January 8, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
CHAFFEE EDWARDS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No.05-02-0208.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 5, 2006
Before Judges Wefing and Parker.
After denial of his motion to suppress, defendant Chaffee Edwards pled guilty to third degree distribution of a controlled dangerous substance (CDS) in a school zone, N.J.S.A. 2C:35-7. He appeals from a judgment of conviction entered on November 28, 2005 sentencing him to a term of three years subject to one year parole ineligibility.
These charges arose out of a surveillance operation in which the police observed one buyer purchase drugs from defendant. That buyer was not stopped. A second buyer was stopped by the police, arrested and searched. After cocaine was recovered from that individual, defendant was arrested.
Defendant's motion to suppress was argued without an evidentiary hearing. Defendant claimed that because the cocaine had been seized from the buyer, there was no exigency and the police were required to obtain a warrant before arresting him.
In denying the suppression motion, the trial court stated that, "[I]t is clear that the officers had probable cause to make the arrests in this case and thereafter to have conducted searches pursuant to those lawful arrests which resulted in the seizure of the evidence in this case."
After denial of the motion, defendant entered his plea admitting that he distributed crack cocaine in a school zone on the day alleged. In this appeal, he argues:
THE FAILURE TO REQUEST AN EVIDENTIARY HEARING ON THE MOTION TO SUPPRESS WAS INEFFECTIVE ASSISTANCE OF COUNSEL. U.S. CONST., AMENDS. VI, XIV; N.J. CONST. ART. I, PAR. 10. (Not Raised Below)
THE DEFENDANT'S SENTENCE IS ILLEGAL BECAUSE IT DOES NOT INCLUDE 177 DAYS OF JAIL CREDITS TO WHICH HE WAS ENTITLED PURSUANT TO STATE V. BLACK
To demonstrate ineffective assistance of counsel, defendant must show a reasonable likelihood of being able to rebut the "strong presumption" of competent performance on counsel's part, and of showing that, but for counsel's error, the outcome of the suppression motion would have been different. Strickland v. Washington, 466 U.S. 668, 687-89, 104 S.Ct. 2052, 2064-65, 80 L.Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 60-61 (1987). To rebut that "strong presumption," a defendant must prove that counsel's performance was deficient and that defendant was prejudiced by the deficient performance by demonstrating "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 694, 104 S.Ct. at 2086, 80 L.Ed. 2d at 698. A "reasonable probability" is that which is "sufficient to undermine confidence in the outcome." Ibid. A claim of ineffective assistance of counsel must be established by a preponderance of the credible evidence. State v. McQuaid, 147 N.J. 464, 483 (1997) (citing State v. Preciose, 129 N.J. 451, 459 (1992)).
Defendant has presented no evidence to rebut the "strong presumption" of counsel's competency in arguing the motion without an evidentiary hearing. See Fritz, supra, 105 N.J. at 60-61. He has not proffered any evidence to demonstrate that the outcome of the suppression motion would have differed if an evidentiary hearing had been requested. Consequently, we find no merit in this argument.
With respect to the sentencing argument, defendant claims that he should have been credited with 177 days during which he was incarcerated on a parole violation because his parole was never officially revoked. He maintains that under State v. Black, 153 N.J. 438, 461 (1998), the Supreme Court held that "if the parole warrant is withdrawn thereafter or parole is not revoked," the jail time otherwise attributed to the parole violation "should be credited against the new sentence." The State responds that this case does not fall within Black "because [defendant] completed that sentence before revocation proceedings could be concluded."
The record presented is insufficient for us to make a determination on this issue. We, therefore, remand for the trial court to reconsider the question of jail credits in light of Black and to conduct a hearing, if necessary, to determine whether the 177 days should be credited to the parole violation or to this sentence.
The conviction is affirmed; the matter is remanded for reconsideration of defendant's jail credits.
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