Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.

State v. Bell

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


January 4, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
MICHAEL BELL, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 98-10-0966.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 15, 2007

Before Judges Stern and A. A. Rodríguez.

Defendant Michael Bell appeals from the April 4, 2005 order denying his petition for post-conviction relief (PCR) and the March 7, 2006 order denying his motion for a new trial and to correct an illegal sentence. He also challenges his sentence. We affirm the denial of PCR, but remand for re-sentencing.

In 2001, following a jury trial, defendant was convicted of several counts of third-degree possession of CDS, N.J.S.A. 2C:35-10a(1) (counts 1, 3, 5, 7, 9, 11, 13 and 15); third-degree distribution of CDS, N.J.S.A. 2C:35-5b(3) (counts 2, 4, 6, 8 and 10); second-degree distribution of CDS, N.J.S.A. 2C:35-5b(2) (counts 12 and 14); and first-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5b(1) (count 16). Judge Joseph P. Testa merged counts 1, 3, 5, 7, 9, 11 and 13 and imposed a life term with a twenty-five year period of parole ineligibility, concurrent to a ten-year term for the second-degree distribution charges and concurrent to a five-year term for the third-degree distribution charges. We affirmed on direct appeal. State v. Bell, No. A-4935-00T3 (App. Div. June 30, 2003), certif. denied, 178 N.J. 251 (2003).

The facts surrounding the offenses are set forth fully in our opinion on direct appeal. The salient points are that in 1998, an informant, Nestor Andrasz, Jr., told Cumberland County Sheriff's Sergeant Paul LaValle, that defendant was trafficking in cocaine. As a result, LaValle arranged for several controlled purchases from defendant. One was for half an ounce of cocaine for $450 at defendant's home. There were six more purchases at various locations, two of which were at defendant's home. After the final sale, LaValle prepared an affidavit to obtain a search warrant for defendant's home. However, Investigator Brian Facemeyer received information that defendant would be traveling to Philadelphia in either his Lexus or Andrasz's Nissan. The officers decided to stop defendant and Andrasz upon their return.

According to the testimony developed at a hearing on a pretrial motion to suppress:

Vineland Police Detective Joseph Valentine, was part of the surveillance team. Eventually, he saw defendant and Andrasz returning in the Nissan. Valentine stopped the Nissan as it neared defendant's home. Defendant was driving the Nissan. Andrasz was the passenger. When the vehicle was stopped, Andrasz ran away. Valentine tackled him to the ground. While on the ground, Andrasz told Valentine that the cocaine was hidden under the hood of his Nissan. Valentine relayed this information to a fellow officer, Captain John Mazzeo. Mazzeo opened the hood and removed a black package[*fn1 ] . . . [which] contained five and one-half ounces of cocaine. Defendant was arrested.

A search warrant was issued [for defendant's home]. Drug Enforcement Agent Mark Wassmuth recovered a bag of white rocky substance from a loose vent in defendant's home. It was later determined that the bag contained twenty-four grams of cocaine.

Judge George H. Stanger, Jr. denied defendant's motion, finding probable cause to stop the Nissan and that the "automobile exception" justified the warrantless search of the Nissan.

Defendant filed a first PCR petition. Following oral argument, Judge Timothy G. Farrell issued a written opinion denying defendant's PCR petition without holding an evidentiary hearing. Judge Farrell found that: (1) an evidentiary hearing was not necessary because defendant failed to present a prima facie case on any of his claims; (2) defendant is barred pursuant to R. 3:22-5 from challenging the denial of his motion to suppress because the issue was adjudicated on direct appeal; (3) defendant's challenge to the extended-term sentence is barred for the same reasons, R. 3:22-4 & -5; and (4) defendant's ineffective assistance counsel claims are similarly barred because the alleged deficiencies were raised on direct appeal and to the extent they were not, they could have been raised.

R. 3:22-4 & -5.

Several months later, defendant moved pro se for a new trial and to correct an illegal sentence. Judge Farrell denied these motions and issued another written opinion. Judge Farrell found that the sentencing argument should have been made on direct appeal and was thus procedurally barred. Upon reviewing the video of the sentencing hearing, the judge found that his pronouncement was accurately reflected in the judgment of conviction, although the transcript is incorrect. Judge Farrell also rejected defendant's argument that his life sentence is unconstitutional, noting that he had previously rejected this same argument in the written opinion denying defendant's petition for PCR. Judge Farrell also denied the motion for a new trial as untimely and without merit. He reasoned that any facts relied upon by defendant were not new, but available to defendant during the past three years. Therefore, the motion was time-barred. R. 3:20-2.

On the appeal bearing docket #A-5319-04T4 defendant contends:

THE [PCR] COURT ERRED IN NOT GRANTING [DEFENDANT'S] PCR PETITION BECAUSE THE TRIAL COURT SHOULD HAVE GRANTED [DEFENDANT'S] MOTION TO SUPPRESS AS A MATTER OF LAW.

We note that on direct appeal, defendant argued that his motion to suppress should have been granted. We disagreed. Therefore, defendant is procedurally barred from raising this claim on PCR pursuant to R. 3:22-5.

Moreover, on the merits the motion was properly denied. The search was valid because the person who gave consent did so freely and voluntarily and had a sufficient relationship with the property to permit the search. State v. Douglas, 204 N.J. Super. 265, 276 (App. Div.), certif. denied, 102 N.J. 378 (1985). Defendant is deemed to have assumed the risk that a co-occupant might permit a search. Id. at 277 (quoting 2 LaFave, Search and Seizure at 698 (1978)). By working with the police in this case, Andrasz's consent to search, albeit implied, was freely and voluntarily given. See State v. Koedatich, 112 N.J. 225, 264 (1988), cert. denied, 488 U.S. 1017, 109 S.Ct. 813, 102 L.Ed. 2d 803 (1989). Although defendant may have felt duped after the fact, the law provides him no redress for his misplaced trust. State v. Anglada, 144 N.J. Super. 358, 363 (App. Div. 1976). See also, State v. McKnight, 52 N.J. 35, 52 (1968) ("The Constitution is not at all offended when a guilty man stubs his toe.").

Defendant also contends:

THE INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL DEPRIVED [DEFENDANT] OF A FAIR TRIAL AND RENDERED THE JURY'S VERDICT AS FUNDAMENTALLY UNRELIABLE.

Defendant argues that trial counsel failed to inform him that, if convicted, he would be eligible for an extended term of imprisonment pursuant to N.J.S.A. 2C:43-6f and -7a(2). However, only "an attorney's gross misadvise of sentencing exposure that prevents defendant from making a fair evaluation of a plea offer and induces him to reject a plea agreement he otherwise would likely have accepted constitutes remediable ineffective assistance." State v. Taccetta, 351 N.J. Super. 196, 200 (App. Div.), certif. denied, 174 N.J. 544 (2002). In Taccetta, where such misadvise of sentencing exposure was alleged, petitioners provided the court with affidavits or certifications outlining their mistakes and their misadvise. Id. at 199.

Here, defendant has provided no such support. In fact, the record suggests that defendant was aware that he was facing an extended term; for example: (1) the colloquy between trial counsel, the prosecutor and Judge Testa regarding more preemptory strikes for the defendant given the real possibility that defendant is extended-term eligible if convicted; and (2) the colloquy at the suppression hearing where the ramifications of rejecting the State's offer were discussed. We have not been provided with a copy of the pretrial conference argument. Thus, we are unable to determine if the procedure outlined in R. 3:9-1(b) was followed. We conclude that defendant does not make a prima facie showing that his counsel misadvised him leading to a mistaken choice by defendant.

Defendant also fails to make a prima facie showing that he suffered prejudice. In his PCR brief, defendant argues, "[h]ad Bell not relied on this misinformation from counsel, it would have made a significant difference in Bell's decision not to plead." However, defendant rejected two previous plea offers which were more advantageous than the final offer. Moreover, just before trial, defendant professed his innocence.

Defendant also argues that trial counsel was ineffective in that he failed to challenge the claim of custody of the cocaine seized from the Nissan. This claim is procedurally barred because it was raised on direct appeal. R. 3:22-5. We rejected this claim, finding defendant suffered no prejudice because the evidence would have been admitted, even had trial counsel objected. Prejudice is a necessary element to showing unconstitutional ineffectiveness. See Strickland v. Washington, 466 U.S. 668, 691-92, 104 S.Ct. 2052, 2067, 80 L.Ed. 2d 674, 696 (1984).

Defendant also claims ineffective assistance based on the fact that trial counsel called defendant to the witness stand and then excused him. We addressed this issue in the content of a failure to grant a mistrial sua sponte. We found this claim unpersuasive, concluding:

Defendant has made no showing of how he has been prejudiced. Further, the judge charged the jury that they were not to consider defendant's decision not to testify. Even if it was prejudicial to highlight defendant's election not to testify, this charge would cure such prejudice. State v. Zapata, 297 N.J. Super. 160, 176 (App. Div. 1997), certif. denied, 156 N.J. 405 (1998).

Because this issue has been decided on direct appeal, R. 3:22-5 bars defendant from raising it in a PCR petition.

Defendant also contends that:

[HIS] SENTENCE WAS UNCONSTITUTIONAL AND, THEREFORE, SHOULD BE VACATED.

A. [DEFENDANT'S] SIXTH AMENDMENT RIGHT TO A JURY TRIAL WAS VIOLATED BY THE SENTENCING JUDGE IN LIGHT OF THE UNITED STATES SUPREME COURT DECISIONS IN BLAKELY AND BOOKER.

B. AS A MATTER OF LAW, THE FAILURE TO SUBMIT N.J.S.A. 2C:44-1a'S AGGRAVATORS TO THE JURY CAN NEVER BE CONSIDERED HARMLESS ERROR.

C. [DEFENDANT'S] SENTENCE WAS EXCESSIVE AND UNFAIR.

On the appeal bearing docket #A-4842-05T4, defendant contends:

[DEFENDANT'S] SENTENCE WAS UNCONSTITUTIONAL AND, THEREFORE, SHOULD BE VACATED.

A. [DEFENDANT'S] SIXTH AMENDMENT RIGHT TO A JURY TRIAL WAS VIOLATED BY THE SENTENCING JUDGE IN LIGHT OF THE UNITED STATES SUPREME COURT DECISIONS IN BLAKELY AND BOOKER.

B. AS A MATTER OF LAW, THE FAILURE TO SUBMIT N.J.S.A. 2C:44-1a'S AGGRAVATORS TO THE JURY CAN NEVER BE CONSIDERED HARMLESS ERROR.

We agree that as to the quantum of the extended term, defendant is entitled to a remand pursuant to State v. Pierce, 188 N.J. 155 (2006), and State v. Thomas, 188 N.J. 137 (2006), which apply State v. Natale, 184 N.J. 458 (2005) to extended terms. In Thomas, supra, 188 N.J. at 152, the Court held that a mandatory extended term pursuant to N.J.S.A. 2C:43-6f is constitutionally permissible because it is based on a prior conviction. However, the fixing of the specific term is subject to the process prescribed in Natale. The Natale retroactivity principles apply to extended terms. See Thomas, supra, 188 N.J. at 152.

Here, because defendant raised an Apprendi*fn2 claim on his direct appeal, he is entitled to reconsideration of the length of the extended term.

Defendant also contends that:

THE TRIAL COURT ERRED IN DENYING [DEFENDANT'S] MOTION FOR A NEW TRIAL.

We disagree. Defendant is time-barred from moving for a new trial.

A party must file a motion for a new trial within ten days after the verdict, unless the basis is newly-discovered evidence. R. 3:20-2. We agree with Judge Farrell's finding that defendant had presented no newly-discovered evidence. Therefore, the motion is time-barred.

Defendant has filed two pro se supplemental briefs raising these points, which are largely duplicative of issues raised in counsel's brief:

APPELLATE COUNSEL WAS INEFFECTIVE FOR FAILING TO ARGUE THE ILLEGAL SEARCH OF THE BLACK BAG FOUND IN THE VEHICLE APPELLANT WAS DRIVING REVERSAL REQUIRED BECAUSE DEFENDANT'S MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED IN THAT THE CONFIDENTIAL INFORMANT COULD NOT CONSENT TO THE SEARCH OF THE BLACK BAG WITHOUT VALID WARRANT AND THE WARRANT TO SEARCH THE DEFENDANT'S HOME WAS FRUIT OF THE POISONOUS TREE.

AN EVIDENTIARY HEARING SHOULD BE GRANTED BECAUSE THE PCR COURT MISINTERPRETED THE MATERIAL FACTS IN ITS OPINION.

THE COURT COMMITTED PLAIN ERROR WHEN IT ALLOWED EVIDENCE IN WITHOUT CONDUCTING A PROPER HEARING TO DETERMINE PREJUDICE. THE COURT VIOLATED APPELLANT'S 14TH AMENDMENT RIGHT TO DUE PROCESS UNDER THE UNITED STATES CONSTITUTION; AND N.J. CONSTITUTION, ART. 1 PARA. 1 THEREFORE THE PCR COURT SHOULD HAVE GRANTED AN EVIDENTIARY HEARING. INEFFECTIVE ASSISTANCE OF TRIAL AND APPELLATE COUNSEL BY FAILING TO OBJECT TO THE COCAINE, THE POLICE SCANNER, AND THE DRUG PARAPHERNALIA BEING ENTERED AS EVIDENCE.

DEFENDANT IS ENTITLED TO A HEARING TO PROVE UNLAWFUL CONSENT BY INFORMANT, AND THAT THE STATE DID NOT SATISFY ITS BURDEN OF PROVING CONSENT IN THE TRIAL COURT.

THE APPELLANT'S SENTENCE IS ILLEGAL WITH REGARD TO COUNT 16. HE WAS FOUND GUILTY OF SIMPLE POSSESSION BY WAY OF THE JURY VERDICT, AND NOT POSSESSION WITH INTENT TO DISTRIBUTE (NOT RAISED BELOW).

We conclude that these arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Accordingly, the denial of PCR is affirmed as to all issues with the exception of defendant's sentence. On that issue we remand to the Law Division, Cumberland County, to determine the quantum of the extended term pursuant to Pierce and Thomas. We do not retain jurisdiction.


Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.