January 23, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
SHAWN MEYERS A/K/A SHAWN MYERS,*FN1 DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 04-04-0310.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 11, 2012
Before Judges Fuentes and Harris.
Defendant Shawn Myers appeals from the July 24, 2009 order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. He claims that he is entitled to PCR based upon the following arguments:
POINT I: THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO DETERMINE WHETHER COUNSEL WAS INEFFECTIVE FOR FAILING TO CHALLENGE THE LACK OF PROBABLE CAUSE FOR THE SEARCH WARRANT AND FOR FAILING TO FILE A MIRANDA MOTION.
A. THE PREVAILING LEGAL PRINCIPLES REGARDING CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL, EVIDENTIARY HEARINGS AND PETITIONS FOR POST CONVICTION RELIEF.
B. TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO RAISE A CLAIM THAT THE SEARCH WARRANT WAS INVALID DUE TO A LACK OF PROBABLE CAUSE FOR ITS ISSUANCE.
C. TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO FILE A MOTION TO SUPPRESS THE STATEMENTS DEFENDANT PROVIDED TO POLICE AS A RESULT OF THE ILLEGAL SEARCH OF HIS RESIDENCE.
D. THE CUMULATIVE ERRORS COMMITTED BY TRIAL COUNSEL RESULTED IN INEFFECTIVE LEGAL ASSISTANCE.
E. THE TIME BAR OF R[ULE] 3:22-4 CONCERNIMG THE OPPORTUNITY TO RAISE CERTAIN ISSUES PREVIOUSLY DOES NOT APPLY TO DEFENDANT'S CASE.
Myers pled guilty to second-degree possession of a controlled dangerous substance with intent to distribute, N.J.S.A. 2C:35-5(a)(1), -5(b)(2); and second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7(b). He was sentenced to an aggregate term of seventeen years with eight years of parole ineligibility.
On appeal, we affirmed Myers's conviction and sentence. State v. Myers, No. A-1028-06 (App. Div. July 11, 2008). Shortly thereafter, Myers filed a pro se petition for PCR. After PCR counsel was assigned, the matter was considered by the Law Division on July 24, 2009, and the PCR court rendered an oral decision denying relief. This appeal followed.
Myers asserts that he was entitled to an evidentiary hearing to demonstrate that he received ineffective assistance of counsel, was prejudiced thereby, and would therefore be entitled to PCR. He specifically contends that defense counsel was ineffective because prior to recommending that Myers plead guilty, counsel should have (1) challenged the probable cause foundation of the search warrant that produced incriminating evidence and (2) pursued a Miranda*fn2 motion to suppress inculpatory statements made by Myers to the police. Myers also claims that defense counsel's failings were cumulatively ineffective. We disagree.
It is well-established that our review of claims of ineffective assistance of counsel requires that we conform to the principle that a defendant must prove not only that counsel's performance was objectively lacking, but that the identified deficiencies unduly prejudiced the defense and adversely affected the outcome. Strickland v. Washington, 466 U.S. 668, 686-87, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 692-93 (1984); State v. Hess, 207 N.J. 123, 147 (2011). This two-pronged test, as first enunciated by the United States Supreme Court in Strickland, and adopted by the New Jersey Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987), requires a defendant to show:
First, . . . that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, . . . that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.
[Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.]
We are satisfied from our review of the record that Myers failed to make a prima facie showing of ineffectiveness of counsel and therefore, an evidentiary hearing was not warranted. See State v. Marshall III, 148 N.J. 89, l58 (1997); State v. Preciose, 129 N.J. 451, 462-63 (1992).
The search warrant for Myers's house in Newark was one of a number of warrants executed as part of a broad, multi-county narcotics investigation. The search in question "located two handguns and a plastic bag containing approximately twenty bricks of heroin." Myers, supra, slip op. at 3. Defense counsel filed a motion to suppress the evidence, based not upon a lack of probable cause for the issuance of the search warrant, but because of the supposed imperfect manner of executing it. Myers contended that the officers failed to abide by the "knock and announce" terms of the warrant. This contention was unavailing.
At the 2004 evidentiary hearing on the motion to suppress, defense counsel tried to argue the lack of voluntariness that attended certain statements made by Myers on the night of the search. The motion court limited the evidentiary hearing to the validity of the search, but (as we noted on appeal) it "emphasized that [Myers] could file a motion to suppress to challenge the voluntariness of his statement later in the proceedings." Id. at 4.
The motion judge ruled that the search warrant was properly executed by the police, and we affirmed that determination, concluding, "[t]he finding that police executed the warrant in accordance with its terms is wholly supported by the evidence." Id. at 5 (citing State v. Locurto, 157 N.J. 463, 470-71 (1999)).
In 2009, the PCR judge reviewed the underlying circumstances that resulted in the issuance of the search warrant in the first place, and concluded, "it's clear that a well-grounded suspicion did exist as to defendant's involvement in the drug ring, as well as the use of his residence . . . as a storage location for narcotics." Relying on the principle that "significant deference must be given to the warrant-issuing judge's determination of probable cause," the PCR judge found that if the motion to suppress were brought on the ground of lack of probable cause, it "would most likely have been denied."
A search warrant has a presumption of validity based on deference to the issuing judge's conclusion. Any doubt is ordinarily resolved by sustaining the search. See State v. Jones, 179 N.J. 377, 388-89 (2004); State v. Kasabucki, 52 N.J. 110, 116 (1968). In determining whether there is probable cause to issue a search warrant, "[t]he task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place." Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 2332, 76 L. Ed. 2d 527, 548 (1983). Appellate courts are required to apply a "totality-of-the-circumstances" test when they analyze the issuing judge's application of the Gates standard. State v. Novembrino, 105 N.J. 95, 122 (1987). Thus, under the totality of the circumstances test, "courts must consider all relevant circumstances to determine the validity of a warrant." State v. Keyes, 184 N.J. 541, 554 (2005).
Although Myers contends that his nexus to the narcotics investigation was either non-existent or tenuous at best, and the State's true target was someone else, the PCR court found undisputed evidence to the contrary. Accordingly, an evidentiary hearing was unnecessary. Affording the proper deference to the warrant-issuing judge was a correct application of the law, and the PCR court appropriately found that there was nothing ineffective about defense counsel's not moving to suppress the search on probable cause grounds because to do so would have proven futile. Moreover, such a vain motion would have had no capacity to change the outcome of the case.
Next, Myers argues that his attorney was ineffective for not following through and formally moving to suppress his statements under Miranda. Before that motion was filed, the State offered Myers a plea arrangement, and he voluntarily accepted it. On direct appeal we noted, "defendant was fully informed that he surrendered all rights to challenge any investigatory defects or missteps and to advance any defenses when he pled guilty to the two charges." Myers, supra, slip op. at 7. More importantly, we recognized that when Myers moved to retract his guilty plea in November 2005, after failing to appear for sentencing scheduled for March 2005, he "made no reference to the unpursued Miranda motion . . . , thereby suggesting that he knew the conclusive nature of his plea." Ibid.
The PCR court reviewed the strategic choices made by defense counsel in foregoing the motion in favor of recommending the acceptance of what was "a very favorable plea." Id. at 8. The court found that counsel "made a judgment call to delay proceedings on the motion after considering the State's plea offer and the exposure of defendant if he had proceeded to trial." Finally, after factoring in how the outcome of the case might have been different had a successful Miranda motion been prosecuted, the PCR judge found the following:
It probably would have made -- most likely would have made no difference to the final conclusion in this case because it would be highly unlikely that, given all the drugs that were found and the other things that were found in defendant's house, that if he had gone to trial that he would have prevailed.
Consequently, the PCR court determined that neither a prima facie case of ineffective assistance of counsel had been demonstrated nor "were any cumulative errors [made] by the trial counsel."
Defense counsel's efforts are measured by a standard of "reasonable competence." Fritz, supra, 105 N.J. at 53. In our review, we must evaluate the conduct from the attorney's perspective at the time of the conduct, being careful to eliminate the distorting effects of hindsight. State v. Buonadonna, 122 N.J. 22, 42 (1991). Counsel may not be considered ineffective merely because the strategy failed or is second-guessed years later. State v. Sheika, 337 N.J. Super. 228, 243 (App. Div.), certif. denied, 169 N.J. 609 (2001).
Strategic decisions informed by knowledge of the case will not sustain PCR. State v. Castagna, 187 N.J. 293, 314 (2006). Whether defense counsel made a strategic decision must be derived from a record, and as here, the PCR judge correctly recognized the futility of an evidentiary hearing because all of the relevant evidence was already part of the PCR record. The court's conclusion that "there's no basis to the claim that counsel's performance was ineffective" was correct.
Similarly, we reject Myers's claim of cumulative error, and affirm the Law Division's determination to deny PCR as legally and factually supported.