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State of New Jersey v. David Murrell

February 29, 2012


On appeal from the Superior Court of New Jersey, Law Division, Warren County, Indictment No. 07-01-0018.

Per curiam.


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 ...

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