January 8, 2013
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JAVIER ROMAN, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 08-02-0680.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 20, 2012
Before Judges Axelrad and Sapp-Peterson.
Defendant appeals the denial of his petition for post-conviction relief (PCR). We affirm.
Defendant was arrested on August 30, 2007, following a consensual search of his residence after defendant, along with his co-defendant, George Nieves, was suspected of being involved in narcotics activities based upon a surveillance operation. Defendant initially gave police permission to search his vehicle, in which he had been transporting Nieves during the surveillance operation, but no contraband was found. When asked whether he would consent to the search of his residence, defendant declined to give his consent. After learning that Nieves had been arrested and after further discussion with the police, he told the officers he wanted to cooperate and consented to the search of his residence. The search yielded a kilogram of cocaine, digital scales, two handguns, and a large amount of currency.
In an eleven-count indictment, of which eight counts related to defendant, a grand jury charged defendant with narcotics and weapons offenses. On September 16, 2008, defendant, as a result of a negotiated plea agreement, pled guilty to first-degree distribution of a controlled dangerous substance. During the plea colloquy, defendant acknowledged his culpability, expressed his satisfaction with his plea counsel, and advised the court that he was entering the plea knowingly, voluntarily, and that he had answered the questions on the plea form truthfully. The State recommended a fifteen-year custodial sentence, subject to an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2, and a five-year period of parole supervision. In addition, the State agreed to dismiss the remaining counts of the indictment charged against defendant. On January 16, 2009, the court sentenced defendant in accordance with the plea agreement and, in addition, imposed mandatory fines and penalties as well as the forfeiture of $11,000. Defendant filed no appeal.
On June 15, 2011, defendant filed an unverified PCR petition followed by the subsequent filing of a verified petition on September 16, 2011. Judge Irvin J. Snyder, without conducting oral argument, issued an initial written opinion in advance of the return date of the motion and before receiving defendant's reply brief. Judge Snyder subsequently acknowledged receipt of the reply brief but advised all parties that the reply brief had not altered his initial decision.
Judge Snyder found defendant's contention that the police officers' threats forced him to consent to the search of his residence was unsupported by any evidence, including an affidavit. In contrast, the judge noted the State attached a copy of the transcript of police questioning of defendant following his arrest and defendant's responses to those questions. The transcript disclosed that defendant not only consented to the search of his residence but also indicated that he had not been threatened and that no promises had been made to him by police.
Judge Snyder additionally found that assuming there had been no consent, the search of the residence would have inevitably occurred because police "had sufficient probable cause to obtain a valid search warrant to search the defendant's home" and, as such, "a motion to suppress the evidence would likely not have been meritorious." Likewise, Judge Snyder reasoned that had a motion to withdraw defendant's guilty plea been filed, the court would still have been inclined to deny any such application because defendant would have failed to meet any of the standards for withdrawal of his guilty plea under State v. Slater, 198 N.J. 145, 157-58 (2009). This appeal ensued.
On appeal, defendant raises the following points for our consideration:
FAILURE TO MAKE A MERITORIOUS MOTION TO SUPPRESS MAY CONSTITUTE INEFFECTIVE ASSISTANCE OF COUNSEL.
COUNSEL'S PERFORMANCE WAS DEFICIENT FOR FAILURE TO FILE A MERITORIOUS SUPPRESSION MOTION.
THE PETITIONER HAS PRESENTED SWORN EVIDENCE THAT THE POLICE COERCED HIM INTO GIVING CONSENT TO A SEARCH OF HIS HOME, AND AT THIS JUNCTURE THAT EVIDENCE REMAINS
UNCONTRADICTED; THE COURT WAS NOT FREE TO DISMISS THE PETITION WITHOUT A HEARING.
THE INEVITABLE DISCOVERY DOCTRINE CANNOT APPLY WHEN THE POLICE HAD NO PROBABLE CAUSE TO JUSTIFY A SEARCH WARRANT.
THE PETITIONER MAKES A PRIMA FACIE SHOWING OF PREJUDICE; HAD DEFENSE COUNSEL PREVAILED ON A SUPPRESSION MOTION, THE OUTCOME OF THE CASE WOULD LIKELY HAVE BEEN DIFFERENT, EITHER BECAUSE THE PARTIES WOULD HAVE ARRIVED AT A MORE FAVORABLE PLEA BARGAIN, OR THE STATE WOULD HAVE BEEN DISABLED FROM PROVING ITS CASE.
We have considered the points raised in accordance with the record, arguments advanced and applicable legal principles. We are satisfied the points raised and arguments advanced are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm for the reasons expressed by Judge Snyder in his September 20, 2011 written opinion. We add the following comments limited to the request contained in the December 7, 2012 letter, submitted on behalf of defendant, in which defense counsel requests that we consider the issues raised in this appeal in light of the Court's recent decision in State v. Parker, 212 N.J. 269 (2012).
In Parker, the Court addressed the limited issue of whether defendant "was entitled to oral argument in connection with his first petition for post-conviction relief." Id. at 277. Here, as in Parker, the court did not entertain oral argument. We are satisfied, however, that although the court should have conducted oral argument, its failure to do so does not warrant reversal.
The defendant in Parker claimed he had been subjected to a threat from a drug dealer for whom he worked. According to the defendant, the drug dealer would have had him killed unless he agreed to carry out the drug dealer's order to kill the victim, and it was fear for his own life that led him to commit the crime. Id. at 273-74. The Court found the defendant's petition included a copy of the sworn statements the defendant and his co-defendant provided to police at the time of their arrests and that those statements "set forth in detail the facts underlying [the defendant's] claim of duress." Id. at 283. The Court was therefore satisfied the sworn statements the defendant presented in his petition were sufficient to have warranted oral argument.
Here, however, apart from the fact that the denial of defendant's petition without oral argument occurred nearly one year before the Parker decision, defendant's petition was facially defective. Defendant's verification, at the end of the amended petition, stated: "I have carefully reviewed the attached Petition, and . . . the facts presented therein are accurate, to the best of my knowledge, recollection and belief."
This verification does not comply with Rule 1:4-4, which provides that where the rules require an affidavit, oath or verification, a certification in lieu of the verification may be submitted, provided the following language is included: "the foregoing statements made by me are true. I am aware that if any of the foregoing statements made by me are willfully false, I am subject to punishment." Ibid.; see also Stowell v. N.J. State Ass'n of Chiefs of Police, 325 N.J. Super. 512, 520--21 (App. Div. 1999) (stating that the allegations in an affidavit that were "true and correct to the best of my knowledge and belief" did not comply with the rule); State v. One (1971) Datsun, 189 N.J. Super. 209, 211 (App. Div. 1983) (stating that a verification that statements were "true to the best of my knowledge and belief" was a nullity).
Additionally, Judge Snyder considered the transcript of the
questioning defendant underwent at the time of his arrest and his
responses to those questions. The questioning and defendant's
responses revealed that after being advised of his Miranda*fn1
rights, defendant waived those rights and consented to the
search of his residence. Defendant expressly acknowledged his initial
refusal to give consent and his later decision to
cooperate by consenting to the search. Defendant also acknowledged
that his change in position was made without any threats or promises
having been made to him.
The judge also considered the certification submitted by defendant's former trial counsel in which counsel certified that the decision not to file a suppression motion was a strategic choice. With multiple first and second-degree charges set forth in the indictment, if convicted, defendant would have faced a life sentence, with a twenty-five-year period of parole ineligibility. Given these potential consequences, when balanced against the plea offer, Judge Snyder properly concluded that "[i]t is not ineffective assistance for defense counsel not file a meritless motion to suppress and hence it does not rise to the level of an error so egregious that the defendant was denied his Sixth Amendment right."
Finally, unlike in Parker, where different judges presided over the various proceedings leading up to the PCR motion, here Judge Snyder presided over both the plea and sentencing proceedings, as well as the PCR proceeding. He therefore had the benefit of observing defendant not only provide the factual basis for the guilty plea but to also observe defendant's demeanor while responding to questions related to the voluntariness of his plea, his understanding of the consequences of his plea, his right to a trial by jury, and his satisfaction with the representation provided on his behalf. Certainly the better practice, even in the absence of the Parker decision, would have been to conduct oral argument on the motion or to explain why oral argument was unnecessary. State v. Mayron, 344 N.J. Super. 382, 387 (App. Div. 2001) (expressing the view that given what is at stake for a criminal defendant, "there should be a significant presumption in favor of oral argument"). We nonetheless conclude Judge Snyder, on this record, did not take too narrow a view of defendant's arguments nor abuse his discretion by disposing of the motion on the papers.