NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-3397-23
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
THEODORE BROWN, JR., a/k/a THEODORE BROWN, T. BROWN, THEODORE J. BROWN, and TED BROWN,
Defendant-Appellant.
Submitted September 18, 2025 – Decided October 16, 2025
Before Judges Mawla and Marczyk.
On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 15-06- 0750.
Jennifer N. Sellitti, Public Defender, attorney for appellant (Steven E. Braun, Designated Counsel, on the brief).
LaChia L. Bradshaw, Burlington County Prosecutor, attorney for respondent (Alexis R. Agre, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Theodore Brown, Jr. appeals from the trial court's April 30,
2024 order denying his application for post-conviction relief (PCR). We affirm.
I.
In June 2015, defendant was indicted and charged with: two counts of
first-degree robbery, N.J.S.A. 2C:15-1(a)(2) (counts one and two); first-degree
attempted robbery, N.J.S.A. 2C:5-1(a)(1) and 2C:15-1(a)(2) (count three); three
counts of second-degree possession of a weapon for an unlawful purpose,
N.J.S.A. 2C:39-4(a)(1) (counts four, five, and six); three counts of third-degree
unlawful possession of a weapon, N.J.S.A. 2C:39-5(b)(2) (counts seven, eight,
and nine); and three counts of second-degree certain persons not to have
weapons, N.J.S.A. 2C:39-7(b)(1) (counts ten, eleven, and twelve).
In August 2015, defendant pled guilty to count two of the indictment. In
exchange for defendant's guilty plea, the State agreed to dismiss the remaining
charges and to recommend a fourteen-year prison sentence, subject to the No
Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
During the plea hearing, defendant testified that on September 26, 2014,
he traveled to a gas station in Moorestown, where he used a gun the victim
A-3397-23 2 believed to be real, and stole money from the victim that belonged to the gas
station, along with an iPad.
During the investigation of the robbery, the Moorestown police
interviewed defendant. He was advised of his Miranda1 rights and signed a
Miranda card. Defendant did not consent to a search of his apartment but did
consent to a buccal swab for DNA testing of a mask that was recovered
following a robbery at a different store. The police ultimately obtained a warrant
to search defendant's apartment, where they found clothing worn by defendant
during the gas station robbery and a gun under his bed.
Defense counsel acknowledged the strength of the State's case and the fact
defendant faced the possibility of an extended-term sentence if convicted of all
the charges. He further noted defendant had mental health issues, which were
considered as part of the negotiated plea, and requested defendant receive
counseling in prison. Counsel acknowledged defendant faced a possible
sentence of more than forty years in prison, if convicted of all the charges.
The court sentenced defendant to a fourteen-year term of imprisonment,
subject to NERA. Defendant appealed, challenging his sentence and arguing,
1 Miranda v. Arizona, 384 U.S. 436 (1966). A-3397-23 3 among other issues, the trial court should have considered mitigating factor four.
We affirmed the sentence.
Defendant subsequently moved for PCR in October 2022, and counsel was
assigned to represent him. 2 In November 2023, counsel filed an amended
verified petition and brief. On April 30, 2024, the court denied defendant's PCR
application.
II.
On appeal, defendant raises the following point:
AN EVIDENTIARY HEARING IS NECESSARY BECAUSE DEFENSE COUNSEL WAS INEFFECTIVE BY FAILING TO CHALLENGE DEFENDANT'S STATEMENT, HIS CONSENT TO THE POLICE USE OF A BUCCAL SWAB, AND FOR
2 Defendant, who was previously self-represented, attempted on numerous prior occasions to apply for PCR and other relief. In January 2017, he submitted a letter requesting PCR. The application was denied. He submitted another letter in late January 2017, which the court construed as a motion to withdraw a guilty plea and denied. In August 2017, defendant forwarded correspondence to the court requesting a reduction of his sentence, which was also denied. In November 2017, defendant filed another letter requesting his case be reopened—construed by the court as a motion to withdraw a guilty plea—and that application was denied. Defendant again unsuccessfully moved to reduce his sentence in December 2017. His motion for a reduction of his sentence in April 2020 was also denied. In October 2020, defendant filed another unsuccessful PCR petition. He again requested a reduction in sentence in September 2021, which was denied. In June 2022, defendant filed what was interpreted by the court as a second PCR petition, and that application was denied in September 2022. A-3397-23 4 FAILING TO ADEQUATELY ADDRESS MITIGATING FACTORS.
A. Counsel failed to consider how defendant's mental health issues impacted his supposed consent to interrogation.
B. Counsel failed to challenge defendant's consent to the buccal swab.
C. Counsel failed to adequately argue the mitigating factors.
We review a PCR court's conclusions of law de novo. State v. Nash, 212
N.J. 518, 540-41 (2013). We must affirm the PCR court's factual findings unless
they are not supported by "sufficient credible evidence in the record." Id. at
540. A judge's decision to deny a PCR petition without an evidentiary hearing
is reviewed under an abuse of discretion standard; however, we may review the
factual inferences and legal conclusions drawn by the court de novo. State v.
Brewster, 429 N.J. Super. 387, 401 (App. Div. 2013) (citing State v. Marshall,
148 N.J. 89, 157-58 (1997)); State v. Blake, 444 N.J. Super. 285, 294 (App. Div.
2016).
To establish a claim of ineffective assistance of counsel, a defendant must
satisfy the two-prong Strickland test: (1) "counsel made errors so serious that
counsel was not functioning as the 'counsel' guaranteed the defendant by the
Sixth Amendment" and (2) "the deficient performance prejudiced the defense."
A-3397-23 5 Strickland v. Washington, 466 U.S. 668, 687 (1984); see also State v. Fritz, 105
N.J. 42, 58 (1987) (adopting the Strickland two-prong test in New Jersey). A
defendant must establish both prongs by a preponderance of the evidence. State
v. Gaitan, 209 N.J. 339, 350 (2012).
As to the first prong, the Constitution requires "reasonably effective
assistance," so an attorney's performance may not be attacked unless they did
not act "within the range of competence demanded of attorneys in criminal
cases," and instead "fell below an objective standard of reasonableness."
Strickland, 466 U.S. at 687-88 (internal citation omitted) (quoting McMann v.
Richardson, 397 U.S. 759, 770-71 (1970)). When assessing the first Strickland
prong, "[j]udicial scrutiny of counsel's performance must be highly deferential,"
and "every effort [must] be made to eliminate the distorting effects of hindsight."
Id. at 689. "Merely because a trial strategy fails does not mean that counsel was
ineffective." State v. Bey, 161 N.J. 233, 251 (1999) (citing State v. Davis, 116
N.J. 341, 357 (1989)). Thus, a reviewing court "must indulge a strong
presumption that counsel's conduct falls within the wide range of reasonable
professional assistance," and "the defendant must overcome the presumption
that, under the circumstances, the challenged action [by counsel] 'might be
considered sound trial strategy.'" Strickland, 466 U.S. at 689 (quoting Michel
A-3397-23 6 v. Louisiana, 350 U.S. 91, 101 (1955)). Further, the court must not focus on the
defendant's dissatisfaction with "counsel's exercise of judgment during the trial
. . . while ignoring the totality of counsel's performance in the context of the
State's evidence of [the] defendant's guilt." State v. Castagna, 187 N.J. 293, 314
(2006) (internal citation omitted).
For the second prong of the Strickland test, "the defendant must show that
the deficient performance prejudiced the defense" because "there is a reasonable
probability that, but for counsel's unprofessional errors, the result of the
proceeding would have been different." 466 U.S. at 687, 694. This means
"counsel's errors were so serious as to deprive the defendant of a fair trial, a trial
whose result is reliable." Id. at 687. "[A] court need not determine whether
counsel's performance was deficient before examining the prejudice suffered by
the defendant as a result of the alleged deficiencies." Marshall, 148 N.J. at 261
(quoting Strickland, 466 U.S. at 697). "If it is easier to dispose of an
ineffectiveness claim on the ground of lack of sufficient prejudice, which we
expect will often be so, that course should be followed." Strickland, 466 U.S.
at 697.
To demonstrate "prejudice after having entered a guilty plea, a defendant
must prove 'that there is a reasonable probability that, but for counsel's errors,
A-3397-23 7 [they] would not have pled guilty and would have insisted on going to trial.'"
Gaitan, 209 N.J. at 351 (quoting State v. Nuñez-Valdéz, 200 N.J. 129, 139
(2009)). A defendant must show that, "had [they] been properly advised, it
would have been rational for [them] to decline the plea offer and insist on going
to trial and, in fact, that [they] probably would have done so." State v. Maldon,
422 N.J. Super. 475, 486 (App. Div. 2011).
A petitioner is not automatically entitled to an evidentiary hearing merely
by filing for PCR. State v. Porter, 216 N.J. 343, 355 (2013); State v. Cummings,
321 N.J. Super. 154, 170 (App. Div. 1999). Rule 3:22-10(b) provides a
defendant is entitled to an evidentiary hearing on a PCR petition only if: (1)
they establish "a prima facie case in support of [PCR]," (2) "there are material
issues of disputed fact that cannot be resolved by reference to the exis ting
record," and (3) "an evidentiary hearing is necessary to resolve the claims for
relief." In order to establish a prima facie case, a "defendant must demonstrate
a reasonable likelihood that [their] claim, viewing the facts alleged in the light
most favorable to the defendant, will ultimately succeed on the merits." R. 3:22-
10(b); see also Marshall, 148 N.J. at 158. Thus, to obtain an evidentiary hearing
on a PCR petition based upon claims of ineffective assistance of counsel, a
A-3397-23 8 defendant must make a showing of both deficient performance and actual
prejudice. State v. Preciose, 129 N.J. 451, 463-64 (1992).
Conversely, Rule 3:22-10(e) states:
A court shall not grant an evidentiary hearing:
(1) if an evidentiary hearing will not aid the court's analysis of the defendant's entitlement to [PCR];
(2) if the defendant's allegations are too vague, conclusory or speculative; or
(3) for the purpose of permitting a defendant to investigate whether additional claims for relief exist for which defendant has not demonstrated a reasonable likelihood of success as required by R[ule] 3:22-10(b).
Thus, "in order to establish a prima facie claim, a petitioner must do more than
make bald assertions that he was denied the effective assistance of counsel."
Cummings, 321 N.J. Super. at 170. "[R]ather, the defendant 'must allege facts
sufficient to demonstrate counsel's alleged substandard performance.'" State v.
Jones, 219 N.J. 298, 312 (2014) (internal quotation marks omitted) (quoting
Porter, 216 N.J. at 355).
Defendant asserts although he waived his Miranda rights, given his
significant mental health issues, plea counsel should have moved to suppress
A-3397-23 9 defendant's statements to police. He argues trial counsel was aware of his
mental health issues and should have retained an expert to support defendant's
argument that he was unable to "provide a knowing, intelligent, and voluntary
statement" to police. Defendant claims there is nothing in the record to suggest
trial counsel made any effort to investigate his mental illness and its effect on
his ability to provide a proper waiver.
Defendant advances the same argument in challenging his consent to the
buccal swab. He contends he was not capable of providing the consent necessary
for police to obtain the swab. Defendant acknowledges he signed a consent
form, but his mental health condition, including schizoaffective disorder,
rendered him incapable of providing a knowing consent.
The Fifth Amendment of the United States Constitution and New Jersey's
common, statutory, and evidentiary law provide a right against self-
incrimination. State v. A.M., 237 N.J. 384, 396 (2019); see also N.J.R.E. 503;
N.J.S.A. 2A:84A-19. In Miranda, the United States Supreme Court developed
certain safeguards to ensure a person subject to police interrogation understands
the right against self-incrimination and has a "meaningful opportunity" to
exercise it. 384 U.S. at 467, 479; State v. Nyhammer, 197 N.J. 383, 400 (2009).
A-3397-23 10 Upon being advised of one's Miranda rights, a person can waive those
rights, but the waiver must be "knowing, intelligent, and voluntary in light of all
the circumstances," and, under New Jersey law, the prosecutor must prove those
characteristics beyond a reasonable doubt. State v. Presha, 163 N.J. 304, 313
(2000); see also State v. Tillery, 238 N.J. 293, 316 (2019). To determine
"whether the waiver of rights was the product of a free will or police coercion,"
a court considers "the totality of the circumstances." Nyhammer, 197 N.J. at
402. Factors under that test include: "suspect's age, education and intelligence,
advice concerning constitutional rights, length of detention, whether the
questioning was repeated and prolonged in nature, and whether physical
punishment and mental exhaustion were involved." State v. Galloway, 133 N.J.
631, 654 (1993); see also State v. Hreha, 217 N.J. 368, 383 (2014).
With respect to the consent for the buccal swab, under the New Jersey
Constitution, "any consent given by an individual to a police officer to conduct
a warrantless search must be given knowingly and voluntarily." State v. Carty,
170 N.J. 632, 639 (2002). To be considered voluntary, "the consent must be
'unequivocal and specific' and 'freely and intelligently given.'" State v. King, 44
N.J. 346, 352 (1965) (quoting Judd v. United States, 190 F.2d 649, 651 (D.C.
Cir. 1951)). The State has the burden to show by "clear and positive" evidence,
A-3397-23 11 King, 44 N.J. at 352, that the person giving consent "knew that [they] 'had a
choice in the matter,'" Carty, 170 N.J. at 639 (quoting State v. Johnson, 68 N.J.
349, 354 (1975)). Whether consent "was in fact 'voluntary' or was the product
of duress or coercion, express or implied, is a question of fact to be determined
from the totality of all the circumstances." Schneckloth v. Bustamonte, 412 U.S.
218, 227 (1973).
Regarding the Miranda argument, the PCR court rejected defendant's
contention his mental health issues impacted his ability to give a knowing and
voluntary statement to police. It noted, "[t]here's nothing in the record to
support [defendant] being incompetent or that any mental health issues
somehow impacted his ability to make a sufficiently informed decision for
himself." Additionally, the court stated, "[w]hether or not officers were aware
that [defendant] had mental health issues does not suggest that [defendant] was
incapable of voluntarily waiving his right to remain silent and talking with
police." Moreover, the court noted, "counsel possibly believing that a motion
to suppress [defendant's] statement, if unsuccessful, could expose [defendant]
to a far more punitive resolution than that negotiated . . . does not suggest
counsel was not functioning as counsel guaranteed by the Sixth Amendment."
A-3397-23 12 With respect to the buccal swab issue, the PCR court further noted, "[p]lea
counsel's decision not to . . . contest the taking of a buccal swab . . . does not
suggest that counsel was incompetent." The court observed, "[i]t is not likely
that a court would have precluded the State from obtaining a buccal swab from
. . . defendant."
Defendant has not demonstrated a motion to suppress his statement would
have succeeded. There is no suggestion his statement was not given knowingly,
voluntarily, and intelligently. Although defendant generally argues he had a
mental illness at the time he gave the statement, there is no indication he was
coerced into making a statement or subjected to substantial psychological
pressure. In fact, there is no argument regarding the specific tactics used by the
police in this matter. In short, there is no indication defendant's will was
overborne when the police questioned him. Moreover, defendant has not
produced any psychiatric or other expert report to support a claim he was unable
to knowingly waive his rights, and his arguments rely only on bare assertions
unsupported by the record. We conclude the PCR court did not err in concluding
defense counsel was not ineffective by failing to pursue a motion to suppress
defendant's statements.
A-3397-23 13 Defendant's argument the PCR court erred in rejecting his contention that
his consent to provide a buccal swab was inadequate is likewise unpersuasive.
He has failed to establish he did not understand his right to refuse to provide
consent to police to obtain the swab. Defendant's arguments are mere bald
assertions. He has provided no expert reports to suggest he did not understand
his right to refuse to provide a buccal swab. Accordingly, the court did not err
in denying this aspect of the PCR petition.
Defendant next argues his plea counsel failed to adequately argue certain
mitigating factors at sentencing. Although he concedes counsel "duly argu[ed]"
defendant's mental condition was a factor that should be considered by the court,
he maintains counsel "did not present a convincing argument which could have
had the effect of promoting a lesser sentence than which was called for in the
plea bargain." He notes plea counsel "did not specifically mention at
sentencing" he had been diagnosed with depression and had a history of seizures.
He contends, had plea counsel appropriately argued about his mental condition,
there is a reasonable probability the court would have found defendant's mental
condition should have been considered under mitigating factor four.
The PCR court noted plea counsel's failure to argue mitigating factor four
"does not rise to the level of counsel being incompetent." The court observed,
A-3397-23 14 "[t]he sentencing judge certainly could have decided that factor if she thought it
appropriate and declined to do so." Accordingly, the PCR court found defendant
had not established a prima facie case of ineffective assistance of counsel , and
thus, determined an evidentiary hearing was not warranted. It concluded, "[i]t
should not be forgotten that [defendant] faced over [forty] years if he were
convicted after trial. Plea counsel negotiated a sentence of [fourteen] years."
Defendant's indictment was resolved through a negotiated plea, where he
was also charged with a separate armed robbery and attempted robbery offenses.
Moreover, this was his sixth indictable conviction. As defendant concedes, plea
counsel did raise his mental health issues, and the trial court would also have
been aware of this issue from the presentencing report. The sentencing court
found aggravating factors three, N.J.S.A. 2C:44-1(a)(3) (the risk of reoffense),
six, N.J.S.A. 2C:44-1(a)(6) (defendant's prior record of offenses and their
seriousness), and nine, N.J.S.A. 2C:44-1(a)(9) (the need for deterrence), based
on defendant's prior criminal history. It also found mitigating factor six,
N.J.S.A. 2C:44-1(b)(6) (defendant's promise to provide restitution to the
victims), but gave it limited weight.
We discern no error in the PCR court's rejection of defendant's argument
regarding the ineffective assistance of counsel at sentencing. Even if the court
A-3397-23 15 had considered mitigating factor four, N.J.S.A. 2C:44-1(b)(4) (substantial
grounds tending to excuse or justify the defendant's conduct), it would not have
impacted the sentence imposed, given the other offenses that were dismissed as
part of the plea and defendant's criminal history.
We perceive no basis to disturb the PCR court's findings. To the extent
we have not addressed any other arguments raised by defendant, we are satisfied
they are without sufficient merit to warrant further discussion in a written
opinion. R. 2:11-3(e)(2).
Affirmed.
A-3397-23 16