February 29, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DAVID MURRELL, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Warren County, Indictment No. 07-01-0018.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 18, 2012
Before Judges Yannotti and Kennedy.
Defendant David Murrell appeals from an order entered by the Law Division on May 27, 2010, denying his petition for post-conviction relief (PCR). We affirm.
On September 13, 2006, Detective Douglas Baylor of the Special Operations Division of the Phillipsburg Police Department executed a search warrant at an apartment on South Main Street in Phillipsburg. The warrant had been issued based on information that a confidential informant made two controlled purchases of crack cocaine from a person called "Woo" at the apartment. Defendant, Fabiola Naar (Naar) and Eugene Davis (Davis) were found inside the apartment.
The police seized .95 ounces of crack cocaine and 27.17 grams of marijuana in the master bedroom. Defendant was in that room when the police executed the search. Defendant, Naar and Davis were arrested and brought to police headquarters, where they were processed and interviewed.
In his statement to the police, defendant admitted that the police found crack cocaine and marijuana under the mattress in his room. Defendant acknowledged that drugs had been sold out of the apartment. Defendant was identified as "Woo."
Defendant was subsequently charged with second-degree possession of CDS (crack cocaine), with intent to distribute, N.J.S.A. 2C:35-5(a)(1), N.J.S.A. 2C:35-5(b)(2); third-degree possession of CDS (crack cocaine), N.J.S.A. 2C:35-10(a)(1); second-degree conspiracy to possess CDS (crack cocaine) with intent to distribute, N.J.S.A. 2C:5-2, N.J.S.A. 2C:5-2(a)(1), N.J.S.A. 2C:35-5(b)(2); fourth-degree possession of CDS (marijuana), N.J.S.A. 2C:35-5(a)(1), N.J.S.A. 2C:35-5(b)(12); fourth-degree conspiracy to possess CDS (marijuana) with intent to distribute, N.J.S.A. 2C:5-2, N.J.S.A. 2C:35-5(b)(12); and possession of less than fifty grams of marijuana, a disorderly persons offense, N.J.S.A. 2C:35-10(a)(4).
On May 30, 2007, defendant pled guilty to second-degree possession of CDS (crack cocaine) with intent to distribute, and fourth-degree possession of CDS (marijuana) with intent to distribute. The court sentenced defendant to a ten-year term of incarceration, with a four-year period of parole ineligibility. Defendant did not appeal.
Thereafter, defendant filed a pro se PCR petition, dated June 1, 2008. The PCR court entered an order dated August 13, 2008, denying the petition and defendant appealed. We summarily reversed the court's order and remanded the matter to the PCR court for appointment of counsel. State v. Murrell, No. A-3959-08 (App. Div. July 17, 2009).
On remand, defendant claimed that he did not receive the effective assistance of counsel and, as a result, was unjustly convicted. Defendant alleged that his attorney refused to file a second bail motion; failed to communicate with him; did not challenge the search warrant; did not appeal the denial of his admission to Drug Court; did not inform him of his right to appeal; failed to file an appeal, even though he had been asked to do so; and pressured him into accepting the State's plea offer. Defendant also challenged his sentence on the ground that it was lengthier than the sentences imposed on his co-defendants. He sought an evidentiary hearing on the petition.
On May 27, 2010, the PCR court filed an opinion in which it found that the petition was barred by Rule 3:22-4 because the issues could have been raised in a direct appeal. Nevertheless, the court considered the petition on the merits. The court concluded that defendant had not been denied the effective assistance of trial counsel. The court stated that counsel could have challenged the search but defendant had pled guilty.
The court rejected defendant's challenge to the sentence on the ground that there was an impermissible disparity between defendant's sentence and the sentences imposed upon Davis and Naar. The court found that the different sentences were warranted by defendant's criminal record and the criminal records of his co-defendants. The court additionally found that defendant's sentence was consistent with guidelines adopted pursuant to State v. Brimage, 153 N.J. 1 (1998), and defendant had not been eligible for admission to Drug Court because he had previously been convicted of a violent offense. See N.J.S.A. 2C:35-14.
The court also rejected defendant's claim that he had been forced to plead guilty because of a lack of diligence on the part of his attorney. Defendant had been questioned by the judge when he entered his plea, and defendant stated that he had time to discuss the matter with his attorney, understood what was happening, knew he was giving up his right to a jury trial, and was aware of his sentencing exposure. Defendant told the judge he understood that all pending motions had been withdrawn, and he had discussed this with his attorney.
The court additionally pointed out that defendant had provided an adequate factual basis for the plea, and defendant never expressed any dissatisfaction with the manner in which his attorney had handled the case. Furthermore, when he was sentenced, defendant did not indicate that he had been coerced or pressured to plead guilty. The court also pointed out that there was no colorable claim of innocence.
The court found that there was no error on the part of defense counsel in any of the strategies he had employed, nor was there a likelihood of success on the ineffective-assistance-of-counsel claim that would warrant an evidentiary hearing. The court said that defendant was not prejudiced by the representation provided to him. The court concluded that it could find "no indication that counsel was not adequately prepared for all stages in this proceeding, or that he failed to advocate for his client."
The court entered an order dated May 27, 2010, denying PCR. Defendant appeals and raises the following argument for our consideration:
AN EVIDENTIARY HEARING SHOULD HAVE BEEN HELD AS DEFENDANT HAS MADE A PRIMA FACIE SHOWING OF INEFFECTIVE ASSISTANCE.
We have considered the record and conclude that this argument is entirely without merit. We affirm the order denying PCR substantially for the reasons stated by the court in its written opinion dated May 27, 2010. R. 2:11-3(e)(2). We add the following comments.
The court is not required to conduct an evidentiary hearing unless the defendant presents a prima facie case in support of PCR. State v. Preciose, 129 N.J. 451, 462 (1992). Where, as here, a defendant asserts a claim of ineffective assistance of counsel, the defendant must show a reasonable likelihood of succeeding under the test set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). Preciose, supra, 129 N.J. at 463.
Under the Strickland test, a defendant first must establish that his attorney's performance was deficient. Fritz, supra, 105 N.J. at 52 (citing Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). Second, the defendant must establish that counsel's deficient performance prejudiced his defense. Ibid. (citing Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). The defendant must show that there is "'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Ibid. (quoting Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698).
Here, defendant alleges that his attorney failed to communicate with him in "an adequate manner." He asserts that he only spoke with his attorney one or two times and counsel would not speak with him over the phone. Defendant has not established, however, that he was prejudiced by the alleged lack of communication. Furthermore, as the court pointed out in its opinion of May 27, 2010, when defendant entered his plea, he expressed no dissatisfaction with his attorney's handling of the case.
Defendant additionally argues that his attorney erred by failing to seek dismissal of the indictment because the prosecutor purportedly did not inform the grand jury of certain exculpatory facts, as well as the fact that he had not been named in affidavit in support of the search warrant application or the warrant. We are not convinced that defendant's counsel erred because the motion was not filed. Moreover, defendant has not established that such a motion would have been granted if it had been made.
Defendant further argues that he wanted to have the trial court decide his motion to suppress the evidence obtained in the search. He acknowledges that the motion was filed but says that counsel never "sought to have it heard." The motion was withdrawn pursuant to the plea agreement. As the State points out, if the plea offer had been rejected and the matter tried, defendant could have received a longer sentence. Furthermore, defendant has not shown that the suppression motion would have been granted.
In sum, the record fully supports the PCR court's determination that defendant had not presented a prima facie case of ineffective assistance of counsel. Therefore, the court correctly determined that an evidentiary hearing was not required.
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