PCR without an evidentiary hearing.
The record discloses the following facts and procedural history. Defendant was indicted and charged with third-degree aggravated assault upon a law enforcement officer, N.J.S.A. 2C:12-1(b)(5)(a); and third-degree resisting arrest, N.J.S.A. 2C:29-2(a)(1). Days later, defendant was charged in a second indictment with two counts of first-degree robbery, N.J.S.A. 2C:15-1(a)(1) and (2); two counts of fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(4); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(c)(1); and second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7(b). Subsequently, defendant was charged with fourth-degree violation of a special sentence of community supervision for life (CSL), N.J.S.A. 2C:43-6.4(d).
Prior to trial, the State extended a plea offer, providing defendant would plead guilty to two counts of first-degree armed robbery, third-degree aggravated assault, and fourth-degree violation of CSL. In return, the State would recommend a term of imprisonment not to exceed fifteen years in prison for the two robbery accounts, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2 (requiring defendant serve eighty-five percent of the term prior to parole eligibility), to run concurrently with one another. The State also waived its ability to seek an extended term for defendant's convictions.
After a lengthy plea colloquy, the judge accepted defendant's guilty plea. Defendant was sentenced to fifteen years in prison on each robbery charge, eighty-five percent to be served without parole on each of the robbery accounts, to run concurrently with one another. On the aggravated assault charge, defendant was sentenced to four years in prison to run concurrently with the other sentences. Defendant was additionally sentenced to nine months on the violation of CSL, to be served concurrently. Additional fines and penalties were imposed.
Defendant subsequently filed a notice of appeal alleging the trial court abused its discretion in failing to find non-statutory mitigating factors. The challenges to defendant's sentence were considered on this court's Excessive Sentence Oral Argument calendar, R. 2:9-11 and R. 2:10-3, and we affirmed. State v. Brown, No. A-2105-08 (App. Div. Mar. 11, 2010). Defendant filed a petition for certification to the Supreme Court, which was denied. State v. Brown, 203 N.J. 438 (2010).
Defendant then filed a timely petition for PCR. Defendant alleged he was not provided discovery prior to pleading guilty. Defendant also argued his attorney should have filed to have his plea withdrawn since he had to wait for two years prior to being sentenced and, as a result, he was not given the benefit of mitigating factor twelve, N.J.S.A. 2C:44-1(b)(12) ("The willingness of defendant to cooperate with law enforcement authorities"). Defendant further alleged he received ineffective assistance of counsel for several reasons: (1) counsel failed to file a Wade motion; (2) counsel was unprepared; and (3) trial counsel should have argued for a lesser sentence.
The PCR judge heard oral argument and issued a thirteen-page, cogent, written decision, denying defendant's request without an evidentiary hearing. The court held that defendant's contentions that he was not provided discovery and that he was not given the benefit of mitigating factor twelve were procedurally barred pursuant to Rule 3:22-5 because they could have been raised on direct appeal. Nevertheless, the court addressed these claims on the merits.
The PCR judge also found defendant failed to meet his burden in showing that his counsel's performance was deficient and, further, failed to establish that he was prejudiced by his counsel's alleged deficiencies. In denying defendant's request for an evidentiary hearing, the judge noted that defendant failed to provide a prima facie case of ineffective assistance of counsel because he failed to "allege facts sufficient to demonstrate counsel's alleged substandard performance." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). This appeal followed.
On appeal, defendant presents the following issues for our consideration:
POINT ONE
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR POST-CONVICTION RELIEF WITHOUT AFFORDING DEFENDANT AN EVIDENTIARY HEARING.
A. Defendant's Claims Were Not Procedurally Barred.
B. Inadequate Investigation and Preparation by Counsel.
C. Failure to File a Wade Motion.
D. Ineffective Assistance of Counsel at Sentencing.
E. Ineffective Assistance of Appellate Counsel.
We find no merit to these contentions, R. 2:11-3(e)(2), and affirm substantially for the reasons stated by the PCR judge in his written opinion addressing the merits of defendant's petition.
We add these brief comments. In order for defendant to obtain relief based on ineffective assistance grounds, he is obliged to show not only the particular manner in which counsel's performance was deficient, but also that the deficiency prejudiced his right to a fair trial. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 58 (1987). The United States Supreme Court has extended these principles to a criminal defense attorney's representation of an accused in connection with a plea negotiation. Lafler v. Cooper, 566 U.S. ___, ___, 132 S. Ct. 1376, 1384-85, 182 L. Ed. 2d 398, 406-07 (2012); Missouri v. Frye, 566 U.S. ___, ___, 132 S. Ct. 1399, 1407-08, 182 L. Ed. 2d 379, 390 (2012). A defendant must demonstrate with "reasonable probability" that the result would have been different had he received proper advice from his trial attorney. Lafler, supra, 566 U.S. at ___, 132 S. Ct. at 1384, 182 L. Ed. 2d at 407 (citing Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698). We are persuaded that the alleged deficiencies here clearly fail to meet either the performance or the prejudice prong of the Strickland test.
We need not address defendant's claim that, should we find certain allegations are procedurally barred, his appellate counsel was deficient for failing to raise the claims on direct appeal. See R. 3:22-4. Despite finding certain claims procedurally barred, the PCR judge addressed defendant's claims on the merits, and found that they failed the Strickland test. We agree.
Finally, we recognize, as did the PCR judge, "[i]t is well-settled that, to the extent that a petition for [PCR] involves material issues of disputed facts that cannot be resolved by reference to the trial record, an evidentiary hearing must be held." State v. Porter, 216 N.J. 343, 347 (2013). We agree with the court's conclusion that an evidentiary hearing was not required and would not have assisted the court in its determination. State v. Marshall, 148 N.J. 89, 158 (1997) ("If the court perceives that holding an evidentiary hearing will not aid the court's analysis of whether the defendant is entitled post-conviction relief . . . then an evidentiary hearing need not be granted.").
Defendant contends, in a pro se supplemental brief, as amended, trial counsel was ineffective by not arguing before the trial court that he was willing to cooperate with the prosecutor. We find defendant's contention to be without sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(2). We note that defendant did receive the benefit of mitigating factor twelve at sentencing. N.J.S.A. 2C:44-1(b)(12).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION
United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967).