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State v. Primus

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


August 12, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
DRAKE PRIMUS, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 02-09-1185.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted July 28, 2008

Before Judges Graves and Yannotti.

Defendant Drake Primus appeals from an order entered on May 18, 2007, denying his petition for post-conviction relief (PCR). We affirm.

Passaic County Indictment No. 02-09-1185 charged defendant with fourth-degree possession of a controlled dangerous substance (CDS) (marijuana) with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and (b)(12) (count one); and third-degree possession of CDS (marijuana) with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7 and N.J.S.A. 2C:35-5(a) (count two). Although defendant was tried on two separate occasions, each trial resulted in a hung jury.

On September 13, 2004, pursuant to a negotiated plea agreement, defendant pled guilty to third-degree conspiracy to possess marijuana with intent to distribute within 1000 feet of school property. In return, the State agreed to recommend an eighteen-month term of probation. At his plea hearing, defendant admitted he had entered into an agreement with another individual to possess marijuana with the intent to distribute it within 1000 feet of "a functioning school," and his testimony included the following:

THE COURT: Mr. Primus, anybody force you to plead guilty?

THE DEFENDANT: No, sir.

THE COURT: Did you plead guilty of your own free will today?

THE DEFENDANT: Yes.

THE COURT: Anybody make any threats or promises to you causing you to plead guilty?

THE DEFENDANT: No.

THE COURT: You are represented by counsel, is that correct?

THE DEFENDANT: Yes.

THE COURT: Have you had enough time to talk to her about this plea?

THE DEFENDANT: Yes.

THE COURT: Has she answered all your questions to your satisfaction?

THE DEFENDANT: Yes.

THE COURT: And are you satisfied with her legal services?

THE DEFENDANT: Yes.

THE COURT: Do you have any questions you want to ask concerning your plea of guilty here today?

THE DEFENDANT: Not at this moment, sir.

THE COURT: This is the only moment you are going to have.

THE DEFENDANT: Okay.

THE COURT: Any questions that you have?

THE DEFENDANT: No.

On March 24, 2005, in accordance with his plea agreement, defendant was sentenced to an eighteen-month probationary term. Defendant returned to court, however, on February 15, 2006, for a violation of probation hearing. During that proceeding, defendant attributed his failure to report to his probation officer to his "drug habit," which prevented him from making "rational decisions." The court's findings included the following:

[Defendant] last reported to probation on May 17th of 2005. On that date, he informed the Probation Officer that he had consumed marijuana on the Sunday before. He was directed to report back on May 24th of 2005. He did not report. He had other reporting dates of June 14th, June 28th, July 12th, July 19th, and August 9th of 2005. He did not report to probation on any of those days. Probation has not seen him since May 17th of 2005.

On March 17, 2006, defendant was sentenced on the violation of probation charges. After noting it was defendant's "fifth indictable conviction," the court imposed a four-year prison term. Defendant appealed his sentence and, on August 23, 2006, following argument on the excessive sentence oral argument calendar, Rule 2:9-11, we affirmed. Defendant filed a pro se petition for PCR on November 17, 2006, which was subsequently amended by counsel. Following oral argument on May 15, 2007, the court stated:

I have reviewed every single pro se point [defendant] has raised. They are totally lacking in merit. I am going to address all of this in a written opinion that I am preparing. I have addressed each and every issue raised by [defendant's attorney]. The defendant is just making bald assertions. He is saying he received ineffective assistance of counsel. I have had nothing submitted to this [c]court remotely reaching the level where he is claiming ineffective assistance of counsel. Nothing has been presented to this [c]court.

I have addressed these issues in a written opinion which will be sent out but suffice it to say as of today, May 15th, 2007, the Motion for Post Conviction Relief is Denied.

The court entered an order, together with its written decision, on May 18, 2007.

On appeal to this court, defendant presents the following arguments:

POINT ONE

DEFENDANT WAS ENTITLED TO A FULL EVIDENTIARY HEARING ON HIS CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL.

POINT TWO

DEFENDANT WAS ENTITLED TO AN EVIDENTIARY HEARING AND/OR POST-CONVICTION RELIEF BASED ON THE REMAINING ARGUMENTS ADVANCED BY DEFENDANT AND DEFENSE COUNSEL.

After reviewing these contentions in light of the entire record and the applicable law, we are satisfied defendant's arguments are without sufficient merit to warrant extended discussion. See R. 2:11-3(e)(2). We therefore affirm with only the following comments.

Pursuant to the Sixth Amendment of the United States Constitution, the right to counsel is recognized as the right to the effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 684-86, 104 S.Ct. 2052, 2063-64, 80 L.Ed. 2d 674, 691-92 (1984). In Strickland, the United States Supreme Court created a two-part test to determine whether a defendant received ineffective assistance of counsel. Id. at 687, 104 S. Ct. at 2064, 80 L.Ed. 2d at 693. "First, the defendant must show that the counsel's performance was deficient" by establishing "that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Ibid. "Second, the defendant must [demonstrate] that the deficient performance prejudiced the defense" by "showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Ibid. Under this prong, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698; see also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland test and applying it to the guarantee of effective assistance of counsel in Article I, Paragraph 10 of the New Jersey Constitution).

"[T]rial courts ordinarily should grant 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 a prima facie claim of ineffective assistance of counsel, a defendant must demonstrate the reasonable likelihood of [success]." Id. at 463; see also State v. Marshall, 148 N.J. 89, 158 ("The purpose of an evidentiary hearing is to permit the defendant to prove that he or she was improperly convicted or sentenced; it is not an occasion for the defendant to question witnesses in an indiscriminate search for additional grounds for post-conviction relief."), cert. denied, 522 U.S. 850, 118 S.Ct. 140, 139 L.Ed. 2d 88 (1997).

Applying these principles to this case, we are convinced the record fully supports the PCR court's conclusion that defendant failed to demonstrate a reasonable likelihood of success under the Strickland/Fritz test. "Neither the Sixth Amendment nor our rules call for an attorney to be 'effective' in terms of crafting a defense when none actually exists."

State v. Velez, 329 N.J. Super. 128, 133 (App. Div. 2000). We therefore affirm the order denying defendant's PCR petition substantially for the reasons stated by the trial court in its sixteen-page written decision on May 18, 2007.

Affirmed.

20080812

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