Opinion
DOCKET NO. A-0306-14T3
05-19-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ANTHONY D. COPES, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief). James P. McClain, Atlantic County Prosecutor, attorney for respondent (Courtney M. Cittadini, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges St. John and Guadagno. On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 09-04-0824. Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief). James P. McClain, Atlantic County Prosecutor, attorney for respondent (Courtney M. Cittadini, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Anthony D. Copes appeals the Law Division's denial of his petition for post-conviction relief (PCR) without an evidentiary hearing. Having reviewed the record in light of applicable law, we affirm.
I.
The record discloses the following facts and procedural history. Defendant was indicted and charged with two counts of first-degree robbery, N.J.S.A. 2C:15-1; second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2, N.J.S.A. 2C:15-1; second-degree possession of a weapon for unlawful purpose, N.J.S.A. 2C:39-4a; third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b; and third-degree aggravated assault, N.J.S.A. 2C:12-1b(2).
Prior to trial, the State extended a plea offer to defendant. Defendant would plead guilty to first-degree robbery, in return, the State would recommend defendant be sentenced as a second-degree offender for a term of imprisonment not to exceed eight years, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
Defendant's charges arose out of his arrest in December 2008, after he, with the help of two other men, robbed a man at gunpoint of $540. Wearing a mask, defendant approached the victim and told him to "run [his] pockets." After the victim indicated he only had cigarettes, which he threw, defendant struck him in the head with the gun, knocking him to the ground, searched his pockets and took his money. The victim knew defendant and immediately recognized him, even though he was wearing a mask, because defendant addressed the victim by his unique nickname. The victim also recognized defendant's voice and physical stature. Later, the driver of the getaway vehicle also identified defendant as one of the robbers.
The police went to defendant's home, gave him his Miranda rights, and told him that he was being arrested for the robbery, whereupon he inculpated himself, though he minimized his participation. Shortly thereafter, a search warrant was obtained for defendant's home and the mask, gun, cash, and other incriminating evidence was recovered.
Pursuant to a negotiated plea agreement, defendant pled guilty to first-degree robbery, contrary to N.J.S.A. 2C:15-1, with the understanding that he would be sentenced within the second-degree range. The court accepted his plea and found that defendant was pleading guilty knowingly and voluntarily, and had established an adequate factual basis. After entering his plea, defendant wrote a letter to the trial court contending that his counsel coerced him to plead guilty. The judge considered the letter to be a pro se motion to withdraw his guilty plea.
At the sentencing hearing on October 2, 2009, the judge denied defendant's pro se motion. After weighing the aggravating and mitigating factors, the trial court sentenced defendant to an eight-year term of incarceration subject to the NERA periods of parole ineligibility and parole supervision.
In July 2010, defendant filed a notice of appeal, but it was withdrawn three months later. In December 2013, he filed a petition for PCR. In his petition, defendant contended that his trial counsel was ineffective because he failed to file a pretrial motion to suppress both his statements to the police and the evidence seized pursuant to the search warrant. Following argument, the PCR judge, without an evidentiary hearing, denied defendant's petition in a comprehensive oral opinion.
In denying defendant's petition, the judge found defendant's argument to be without merit as there was no valid legal basis for defendant's attorney to move to suppress the evidence. The judge noted that defendant was charged with a first-degree crime and faced a maximum of twenty years imprisonment subject to NERA, but his trial counsel was "successful in negotiating a plea that limited his exposure to a second-degree level sentence of eight years subject to NERA." The PCR judge related that there is a presumption of validity of a search warrant, and defendant gave his statement to the police after he was informed of his Miranda rights and waived his rights. Further, police had probable cause for the arrest, including a co-defendant's statements and identification by the victim, who knew defendant personally. The PCR judge determined that "[m]otions filed on the basis of theories such as those which the defendant posits, in my judgment, would have been very nearly, if not, in fact, frivolous motions. So [trial counsel's] omission to bring them can't constitute ineffective assistance." Moreover, the judge found any argument that trial counsel was ineffective because he did not support defendant's "initiatives to withdraw his guilty plea cannot be reasonably seen as depriving the defendant of the representation guaranteed to him by the Sixth Amendment." He determined it likely that defendant was simply given "a candid assessment of his predicament from counsel."
The judge concluded that defendant "failed to make out a prima facie case of ineffective assistance of counsel," and, therefore, his petition for PCR was denied. It is from that decision that defendant appeals.
II.
On appeal, defendant presents the following issues for our consideration:
POINT IWe are satisfied from our review of the record that these contentions are without sufficient merit to warrant discussion. R. 2:11-3(e)(2). However, we add the following comments.
THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE MATTER REMANDED FOR AN EVIDENTIARY HEARING BECAUSE DEFENDANT MADE A PRIMA FACIE SHOWING OF INEFFECTIVE ASSISTANCE OF COUNSEL.
POINT II
THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED BECAUSE IT VIOLATED DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.
Defendant argues his claim of ineffective assistance of counsel was improperly denied without an evidentiary hearing. We disagree. Rule 3:22-10(b) states, "[a] defendant shall be entitled to an evidentiary hearing only upon establishment of a prima facie case in support of post-conviction relief." "To establish a prima facie claim of ineffective assistance of counsel, a defendant must demonstrate the reasonable likelihood of succeeding under the test set forth in Strickland v. Washington and United States v. Cronic, which [the Court] adopted in State v. Fritz, 105 N.J. 42, 58 (1987)." State v. Preciose, 129 N.J. 451, 463 (1992) (citations omitted).
Under the Strickland standard, a petitioner must show counsel's performance was both deficient and prejudicial. State v. Martini, 160 N.J. 248, 264 (1999). The performance of counsel is "deficient" if it falls "below an objective standard of reasonableness" measured by "prevailing professional norms." Strickland v. Washington, 466 U.S. 668, 687-88, 104 S. Ct. 2052, 2064-65, 80 L. Ed. 2d 674, 693-94 (1984). Counsel's performance is "prejudicial" only if "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. As with a summary judgment motion, a PCR court deciding whether to grant an evidentiary hearing "should view the facts in the light most favorable to a defendant to determine whether a defendant has established a prima facie claim." Preciose, supra, 129 N.J. at 462-63.
Defendant again contends that his trial counsel's failure to bring a motion to suppress the physical evidence seized at his home and his statements given to police amounted to ineffective assistance of counsel. He further argues that, in the absence of any certification from the State contesting his claims, his allegation should be enough to establish a prima facie case. This argument fails because it is the PCR petitioner, not the State, who bears the burden of demonstrating a prima facie case. Defendant's bald assertion of ineffective assistance is clearly not sufficient.
When a defendant's ineffective assistance of counsel claim is based on a failure to file a suppression motion, defendant must establish that the suppression motion has merit. State v. O'Neal, 190 N.J. 601, 618-19 (2007); State v. Fisher, 156 N.J. 494, 501 (1998). Here, as the PCR judge found, any motion to suppress had no merit and would have been "very nearly, if not, in fact frivolous."
The police had probable cause to arrest defendant. See State v. Nishina, 175 N.J. 502 (2003). The victim was immediately able to identify his assailants and provide their names; later, a co-defendant inculpated defendant in the robbery. Defendant was given his Miranda rights and knowingly, intelligently, and voluntarily waived them before giving any statements to police. Likewise, police obtained a search warrant prior to conducting any search on the house which yielded the incriminating evidence. See State v. Watts, 223 N.J. 503, 513 (2015) (a search executed pursuant to a properly obtained warrant is presumed valid).
For those reasons, we agree with the PCR court that defendant failed to present a prima facie case of ineffective assistance of counsel. Further, an evidentiary hearing would not have aided the PCR court's analysis of defendant's entitlement to PCR. R. 3:22-10(e)(1). Therefore, the PCR judge did not err in denying defendant an evidentiary hearing with respect to his ineffective assistance claim based on his attorney's failure to file the motions to suppress.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).