On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 03-12-2392.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...