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State v. Myrick

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


February 13, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
CRAIG MYRICK, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 00-05-00531.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 7, 2008

Before Judges Sabatino and Alvarez.

This is an appeal from the denial of a petition for post-conviction relief (PCR) by defendant, Craig Myrick, after evidentiary hearing. We affirm.

Defendant was charged by Middlesex County Indictment 00-05-00531 with fourth-degree possession with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(12), and third-degree possession with intent to distribute on or near school property, N.J.S.A. 2C:35-5(a) and N.J.S.A. 2C:35-7. Pursuant to a negotiated plea agreement, on August 11, 2000, defendant pled guilty to the school zone offense. The State, in turn, agreed to dismiss the other charge contained in the indictment and to recommend a sentence of three years with one year of parole ineligibility together with appropriate fines and penalties. On October 25, 2000, defendant was sentenced in accordance with the plea agreement.

Defendant did not file a direct appeal. Instead, on July 23, 2004, he filed a PCR petition, asserting that he was denied effective assistance of counsel. Following an evidentiary hearing, the application was denied.

On appeal, defendant raises the following the points:

POINT I

THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN DENYING DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF AS HE WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE FEDERAL AND STATE CONSTITUTION.

POINT II

DEFENDANT IS ENTITLED TO WITHDRAW HIS GUILTY PLEA BECAUSE IT WAS NOT VOLUNTARY AND INTELLIGENT.

By way of pro se supplemental brief, defendant raises the following points:

POINT I

AT THE EVIDENT[I]ARY HEARING DAVID OAKLEY[']S TESTIMONY GAVE VERY CONFLICTING ACCOUNTS OF WH[A]T HE DID AND DID NOT DO TO ENSURE THAT I RECEIVED A FAIR AND IMPARTIAL TRIAL.

POINT II

COUNSEL[']S PERFORMANCE WAS DEFICIENT FOR HE FAILED TO CHALLENGE COUNT 2 OF THE INDICTMENT CHARGING [POSSESSION] WITH INTENT.

The complaint of ineffective assistance of trial counsel stems from defendant's contention that his attorney failed to pursue a viable motion to suppress and that the omission occurred without his consent.

Defendant was represented by two successive attorneys, the first of whom withdrew for personal reasons before the plea was entered. Both attorneys testified at the PCR hearing, as did defendant. During his testimony, defendant claimed that he repeatedly told his second attorney that he knew there was something wrong with the search conducted by the officers in the case, although his concerns were allegedly ignored. He claimed he would not have agreed to plead guilty had the legal options been explained to him.

Defendant's first attorney recalled filing a motion to suppress. The motion was never heard by the court because of the ensuing plea agreement. Defendant's second attorney, who represented him through sentence, also testified, and his testimony was in stark contrast to defendant's version of events. He distinctly recalled discussing the matter in "excruciating detail" with defendant. He even remembered that defendant was in business for himself at the time the case was pending. The second attorney testified that he discussed the "more than colorable suppression motion" with defendant, as well as the fact that he was extended-term eligible because of his prior criminal history. N.J.S.A. 2C:43-6(f). He recalled explaining to defendant that if the motion to suppress was denied, and he was sentenced as an extended-term offender in the second-degree range, that his imprisonment would obviously be for a substantially longer time than he would receive if he accepted the plea offer. He also testified that, in his view, it was the client's decision to make, and one that he customarily would have left to the client's discretion.

The PCR court found the testimony of the attorneys to be credible, and that of defendant to be incredible. In addition to the usual considerations in making a credibility assessment, the court relied upon the following colloquy, taken from the transcript of the August 11, 2000, plea proceeding:

[DEFENSE COUNSEL:] Really briefly, I want to put on the record, that the initial offer in this case, under the Brimage guidelines was seven years, with 30 months of parole ineligibility. That was the pre[i]ndictment offer. Judge, I've been through the law, the Fourth Amendment, concerning arrests and searches of persons with my client. And, also, with the Prosecutor. And it is, on that basis, that the offer was proffered.

Any my client understands that he's passing up - - Well, certainly a viable motion to suppress.

THE COURT: He is giving up his right to have a motion to suppress. Correct?

THE DEFENDANT: Yes.

THE COURT: All right. Very good. Thank you.

The motion judge's finding as to credibility is entitled to great deference in the ordinary case. State v. Cerefice, 335 N.J. Super. 374, 383 (App. Div. 2000). Here, defendant's second attorney's recollection, corroborated by the recorded exchange at the plea hearing between him and the court on the subject of the motion to suppress, establish beyond any doubt the correctness of the judge's ruling.

In order to succeed on a claim of ineffective assistance of counsel, a 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 v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42 (1987). In this case, no deficiency has been established. Understandably, defendant made the choice of foregoing the risks associated with litigation in exchange for a substantially reduced sentence. Since no errors were committed by counsel, the first requirement of Strickland has not been met.

We therefore affirm, substantially for the reasons expressed by the motion judge.

Affirmed.

20080213

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