On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 04-04-00304.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 29, 2007
Before Judges Parrillo and Alvarez.
Defendant, Dennis Jenkins, appeals from a June 27, 2006 order denying his petition for post-conviction relief (PCR), which contended, among other things, that his attorney's failure to file a motion to suppress evidence constituted ineffective assistance of counsel within the meaning of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984). No evidentiary hearing was conducted by the motion judge. We are constrained to reverse and remand for purposes of conducting an evidentiary hearing.
Defendant entered guilty pleas to fourth-degree possession of a weapon by a convicted person, N.J.S.A. 2C:39-7(a); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d); third-degree burglary, N.J.S.A. 2C:18-2(a); and fourth-degree theft, N.J.S.A. 2C:20-3. A related disorderly persons charge of possession of burglary tools, N.J.S.A. 2C:5-5(a), was dismissed as part of the negotiated agreement. Defendant, who had been previously convicted of seven indictable charges, was sentenced to a four-year term of imprisonment on the burglary count plus concurrent twelve-month terms on the remaining counts of the indictment. No direct appeal was ever taken.
On March 26, 2004, Investigator Michael Price of the Franklin Township Police Department received a call from an informant that defendant and his co-defendant, Lionel Stokes, were going to "maybe burglarize" in an area where the informant had just dropped them off in the middle of the night. While a confidential informant's identity is not usually disclosed, see N.J.R.E. 516, here, Keith Crandle, the driver of the car, readily acknowledges his role in the matter. Police told Crandle to notify them when defendant and Stokes called him for a ride home, which he did. Once alerted, the authorities pulled the vehicle over at approximately 3:45 a.m., apparently smashing in the front bumper and light of the driver's side of Crandle's car in the process. Crandle, defendant, and Stokes were all ordered to step outside of the vehicle. Although the record we have available does not explain the manner in which this occurred, police seized a flare gun and five cartridges from defendant's fanny pack.
In its brief, the State alleges that Crandle told police that defendant may be carrying a weapon, but nothing in the record before us corroborates the assertion. In Crandle's statement to the police given the day of the incident, he says only that he was asked to give defendant and Stokes a ride and that they were going to burglarize cars. No mention is made of either man being armed or of their having a center punch*fn1 in their possession. Crandle found a center punch in his car after the stop and turned it over to police.
After the police seized the flare gun and cartridges, they then looked in the vehicle. Up to this point, no reports had been made of any burglaries in the neighborhood. The officers saw fifty-two dollars in casino chips located in the center console of Crandle's vehicle, and since no one admitted ownership, they too were seized. The casino chips, it later developed, were stolen from a burglarized vehicle parked in the area where Crandle dropped off defendant and Stokes. The three men were permitted to return to the vehicle and no one was charged that night. A summons and complaint charging defendant was issued a few days later.
The relevant principles are familiar. In order to succeed on a claim of ineffective assistance of counsel, defendant must establish that his counsel's performance was seriously deficient and that the deficient performance prejudiced his right to a fair disposition of the charges. Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693; State v. Fritz, 105 N.J. 42, 58 (1987). Plea bargaining is a "critical stage" of the proceedings at which time the right to constitutionally effective representation attaches. State v. Taccetta, 351 N.J. Super. 196, 200 (App. Div.) (citing State v. Powell, 294 N.J. Super. 557, 564 (App. Div. 1996)), certif. denied, 174 N.J. 544 (2002). Trial courts ordinarily should grant requests for "evidentiary hearings to resolve ineffective-assistance-of-counsel claims if a defendant has presented a prima facie claim in support of post-conviction relief." State v. Preciose, 129 N.J. 451, 462 (1992). To establish such a claim, a defendant "must demonstrate the reasonable likelihood of succeeding under" the Strickland test. Id. at 463 (citing Strickland, supra, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698; United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed. 2d 657 (1984); Fritz, supra, 105 N.J. at 58).
Though failure to file a suppression motion is not per se ineffective assistance of counsel, it can be ineffective assistance of counsel under certain circumstances. Kimmelman v. Morrison, 477 U.S. 365, 384, 106 S.Ct. 2574, 2587-88, 91 L.Ed. 2d 305, 324-25 (1986). When a defendant asserts that defense counsel's failure to litigate a search and seizure issue was ineffective assistance, he "'must also prove that his Fourth Amendment claim is meritorious and that there is a reasonable probability that the verdict would have been different absent the excludable evidence in order to demonstrate actual prejudice.'" State v. Johnson, 365 N.J. Super. 27, 35 (App. Div. 2003) (quoting Kimmelman, supra, 477 U.S. at 375, 106 S.Ct. at 2583, 91 L.Ed. 2d at 319), certif. denied, 179 N.J. 372 (2004).
The police discovered defendant's flare gun during a search of the three men conducted after the motor vehicle stop. A pat-down search is permitted when an officer has a "'reasonable suspicion that defendant [is] armed and dangerous.'" State v. Roach, 172 N.J. 19, 27 (2002) (quoting State v. Thomas, 110 N.J. 673, 683 (1988)). "The existence of an objectively reasonable suspicion is based on the totality of the circumstances." Ibid. (citing State v. Valentine, 134 N.J. 536, 546 (1994)). This "test 'balanc[es] the State's interest in effective law enforcement against the individual's right to be protected from unwarranted and/or overbearing police intrusions.'" Ibid. (quoting Valentine, supra, 134 N.J. at 546) (alterations in original). Thus, the standard for a protective search "'is whether a reasonably prudent man in the circumstances would be warranted in his belief that his safety or that of others was in danger.'" Ibid. (quoting Valentine, supra, 134 N.J. at 543).
Defendant contends, however, that "[t]here was no basis in the record of any specific facts leading to any reasonable inference that [he] was armed to justify a limited protective search." Crandle claims that he did not tell law enforcement that his passengers might be armed. The State maintains to the contrary, that the informant told police "that the defendant may be carrying a weapon" and that the officers had independently corroborated "all of the other information provided by the informant." The State's position is that the officers, "with knowledge of defendant's criminal history for robbery and assault*fn2 . . . lawfully ordered defendant out of the car and conducted a 'pat-down' frisk of his person for weapons." This too is an issue about which there is a very significant material dispute. In the absence of an evidentiary hearing during which the lawfulness of the stop can be fully explored, the PCR could not be fairly decided.
The State's plea offer was contingent upon no additional proceedings being required in the matter other than the entry of a guilty plea and sentencing. This included a hearing on a motion to suppress. In an investigator's report attached as an exhibit to the amended PCR application, defendant's trial counsel is ...