On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 05-05-1161-C.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: December 9, 2009
Before Judges Axelrad and Sapp-Peterson.
Defendant Christopher Jones appeals from the November 30, 2006 order denying his petition for post-conviction relief (PCR), in which he claimed ineffective assistance of trial counsel resulting in his guilty plea. Defendant challenges the court's failure to conduct an evidentiary hearing and its denial of his PCR motion. We affirm.
Atlantic County Indictment No. 05-05-1161-C charged defendant with third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b (count one); and second-degree possession of a weapon (a firearm) by a convicted felon, N.J.S.A. 2C:39-7b (count two). According to the arrest reports prepared by the sheriff's officers, they arrived at an apartment in Atlantic City where they believed defendant to be to serve several active bench warrants for defendant's arrest for narcotics offenses and eluding a law enforcement officer. While standing outside the apartment door, the officers heard the voices of a male and female talking inside. Shortly thereafter, the door opened and defendant attempted to exit the apartment. The officers identified themselves and advised defendant he was under arrest for outstanding bench warrants. Defendant was immediately placed in custody. A search by Officer Steve Melchiore revealed a loaded, semi-automatic handgun in defendant's right rear pants pocket.
Pursuant to a negotiated plea, defendant pled guilty to possession of a firearm by a convicted felon and at sentencing on February 3, 2006, received a five-year prison term with a five-year parole disqualifier, concurrent to the sentence he was serving for his violation of probation, and the first count of the indictment was dismissed. Defendant was also given jail credit for 301 days, as contemplated by the plea agreement.
Six months later, defendant filed a PCR petition alleging ineffective assistance of trial counsel for failing to adequately discuss with him the efficacy of a motion to suppress and failing to file such motion based on the officers' warrantless entry into a third party's house for the purpose of arresting him on an arrest warrant. Defendant conceded that he and his trial counsel may have discussed the suppression issue, but asserted as ineffective assistance his counsel's failure to consider or discuss with him the seminal cases of Steagald v. United States, 451 U.S. 204, 205, 101 S.Ct. 1642, 1644, 68 L.Ed. 2d 38, 41 (1981) and State v. Miller, 342 N.J. Super. 474, 495 (App. Div. 2001), which held that, absent special circumstances, the police were constitutionally prohibited from entering a third party's residence without a search warrant for the purpose of searching for the subject of an arrest warrant.
In support of his claim that these cases were directly on point, defendant submitted a certification from his friend, Nicole Troller, regarding the sequence of events surrounding defendant's arrest and the discovery of the handgun on his person. She stated that the subject apartment was hers and that defendant had breakfast with her and her son there on the morning in question. Sometime after breakfast, defendant informed her he had to leave, and he put on his jacket and opened the apartment door. Instead of leaving, he stood there and began speaking with a man who was outside the door. Two officers then walked into her apartment and told defendant they had warrants for his arrest. While in the apartment the officers let defendant smoke a cigarette, then indicated it was time to leave and searched defendant and found a gun on him. Defendant was then handcuffed and removed from Troller's apartment.
Defendant's trial counsel certified that he discussed with defendant the filing of a suppression motion and the unlikely success of such a motion based on the discovery materials and the applicable case law, as well as his concern that the motion would jeopardize his efforts at seeking a favorable plea. Although he and defendant did discuss applicable case law, defense counsel acknowledged that he did not consider or discuss with him the Steagald or Miller cases.
In ruling on defendant's PCR application, Judge Michael Connor found, for purposes of the motion, that the first prong of the Strickland test had been met as defendant's trial counsel should have been familiar with those cases. See Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S.Ct. 2052, 2064, 2068, 80 L.Ed. 2d 674, 693, 698 (1984), adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 52 (1987) (In order to prevail on a claim of ineffective assistance of counsel, a defendant must meet the two-prong test of establishing both that: (1) counsel's performance was deficient and he or she made errors that were so serious that counsel was not functioning effectively as guaranteed by the Sixth Amendment to the United States Constitution, and (2) the defect in performance prejudiced the defendant's rights to a fair trial such that there exists a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."). The court, however, found that the second prong of the test had not been met as defendant voluntarily opened the door of his friend's apartment and was standing in the threshold, which has been recognized as a public place for purposes of officers executing an arrest warrant without the necessity of a search warrant because of the lack of the person's reasonable expectation of privacy at that location. See United States v. Santana, 427 U.S. 38, 42, 96 S.Ct. 2406, 2409, 49 L.Ed. 2d 300, 305 (1976); State v. Nikola, 359 N.J. Super. 573, 582 (App. Div.), certif. denied, 178 N.J. 30, (2003). Accordingly, as defendant's location in the open doorway when he was confronted by the officers serving the outstanding arrest warrants was undisputed, the court concluded there was no reason to hold an evidentiary hearing and denied defendant's PCR application. This appeal ensued.
Defendant submits a pro se brief which, in essence, reiterates the arguments made in his counsel's brief on appeal. Defendant argues on appeal that at a minimum he was entitled to an evidentiary hearing. He further contends the court erred in failing to analyze the issues of Troller's consent for the officers to enter her apartment, hot pursuit, or other exigent circumstances. Defendant insists that this case is controlled by the Steagald and Miller cases because he was arrested and searched in Troller's apartment. He contends that because there was no search warrant the arrest was illegal and, therefore, the seizure of his gun was inadmissible. Defendant urges that the deficient performance of his counsel was clearly capable of changing the result of the proceedings because without the gun in evidence there would have been no case against him and he would not have pled guilty.
We are satisfied from our review of the record that defendant failed to make a prima facie showing of ineffectiveness of trial counsel within the Strickland/Fritz test. See State v. Preciose, 129 N.J. 451, 462-63 (1992). To establish such a prima facie claim, a defendant must demonstrate a "reasonable likelihood that his or her claim will ultimately succeed on the merits." State v. Marshall III, 148 N.J. 89, 158 (1997). However, "[i]f the court perceives that holding an evidentiary hearing will not aid the court's analysis of whether the defendant is entitled to post-conviction relief . . . then an evidentiary hearing need not be granted." Ibid. (internal citations omitted). As Judge Connor correctly determined, convening an evidentiary hearing would have served no purpose since the material issues submitted did not raise an issue of fact as to defendant's location when the outstanding arrest warrants were served on him and did not provide a prima facie factual basis for a successful motion to suppress.
Moreover, there is substantial credible evidence in the record to support the PCR judge's conclusion that as a matter of law defendant's suppression motion would not have been successful. Accordingly, the court correctly determined that even assuming there was deficient performance by trial counsel regarding lack of knowledge of the Steagald and Miller ...