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State v. Brimage


January 8, 2010


On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 03-12-2392.

Per curiam.


Argued October 1, 2009

Before Judges C.L. Miniman and Waugh.

Defendant Enoch Brimage appeals from the denial of his application for post-conviction relief (PCR) based on the ineffective assistance of trial and appellate counsel. He also asserts on appeal that his PCR counsel was ineffective, an issue not raised before the PCR judge. We now affirm.


Because defendant pled guilty to the charges against him, we draw the relevant facts from the police reports, witness statements, defendant's statements, and the plea hearing. On August 4, 2003, an officer from the Neptune City Police Department telephoned the Township of Ocean Police Department to relate that a resident of the Hampshire Gardens apartment complex had reported a suspicious person, described as a black male, five feet ten inches tall, stocky, with a shaved head, wearing a baseball hat backwards. The resident provided the police with a license plate for the person's car and, when shown a composite sketch from an April 21, 2003, burglary in Ocean Township, stated that it was a sketch of the suspicious person he had observed. The license plate of the car identified Lisa Bass-Brimage as the lessee of the car, a 2003 green, four-door, Chevrolet Malibu registered at a Long Branch address. Investigation revealed that defendant, who had numerous drug and burglary arrests, including one for burglary and theft on July 10, 2003, in Woodbridge, occasionally gave the same Long Branch address.

On August 6, 2003, detectives from Ocean Township, Neptune City, Eatontown, and Long Branch met and discussed the rash of burglaries in their municipalities. All four police departments had burglaries where witnesses described either a five-foot, ten-inch tall, black male weighing 220 pounds with a shaved head or a green, four-door Chevrolet as involved in the burglaries. The Long Branch detective produced printouts of pawns made by defendant at a pawn shop in his municipality. One of the Ocean Township detectives reported that he had observed defendant in a garden apartment complex on March 17, 2003, and had made note of the same license plate. A burglary in that complex was discovered later that day.

The detectives formed a task force targeting defendant as the suspect who committed the reported burglaries in their municipalities. They set up surveillance at Lisa Bass-Brimage's home on August 11, 2003, and at various apartment complexes. At 1:00 p.m., an officer observed defendant in the green Chevrolet pull out of a garden apartment complex off Route 35 and followed him to a gas station. After defendant left the gas station, he drove into a very large apartment complex, where the police lost track of his car. The officers broke for the day around 3:00 p.m. Four hours later, a burglary in that apartment complex was reported. The officers decided to follow defendant the next day.

On August 12, 2003, the task force located defendant's car at his home and set up surveillance. By then, the task force was comprised of ten detectives from four municipalities plus a helicopter from the Monmouth County Shade Tree Commission and its pilot. Defendant, Lisa Bass-Brimage, and her daughter left their home around 9:30 a.m. The police tailed them throughout the day. After dropping the daughter off at a Pathmark in Eatontown, defendant drove through Eatontown, Ocean Township, Neptune, and Asbury Park until defendant parked his car in Neptune, exited his vehicle, and disappeared into a backyard. He returned a short while later and the police followed him onto Main Street in Bradley Beach.

Defendant then drove through Bradley, Avon, Belmar, and into South Belmar, where he began to drive through side streets. He then parked on Main Street and entered an apartment complex on foot, where he disappeared for a short time. When he returned, he got in the car and drove to Avon and parked on a street facing the ocean. He exited the vehicle, walked around an apartment building, and then entered the building. He was inside the building for about twenty minutes before he was observed exiting the building carrying what appeared to be a jewelry box.

Defendant walked across the street and placed two small jewelry boxes on a concrete wall. He was observed speaking with pedestrians as he went through the jewelry boxes, tossing some pieces of jewelry onto the beach and placing others into a dark colored drawstring bag and a clear plastic bag. One of the two pedestrians attempted to attract the attention of a special police officer for the Avon Police Department who was directing traffic a half block away. Defendant began to walk away, threw a handful of jewelry into the street, broke into a jog, and ran to his car. The detectives in Avon recovered the jewelry boxes and jewelry, which the pedestrians reported defendant had been attempting to sell to them. They also entered the apartment building and discovered an obvious burglary on the third floor.

Meanwhile, other officers followed defendant and Lisa Bass-Brimage into Neptune. They were apprehended ten minutes after the burglary when police vehicles entered a parking lot and pulled up alongside their car. Defendant ran, discarding stolen property that had been in his possession when the police approached. A physical struggle occurred between defendant and the police, resulting in abrasions on defendant's face and knee.

Once in police custody, defendant was placed in a squad car and verbally advised of his Miranda*fn1 rights and he stated he was glad it was over. Defendant was driven to the Ocean Township Police Department, where he cleaned and bandaged his wounds. He was again advised of his Miranda rights and signed both a standard Miranda form and a permission-to-search form.

Defendant assisted the police by helping identify the homes that he had burglarized, but he had difficulty remembering the specific location of each burglary. As a solution, one detective suggested driving from location to location. During this drive, defendant was able to identify approximately seventeen locations as sites he burglarized. As to other locations, he was either unable to identify specific apartments and complexes or was unable to recall burglarizing any apartments in the areas suggested. The police again read the Miranda rights form to defendant before he made a tape-recorded confession. Defendant initialed each page of the transcript and signed the last page.*fn2

Defendant was indicted in connection with the burglary charges on December 17, 2003. The indictment contained seventy-four counts. He was charged with forty counts of third-degree burglary, contrary to N.J.S.A. 2C:18-2; one count of fourth-degree burglary, contrary to N.J.S.A. 2C:18-2; two counts of third-degree attempted burglary, contrary to N.J.S.A. 2C:5-1 and 2C:18-2; twenty-two counts of third-degree theft by unlawful taking, contrary to N.J.S.A. 2C:20-3a; seven counts of fourth-degree theft by unlawful taking, contrary to N.J.S.A. 2C:20-3a; two counts of fourth-degree credit card theft, contrary to N.J.S.A. 2C:21-6c(1); and one count of third-degree resisting arrest, contrary to N.J.S.A. 2C:29-2a.*fn3

Defendant filed pro se motions to suppress his statements to police, to suppress evidence seized, and to compel discovery.

On February 6, 2004, the prosecutor wrote to the judge noting that defendant's boilerplate motion, in which defendant's counsel had not joined, had been filed before defendant's arraignment. The prosecutor represented that all discovery had been provided to defendant's attorney. On March 19, 2004, defendant appeared before a judge to argue these motions. For some unknown reason, defense counsel never undertook to represent defendant on these motions. Defendant's certification in support of his pro se motions states that his attorney neglected to file the motion, leaving defendant to submit the motion pro se.

At the hearing, defendant appeared unprepared to argue his motions, claiming that "[n]obody told me today was my motion day." Defense counsel suggested that the court dismiss defendant's pro se motion without prejudice to allow a refiling. The judge denied this request, insisting that the motion be heard that day. The judge asked defendant to explain the basis for the motions to suppress. Defendant stated that he was not prepared and therefore had nothing to say.

The judge denied defendant's motion to compel discovery, concluding that the State had provided defense counsel with all exculpatory evidence required by Rule 3:13-3. Second, he concluded, for the reasons set forth in a written decision, that the seizure of evidence at issue was valid. In his written opinion, the judge incorporated the State's version of the facts, which he accepted as true given defendant's failure to dispute them. He concluded that defendant's arrest was lawful as the police had probable cause to believe he committed a crime based on their own observations and information provided by a victim of the theft, who also observed defendant. He found that the items seized from defendant were the fruit of a lawful search incident to defendant's arrest and that the police lawfully recovered the jewelry he dropped during his flight. The judge also determined that the search of defendant's vehicle was made after defendant gave a valid consent to the search. The judge did not address defendant's motion to suppress his confession, either on the record or in his written opinion.

Defendant signed an open-ended plea agreement dated June 2, 2005, to Indictments 03-06-1120, 03-10-1864, and 03-12-2392.*fn4

The plea agreement indicates that the maximum sentence exposure for Indictment No. 03-12-2392 was 225 years in state prison. Defendant's answer to Question No. 13 indicates that he agreed to an open-ended sentence recommendation on Indictment No. 03-12-2392 and that the prosecutor would recommend that the sentences on the two earlier indictments be concurrent to each other, to Indictment No. 03-12-2392, and to a four-year term in Middlesex County. Defendant also indicated on the plea form that he understood he might receive the maximum sentences and that no promises were made other than those mentioned on the plea form.

At the plea colloquy on June 2, 2004, the prosecutor stated the maximum sentence was 225 years for Indictment No. 03-12-2392 and that the State would argue for the maximum sentence on that indictment. Defendant indicated that he understood this and that no promises had been made to him outside the plea agreement.

Defendant was asked if he understood the effect of a plea on his right to a hearing regarding confessions made or evidence seized. Defendant's attorney examined him respecting Indictment No. 03-12-2392. Defendant affirmed that he had read his recorded confession, it was truthful and accurate, and it matched each count of the indictment. He acknowledged that burglary was entering a residence with the intent to take something and theft was actually taking something. Defense counsel asked the judge to accept that testimony as the factual basis for the plea.

The prosecutor then questioned defendant about the factual basis, beginning with the events of August 12, 2003. Defendant denied committing the August 12, 2003, crimes charged in counts 5 and 6, testifying that he only went into the vestibule of the building and did not attempt to enter the two apartments, although he acknowledged that it was his intent to commit a burglary. He admitted that he entered the apartment he was charged with burglarizing in counts 7 and 8 and that he stole multiple items of jewelry from it. He admitted walking out of the apartment, looking through the boxes, taking some of the jewelry, and leaving the scene. He admitted resisting arrest shortly thereafter, as charged in count 9, and being brought to the Ocean Township Police Department.

Defendant further testified that he provided some information to the police and agreed to assist them in identifying the burglaries he committed. The police drove him to various locations and told him about others. Defendant testified that he directed the police to a couple of locations that he remembered burglarizing. He was unsure about having burglarized other locations the police suggested he might have burglarized during the ride around various towns. Defendant acknowledged that he was pleading guilty to forty-three burglaries and attempted burglaries between November 2002 and August 12, 2003. He admitted that he committed burglaries during that time period and that he broke into garden apartments in the mornings and afternoons. He denied having a recollection of the burglary charged in count 2, but stated "it is very possible" that he committed those offenses.

When questioned about count 3, defendant initially claimed not recalling the incident but after one more prompt, he gave a detailed description of the attempted burglary on August 4, 2003. The prosecutor then turned to count 60, the burglary of the Sturiano residence in Long Branch on March 7, 2003. Defendant recalled committing that burglary and stealing a credit card, which he used later that day at a K-Mart, as charged in counts 61 and 62.

The prosecutor then questioned defendant about the burglary of the Ottly residence in Long Branch and the theft of a credit card on July 2, 2003, as charged in counts 57 and 58. Defendant recalled using the Ottly credit card at a Bedrock Café in Bradley Beach and recalled breaking into Ottly's apartment to steal it. He testified that everything he stole he sold on the street or to pawn shops to purchase drugs. Turning to August 11, 2003, and the crimes charged in counts 73 and 74, defendant admitted to breaking into the Wexel apartment in Freehold and stealing baseball tickets and other property.

Thus, defendant established a factual basis for thirteen counts of Indictment No. 03-12-2392. The counts for which he provided a testimonial basis were counts 3, 5-9, 57-58, 60-62 and 73-74. The prosecutor then asked to have defendant's statement to police and the investigation report of Detectives Weinkofsky and Six entered into evidence to supplement defendant's testimony.*fn5 Defendant's statement to police fully substantiated seven additional counts, specifically counts 12, 14, 18, 20, 64, 67, and 68. His confession partially substantiated fourteen additional counts, specifically, counts 13, 15, 19, 26, 30, 32, 33, 46-49, 59, and 71. The police investigation report provides a factual basis for twenty-three additional counts, specifically, counts 1-2, 10-11, 16-30, and 32-35. There was no factual basis for sixteen counts, specifically counts 4, 31, 50-55, 63-66, and 69-72. However, the crimes charged in counts 4 and 31 occurred on the same day as other burglaries to which defendant admitted, although the crime charged in court 4 occurred in Ocean whereas the crimes charged in counts 73-74 occurred in Freehold.

Before the conclusion of the plea hearing, defendant affirmed that he was pleading guilty because he was, in fact, guilty of each and every crime charged. The judge then concluded that a factual basis existed as to all offenses charged under all three indictments, with the exception of the dismissed forgery counts.

Defendant was sentenced on September 17, 2004. The judge found aggravating factors*fn6 three, risk of reoffense; six, prior criminal record and seriousness of offenses; and nine, need for deterring defendant and others, but found no mitigating factors.*fn7

However, the judge did credit defendant's open-ended guilty plea as the reason for the large number of charges: "Ordinarily, there would be a plea bargain entered into, and he would be here on... fewer of them." He entered a judgment of conviction and sentence that day. All told, defendant's aggregate sentence was twenty-five years in State Prison with twelve and one-half years of parole ineligibility.*fn8

On September 28, 2004, defendant's attorney wrote to him, stating: "You are correct when you state your sentence was excessive. [The judge]... gave me every indication that your sentence was going to be in the fifteen-year range. I believe he changed his mind when he [saw] the press in the front row."

Defendant timely appealed his conviction and sentence and raised the following issues on appeal:




In his supplemental pro se brief, defendant raised the following point, which we have renumbered as follows:


We held that defendant's admission to entering the vestibule of a building with intent to commit a burglary was a proper factual basis for the third-degree burglary charges of counts 5 and 6. State v. Brimage, No. A-1372-04, slip op. at 4-5 (App. Div. Apr. 21, 2006), aff'd in part and rev'd in part, 188 N.J. 347 (2006). We also held that defendant's admission to struggling with the officers supported the charge of third-degree resisting arrest in Count 9. Id. at 5. Lastly, we affirmed defendant's sentence, finding that the evidence amply supported the judge's decision to impose an aggregate of twenty-five years rather than fifteen years, and that his use of the aggravating factors in sentencing did not necessitate a remand pursuant to State v. Natale, 184 N.J. 458 (2005). Id. at 6-8. Defendant's petition for certification was granted and the Supreme Court summarily remanded to the trial court for resentencing in light of State v. Thomas, 188 N.J. 137 (2006). Brimage, supra, 188 N.J. 347.

On April 11, 2007, Defendant appeared for resentencing. Defendant's aggregate sentence was reduced from twenty-five years to twenty years. This time, the judge found one mitigating factor, defendant's cooperation with the police in entering an open plea to all seventy-four counts of the indictment, as well as his addiction contributing to the crimes. Nonetheless, he concluded that the aggravating factors still preponderated. The judge imposed essentially the same sentences, but made the sentence on count 9 run concurrent to the sentences on either counts 4 or 8.*fn9

Defendant filed a timely pro se motion for post-conviction relief. Defendant's petition alleged ineffective assistance of trial counsel on the following grounds: (1) failure to investigate allegations in the indictment and investigate statements taken from witnesses; (2) failure to communicate with defendant regarding specific allegations in the complaint; (3) failure to request a Miranda hearing; (4) incorrectly informing defendant that the open-ended plea would result in a fifteen-year sentence with seven and one-half years of parole ineligibility.

Defendant's November 30, 3007, Verified Amended Petition for Post-Conviction Relief is more specific. He verified as follows: (1) His trial attorney told him he would receive a fifteen-year sentence with seven and one-half years of parole ineligibility in exchange for his plea. (2) His trial attorney failed to request a Miranda hearing to challenge the statement he gave to the police on the ground that the police threatened him, stating that if he did not confess, the police would prosecute his wife and his children would be taken away, and the police also threatened him when he did not recognize the locations to which they took him. (3) His trial attorney never visited him in jail to discuss the numerous allegations against him and failed to investigate the alleged crimes. With respect to the failure to investigate, defendant averred: (1) Victim Brown (counts 32-33) stated that the intruder had a key. (2) Victim Ryberg (counts 16-17) stated that numerous maintenance men and contractors were in and out of his apartment during the day. (3) A witness to the Castillo robbery (count 31) described the robber as a light-skinned male, age 25-28, who ran to a green car with a handicap sticker and a "Z" in the plate number. (4) Victim Paz's husband (counts 52-53) spoke to the suspect and ascertained that his name was John and that he had been in the United States for four months. (5) Defendant was in Tennessee with his wife for Thanksgiving, creating an alibi for the crimes charged in counts 48 and 49.

Defendant's PCR application was heard on February 15, 2008. Defendant appeared with new defense counsel. As soon as both attorneys placed their appearances on the record, the judge stated that he had already prepared a written decision and limited oral argument to any additional comments counsel might have. The judge then concluded that defendant was not entitled to either an evidentiary hearing or any relief.

In the judge's subsequent written opinion denying PCR, the judge first reviewed the procedural history of the case, adopted the prosecutor's counterstatement of facts, and stated the legal standard governing the application. The judge then addressed defendant's claim that he was promised a fifteen-year sentence and the September 28, 2004, letter from plea counsel to defendant. He found that defendant indicated on his plea form that no promises had been made to him than those set forth in the plea agreement, described counsel's letter as a "sharp practice," and personally denied the allegation that he promised a fifteen-year sentence. In any event, he found the letter did not recite that counsel told defendant before his plea that he would received a fifteen-year sentence, but merely conveyed disappointment in the term imposed. He concluded that an expression of hope as to the sentence to be imposed was not ineffective assistance of counsel.

As to the suppression motion, the judge observed that defendant's counsel refused to join in the motion because he did not believe it had merit.*fn10 He noted that defendant was given a chance to argue his motion and declined to do so because he was not prepared that day. In any event, he found no merit to the claim of ineffective assistance of counsel in this respect because defendant failed to provide specific facts supported by evidence demonstrating that Miranda warnings were not properly administered before the tour of surrounding towns looking for burglary sites.

Finally, respecting defendant's claim that his counsel did not conduct a proper investigation, he found that defendant failed to allege facts sufficient to demonstrate an inadequate investigation because defendant did not submit a certification from his wife creating any alibi defense for either Thanksgiving or November 31, 2002, when defendant claimed he was in Tennessee, noting that a rental-car receipt and speeding ticket did not prove defendant was with his wife. The judge also rejected defendant's claim that his attorney did not meet with him to prepare the case because at the plea defendant testified he was satisfied with the legal services provided by his attorney. The judge found that counsel kept defendant reasonably informed about the case and maintained regular communication with him. An order denying PCR relief was entered on January 25, 2008, later amended to incorporate the judge's February 15, 2008, opinion. This appeal followed.


Defendant raises the following issues on this appeal:


A. The letter from trial counsel to defendant after sentencing supports a prima facie case of ineffective assistance of trial counsel, and the nature of the dispute between trial counsel and the trial judge requires a hearing before a neutral judge.

R. 1:12-1. (Raised below).

B. The totality of the circumstances strongly suggest that defendant was promised a reduced sentence and thereafter erroneously ple[d] guilty to all of the counts in Indictment 03-12-2392 without giving a factual basis for a majority of the offenses, and defendant was denied the effective assistance of trial, appellate and PCR counsel. (Partially raised below).

C. Defendant was denied the effective assistance of trial, appellate and PCR counsel, who failed to fully challenge the admissibility of the State's evidence, as well as to challenge the denial of defendant's right to counsel at the pretrial suppression hearing. (Partially Raised Below).

We review the legal conclusions of a PCR judge de novo. State v. Harris, 181 N.J. 391, 420 (2004) (citing Mickens-Thomas v. Vaughn, 355 F.3d 294, 303 (3d Cir. 2004); Hakeem v. Beyer, 990 F.2d 750, 758 (3d Cir. 1993)), cert. denied, 545 U.S. 1145, 121 S.Ct. 2973, 162 L.Ed. 2d 898 (2005). The same scope of review applies to mixed questions of law and fact. Ibid. (citing McCandless v. Vaughn, 172 F.3d 255, 265 (3d Cir. 1999)). We review fact-findings for clear error, ibid. (citing Burkett v. Fulcomer, 951 F.2d 1431, 1438 (3d Cir. 1991), cert. denied, 505 U.S. 1229, 112 S.Ct. 3055, 120 L.Ed. 2d 921 (1992)), and accord deference to credibility determinations, ibid. (citing United States v. Igbonwa, 120 F.3d 437, 441 (3d Cir. 1997), cert. denied, 552 U.S. 1119, 118 S.Ct. 1059, 140 L.Ed. 2d 121 (1998)). However, where no evidentiary hearing has been held, we "may exercise de novo review over the factual inferences drawn from the documentary record by the [PCR judge]." Id. at 421 (citing Zettlemoyer v. Fulcomer, 923 F.2d 284, 291 n.5 (3d Cir.), cert. denied, 502 U.S. 902, 112 S.Ct. 280, 116 L.Ed. 2d 232 (1991)). Thus, it is within our authority "to conduct a de novo review of both the factual findings and legal conclusions of the PCR court." Ibid. Where no credibility determinations have been made, "we invoke our original jurisdiction in the review of th[e] matter." Ibid. Such a review is appropriate here as there was no evidentiary hearing and no credibility determinations were made.


Based on the arguments of counsel, the primary focus of this appeal is the alleged lack of a factual basis for defendant's plea to a significant number of the seventy-four offenses charged in Indictment No. 03-12-2392. Indeed, there was direct, specific factual testimony at the plea hearing to only thirteen of the seventy-four offenses. Defendant's brief also repeatedly points out that many of the specific burglaries charged in Indictment No. 03-12-2392 do not match the burglaries to which defendant actually confessed in his statement to the police.

Despite the focus of the appeal, the issue has been couched in terms of PCR relief based on ineffective assistance of trial, appellate, and PCR counsel pursuant to Rule 3:22-2(a), none of whom raised any issue as to the sufficiency of the plea except appellate counsel with respect to counts 5 and 6. The State urges that we cannot consider the ineffective assistance of PCR counsel because the issue was not raised before the PCR judge. We reject that contention because determination of the issue of ineffective assistance of PCR counsel in this case does not require a plenary hearing. We therefore exercise our original jurisdiction to determine the issue. See Harris, supra, 181 N.J. at 421 (holding that we may invoke our original jurisdiction to consider ineffective assistance of counsel claims where no credibility issues are present); N.J. Div. of Youth & Family Servs. v. B.R., 192 N.J. 301, 311-12 (2007) (holding that ineffective assistance of counsel in parental termination cases is to be raised on direct appeal).

Before we address the ineffective assistance of counsel claims, the State asserts that the absence of a factual basis for some of the pleas is not a per se cognizable basis for relief under Rule 3:22-2, which provides:

A petition for post-conviction relief is cognizable if based upon any of the following grounds:

(a) Substantial denial in the conviction proceedings of defendant's rights under the Constitution of the United States or the Constitution or laws of the State of New Jersey;

(b) Lack of jurisdiction of the court to impose the judgment rendered upon defendant's conviction;

(c) Imposition of sentence in excess of or otherwise not in accordance with the sentence authorized by law[;]

(d) Any ground heretofore available as a basis for collateral attack upon a conviction by habeas corpus or any other common-law or statutory remedy.

The State urges that federal courts have held that a failure to elicit a factual basis during a plea is not a constitutional error, citing Carolina v. Alford, 400 U.S. 25, 37, 91 S.Ct. 160, 167, 27 L.Ed. 2d 162, 171 (1970). Our Supreme Court also has held that "a court's failure to elicit a factual basis for the plea is not necessarily of constitutional dimension and thus does not render illegal a sentence imposed without such a basis." State v. Mitchell, 126 N.J. 565, 577 (1992). The Mitchell Court went on to explain that "[a] factual basis is constitutionally required only when there are indicia, such as a contemporaneous claim of innocence, that the defendant does not understand enough about the nature of the law as it applies to the facts of the case to make a truly 'voluntary' decision on his own." Ibid.; see also State v. D.D.M., 140 N.J. 83, 95 (1995); State v. Barboza, 115 N.J. 415, 421 n.1 (1989) (on direct appeal of a conviction and sentence without a factual basis for the plea, holding that a court must vacate the conviction and sentence, reinstate the dismissed charges, and allow defendant to re-plead or proceed to trial).

In D.D.M., supra, 140 N.J. at 95, the defendant challenged his sentence as illegal on the basis that the trial court accepted his guilty plea without a factual basis. Citing Mitchell, supra, 126 N.J. at 577-78, the Supreme Court held that the failure of the trial court to elicit a factual basis did not constitute an improper acceptance of the guilty plea sufficient to invalidate the defendant's conviction and to render his sentence illegal because: (1) the defendant did not express a contemporaneous claim of innocence at the plea hearing; and (2) the record clearly indicated the defendant's satisfaction with counsel, his acknowledgement of his prior record for similar offenses, and his understanding of the crime and the significance of his guilty plea. Id. at 95-96.

The State also contends that, while the form of defendant's PCR petition and this appeal is an ineffective-assistance-of-counsel claim, the substance is an attempted plea withdrawal--a clear violation of Rule 3:22-3, which provides in part that a petition pursuant to Rule 3:22 "is not, however, a substitute for appeal from conviction." Furthermore, the State asserts that the absence of a factual basis for some of the pleas could have been raised on direct appeal, barring any PCR relief pursuant to Rule 3:22-4, which provides in part that "[a]ny ground for relief not raised... in the proceedings resulting in the conviction... or in any appeal taken in any such proceedings is barred from assertion in a proceeding under this rule." The State urges that none of the exceptions to this rule apply. They are:

(a) that the ground for relief not previously asserted could not reasonably have been raised in any prior proceeding; or

(b) that enforcement of the bar would result in fundamental injustice; or (c) that denial of relief would be contrary to the Constitution of the United States or the State of New Jersey.

[R. 3:22-4.]

Setting aside the issue of ineffective assistance of counsel, it is clear that defendant may not now directly raise the absence of a factual basis for his pleas. He has not claimed that he is innocent of the charges for which no factual basis was established.*fn11 Without such a claim, the absence of a factual basis alone does not raise a constitutional issue. Mitchell, supra, 126 N.J. at 577. Similar to the defendant in D.D.M., supra, 140 N.J. at 96, defendant here has showed an understanding of his crimes and the significance of his plea as evidenced by his statements during the plea colloquy and on the plea form. The absence of a factual basis alone also does not deprive the court of jurisdiction, State v. Simon, 161 N.J. 416, 489 (1999) (O'Hern, J., dissenting), render his sentence illegal, D.D.M., supra, 140 N.J. at 96, or establish any ground for habeas corpus relief or other common-law or statutory remedy, Mitchell, supra, 126 N.J. at 582-83.

Neither may defendant withdraw his plea without a claim of innocence. State v. Slater, 198 N.J. 145, 150 (2009) (establishing the factors to consider on an application to withdraw a guilty plea). We recognize that the Slater Court emphasized the importance of establishing a factual basis for a plea under Rule 3:9-2*fn12 and required consideration of a motion to withdraw a plea to begin with proof that "the trial court followed the dictates of Rule 3:9-2." Id. at 154-55. That is absent in some significant measure here. Nonetheless, defendant does not claim that he is innocent of those charges and testified that he was guilty of all of the charges in the indictment. He cannot overcome the "formidable barrier the defendant must overcome in any subsequent proceeding," id. at 156-57 (citations and internal quotations omitted), and demonstrate a manifest injustice under Rule 3:21-1, id. at 158. Accordingly, he is not entitled to withdraw his plea.


This brings us to the issue of ineffective assistance of trial, appellate, and PCR counsel. "[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 case of ineffective assistance of counsel, the following two prong test must be met: (1) counsel's performance was deficient; (2) the deficiency actually prejudiced the accused's defense. 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, 58 (1987).

As to the first prong, "[t]here is a strong presumption that counsel's performance falls within the wide range of professional assistance, and defendant bears the burden of proving that counsel's representation was unreasonable." State v. Sloan, 226 N.J. Super. 605, 613 (App. Div.), certif. denied, 113 N.J. 647 (1988). Assuming such an error did occur, the second prong burdens the defendant with proving "a reasonable probability that these deficiencies materially contributed to defendant's conviction." Fritz, supra, 105 N.J. at 58.


Defendant's first ground for alleging ineffective assistance of counsel relates to his plea. Defendant contends that the open-ended guilty plea constituted per se ineffective assistance of counsel. Defendant also contends that his trial counsel failed to determine whether there was a factual basis for his guilty plea; his appellate counsel did not raise the absence of a factual basis for the majority of charges to which he pled; and his PCR counsel failed to raise the issue at all. Defendant makes a related claim that his trial counsel failed to investigate the facts behind certain charges in the indictment.

When asserting an ineffective assistance of counsel claim in relation to a plea bargain, the defendant must satisfy a more specific form of the two Strickland/Fritz prongs. The defendant must show: "(i) counsel's assistance was not 'within the range of competence demanded of attorneys in criminal cases'... and (ii) 'that there is a reasonable probability that, but for counsel's errors, [the defendant] would not have pled guilty and would have insisted on going to trial.'" State v. DiFrisco, 137 N.J. 434, 457 (1994). We are not required to approach the inquiry in the same order or even to address both components of the inquiry if the defendant makes an insufficient showing on one. In particular, [we] need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. [Strickland, supra, 466 U.S. at 697, 104 S.Ct. at 2069, 80 L.Ed. 2d at 699.]

Even if trial counsel was ineffective for failing to elicit a factual basis for each of the charges in the indictment, we are satisfied that defendant has not demonstrated that he would not have pled guilty. He told the detectives interviewing him "that he has done so many jobs it is hard to remember, which complex was which." He also stated the apartment complexes "all look[ed] the same after awhile." He also stated that "his memory was not clear as to specific apartments that he did." He admitted committing multiple burglaries in multiple apartment complexes on the same day on more than one occasion, and that he usually did "pry jobs." He advised the police he would look for mailboxes with female names, and especially Latino females, because they had more and better jewelry than other ethnic groups. He remembered about forty apartments he entered in Ocean Township alone, plus another fifteen to twenty in Long Branch. At the end of his confession, he stated:

I would like to add that I apologize to all the people and families that I have stolen from. At the time of some of the burglaries, I would be under the influence of heroin. I am dependent on heroin. I have a habit, an addiction and this leads me to make poor decisions, [putting] myself in jeopardy including my family. I'm struggling with employment now. And it has been like that for quite some time. I have a deteriorating body injury which I had head trauma, back trauma, the right side of my body had 80 percent nerve damage. Which I am in constant pain. I need help and I really want to stop committing crimes. I want to take care of my family and afford them the right to quality of life.

It is abundantly clear that defendant was not able to provide a factual basis because he did not recall many of his crimes, not because he was innocent of the charges. Indeed, he does not claim innocence now. He simply has not met his burden of proving that there is a reasonable probability that he would not have pled guilty but for his counsel's alleged failure to establish a factual basis for each of the offenses with which he was charged. He was facing 215 years in prison on burglaries alone, which could have had forty-three consecutive sentences of up to five years imposed had he gone to trial and been convicted. Even applying Yarbough,*fn13 a judge might have imposed consecutive sentences for each of the twenty-two days on which he committed one or more offenses. With a ten-year term imposed on the first burglary and twenty-one terms of three to five years for the burglaries committed thereafter, a judge might have imposed an aggregate sentence from seventy-three years to 115 years. Furthermore, defendant admitted committing at least sixty burglaries in all, forty in Ocean Township alone, yet he was only charged with forty in all. Because defendant has not satisfied the second prong of an ineffective-assistance-of-counsel claim, we need not consider the first.


Defendant next contends that his trial counsel should have pursued both Fourth Amendment and Miranda suppression issues. When a defendant alleges that a failure to file a suppression motion constituted ineffective assistance, the defendant must show, in addition to Strickland/Fritz, that the suppression motion would have been meritorious. State v. O'Neal, 190 N.J. 601, 618-19 (2007) (citing State v. Fisher, 156 N.J. 494, 501 (1998)). However, defendant's motion to suppress his statement would not have been successful.

Miranda, supra, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed. 2d 694, requires that a suspect be advised of his Fifth Amendment rights before any custodial interrogation. The record establishes that Miranda warnings were given in the back of the squad car immediately after his arrest, upon arriving at the police station, and at the very beginning of his tape-recorded confession. Thus, there was no viable Fourth Amendment basis for suppressing his statements to the police.

Defendant also alleged that his statements to the police were the result of the police threatening to prosecute defendant's wife, which might have resulted in the children being placed in foster care. However, these claimed threats are inconsistent with defendant's statement to Detective Weinkofsky immediately after his arrest that "he wanted to 'do the right thing.'" Then, immediately after the Miranda warnings in the police car, defendant stated he understood his rights and "was glad it was over." He then stated "he didn't want his wife involved." Detective Weinkofsky replied that she would be interviewed, he only wanted the truth, and if she was not involved, she would not be charged. Defendant replied, "It was all me." Defendant has not disputed the accuracy of the investigation report. Although it confirms that there was a discussion about his wife, it does not rise to the level of a threat used to extract a groundless confession. It was nothing more than a discussion related to her presence in the vehicle while defendant was committing burglaries and the possibility that she might be charged in connection with them, a possibility of which defendant was aware without any police suggestion. Thus, defendant has not made out a prima facie ineffective-assistance claim with respect to this alleged threat.

Additionally, defendant asserts that during the ride-around, he was "threatened" by the police when he claimed that he did not recognize the locations. However, he did not specify the nature of the threat, nor did he identify the burglaries to which he confessed as a result of the alleged threats. Defendant did not raise this issue in his pro se suppression motion and has not certified that he informed counsel of the alleged threats. Furthermore, the investigation report records instances where defendant denied committing burglaries at certain specific locations and quite a few instances where he stated that he could not remember committing burglaries at certain other specific locations. This is inconsistent with his claim that he was somehow threatened. Because defendant's certification was so lacking in specificity and he failed to allege that he informed his trial and appellate counsel of these claimed threats, he has failed to establish a prima facie claim of ineffective assistance of counsel.

Defendant also filed a pro se motion to suppress evidence seized. To the extent that there were no cognizable Fourth Amendment violations, counsel could not have been ineffective in failing to file a motion to suppress on Fourth Amendment grounds.

There were four distinct searches and seizures, the first of which occurred on August 12, 2003. After defendant left the scene of the Luska/Boves burglary and theft, Detective Weinkofsky stayed behind and recovered the discarded jewelry and jewelry boxes. No search warrant was required because the items were in plain view on a public street, sidewalk, and beach. Coolidge v. New Hampshire, 403 U.S. 443, 465-66, 91 S.Ct. 2022, 2037-38, 29 L.Ed. 2d 564, 582-83 (1971).

The second seizure occurred during defendant's arrest on August 12, 2003. Defendant ran from the police, discarding stolen jewelry as the police approached, leaving it in plain view, and the police seized a diamond ring and latex gloves from defendant's person during a search incident to arrest. No warrant was required for this search and the resulting seizures. Chimel v. California, 395 U.S. 752, 762-63, 89 S.Ct. 2034, 2039-40, 23 L.Ed. 2d 685, 693-94 (1969). As a consequence, any suppression motion would not have been successful.

The third search and seizure was a search of the vehicle leased by Lisa Bass-Brimage. The search occurred after her arrest and after she signed a Miranda form and signed a consent to search her vehicle, resulting in seizure of stolen "Blue Claws tickets." This search and resulting seizure did not violate the Fourth Amendment. Washington v. Chrisman, 455 U.S. 1, 9-10, 102 S.Ct. 812, 818, 70 L.Ed. 2d 778, 787 (1982).

The fourth search was a search of defendant's home. Defendant signed a "permission to search form" prior to the search and denied that his home contained any stolen items. Defendant does not deny giving his consent to search his home and does not indicate what, exactly, was seized from his home. We see no Fourth Amendment violation. Ibid.

Defendant argues that the outcome of his pro se motion might have been different had trial counsel argued the motion. The certification does not contain any facts inconsistent with the investigation report, signed consents to search, or his confession. There is nothing in the record to suggest that trial counsel disregarded any appropriate ground on which to file a motion to suppress. More importantly, there is nothing to suggest that, had trial counsel decided to file a motion on the facts in the record, the judge would have decided the motion in defendant's favor. Thus, defendant has not established a prima facie case of ineffective assistance for failure to file a suppression motion.


Defendant also contends that trial counsel rendered ineffective assistance by misadvising him as to the sentence he would receive on his open-ended plea. Defendant certified he was informed by counsel that the judge would give him a fifteen-year sentence subject to the No Early Release Act*fn14 and he pled guilty based on that representation. Indeed, defense counsel wrote a letter dated September 28, 2004, in which he stated,

You are correct when you state your sentence was excessive. [The judge] gave me every indication that your sentence was going to be in the fifteen year range. I believe he changed his mind when he saw the press in the front row.

On the following Monday we exchanged words, in court, about the unjust sentence you received and he threatened to put me in jail.


I will include your letter in the transmittal of appeal that goes to our appellate section in Newark. As soon as we receive the Judgment of Conviction, your appeal will be filed. An appellate attorney will be in touch with you at that time.

On the return date of the PCR petition, the judge vehemently denied ever indicating that defendant would receive a fifteen-year sentence. Thus, defendant's claim of ineffective assistance of trial counsel is based upon this factual finding by the judge. Otherwise, if the judge made such a promise, defendant's trial counsel would not have been ineffective in communicating the promise to defendant. Yet the judge did not determine whether trial counsel was ineffective in advising defendant that he would receive a fifteen-year sentence.

We must determine whether defendant presented a prima facie claim of ineffective assistance of trial counsel. Generally, incorrect advice respecting a defendant's penal exposure may constitute ineffective assistance of counsel. Preciose, supra, 129 N.J. at 464; State v. Mumin, 361 N.J. Super. 370, 387 (App. Div. 2003), certif. granted and summarily remanded for reconsideration, 178 N.J. 448 (2004). Although defendant stated on his plea form and in open court that no promises had been made to him other than those set forth in the plea form, those statements do not trump his claim of ineffective assistance of trial counsel because that attorney corroborated defendant's claim that his trial counsel told him that he would receive a fifteen-year sentence.

This case is distinguishable from DiFrisco, supra, 137 N.J. 434. There, defense counsel made an erroneous sentencing prediction. Id. at 455. Such a prediction does not "warrant vacating a guilty plea rendered because of it." Ibid. The Court observed, "Nothing in the record suggests that DiFrisco's attorney ever advised him that pleading guilty forestalled the legal possibility of a death sentence." Ibid. The Court held "that his attorney's opinion, viewed with hindsight, was mistaken, cannot transform DiFrisco's voluntary plea into an involuntary one." Ibid.

Here, we do not have a prediction or an opinion. As the PCR judge implicitly found, trial counsel misinformed defendant respecting the sentence the judge had indicated he would impose. The first prong of Strickland has clearly been proven. We turn to the second prong. Defendant certified that he would not have pled guilty but for this promise, but was he prejudiced by it? We think not, even though he received a twenty-year sentence. The thirteen crimes to which he confessed and as to which he provided an adequate factual basis--counts 3, 5-9, 57-58, 60-62 and 73-74--all had maximum sentences of five years except count 61, which carried a maximum term of eighteen months. The sentences on the theft convictions--counts 8, 58, 61, 62, and 74--would probably have been made concurrent to their related burglary charges, but that still left defendant with a ten-year extended term on one of the burglary convictions and consecutive five-year terms on the remaining seven burglary convictions, although the crimes charged in counts 5-7 and 9 might have received concurrent sentences because they were all committed on August 12, 2003. If so, defendant would have been sentenced to a total of thirty years comprised of one ten-year sentence and four five-year sentences. Thus, a misrepresentation respecting a fifteen-year sentence did not prejudice defendant because he still received a sentence that was less than the likely minimum he would have received had he gone to trial and was convicted only of the crimes he admitted at the plea allocution.


Defendant asserts that his appellate counsel rendered ineffective assistance by failing to challenge various errors at the trial level. Specifically, defendant alleges ineffective assistance of appellate counsel who failed to properly challenge the factual basis of defendant's guilty plea and who failed to appeal the denial of defendant's pro se motion to suppress. We have already determined that defendant was not prejudiced by trial counsel's failures in these respects and, concomitantly, he was not prejudiced by appellate counsel's failure to raise these issues on appeal. Thus, defendant has not proven the first or second prong under Strickland with respect to appellate counsel.


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