Opinion
DOCKET NO. A-2205-11T3
06-24-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. MICHAEL J. WIGGINS, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief). Jeffrey S. Chiesa, Attorney General, attorney for respondent (Carol M. Henderson, Assistant Attorney General, 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NOT FOR PUBLICATION WITHOUT THE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 Lihotz and Ostrer.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 04-08-0134.
Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Carol M. Henderson, Assistant Attorney General, of counsel and on the brief).
Appellant filed a pro se supplemental brief. PER CURIAM
Defendant appeals from the court's June 14, 2011, order denying, without an evidentiary hearing, his petition for post-conviction relief based on a claim of ineffective assistance of counsel. Having reviewed defendant's arguments in light of the facts and applicable law, we affirm, but remand for correction of an error in the judgment of conviction.
I.
Defendant pleaded guilty on January 19, 2007 to being a leader of a narcotics trafficking network, N.J.S.A. 2C:35-3, a first degree offense, after the court denied his pre-trial motion to suppress evidence. In his plea allocution, defendant did little more than admit to the elements of the offense and state that cocaine was the controlled dangerous substance involved. Defendant's crime was punishable by up to life in prison. Ibid. Consistent with the plea agreement, the court sentenced defendant on August 10, 2007, to twenty-six years incarceration. The court imposed a ten-year period of parole ineligibility, three years shorter than the State recommended. The judgment of conviction reflects imposition of five years of parole supervision upon release.
On direct appeal, we affirmed the court's denial of the suppression motion and affirmed the sentence. State v. Wiggins, No. A-0405-07 (App. Div. Apr. 30, 2009), certif. denied, 200 N.J. 208 (2009). We reviewed in our prior decision the details of the State's extensive investigation into narcotics distribution in Atlantic County. Suffice it to say the State obtained court approval for multiple wiretaps and communications data warrants (CDWs), all issued by Judge Albert J. Garofolo. The State impounded an illegally parked Ford van on February 1, 2004. Id. slip op. at 8. The State conducted a warrantless stop of a Toyota minivan on March 9, and impounded that vehicle as well. Id. slip op. at 3-4. The State also conducted a dog-sniffing inspection of a parked Lexus on March 10, 2004. Once the dog indicated the presence of narcotics, the police began to secure the car for towing and impoundment. The owner then consented to a search. Id. slip op. at 7-8. The Ford van and Toyota minivan were searched pursuant to warrants.
Pursuant to the search warrant that Judge Garofolo issued on March 10, investigators seized about four pounds of powder cocaine, and $138,930 in cash from the Toyota minivan stopped on March 9. Id. slip op. at 5. The police seized $26,000 cash from the Lexus pursuant to the consent search. The State also obtained a warrant to search defendant's home, where police seized two defaced handguns.
The unsuccessful motion to suppress was directed to whether the seizures of the three vehicles were lawful. The motion did not challenge any of the numerous CDWs and search warrants issued in the course of the State's investigation. As noted, we affirmed the trial court's order. We also rejected defendant's challenge to his sentence, which was based on a claim of excessiveness.
Defendant filed his pro se verified PCR petition on October 9, 2009. He argued his trial counsel was ineffective by failing to challenge the March 10, 2004 warrant authorizing the search of the Toyota minivan, the March 19 warrant to search his home, and the CDWs. He also argued his attorney was ineffective by failing to move for Judge Garofolo's recusal, because he approved the numerous wiretaps, CDWs, and warrants. In addition, he argued generally that his attorney failed to adequately investigate the case.
According to the State, the search warrant of the vehicle was based on an oral presentation. The State attached to its trial court brief opposing PCR the transcript of the oral application; the written affidavit in support of the warrant to search defendant's home; and the respective warrants for the residence and minivan. However, those were not included in the record before us.
Once represented, defendant filed a supplemental petition in which he added that his attorney was ineffective because he generally misinformed him, "failed to file all appropriate motions," failed to request annual reports of electronic warrant authorizations, and failed to make him aware that a co-defendant allegedly "received a post-plea deal in exchange for cooperating against" defendant. Defendant also renewed his argument that counsel was ineffective by failing to argue adequately the pertinent aggravating and mitigating factors. At oral argument, defense counsel clarified that the challenge to the CDWs was based on the argument that they were subject to the same time limitations governing wiretaps. See N.J.S.A. 2A:156A-12f, 12g.
This second petition was not properly verified, as defendant merely certified the statements were "true to the best of [his] knowledge and belief." See Jacobs v. Walt Disney World, Co., 309 N.J. Super. 443, 454 (App. Div. 1998) (stating factual assertions based merely upon "information and belief" are inadequate); Lippmann v. Hydro-Space Tech., Inc., 77 N.J. Super. 497, 504 (App. Div. 1962) (stating verification "to the best of the knowledge and belief of your deponent" is defective).
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After hearing oral argument, Judge Max A. Baker denied defendant's motion. Judge Baker applied the two-prong test for establishing ineffective assistance set forth in Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984) (stating that a petitioner must establish (1) his counsel's performance was deficient and he made errors so serious that counsel was not functioning as guaranteed by the Sixth Amendment, and (2) he was prejudiced such that there existed a reasonable probability that, but for counsel's unprofessional errors, the result would have been different).
Judge Baker determined that trial counsel made a reasonable strategic decision not to challenge the search warrants. He also found no ineffectiveness in the failure to seek Judge Garofolo's recusal, or to challenge the CDWs, because those motions would not have succeeded. He also held that defendant failed to demonstrate the relevance or usefulness of the annual report of electronic warrants; therefore, the failure to seek its disclosure was not ineffective. He also found there was no demonstrated ineffectiveness with regard to the plea of a co-defendant. Lastly, the judge held that the challenge to the sentence was barred, as it was previously considered on direct appeal.
On appeal, defendant presents the following points for our consideration:
POINT I
THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE MATTER REMANDED FOR A FULL EVIDENTIARY HEARING BECAUSE UNDER R. 3:22 POST-CONVICTION RELIEF CRITERIA THE DEFENDANT MADE A PRIMA FACIE SHOWING OF INEFFECTIVE ASSISTANCE OF COUNSEL.
POINT II
THE COURT MISAPPLIED THE PROCEDURAL BARS OF RULE 3:22-4 AND RULE 3:22-5 IN DENYING POST-CONVICTION RELIEF.
POINT III
THE COURT'S RULING DENYING POST-CONVICTION RELIEF VIOLATED THE DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.
POINT IV
THE DEFENDANT REASSERTS ALL OTHER ISSUES RAISED IN POST-CONVICTION RELIEF.
(A) THE SENTENCE IS EXCESSIVE AND TRIAL COUNSEL SHOULD HAVE ARGUED WHY THE MITIGATING FACTORS SO OUTWEIGHED THE AGGRAVATING FACTORS AS TO HAVE WARRANTED SENTENCING AS A SECOND DEGREE OFFENDER.
(B) APPELLATE COUNSEL WAS INEFFECTIVE.
(C) THE ERRORS OF COUNSEL IN THIS MATTER WERE SO BAD THAT ACTUAL PREJUDICE NEED NOT BE SHOWN.
(D) COUNSEL WAS INEFFECTIVE FOR NOT CHALLENGING THE SEARCH WARRANT FOR THE TOYOTA MINI-VAN.
(E) COUNSEL WAS INEFFECTIVE BY NOT FILING A MOTION TO RECUSE THE TRIAL COURT.
(F) TRIAL COUNSEL WAS INEFFECTIVE BY NOT CHALLENGING THE AFFIDAVIT OF THE SEARCH WARRANT FOR MARCH 19, 2004.
(G) COUNSEL WAS INEFFECTIVE FOR NOT FILING A MOTION TO SUPPRESS EVIDENCE OF THE WIRETAP.
(H) COUNSEL WAS INEFFECTIVE BY FAILING TO INVESTIGATE AND CONSIDER POTENTIAL DEFENSES.
(I) THE STATE FAILED TO PROVIDE THE AFFIDAVITS FOR THE SEARCH WARRANTS, THE
SEARCH WARRANTS, AND THE RETURN OF THE SEARCH WARRANTS TO PETITIONER IN DISCOVERY.
(J) COUNSEL'S CUMULATIVE PERFORMANCE RESULTED IN INEFFECTIVE ASSISTANCE OF COUNSEL.
In a supplemental pro se brief, defendant also asks us to consider the following:
POINT I
THE JUDGE WHO HEARD THE CASES AND SIGNED ALL SEARCH, WIRETAP AND CDW WARRANTS, SHOULD HAVE RECUSED HIMSELF FROM THE SUPPRESSION HEARINGS.
POINT II
DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT OF THE EFFECTIVE ASSISTANCE OF COUNSEL BY FAILING TO FILE A RECUSAL MOTION PRIOR TO PLEA NEGOTIATIONS, LEADING TO DEFENDANT BEING FORCED TO PLEAD GUILTY OR FACE THE SAME JUDGE WHO PARTICIPATED IN THE LONG, ONGOING POLICE INVESTIGATION.
POINT III
THE SENTENCE IMPOSED BY THE LAW DIVISION IS ILLEGAL IN THAT IT WAS NOT IMPOSED IN ACCORDANCE WITH THE LAW WHERE THE COURT IMPOSED AN ADDITIONAL FIVE-YEAR PERIOD OF PAROLE SUPERVISION (Not Raised Below).
II.
We review the PCR judge's legal conclusions de novo. State v. Harris, 181 N.J. 391, 420-21 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). Where the court does not hold an evidentiary hearing, we may exercise de novo review over the factual inferences the trial court has drawn from the documentary record. Id. at 421.
As noted, to establish a prima facie claim of ineffective assistance of counsel, a petitioner must satisfy the two-prong test under Strickland, supra, 466 U.S. at 687, 694, 104 S. Ct. at 2064, 2068, 80 L. Ed. 2d at 693, 698. A petitioner is obliged to establish the right to relief by a preponderance of the credible evidence. State v. Preciose, 129 N.J. 451, 459 (1992). The court must consider the petitioner's "contentions indulgently and view the facts asserted by him [or her] in the light most favorable to him [or her]." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).
However, "a petitioner must do more than make bald assertions that he was denied the effective assistance of counsel." Ibid. A hearing should be held if the PCR petition involves material issues of disputed fact that cannot be resolved by reference to the existing record. State v. Pyatt, 316 N.J. Super. 46, 51 (App. Div. 1998), certif. denied, 158 N.J. 72 (1999). A court need not hold a hearing if it "will not aid the court's analysis of whether the defendant is entitled to post-conviction relief or that the defendant's allegations are too vague, conclusory, or speculative to warrant an evidentiary hearing[.]" State v. Marshall, 148 N.J. 89, 158 (citations omitted), cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997).
A defendant who has entered a guilty plea must establish that the alleged ineffectiveness affected his decision to plead. A defendant is entitled to effective assistance in the process of plea negotiation. Missouri v. Frye, 566 U.S. __, __, 132 S. Ct. 1399, 1405, 182 L. Ed. 2d 379, 387 (2012). "If a plea bargain has been offered, a defendant has the right to effective assistance of counsel in considering whether to accept it." Lafler v. Cooper, 566 U.S. __, __, 132 S. Ct. 1376, 1387, 182 L. Ed. 2d 398, 410 (2012).
Where a defendant, as a result of attorney ineffectiveness, accepts a guilty plea instead of going to trial, the petitioner may satisfy the prejudice prong by showing "a reasonable probability that, but for counsel's errors, [he or she] would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 210 (1985). A "reasonable probability" must be "sufficient to undermine confidence in the outcome." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.
As defendant pleaded guilty, he must establish as a prerequisite to relief that had his trial attorney filed various motions — to challenge the search warrants and CDWs, to obtain annual reports, and to recuse the judge — there is a reasonable probability that he would not have pleaded guilty. This presumes that one or more of the motions would have been successful. "It is not ineffective assistance of counsel for defense counsel not to file a meritless motion[.]" State v. O'Neal, 190 N.J. 601, 619 (2007).
First, defendant did not expressly state, in his pro se petition, or in his defective supplemental petition, that but for his trial counsel's alleged ineffectiveness, he would not have pleaded guilty. This alone is fatal to his claim that he suffered prejudice.
However, even assuming the failure to allege prejudice was an oversight, defendant has failed to establish that the omitted motions would have succeeded. We consider first the challenge to the search warrants and CDWs. The warrants are presumed valid, and defendant would have had to shoulder the burden to establish that Judge Garofolo erred in issuing them. See State v. Evers, 175 N.J. 355, 381 (2003) (citations omitted).
Yet, defendant presents nothing but a bald, conclusory allegation that the search warrants were susceptible to challenge. He does not even present to us the evidence upon which Judge Garofolo relied, to establish that the State's showing of probable cause was deficient. We discern no support for defendant's argument that time-limitations governing wiretaps also applied to the CDWs. See State v. Finesmith, 408 N.J. Super. 206, 211-12 (App. Div. 2009) (distinguishing between wiretaps and CDWs).
There was also no ineffectiveness in failing to move to recuse Judge Garofolo. The judge was not obliged to recuse himself simply because he heard, and granted, numerous applications for warrants and wiretaps during the State's investigation. A judge should disqualify himself when he has given an opinion upon a matter in question, but that "shall not prevent a judge from sitting because of having . . . given an opinion on any question in controversy in the pending action in the course of previous proceedings therein[.]" R. 1:12-1.
We have held that the Rule does not bar a judge who, ex parte, has issued a search warrant from subsequently deciding a contested motion to suppress challenging the warrant's validity. State v. Smith, 113 N.J. Super. 120, 138 (App. Div.), certif. denied, 59 N.J. 293 (1971). It is of no moment, as defendant suggests, that Judge Garofolo issued multiple warrants in this case, and the judge in Smith issued only one. The argument against recusal is even stronger here than in Smith, as the motion to suppress in this case did not require the judge to review the validity of his own warrant. Rather, Judge Garofolo was required to assess the validity of warrantless seizures.
Absent a basis to recuse himself, Judge Garofolo had a duty to hear the motion to suppress, and so he did. See Laird v. Tatum, 409 U.S. 824, 837, 93 S. Ct. 7, 15, 34 L. Ed. 2d 50, 60 (1972) (stating that a judge "has a duty to sit where not disqualified which is equally as strong as the duty to not sit where disqualified"); Hundred E. Credit Corp. v. Eric Schuster Corp., 212 N.J. Super. 350, 358 (App. Div.) (stating "it is improper" for a judge to withdraw from a case "unless the alleged cause of recusal is known by him to exist or is shown to be true in fact"), certif. denied, 107 N.J. 60 (1986).
Defendant also argues that the imposition of a five year period of parole supervision was illegal, as N.J.S.A. 2C:35-3 is not an enumerated crime under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2(d). We agree. We note that Judge Garofolo in his oral sentencing decision did not impose a period of parole supervision. The provision was added to the judgment of conviction, which was then signed by a different judge. Judge Garofolo's oral decision should control. State v. Francis, 341 N.J. Super. 67, 69 (App. Div. 2001) (citation omitted). Moreover, an illegal sentence may be corrected at any time prior to its completion. State v. Schubert, 212 N.J. 295, 309 (2012) (citation and quotation omitted).
Defendant's remaining arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed, but remanded to the trial court for correction of the judgment of conviction.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION