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State v. Muse

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 21, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JAHMIN DAMON MUSE A/K/A JAMEEL HAWKINS A/K/A JAY MUSER A/K/A GERM MUSE A/K/A JAHMIR R. MUSE, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 05-03-0449.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 24, 2010

Before Judges Baxter and Alvarez.

Defendant Jahmin Damon Muse appeals from the denial of his petition for post-conviction relief (PCR) without an evidentiary hearing. We reject defendant's contentions and affirm.

Defendant was convicted of third-degree possession of cocaine, N.J.S.A. 2C:35-10a(1) (count one); first-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(1) (count two); second-degree possession of cocaine with intent to distribute within 500 feet of public property, N.J.S.A. 2C:35-7.1 (count three); third-degree possession of heroin, N.J.S.A. 2C:35-10a(1) (count four); third-degree possession of heroin with intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3) (count five); second-degree possession of heroin with intent to distribute within 500 feet of public property, N.J.S.A. 2C:35-7.1 (count six); third-degree distribution of heroin, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3) (count seven); and second-degree possession of heroin with intent to distribute within 500 feet of public property, N.J.S.A. 2C:35-7.1 (count eight). Defendant was sentenced to an extended term pursuant to N.J.S.A. 2C:44-3a as a persistent offender to an aggregate sentence of life plus fifteen years with twenty-seven and one-half years of parole ineligibility.*fn1

Defendant's direct appeal was denied in an unpublished opinion and his petition for certification was also denied on July 16, 2007. State v. Muse, No. A-3741-05 (App. Div. Feb. 26), certif. denied, 192 N.J. 294 (2007).

Defendant filed a brief in support of his PCR petition pro se on December 28, 2007. He was thereafter assigned counsel from the Office of the Public Defender. Oral argument was conducted on August 1, 2008, and a written decision denying the petition was rendered on August 25, 2008. This appeal followed.

We will not recite the facts at length as they are fully recounted in the direct appeal opinion. Briefly, defendant's convictions result from his arrest after being observed engaging in several hand-to-hand drug transactions. In addition to the seizure of "four glassine envelopes" containing drugs from "the crotch flap of [his] long underwear," defendant directed officers to "a black plastic bag containing forty-four vials of cocaine." A further search disclosed eighty-four folds of heroin and 171.45 grams of cocaine. Defendant insisted on talking to police after being read his Miranda*fn2 rights, although he refused to sign any statements. He provided the arresting officer information regarding both the location of the drugs hidden in the vehicle and a "stash apartment where he was going to pick up a hundred bricks of heroin."

Defendant testified at trial, placing blame on others and denying any connection to the vehicle. Significantly, he also said he "[n]ever touched no drugs," after which he was cross-examined about his prior convictions for drug possession with intent to distribute within 500 feet of public property and possession of a controlled dangerous substance. The proofs were overwhelming, and it can be inferred from the jury's verdict that they found defendant's testimony less than credible.

Defendant asserts the following points on appeal:

POINT I SINCE THE DEFENDANT ESTABLISHED A PRIMA FACIE CLAIM OF INEFFECTIVE ASSISTANCE BY TRIAL COUNSEL, THE COURT ABUSED ITS DISCRETION IN DENYING POST-CONVICTION RELIEF WITHOUT AFFORDING THE DEFENDANT A FULL EVIDENTIARY HEARING.

POINT II THE COURT'S RULING DENYING POST-CONVICTION RELIEF VIOLATED THE DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, PARAGRAPH 10, OF THE NEW JERSEY CONSTITUTION.

POINT III DEFENDANT REASSERTS ALL OTHER ISSUES RAISED IN THE DEFENDANT'S PRO SE BRIEFS IN SUPPORT OF POST-CONVICTION RELIEF AND IN PCR COUNSEL'S BRIEF IN SUPPORT OF POST-CONVICTION RELIEF.

Under the familiar test, a defendant must first demonstrate that counsel's performance "fell below an objective standard of reasonableness" on a claim of ineffective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1984). Second, a defendant must demonstrate "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. Without establishing a prima facie case of ineffective assistance of counsel, there is no entitlement to a PCR evidentiary hearing. See State v. Preciose, 129 N.J. 451, 462 (1992); State v. Cummings, 321 N.J. Super. 154, 169-70 (App. Div.), certif. denied, 162 N.J. 199 (1999).

i.

Defendant's central claim on this PCR appeal is that his trial attorney assured him that he did not face life imprisonment as a persistent offender if convicted at trial, and that all the statements made in open court on the record by the court and prosecutor referring to that possibility were just efforts to "scare" him. In fact, defendant certifies that his trial counsel advised him that his maximum exposure was twenty years imprisonment subject to ten years of parole ineligibility. Defendant also certified that if he had known his real sentencing exposure included life imprisonment, he would have accepted the State's first plea offer of fifteen years imprisonment with a fifty-two-month parole ineligibility term.

Defendant relies upon the following from the sentence transcript in support of his contentions:

[Defense counsel]: In terms of mitigation, your Honor, the State I believe, has filed an extended term. I would ask the minimum requirement be met in terms of persistent offender before we argue further, before the Court would grant the extended term application.

THE COURT: He, clearly, qualifies for extended term sentencing under [N.J.S.A.] 2C:44-3a.

[Defense counsel]: [Y]our Honor, then I'm correct . . . that I see three prior convictions, one in 2002 . . . actually, all of them in 2002.

The first prior indictable conviction, a second degree crime and third degree crime. The second is a third degree possession case. And the third indictable conviction was a fourth degree D.O.R.A. Therefore, it wouldn't apply to a persistent offender.

THE COURT: Why is that? Why wouldn't it apply?

[Defense counsel]: I believe under persistent offender it applies, I thought, to first, second, third degree offenses, by individuals over 18 years of age, at the time of sentencing, at least, 21 years old.

[Prosecutor]: He only needs two indictable convictions to qualify as a persistent offender.

THE COURT: That is my understanding. [Prosecutor]: Sentenced on different days.

[Defense counsel]: That's correct. [Prosecutor]: For purposes of this motion, the handgun conviction and/or the 500 foot conviction, coupled with the possession conviction would be sufficient. . . .

THE COURT: That is the law under [N.J.S.A.] 2C:44-3a. He clearly qualifies. He has . . . been convicted on two separate occasions of two crimes committed at different times when he was, at least, 18 years of age, and there is no requirement that they be first or second degree crime.

[Prosecutor]: That is only for the subject offense, that it can be a fourth degree offense, not for the underlying offenses.

THE COURT: Right.

[Defense counsel]: We felt that, your Honor . . . we agree that the minimum requirements have been met. We felt that the number of indictable convictions would go toward mitigation in terms of the Court's overall sentence. [Emphasis added.]

We are not as certain as defendant, his PCR attorney, and his attorney on appeal, that the quoted passage establishes that defense counsel was confused about the statutory threshold requirements for extended term sentencing. The record supports one other possible interpretation, namely, that defense counsel fully understood his client was statutorily eligible for extended term sentencing because of his two prior second- and third-degree convictions, but mistakenly believed defendant's fourth-degree conviction would not be included in the threshold analysis. In the end, however, we need not decide which interpretation is correct.

As the PCR court observed in its written decision, defendant signed a trial memorandum on August 22, 2005, in which he was explicitly put on notice that he faced life in prison as a discretionary extended-term offender. See N.J.S.A. 2C:44-3 and 2C:43-7. It is simply not plausible, even if defense counsel told defendant the possibility of life imprisonment was just a "scare" tactic, that defendant would not have questioned the information he was being given in writing.

Moreover, the Supreme Court has previously stated:

If a trial court cannot accept a guilty plea that is known to be false, then it would be strange indeed for a PCR court to vacate a jury verdict following a fair trial on the ground that defendant would have taken an advantageous plea offer with a limited sentence exposure if only he had been given the opportunity to lie under oath. A court cannot give its imprimatur to perjury or in any way suggest that the requirement of a truthful factual basis at a plea colloquy is an empty formality. [State v. Taccetta, 200 N.J. 183, 197 (2009).]

In this case defendant testified under oath that he had nothing to do with drugs, much less with the transactions for which he was being tried. He now claims that, had he known he faced life in prison when extended a plea offer, he would have accepted it. "[I]t would be strange indeed" for the PCR court to have vacated the jury's verdict and given defendant the opportunity to plead guilty in light of his trial testimony asserting his innocence. See ibid. It certainly would have condoned perjury.

Without even reaching the question of how defendant would have addressed the possible commission of perjury during the plea, we turn to the PCR judge's finding that defendant had been advised in court on the record of the possibility of life imprisonment, both orally and in writing. As the PCR court concluded, "defendant was aware of his potential sentence. . . . [and] this court is confident that defendant was advised of that risk on more than one occasion."

The record bears out the court's finding. Defendant was told several times of the consequences of the conviction and the consequences of his failure to accept a plea offer should he be convicted. Thus, he has not established ineffective assistance of counsel.

It is quite clear from the colloquy between the court and defendant prior to the commencement of trial, that this defendant was made plea offers on several occasions and was told that, if he rejected those offers, he had the possibility of life in prison. He rejected plea offers subsequent to the first because he wanted only the first offer that was made and none other. The trial judge discussed this with defendant before the trial began, and in fact, allowed him a recess to review the most recent offer with his attorney. It is abundantly clear that defendant understood his sentencing consequences and made a knowing choice to roll the dice and proceed to trial. Because that choice turned out to be a poor one is not a basis for a subsequent finding that defendant's trial attorney was ineffective.

ii.

Defendant also reiterates on appeal that an evidentiary hearing should have been required prior to the court's ruling. No evidentiary hearing is required, however, unless defendant's PCR contentions rise to the level of a prima facie case. See Preciose, supra, 129 N.J. at 462; Cummings, supra, 321 N.J. Super. at 169-70. Therefore, the motion judge's decision not to grant an evidentiary hearing is unassailable.

iii.

Defendant's legal argument on point three consists entirely of the following:

POINT III DEFENDANT REASSERTS ALL OTHER ISSUES RAISED IN THE DEFENDANT'S PRO SE BRIEFS IN SUPPORT OF POST-CONVICTION RELIEF AND IN PCR COUNSEL'S BRIEF IN SUPPORT OF POST-CONVICTION RELIEF.

Pursuant to State v. Rue, 175 N.J. 1, 18 (2002), and State v. Webster, 187 N.J. 254, 257 (2006), the defendant reasserts all other issues raised in post-conviction relief.

We remind counsel that our rules impose upon attorneys the obligation to provide supporting legal argument with appropriate record references. State v. Hild, 148 N.J. Super. 294, 296 (App. Div. 1977). It is necessary because it is "not only a common courtesy, but indeed the mark of a professional intent on presenting [the] client's case in the most persuasive setting available." Ibid.

In any event, we find the following points not to warrant discussion in a written opinion pursuant to Rule 2:11-3(e)(2):

(1) that defendant was entitled to an evidentiary hearing at which he had the right to testify on his own behalf, to transcripts, and to the issuance of subpoenas for the production of testimony from trial and appellate counsel; (2) that defendant was denied his Sixth and Fourteenth Amendment rights because his family was allegedly barred from the courtroom during jury selection; (3) that the court should have focused on defendant's subjective understanding of plea cutoff discussions when deciding the PCR motion; and (4) that the State's response contains mischaracterization of the facts, overlooks pertinent circumstances, and is contradictory while making "ridiculous assertions."

We further note a number of issues raised in defendant's pro se brief were addressed on direct appeal, including issues related to jury instructions, disclosures related to defendant's prior drug and weapons offenses, and expert testimony. Defendant is barred from revisiting these contentions pursuant to Rule 3:22-5, which states: "[a] prior adjudication upon the merits of any ground for relief is conclusive." We will not discuss them further.

We also note defendant raised on PCR issues related to the admission of testimony that the officers were aware of defendant's identity. These issues should have been raised on direct appeal, and are therefore barred pursuant to Rule 3:22-4. Similarly, his claim that the trial judge was biased should have been raised on direct appeal and he is therefore prohibited from raising the issue at this late date. See R. 3:22-4.

iv.

Lastly, the PCR court also addressed defendant's claim that his attorney's billing for only six hours was per se proof of ineffective assistance of counsel. The court correctly said that the mere fact that six hours of trial preparation were billed "does not, by itself, constitute ineffective assistance. . . . [T]he figure is questionable in light of two full days of trial, the three times that counsel indicates he met with defendant during his colloquy with the court, and six pre-trial conference and bail motions." In any event, defendant does not explain how this limited billing affected the outcome of his trial. Absent a more precise expression of the manner in which, "but for counsel's unprofessional errors, the result of the proceeding would have been different," we will not address the issue further. See Strickland, supra, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698.

Affirmed.


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