March 10, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
HENRY TORRES, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 03-12-1272.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 1, 2010
Before Judges Gilroy and Nugent
Defendant Henry Torres appeals from the December 5, 2008 order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.
On December 10, 2003, a Union County Grand Jury indicted defendant on seven charges arising out of his distribution of a controlled dangerous substance (CDS), cocaine, and possession of a weapon. Defendant subsequently filed a motion to suppress the evidence police seized from his car and home, but never litigated the motion. Instead, on October 4, 2004, defendant pleaded guilty to first degree possession of a CDS with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and -5(b)(1) (count two); and second degree possession of a weapon in the course of committing a drug offense, N.J.S.A. 2C:39-4.1(a) (count seven). In exchange for defendant's plea, the State recommended that he be sentenced on count two, as if it were a second degree offense, to a prison term not to exceed six years with two years of parole ineligibility; and on count seven to a concurrent six-year prison term.*fn1
During the guilty plea colloquy the trial court informed defendant that if there was an issue as to a search, statement, or confession, he had the right to have a hearing to determine whether the evidence could be used against him. Defendant acknowledged his rights and said he understood that by pleading guilty he was "surrendering or abandoning" them. Defendant also stated that he spoke to his lawyer about the charges, his lawyer explained his rights and responsibilities, and he was satisfied with his lawyer's services. He further advised the court that he read and understood the plea agreement; his lawyer explained what was meant by each paragraph of the plea agreement; and that no one made any promises that were not included in the plea form.
Defendant did not file a direct appeal, but instead timely filed a PCR petition, arguing that his attorney was ineffective for not litigating the suppression motion. In support of the petition, defendant relied on his one-page certification and a two-page police investigation report.
The investigation report discloses that in March 2003, a confidential informant (CI) notified Detective Justin Marranca of the Union County Narcotics Strike Force that a Dominican male known as Henry, later identified as defendant, of average build, in his early thirties, and approximately five feet nine inches tall, packaged and stored cocaine at his house in Hillside, New Jersey. The CI provided defendant's street address and said defendant used a brown Cadillac to deliver the cocaine. In April, through ride-by surveillances of defendant's home and review of motor vehicle records, Marranca confirmed defendant's physical description, address, and ownership of the Cadillac. Marranca also learned that defendant had a suspended driver's license and two outstanding arrest warrants.
On May 15, 2003, the CI notified Marranca that Henry would be using his Cadillac to deliver a large quantity of cocaine at 4:00 p.m. when he finished work. Marranca briefed seven other strike force officers and two Elizabeth policemen, and set up surveillance of defendant's residence. Members of the surveillance team followed defendant when he entered his Cadillac at 4:30 p.m. and drove through Newark and Irvington, stopping several times to meet individuals on the street before returning home.
Shortly after defendant returned home, the CI notified Marranca that defendant would soon leave again to deliver a large quantity of cocaine. Defendant came out of the house at 6:30 p.m. carrying a black plastic shopping bag, entered his Cadillac, leaned over to the passenger side, then drove away. Pursuant to a radio request from strike force Detective John Hodavance, a Hillside police officer stopped defendant and placed him under arrest.
After defendant was arrested, Marranca entered defendant's Cadillac, searched the area under the passenger seat, and found the black plastic shopping bag, which contained five sandwich baggies of cocaine. The police transported defendant to the Hillside Police Department where he waived his Miranda*fn2 rights, confessed to selling cocaine, and told the police he had more cocaine and a handgun at his residence. He authorized a consent search of his home, which resulted in the seizure of additional cocaine and the handgun.
As additional support for his PCR petition, defendant filed a certification stating that he "repeatedly urged [his] attorney to have the [suppression] motion set down for a hearing, but [his] request was ignored, as [the attorney's] sole focus was on securing a plea deal." Defendant also asserted that he did not give the police consent to search his car; he was either locked in the back of the police cruiser or transported from the scene when the search of his car was conducted; he believed the car had been removed from the scene before it was searched; and no effort was made to contact his family or friends to remove his car from the scene. Finally, defendant alleged that the police had coerced him into giving them permission to search his home.
On December 5, 2008, the court denied defendant's petition without a hearing. The trial court noted that defendant received a very favorable plea bargain, since the State had agreed for him to be sentenced as a second degree offender rather than a first degree offender. The court also reasoned that defendant's suppression motion would have been denied based on the automobile exception to the warrant requirement. On appeal, defendant argues:
POINT I: DEFENDANT'S MOTION FOR POST-CONVICTION RELIEF WAS WRONGFULLY DENIED.
Defendant contends that because his trial counsel did not litigate a meritorious Fourth Amendment claim, his performance was ineffective. He argues that the warrantless search of his Cadillac was unconstitutional because the information received from the CI was unreliable, and no exigent circumstances existed to justify the search. Finally, defendant asserts that the evidence seized by the police during the search of his home was tainted by the unlawful search of his automobile, and that the consent to the search of his home was coerced. We reject these arguments.
Under the Sixth Amendment of the United States Constitution, a person accused of crimes is guaranteed the effective assistance of legal counsel in his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). To establish a deprivation of that right, a convicted defendant must satisfy a two-part test by demonstrating that: (1) counsel's performance was deficient, and (2) the deficient performance actually prejudiced the accused's defense. Ibid. See also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland two-part test in New Jersey). In reviewing such claims, courts apply a strong presumption that defense counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695.
Whether a hearing on an ineffective assistance of counsel petition is necessary is a matter within the court's discretion. See State v. Preciose, 129 N.J. 451, 462 (1992); see also R. 3:22-10(b) (requiring a hearing only upon the establishment of a prima facie case, a determination that there are disputed facts that cannot be resolved by reference to the existing record, and a determination that a hearing is necessary to resolve the claims for relief). To establish a prima facie claim of ineffective assistance of counsel, a defendant must demonstrate the reasonable likelihood of succeeding under the Strickland-Fritz test. See Preciose, supra, 129 N.J. at 463.
Failure to file a suppression motion does not constitute per se ineffective assistance of counsel. Kimmelman v. Morrison, 477 U.S. 365, 384, 106 S. Ct. 2587, 2588, 91 L. Ed. 2d 305, 325 (1986). "[W]hen counsel fails to file a suppression motion, the defendant not only must satisfy both parts of the Strickland test but also must prove that his Fourth Amendment claim is meritorious." State v. Fisher, 156 N.J. 494, 501 (1998). Furthermore, "we are required to examine the law as it stood at the time of counsel's actions, not as it subsequently developed." Ibid.
Based on our review of the record and applicable law, we conclude defendant failed to make a prima facie showing of ineffective assistance of trial counsel under the first prong of the Strickland-Fritz test. In his certification, defendant claims that he repeatedly urged his attorney to have the motion set down for a hearing, but his request was ignored because his attorney's sole focus was on securing a plea deal. Defendant's sworn testimony at the plea hearing contradicts his certification. During the plea hearing, defendant testified that he understood he was waiving his right to have a hearing concerning the lawfulness of the searches; he had spoken with his lawyer about the charges; his lawyer had explained his rights and responsibilities; and he was satisfied with his lawyer's services.
Defendant was fully aware at the plea hearing that his attorney had filed a suppression motion. Defendant could have chosen to have the court decide the motion. Instead, defendant acknowledged he was waiving his right to have the motion decided; voluntarily entered his plea; and accepted the prosecutor's agreement to recommend that he be sentenced as a second degree offender on a first degree offense, knowing that the recommended concurrent sentences of six years were less than the minimum sentence for a first degree offense.
Defendant's self-serving statement made more than three years after his plea, that he repeatedly urged his attorney to have the motion set down for a hearing, does not establish that counsel's performance was deficient. Defendant does not claim in his certification that counsel coerced him to waive his right to the suppression hearing, or pressured him to accept the prosecutor's plea offer. Absent an explanation as to why defendant waived his right to have his suppression motion heard, and why he decided to enter into the plea agreement without first litigating the motion, defendant cannot overcome the strong presumption that defense counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. Consequently, it cannot be said that trial counsel's conduct fell outside "'the wide range of reasonable professional assistance'" that is required to demonstrate ineffective assistance under the first prong of the Strickland test. Fisher, supra, 156 N.J. at 500 (quoting Fritz, supra, 105 N.J. at 52).
Because defendant has failed to establish the first prong of the Strickland-Fritz test for ineffective assistance of counsel, we affirm the denial of his PCR petition.