NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2703-22
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DANIEL A. MEDINA,
Defendant-Appellant. _______________________
Submitted April 17, 2024 – Decided February 18, 2025
Before Judges Gummer and Walcott-Henderson.
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 14-08-2470.
Jennifer Nicole Sellitti, Public Defender, attorney for appellant (David A. Gies, Designated Counsel, on the briefs).
Grace C. MacAulay, Camden County Prosecutor, attorney for respondent (Jason Magid, Assistant Prosecutor, of counsel and on the brief).
The opinion of the court was delivered by
GUMMER, J.A.D. Defendant Daniel A. Medina appeals from an order denying his petition
for post-conviction relief (PCR), which the PCR court entered after conducting
an evidentiary hearing on remand. Defendant claims his plea counsel rendered
ineffective assistance by failing to move to suppress evidence seized from his
residence. After hearing testimony from defendant and his plea counsel, the
PCR court on remand held defendant had failed to establish plea counsel's
performance was deficient under the first prong of the standard articulated by
the United States Supreme Court in Strickland v. Washington, 466 U.S. 668,
687 (1984), and adopted under our State Constitution by the New Jersey
Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). Perceiving no error in
that decision, we affirm.
I.
In August 2012, defendant was serving parole following his release from
prison. As set forth in a New Jersey State Parole Board Investigation Report,
law-enforcement officers, who were members of a Gang Reduction and
Aggressive Supervised Parole (GRASP) team,1 drove to defendant's residence
1 As described in the report, "[t]he purpose of the GRASP program is to identify, monitor and aggressively supervise parolees who were identified as gang members while incarcerated and to ensure strict compliance with the terms of their parole." A-2703-22 2 on August 30, 2012. According to the parole officer who wrote the report, when
they arrived, defendant was "standing on the front step of his residence" and
after seeing the officer's vehicle, defendant "ran into the house and shut and
locked the front door." Law-enforcement officers entered the house, saw a stack
of cash on the kitchen counter, and conducted a warrantless search of his
residence. They seized heroin, a stun gun, $2,747 in cash, a digital scale, a
stamp press commonly used to package controlled dangerous substances (CDS),
and other drug related packaging materials. They also arrested defendant.
A grand jury charged defendant with various drug and weapons offenses ,
including first-degree maintaining or operating a CDS production facility,
N.J.S.A. 2C:35-4, and fourth-degree certain persons not to possess weapons,
N.J.S.A. 2C:39-7(a). In a superseding indictment, the grand jury charged
defendant with additional offenses based on events occurring during the weeks
following his arrest, including second-degree tampering with a witness, N.J.S.A.
2C:28-5(d). In a subsequent indictment based on events that took place in 2015,
defendant was charged with three counts of aggravated assault, N.J.S.A. 2C:12-
1(b)(1) to (2), and one count of possession of a weapon for an unlawful purpose,
N.J.S.A. 2C:39-4(d).
A-2703-22 3 Pursuant to a negotiated agreement with the State, defendant in 2016
pleaded guilty to first-degree maintaining or operating a CDS production
facility, N.J.S.A. 2C:35-4; second-degree tampering with a witness, N.J.S.A.
2C:28-5(d); and third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(2). As
part of that agreement, the State recommended an aggregate sentence of fourteen
years in prison with a seven-year period of parole ineligibility and the dismissal
of the remaining charges.
At the plea hearing, defendant was represented by plea counsel on the
CDS indictment and by another lawyer on the aggravated-assault indictment. In
addition to the representations made by plea counsel, the other lawyer advised
the court: "[W]e've gone over all the discovery and we've gone over his
defenses. [Defendant] understands all the consequences and the potential
penalties and I believe he's been fully informed and [is] ready to waive his right
to trial and plead guilty . . . ." Defendant testified he had consulted with both
counsel in completing the plea forms and was satisfied with their services.
Represented by a new lawyer from a different law firm, defendant
subsequently moved to withdraw his guilty plea. During oral argument, defense
counsel made no mention of plea counsel's purported failure to file a suppression
motion. In a comprehensive oral opinion, the court denied defendant's motion
A-2703-22 4 and subsequently imposed a sentence consistent with the sentence the State had
recommended as part of the plea agreement. Defendant filed a direct appeal.
We subsequently dismissed the appeal as withdrawn. State v. Medina, No. A-
4628-16 (App. Div. Nov. 16, 2017).
Defendant filed a PCR petition, an amended petition, and a supporting
certification. He claimed his trial counsel had been ineffective in several ways,
including in failing to move to suppress the evidence seized during the search
of his residence. Without conducting an evidentiary hearing, the PCR court
entered an order denying his petition. The court found a suppression motion
would have been unsuccessful because, based on a parole officer's investigation
report, law-enforcement officers had a reasonable suspicion defendant had
violated the conditions of his parole and, thus, trial counsel was not ineffective
by failing to file a meritless motion.
Defendant appealed the denial of his petition. We affirmed the order in
all respects except one: we reversed the aspect of the order denying defendant's
claim his counsel had been ineffective in not filing the suppression motion and
remanded for the PCR court to conduct an evidentiary hearing regarding that
claim. State v. Medina, No. A-1390-19 (App. Div. Aug. 11, 2021) (slip op. at
27, 34).
A-2703-22 5 Noting the State had not submitted competent evidence to support its
version of the events leading to the search of defendant's residence, we
concluded defendant's version of the events, supported by his verified petitions
and certification, made "a prima facie showing there is a reasonable probability
a motion to suppress would have been successful." Id. at 14, 20. We declined
to determine whether the suppression motion would have been successful,
"recogniz[ing] there are many reasons trial counsel may have decided not to file
the motion." Id. at 24. We referenced one reason a defendant and his counsel
might decide not to move to suppress: "defendant and his counsel may have
made a well-reasoned decision not to file a motion to suppress to take advantage
of a plea offer that might have been withdrawn if a motion to suppress had been
filed and lost." Ibid.
We decided "only that defendant made a prima facie showing of
ineffective assistance of counsel under the Strickland standard based on
counsel's failure to file the motion," which entitled him to an evidentiary hearing
on that issue. Id. at 24-25. We remanded with the following instructions:
[W]e remand for the court to conduct an evidentiary hearing to consider the reasons counsel did not file a suppression motion, and to determine whether "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland, 466 U.S. at 687. "[I]f
A-2703-22 6 counsel acted for sound strategic reasons, [his] performance may not have been deficient." [State v.] Fisher, 156 N.J. [494,] 507 (1998). In that event, the court need not address the merits of the suppression motion to assess whether defendant was prejudiced by his counsel's purported error because defendant will have failed to establish his counsel's performance was deficient under Strickland's first prong. See Strickland, 466 U.S. at 700 (finding a failure to establish either prong of the Strickland standard requires denial of a PCR petition); State v. Nash, 212 N.J. 518, 542 (2013) (same).
If the court determines trial counsel's performance was deficient by failing to file the suppression motion, the court must also consider at the evidentiary hearing the merits of the suppression motion to determine if, but for counsel's error in failing to file the motion, there is a reasonable probability the result of the proceeding against defendant would have been different. See Strickland, 466 U.S. at 694. Of course, if the court determines at the hearing that trial counsel's performance was deficient and the evidence would have been suppressed, the court shall grant defendant's petition and vacate his convictions on the offenses to which he pleaded guilty pursuant to the plea agreement. If the court finds either counsel's performance was not deficient or that defendant suffered no prejudice from the purported error in failing to file the motion to suppress, the court shall deny the PCR petition.
[Id. at 25-26 (footnote omitted).]
During the evidentiary hearing on remand, the State called as its witness
defendant's plea counsel. When he represented defendant, counsel had been
A-2703-22 7 practicing law for about forty years with a focus on criminal law. Counsel
testified he was not defendant's first lawyer; defendant had retained him two
years before he pleaded guilty. Counsel could not recall how often he had met
with defendant, but his "normal practice" was to "meet with clients a number of
times before any court proceedings." Counsel also testified it was his practice
to review with his clients "everything that was part of discovery." Counsel
recalled discussing with defendant "many times" his "sentencing exposure,"
which was "life . . . because of the first-degree manufacturing charge, and . . .
because of his prior record."
When asked if he had considered filing a motion to suppress evidence in
this case, counsel responded:
We spoke about that. I didn't believe that it had merit. He was on parole at the time, which would not preclude me from filing a motion to suppress, but would become much more difficult. [2] He had much less of an expectation of privacy of his residence because he was on parole. We discussed that.
And most importantly in his case, with the life exposure, I knew from my practice in Camden County, Burlington County and Gloucester County specifically
2 Defendant concedes in his merits brief that "a parolee does not enjoy the same freedoms as an ordinary citizen," citing State v. Maples, 346 N.J. Super. 408, 412-13 (App. Div. 2002). See also H.R. v. N.J. State Parole Bd., 457 N.J. Super. 250, 262-63 (App. Div. 2018) ("Parole supervision already severely diminishes [defendant's] privacy and personal autonomy"). A-2703-22 8 that once a motion is filed, any offer that is made pre- trial is normally removed. So, in other words, if you file a motion and you're not successful, the offer is usually withdrawn.
On cross-examination, defense counsel asked plea counsel how many
times he had discussed with defendant a possible suppression motion. Plea
counsel responded:
I can't specifically tell you, but I can tell you that it would have been the topic of a discussion because that was the basis of the entire case. If the motion to suppress was successful, there would be no case.
....
So, I'm sure we did discuss it. I can't tell you how many times. But I specifically do know that I did discuss it with him. I was aware of what the plea offer was, and I am certain that it would have been my practice to tell him if I didn’t believe it had merit, which I did not believe it did, that if we filed the motion and were unsuccessful that the plea offer would be withdrawn and would escalate.
Plea counsel did not recall anything defendant may have told him about
the possible suppression motion or the day of the search. When asked what he
recalled about the factual allegations in the investigative report, plea counsel
referenced the following factual assertions in the report: defendant was on
parole, a parole officer and others went to defendant's home, they saw him
outside of the house smoking a cigarette, and "[t]hey believed that he saw them
A-2703-22 9 out there and quickly ran in the house and closed the door . . . ." He also testified
the parole officer stated in the report defendant appeared to have an elevated
heart rate and "they saw a stack of money in plain view on the table that was
under a cell phone." Plea counsel acknowledged the only potential justification
for the officers to enter defendant's residence was that defendant "hurriedly ran
into the house after seeing people from the parole board there." When asked
whether he believed running into the house after seeing parole officers was
enough to support a violation of parole, counsel replied: it "could have cut both
ways."
After plea counsel finished testifying, the prosecutor advised the court the
parole officer involved in the August 30, 2012 search was "ready and available
to come over [to] testify." The court responded: "If you need. If needed."
Neither side called the parole officer as a witness.
Defendant testified about the events of August 30, 2012. According to
defendant, he had been on parole for about two years and was wearing an ankle
monitor. He testified that under the terms of his parole, he could not be outside
A-2703-22 10 later than 7:00 p.m. 3 He admitted that on August 30, 2012, he was outside
between 8:00 p.m. and 9:00 p.m. He testified:
I was on the front step. As you open the door, I cannot go outside because my ankle monitor will go off. So, I opened the front door so I [didn't] smoke while my child was in the house. As I opened the front door I'm sitting on my front step, the top of the steps, smoking a cigarette. I'm done [with] the cigarette. I put the cigarette out, I shut the door, put the top lock on, walk to the kitchen, wash my hands.
He then heard a knock on the door, which he opened after a parole officer
identified herself. Officers entered the house, restrained him, and searched the
house after seeing the stack of money when they entered the kitchen. He denied
he had run into the house and asserted the money, which was later determined
to be $2,747 in cash, came from his job at Dream Cuisine. Defendant testified
he had provided his version of those events to plea counsel.
Defendant initially denied reviewing discovery materials but then stated
plea counsel's secretary had given the materials to him and told him to read
3 In contrast, in his certification in support of his amended petition, defendant testified that pursuant to the "specific and strict conditions for [his] parole," he "had to be in [his] home all day unless [he] was at work."
A-2703-22 11 them.4 Defendant confirmed he and plea counsel had discussed a possible
suppression motion "several times." According to defendant, plea counsel told
him about the information in the investigative report, which was part of the
discovery materials, was "a bunch of BS" and that "he could file a motion and
get this thrown away." Defendant understood the prosecutor initially had
offered to recommend a sentence of a twelve-year imprisonment term with a six-
year parole-ineligibility period on just the charges in the CDS indictment.
Defendant testified he had asked plea counsel, "because I'm getting fourteen
years, twelve years, why we can't file the motion?" and plea counsel told him
they could file the motion.
Defendant testified about the plea hearing. He was represented by plea
counsel on the charges in the CDS indictment and another attorney on the
charges in the aggravated-assault indictment. According to defendant, while he
was reviewing the plea form with plea counsel, they discussed the suppression
motion and plea counsel told him "at this time [he] was signing the plea form to
take the deal, and it was too late to file the motion."
4 In contrast to his testimony at the PCR hearing, in his certification in support of his amended petition, defendant testified plea counsel, not his secretary, had "handed [him] a lot of paperwork and told [him] it was [his] discovery and that [he] should review it." Defendant certified he "looked through the paperwork for a long time that day." A-2703-22 12 On cross-examination, defendant conceded his certification in support of
his petition did not contain any reference to the discussions he testified he had
had with plea counsel about the suppression motion.
After hearing the testimony of defendant and his plea counsel, the PCR
court placed its decision on the record, denying defendant's petition. The court
found plea counsel to be "very credible" given his demeanor and experience.
The court found defendant was "less credible" than plea counsel because his
testimony was inconsistent. The court cited defendant's testimony that "he didn't
go outside with his ankle monitor because he knew it would trigger the device";
yet "he testified he sat outside on the top step to smoke a cigarette." The court
noted defendant also "first testified that he didn't have an opportunity to review
the discovery, but then he did testify that he was given all the discovery and
reviewed it, although he stated he didn't know what he was reviewing." The
court also reviewed the transcript of the plea hearing and considered defendant's
testimony that he had consulted with both lawyers regarding the plea form and
was satisfied with their services.
The court found plea counsel and defendant had met "numerous times"
and "discussed the exposure [defendant] had in the drug case given his prior
record, specifically that he was facing a sentence of life in prison ." The court
A-2703-22 13 also found they had "discuss[ed] the possibility of filing a suppression motion,
and . . . the likelihood of success of that motion." The court concluded plea
counsel "believed his client ran into the house as detailed in the report of the
incident, which would have been consistent since [defendant] knew that being
outside may set off an alert on his GPS bracelet." The court believed plea
counsel "was aware of the lower expectation of privacy that parolees enjoy,"
"the lower standard of searches of a parolee's residence," and "that plea offers
would be taken off the table or become less favorable to the defendant if a
motion to suppress was filed, given his substantial experience as a criminal
defense lawyer with over forty years of experience." The court found plea
counsel believed the suppression motion "would have been unsuccessful and
would have ultimately exposed [defendant] to a less favorable plea offer, or no
plea offer at all," thereby exposing defendant "possibly to a life sentence rather
than the less[er] sentence he received."
Based on those factual findings, the court held defendant "had the benefit
of the advice and guidance of a reputable, competent attorney with over forty
years of experience in criminal defense work." The court found plea counsel
had "exercised reasonable professional judgment and sound strategy in not filing
the suppression motion, and not exposing his client to a less favorable plea
A-2703-22 14 offer." The court concluded plea counsel "did not make any errors that were so
serious that he was not functioning as counsel, and instead acted for sound
strategic reasons." Because it found defendant had "not met the first prong of
the Strickland standard," the court did not consider the merits of the suppression
motion. The court entered an order denying defendant's petition on January 20,
2023. This appeal followed.
Defendant presents the following arguments for our consideration.
POINT ONE
THE PCR JUDGE ERRED WHERE HE CONCLUDED THAT THE TRIAL ATTORNEY'S DECISION NOT TO FILE A SUPPRESSION MOTION WAS REASONABLE.
POINT TWO
DEFENDANT WAS PREJUDICED BY HIS TRIAL ATTORNEY'S FAILURE TO FILE A MERITORIOUS MOTION TO SUPPRESS.
II.
We review a PCR court's conclusions of law de novo. Nash, 212 N.J. at
540-41. Where, as here, the court has conducted an evidentiary hearing on a
PCR petition, we defer to the "court's factual findings based on its review of live
witness testimony," id. at 540, because of its "opportunity to hear and see the
witnesses and to have the feel of the case, which a reviewing court cannot
A-2703-22 15 enjoy," State v. Nuñez-Valdéz, 200 N.J. 129, 141 (2009) (quoting State v.
Elders, 192 N.J. 224, 244 (2007)); see also Nash, 212 N.J. at 540 (finding "[a]n
appellate court's reading of a cold record is a pale substitute for a trial judge's
assessment of the credibility of a witness he [or she] has observed firsthand").
We must affirm the PCR court's factual findings unless they are not supported
by "sufficient credible evidence in the record" and "'are so clearly mistaken that
the interests of justice demand intervention and correction.'" Nuñez-Valdéz,
200 N.J. at 141 (quoting Elders, 192 N.J. at 244) (internal quotation marks
omitted).
The Sixth Amendment to the United States Constitution and Article I,
Paragraph 10 of the New Jersey Constitution guarantee defendants in a criminal
proceeding the right to the assistance of counsel in their defense. The right to
counsel requires "the right to the effective assistance of counsel." Nash, 212
N.J. at 541 (quoting Strickland, 466 U.S. at 686).
To establish a prima facie case of ineffective assistance of counsel, a
defendant must show a "reasonable likelihood" of success under the two-prong
test outlined in Strickland. State v. Preciose, 129 N.J. 451, 463 (1992); see also
Strickland, 466 U.S. at 694; Fritz, 105 N.J. at 58. The Strickland test requires
that defendant show (1) "counsel made errors so serious that counsel was not
A-2703-22 16 functioning as the 'counsel' guaranteed . . . by the Sixth Amendment" and (2)
counsel's "deficient performance prejudiced the defense." Fritz, 105 N.J. at 52
(quoting Strickland, 466 U.S. at 687). "With respect to both prongs of the
Strickland test, a defendant asserting ineffective assistance of counsel on PCR
bears the burden of proving his or her right to relief by a preponderance of th e
evidence." State v. Gaitan, 209 N.J. 339, 350 (2012). If a defendant fails to
sustain his burden under either prong of the standard, a defendant's ineffective-
assistance-of-counsel claim fails. Strickland, 466 U.S. at 687.
Under the first prong, a defendant must show "counsel's acts or omissions
fell outside the wide range of professionally competent assistance considered in
light of all the circumstances of the case." State v. Allegro, 193 N.J. 352, 366
(2008) (quoting State v. Castagna, 187 N.J. 293, 314 (2008)). Our analysis
under the first prong is highly deferential to counsel. State v. Arthur, 184 N.J.
307, 318 (2005); see also Fisher, 156 N.J. at 500 (finding "[u]nder the first prong
of the [Strickland] test, counsel's performance is to be reviewed with 'extreme
deference . . . .'") (quoting Fritz, 105 N.J. at 52). When "applying the first
[Strickland] prong, courts are required . . . 'to reconstruct the circumstances of
counsel's challenged conduct, and to evaluate the conduct from counsel's
A-2703-22 17 perspective at the time.'" Fisher, 156 N.J. at 500 (quoting Strickland, 466 U.S.
at 689).
There is "'a strong presumption' that [counsel] provided reasonably
effective assistance" and counsel's "decisions followed a sound strategic
approach to the case[,]" State v. Pierre, 223 N.J. 560, 579 (2015) (quoting
Strickland, 466 U.S. at 689), even when a strategic decision turns out to be a
mistake, State v. Buonadonna, 122 N.J. 22, 42 (1991). A defendant may rebut
the presumption of effectiveness by proving trial counsel's actions were not
"sound trial strategy." Arthur, 184 N.J. at 319 (quoting Strickland, 466 U.S. at
689).
Under the second Strickland prong, a defendant must "affirmatively
prove" "a reasonable probability that, but for counsel's unprofessional errors,
the result of the proceeding would have been different." State v. Gideon, 244
N.J. 538, 551 (2021) (quoting Strickland, 466 U.S. at 693). "A reasonable
probability is a probability sufficient to undermine confidence in the outcome."
Ibid. (quoting Strickland, 466 U.S. at 694). Proof of prejudice under Strickland's
second prong "is an exacting standard." Ibid. (quoting Allegro, 193 N.J. at 367).
In certain limited circumstances, "such as the '[a]ctual or constructive
denial of the assistance of counsel altogether,' prejudice is presumed." State v.
A-2703-22 18 Goodwin, 173 N.J. 583, 597 (2002) (alteration in original) (quoting Strickland,
466 U.S. at 692). "Failure to file a suppression motion, however, is not one of
those circumstances." Ibid. (quoting Fisher, 156 N.J. at 501). "Additionally,
when counsel fails to file a suppression motion, the defendant not only must
satisfy both parts of the Strickland test but also must prove that his [or her]
Fourth Amendment claim is meritorious." Ibid. (alteration in original) (quoting
Fisher, 156 N.J. at 501); see also State v. Worlock, 117 N.J. 596, 625 (1990)
("The failure to raise unsuccessful legal arguments does not constitute
ineffective assistance of counsel.").
Defendant focuses his appellate argument on the PCR court's purported
failure in "not consider[ing] whether [plea counsel] informed defendant of the
risks and rewards of pressing the particular application." Defendant concedes
"the State's policy [of withdrawing a plea offer or making it less favorable to a
defendant when a defendant moves to suppress evidence] existed in every
criminal case where a plea offer was made." But he contends "it is whether
defense counsel failed to review with the client the risks and rewards of filing a
motion that is determinative of what is professionally competent assistance
under the first prong of the Strickland/Fritz test."
A-2703-22 19 The problem with that argument is that defendant did not make a failure-
to-advise claim in either his petition or amended petition and did not make that
argument to the PCR court initially or on remand. Accordingly, we decline to
consider that argument on appeal. See Alloco v. Ocean Beach & Bay Club, 456
N.J. Super. 124, 145 (App. Div. 2018) (applying "well-settled" principle that
appellate court will not consider an issue that was not raised before the trial
court); State v. Robinson, 200 N.J. 1, 19 (2009) (finding "[t]he jurisdiction of
appellate courts rightly is bounded by the proofs and objections critically
explored on the record before the trial court by the parties themselves").
Instead, we focus on the issue defendant raised in his petition – whether
plea counsel's performance was deficient due to his failure to move to suppress
evidence seized from defendant's residence – and the clear directives we gave
the PCR court – to conduct on remand "an evidentiary hearing to consider the
reasons counsel did not file a suppression motion, and to determine whether
'counsel made errors so serious that counsel was not functioning as the counsel
guaranteed the defendant by the Sixth Amendment.'" Medina, No. A-1390-19
(slip op. at 25) (quoting Strickland, 466 U.S. at 687) (internal quotation marks
A-2703-22 20 In Fisher, the defendant claimed his trial counsel had rendered ineffective
assistance because she had failed to refile a previously withdrawn suppression
motion. 156 N.J. at 507. The reason why counsel had not refiled the motion
was unclear. Ibid. The defendant blamed counsel's failure to refile on her
mistaken understanding of the law. Ibid. The Court found, however, counsel's
performance might not have been deficient if she had decided not to refile the
motion due to "sound strategic reasons" and not a mistaken understanding of the
law. Ibid. The Court recognized it was "possible that trial counsel did not refile
the motion because she did not want to lose a favorable plea offer." Ibid.
Because the "record [was] unclear whether counsel based her decision not to
refile defendant's motion to suppress on strategic considerations or an erroneous
interpretation of the law," the Court remanded the case "for a hearing to
determine counsel's reason for not refiling defendant's motion to suppress."
Ibid.
In State v. Johnson, 365 N.J. Super. 27, 35-36 (App. Div. 2003), the
defendant claimed his trial counsel had rendered ineffective assistance because
he had failed to file a suppression motion. The reason for defense counsel's
failure to file the motion was not disputed. Id. at 36. "[D]efense counsel failed
to file a timely suppression motion not due to strategic considerations," but
A-2703-22 21 because he admittedly had concluded a suppression motion would be "frivolous
and without merit . . . based on his mistaken belief that consent to enter allowed
for a full[-]blown search." We concluded on that record the defendant had met
both Strickland prongs and remanded the case for an evidentiary hearing on
whether the seized evidence should have been suppressed. Id. at 37.
This case is like Fisher. Before our remand, the reason why trial counsel
had not moved to suppress the seized evidence was not clear. Accordingly, we
remanded the case so the PCR court could hear testimony on that issue in an
evidentiary hearing and make that determination. Having heard the testimony
of defendant and plea counsel, the PCR court found plea counsel to be "very
credible" and defendant "less credible" because his testimony was inconsistent.
We perceive "no basis to second-guess the credibility findings of the PCR
court." Gideon, 244 N.J. at 562 (quoting Nash, 212 N.J. at 545).
During the hearing on remand, plea counsel testified about his concerns
regarding defendant's exposure to a life sentence, the reduced standard on a
suppression motion involving a parolee, the merits of the motion given the
observations the parole officer had described in her report, and the prosecutor's
practice of withdrawing or making less favorable a plea offer on a defendant's
filing of a suppression motion. The court found that testimony credible and
A-2703-22 22 concluded plea counsel believed the suppression motion "would have been
unsuccessful and would have ultimately exposed [defendant] to a less favorable
plea offer, or no plea offer at all," thereby exposing defendant "possibly to a life
sentence rather than the less[er] sentence he received." Thus, plea counsel
credibly articulated "sound strategic reasons" for his decision not to file the
suppression motion: he "did not want to lose a favorable plea offer" and risk his
client's exposure to a life sentence. Fisher, 156 N.J. at 507.
Defendant had the opportunity – and the burden – at the remand hearing
to rebut the "strong presumption" plea counsel's decision not to file the
suppression motion fell "within the wide range of reasonable professional
assistance" and "might be considered sound trial strategy." Arthur, 184 N.J. at
319 (quoting Strickland, 466 U.S. at 689) (internal quotation marks omitted).
He failed to meet that burden and, consequently, failed to satisfy the first prong
of the Strickland standard.
When determining whether "counsel's acts or omissions fell outside the
wide range of professionally competent assistance considered in light of all the
circumstances of the case," Allegro, 193 N.J. at 366 (quoting Castagna, 187 N.J.
at 314), a court must "evaluate the conduct from counsel's perspective at the
time," Fisher, 156 N.J. at 500 (quoting Strickland, 466 U.S. at 689). The
A-2703-22 23 testimony at the remand hearing established plea counsel's knowledge of the
following circumstances: defendant was on parole on August 30, 2012; one of
the conditions of defendant's parole was that he not be outside later than 7:00
p.m.; contrary to that condition, defendant admitted he was outside on the front
step between 8:00 p.m. and 9:00 p.m. on August 30, 2012; defendant admitted
law-enforcement officers saw a stack of money when they entered the kitchen;
because he was on parole, defendant had a lower expectation of privacy than
someone not on parole; because he had a lower expectation of privacy , it would
be more difficult for defendant to succeed on a suppression motion; based on
the factual assertions contained in her report, plea counsel knew the likely
testimony of the parole officer; from his experience plea counsel knew the filing
of the motion could result in the prosecution withdrawing the plea offer or
making it less favorable, a policy defendant on appeal concedes exists; and
absent the plea offer, defendant faced a life sentence.
Evaluating those circumstances "from counsel's perspective at the time,"
ibid., the PCR court on remand found plea counsel had "exercised reasonable
professional judgment and sound strategy in not filing the suppression motion,
and not exposing his client to a less favorable plea offer" and had "not ma[d]e
any errors that were so serious that he was not functioning as counsel . . . ."
A-2703-22 24 Accordingly, the court held defendant had not met the first Strickland prong and
denied his petition.
Based on the record presented, including the testimony given at the
remand hearing, we discern no error in the court's determination that defendant
failed to sustain his burden under the Strickland standard to establish his
ineffective-assistance-of-counsel claim. We therefore affirm the January 20,
2023 order denying defendant's PCR petition.
We have considered all of defendant's arguments on appeal and, to the
extent we have not expressly addressed any of them, we have determined they
are without sufficient merit to warrant discussion. R. 2:11-3(e)(2).
Affirmed.
A-2703-22 25