January 3, 2013
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
RICHARD BRADFORD, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 05-02-0093.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: December 19, 2012
Before Judges Axelrad and Nugent.
Defendant Richard Bradford appeals from the September 20, 2010 order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. Defendant had alleged ineffective assistance of trial counsel in not pursuing a motion to suppress the laptop computer defendant did not return to his employer after his untimely resignation, and instead forcing him to plead guilty. We affirm.
Defendant began working for Bearing Point Corporation on March 8, 2004. The company provided him with a laptop computer and accessories, valued in excess of $500. When defendant resigned two days later, he did not return the laptop. He subsequently disregarded two letters and an e-mail demanding he return the computer. The employer contacted the police, and Bernards Township police detective Stephen Elder went to defendant's home and arrested him in July 2004. He did so without a warrant.
Det. Elder testified before the grand jury that he advised defendant he was under arrest "when we first got there[.]" Defendant then went to his bedroom and retrieved the computer. On February 9, 2005, defendant was indicted on one count of third-degree theft by failure to make required disposition of property received, N.J.S.A. 2C:20-9. Defense counsel prepared a motion to suppress on March 23, 2005, but never pursued a hearing.*fn1 Instead, the next day defendant entered into a plea agreement to the charge, in return for the State recommending probation conditioned on serving 180 days in county jail and 50 hours of community service. Judge Edward M. Coleman, however, agreed to sentence defendant to a non-custodial probation term with community service pursuant to a supplemental plea form for non-negotiated pleas. Defendant accepted, provided a factual allocution for the charge, and acknowledged the knowing and voluntary nature of his plea. He also expressly acknowledged that he discussed the matter thoroughly with defense counsel, who answered all his questions, and no one threatened him or promised him anything to plead guilty. On July 22, 2005, Judge Coleman sentenced defendant to a three-year probationary term and 200 hours of community service, and imposed mandatory fees, fines and penalties.
In late 2006, a violation of probation charge was filed against defendant. Defendant pled guilty and was re-sentenced on January 2, 2007 to continued probation.
On October 9, 2009, defendant filed a pro se PCR petition alleging he received inadequate representation by trial counsel who misled him into accepting an unreasonable guilty plea. His petition was supplemented by a brief filed by assigned counsel arguing that trial counsel's deliberate failure to follow through with the suppression motion denied defendant his right to effective assistance of counsel, and but for withdrawal of the motion, defendant would have had the case dismissed.
Counsel further argued defendant was coerced into accepting the plea agreement requiring an evidentiary hearing. Counsel also argued there were no procedural bars to defendant's PCR petition.
In defendant's certification, he attached a March 15, 2005 letter to his attorney instructing that the suppression motion be filed, in which he claimed he stated "clearly [his] intent not to take a plea bargain and to proceed with a motion to suppress." Defendant certified that when he appeared for the status conference he was told by his attorney "that he would not pursue the motion to suppress and that [he] should plead guilty." Defendant claimed he told his attorney he did not want to plead guilty, was innocent, and had valid defenses, but trial counsel would not listen, so he had no other choice than to plead guilty.
Following oral argument on September 2, 2010, Judge Paul W. Armstrong denied defendant's motion. In a thorough oral opinion, the judge found defense counsel "did not fail to recognize a potential suppression issue" but, rather, he used the suppression motion as a "bargaining chip to secure a favorable plea bargain" from an initial plea offer of 364 days' incarceration to an offer amended to 180 days. The State's offer was ultimately reduced to 180 days suspended by Judge Coleman.
In a lengthy recitation of the law, Judge Armstrong also found there was "measurable uncertainty in the area of so-called doorway arrests[,]" so the suppression motion was not such a clear winner. The judge reasoned that if defense counsel had pursued the motion and lost, the favorable plea deal would have likely been taken off the table by the State. Accordingly, the judge concluded that defense counsel made a tactical decision not to pursue the suppression motion and to recommend the favorable plea to defendant, which is not deficient performance under the first Strickland prong. See Strickland v. Washington, 466 U.S. 668, 687-88, 694, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984) (holding that to prevail on a claim of ineffective assistance of counsel, a defendant must satisfy a two-prong test, the first prong being that counsel's performance was deficient, i.e., his or her acts or omissions fell outside the wide range of professional competent assistance considering all of the case's circumstances, and the second prong being that the defect in performance prejudiced the defendant's right to a fair trial such that there existed a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different"); State v. Fritz, 105 N.J. 42, 58 (l987) (adopting the Strickland test in New Jersey); State v. Cusumano, 369 N.J. Super. 305, 310 (App. Div.) (stating that courts "will not second-guess defense counsel's trial decisions which rest upon strategic or tactical considerations"), certif. denied, 181 N.J. 546 (2004).
The judge rejected defendant's claim that trial counsel pressured him to plead guilty or misinformed him as unsupported by a specific facts. See State v. Cummings, 321 N.J. Super. 154, 166 (App. Div.) (holding that a petitioner's conclusory statement in a certification is insufficient for PCR), certif. denied, 162 N.J. 199 (1999). Judge Armstrong additionally found the plea form that defendant signed and defendant's unambiguous statements during the plea colloquy belied these subsequent vague assertions of coercion. This appeal ensued.
On appeal, defendant renews his arguments made before the trial court, asserting he was entitled to an evidentiary hearing and the PCR judge "misapplied the law" and should have found he was entitled to PCR based on inadequate assistance of counsel. We are not persuaded by defendant's arguments and affirm substantially for the reasons articulated by Judge Armstrong in his comprehensive oral opinion. R. 2:11-3(e)(2). We add the following brief comment.
Defendant did not present a sufficient record on either Strickland prong as to the suppression motion or his claim of coercion to warrant an evidentiary hearing. See State v. Preciose, 129 N.J. 451, 462-63 (1992) (holding that to establish a prima facie claim of ineffectiveness of counsel within the Strickland/Fritz test warranting an evidentiary hearing, a defendant must demonstrate a reasonable likelihood that his or her claim will ultimately succeed on the merits). We are also not convinced the computer was essential to prosecuting defendant for theft. The State could have established its case through the testimony of the company's employees. The elements are straightforward. The employer gave defendant a computer and accessories to use at work, and he took the computer with him when he resigned two days later. Despite three demands, two in letters and one in an e-mail, defendant did not return the computer to the employer. Det. Elder's grand jury testimony reflects that although defendant sent the employer an e-mail on March 11, 2004 to contact a law firm in which he had a prepaid plan,*fn2 defendant advised in his statement when he was arrested in July that he did not recall ever speaking with an attorney in the firm about this matter or to make arrangements to return the computer, and he never gave the computer to the attorney to return to the employer.