The opinion of the court was delivered by: Garibaldi, J.
On certification to the Superior Court, Appellate Division.
This case involves defendant Lloyd Fisher's petition for post- conviction relief (PCR). Defendant was charged with possession of cocaine. His counsel filed a motion to suppress; however, defendant failed to appear in court on the return date of the motion, and a warrant was issued for his arrest. Counsel then withdrew the motion. When defendant was subsequently arrested, his counsel did not refile the motion. Defendant claims that his counsel's failure to refile the motion to suppress denied him effective assistance of counsel. The Court must determine whether under the law in effect at the time of defendant's rearrest trial counsel correctly concluded that defendant had waived his right to refile his motion to suppress. If counsel was wrong, we must decide whether that error deprived defendant of effective assistance of counsel.
The record in this case is sparse. The facts surrounding defendant's initial arrest are taken primarily from the presentence report. No testimony was taken and no affidavits were filed.
On December 28, 1989, officers of the Plainfield Police Department were on routine patrol in a marked police vehicle. The officers saw a group of people standing in "an area second to no other area in the State for street level narcotic activity." When the group saw the officers they "appeared very nervous," and began to disperse. The officers shouted "Stop! Police." When the police began to question people, defendant fled. The officers chased defendant, and apprehended him while he was attempting to climb a chain link fence. The officers recovered paraphernalia in the area, including five plastic syringes, one glass crack pipe, a bottle cap, and one Advil bottle containing a clear fluid. A subsequent laboratory report indicated traces of cocaine residue on the paraphernalia.
On March 22, 1990, a Union County Grand Jury returned an indictment charging defendant with third degree possession of cocaine, contrary to N.J.S.A. 2C:35-10(a)(1). Defendant was assigned counsel by the Office of the Public Defender. Previously, on January 1, 1990, defendant had posted bail and was released from jail. On May 3, 1990, his counsel filed a motion to suppress. Defendant, however, failed to appear in court on the return date of the motion, and a warrant for his arrest was issued. Counsel then withdrew the motion to suppress.
Three years later, defendant was apprehended and taken into custody. Counsel from the Public Defender's Office again represented defendant. On January 3, 1994, defendant pled guilty to the possession of cocaine charge. Pursuant to a plea agreement, defendant was sentenced to a three-year term of imprisonment with no parole disqualifier, concurrent to his parole revocation. A $1,000 DEDR penalty, a $50 laboratory fee, a $50 VCCB penalty, and a one-year driver's license suspension were also imposed. Counts one and two of the indictment, charging possession of a hypodermic needle and possession of narcotic paraphernalia, were dismissed.
Defendant filed a notice of appeal that was docketed on the Excessive Sentence Oral Argument Calendar. After hearing oral argument, the Appellate Division issued an order affirming defendant's sentence. Defendant then filed a pro se motion for post-conviction relief and a pro se motion to suppress evidence. Counsel was assigned to represent defendant in seeking post-conviction relief.
There is no record indicating any reason why trial counsel failed to refile the previously filed suppression motion before the plea. Defendant claims that counsel told him that she did not refile the motion because he had waived it by becoming a fugitive. The prosecutor, however, claims that counsel informed him that she had never told defendant that the suppression motion was waived and had not discussed the matter with defendant. In discussing defendant's claims for ineffective assistance of counsel, the trial court assumed, as we do for purposes of this appeal, that defendant's version of his dealings with trial counsel is correct. That is, we assume counsel failed to refile the suppression motion because she believed a fugitive could not refile a motion to suppress.
The trial court found that counsel was not ineffective because the law at the time of defendant's rearrest and plea foreclosed a fugitive defendant from filing a motion to suppress. The court held that even if defendant was correct about the motive for his attorney's failure to refile the motion, the attorney's action was reasonable under the circumstances.
The Appellate Division reversed, holding that trial counsel's performance was deficient because she had misinterpreted the law in effect at that time. 305 N.J. Super. 216 (1997). Therefore, the court remanded for a hearing to determine whether the motion to suppress would have been successful. The Appellate Division ordered the PCR court if it grants the suppression motion to vacate the conviction. We granted the State's petition for certification, ___ N.J. ___ (1998).
The Sixth Amendment to the United States Constitution guarantees the right to "effective assistance of counsel." Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2063, 80 L. Ed. 2d 692, 674 (1984) (citing McMann v. Richardson, 397 U.S. 759, 771, n.14, 90 S. Ct. 1441, 1449, n.14, 25 L. Ed. 2d 763 (1970)). In order to prevail on an ineffective assistance of counsel claim defendant carries the burden of meeting the two part Strickland test.
First, defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown of the adversary process that renders the result unreliable. [Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.]
Under the New Jersey Constitution, the standard is the same. State v. Fritz, 105 N.J. 42, 53-58 (1987) (holding that defendant must satisfy Strickland test to show violation of Article ...