NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-3957-18T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
CLIFFORD STEPHENS, a/k/a CLIFFORD J. STEVENS, CLIFFORD JAY STEVENS, CLIFFORD STEVENS,
Defendant-Appellant. ______________________________
Submitted September 29, 2020 – Decided January 8, 2021
Before Judges Fasciale and Susswein.
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 13-12-3514.
Joseph E. Krakora, Public Defender, attorney for appellant (Karen A. Lodeserto, Designated Counsel, on the brief).
Jill S. Mayer, Acting Camden County Prosecutor, attorney for respondent (Kevin J. Hein, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant appeals from a March 4, 2019 order denying his petition for
post-conviction relief (PCR) without an evidentiary hearing. Defendant
contends his trial counsel rendered ineffective assistance. Judge Michele M.
Fox entered the order denying PCR and rendered a comprehensive and well -
reasoned twenty-nine-page written opinion. We affirm.
Defendant does not contest that he shot and killed the victim. Defendant
was charged by indictment with first-degree murder, N.J.S.A. 2C:11-3(a)(1);
two counts of first-degree felony murder, N.J.S.A. 2C:11-3(a)(3); first-degree
carjacking, N.J.S.A. 2C:15-2; first-degree robbery, N.J.S.A. 2C:15-1; second-
degree possession of a weapon for unlawful purpose, N.J.S.A. 2C:39-4(a); two
counts of second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b);
fourth-degree possession of a defaced firearm, N.J.S.A. 2C:39-3(d); and two
counts of second-degree possession of a firearm by a previously-convicted
person, N.J.S.A. 2C:39-7(b). In March 2015, defendant pled guilty to a reduced
charge of aggravated manslaughter, N.J.S.A 2C:11-4(a)(1). In accordance with
the negotiated plea agreement, the State dismissed counts all other charges.
Judge Fox sentenced defendant to a term of twenty-eight years in prison subject
to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. We upheld the
A-3957-18T1 2 conviction and sentence. 1 State v. Stevens, No. A-4576-14 (App. Div. Dec. 15,
2015) (slip op. at 1).
On appeal, defendant argues:
POINT I THE PCR [JUDGE] ERRED IN DENYING DEFENDANT AN EVIDENTIARY HEARING AS TESTIMONY IS NEEDED REGARDING [PLEA] COUNSEL'S FAILURE TO FILE A SUPPRESSION MOTION, ESPECIALLY WHEN PLEA COUNSEL'S HANDWRITTEN NOTES INDICATED [DEFENDANT] REQUESTED THE MOTION BE FILED. (Raised Below).
POINT II THE PCR [JUDGE] ERRED IN DENYING DEFENDANT AN EVIDENTIARY HEARING AS TESTIMONY IS NEEDED REGARDING [PLEA] COUNSEL'S FAILURE TO NEGOTIATE A PLEA OFFER LESS THAN TWENTY-EIGHT YEARS SUBJECT TO NERA. (Raised Below).
POINT III THE PCR [JUDGE] ERRED IN DENYING DEFENDANT AN EVIDENTIARY HEARING AS TESTIMONY IS NEEDED REGARDING [PLEA] COUNSEL'S FAILURE TO INVESTIGATE AND RAISE MITIGATING FACTOR [FOUR] AT SENTENCING. (Raised Below).
1 We remanded for the limited purpose of correcting typographical errors in the judgment of conviction as to defendant's date of birth and the spelling of defendant's name from "Stevens" to "Stephens." A-3957-18T1 3 We disagree and affirm substantially for the reasons given by Judge Fox in her
thorough and thoughtful written opinion. We add the following remarks.
To obtain relief based on ineffective assistance of counsel, a defendant
must demonstrate not only that counsel's performance was constitutionally
deficient, but also that the deficiency prejudiced his right to a fair trial.
Strickland v. Washington, 466 U.S. 668, 687 (1984). This two-part test was
adopted by the New Jersey Supreme in State v. Fritz, 105 N.J. 42, 58 (1987).
Under the first prong of the Strickland/Fritz test, the defendant must demonstrate
that "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. Under the second prong, the defendant must show, "there is a
reasonable probability that, but for counsel's unprofessional errors, the result of
the proceeding would have been different." Id. at 694. Furthermore, a defendant
is entitled to an evidentiary hearing only when he "has presented a prima facie
[case] in support of [PCR]," meaning that a defendant "must demonstrate a
reasonable likelihood that his . . . claim will ultimately succeed on the merits."
State v. Marshall, 148 N.J. 89, 158 (1997) (first alteration in original) (quoting
State v. Preciose, 129 N.J. 451, 462-63 (1992)).
A-3957-18T1 4 We first address defendant's argument that his trial counsel rendered
ineffective assistance by failing to file a Miranda2 motion. As Judge Fox aptly
noted, by pleading guilty pursuant to the negotiated agreement, defendant
waived the right to file pretrial motions. The transcript of the plea colloquy
confirms that defendant knowingly and expressly waived this right.
We agree with Judge Fox that any such motion to suppress would have
been unsuccessful. "[W]hen 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 [constitutional] claim is meritorious." State v. Fisher, 156 N.J.
494, 501 (1998) (citing Kimmelman v. Morrison, 477 U.S. 365, 375 (1986)).
See also State v. Roper, 362 N.J. Super. 248, 255 (App. Div. 2003) ("In an
ineffective assistance claim based on failure to file a suppression motion, the
prejudice prong requires a showing that the motion would have been
successful.") (citing Fisher, 156 N.J. at 501).
Defendant contends that during the custodial interrogation, police did not
scrupulously honor his request to stop when he asserted that he was hungry and
was not feeling well, when he asserted that he needed a cigarette, and when he
asserted "I don't know nothing" with respect to the shooting. As Judge Fox
2 Miranda v. Arizona, 384 U.S. 436 (1966). A-3957-18T1 5 noted, defendant continued to engage the officers in conversation. The
transcript of the interrogation clearly shows that defendant's request for a
cigarette, which police complied with, and his claim that he was hungry and not
feeling well were not assertions of the right to terminate questioning. Nor did
defendant assert the right to stop questioning when he claimed to know nothing
about the fatal shooting. That statement, rather, was an exculpatory denial of
complicity in the homicide, consistent with his claim that he was being framed
by someone else.
Defendant also contends the officers did not honor his request to speak to
an attorney when he stated, "I want to have somebody here with me" and then
"I just rather have somebody here with me, an attorney, come and (inaudible)."3
3 The relevant portion of the interrogation is as follows:
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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-3957-18T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
CLIFFORD STEPHENS, a/k/a CLIFFORD J. STEVENS, CLIFFORD JAY STEVENS, CLIFFORD STEVENS,
Defendant-Appellant. ______________________________
Submitted September 29, 2020 – Decided January 8, 2021
Before Judges Fasciale and Susswein.
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 13-12-3514.
Joseph E. Krakora, Public Defender, attorney for appellant (Karen A. Lodeserto, Designated Counsel, on the brief).
Jill S. Mayer, Acting Camden County Prosecutor, attorney for respondent (Kevin J. Hein, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant appeals from a March 4, 2019 order denying his petition for
post-conviction relief (PCR) without an evidentiary hearing. Defendant
contends his trial counsel rendered ineffective assistance. Judge Michele M.
Fox entered the order denying PCR and rendered a comprehensive and well -
reasoned twenty-nine-page written opinion. We affirm.
Defendant does not contest that he shot and killed the victim. Defendant
was charged by indictment with first-degree murder, N.J.S.A. 2C:11-3(a)(1);
two counts of first-degree felony murder, N.J.S.A. 2C:11-3(a)(3); first-degree
carjacking, N.J.S.A. 2C:15-2; first-degree robbery, N.J.S.A. 2C:15-1; second-
degree possession of a weapon for unlawful purpose, N.J.S.A. 2C:39-4(a); two
counts of second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b);
fourth-degree possession of a defaced firearm, N.J.S.A. 2C:39-3(d); and two
counts of second-degree possession of a firearm by a previously-convicted
person, N.J.S.A. 2C:39-7(b). In March 2015, defendant pled guilty to a reduced
charge of aggravated manslaughter, N.J.S.A 2C:11-4(a)(1). In accordance with
the negotiated plea agreement, the State dismissed counts all other charges.
Judge Fox sentenced defendant to a term of twenty-eight years in prison subject
to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. We upheld the
A-3957-18T1 2 conviction and sentence. 1 State v. Stevens, No. A-4576-14 (App. Div. Dec. 15,
2015) (slip op. at 1).
On appeal, defendant argues:
POINT I THE PCR [JUDGE] ERRED IN DENYING DEFENDANT AN EVIDENTIARY HEARING AS TESTIMONY IS NEEDED REGARDING [PLEA] COUNSEL'S FAILURE TO FILE A SUPPRESSION MOTION, ESPECIALLY WHEN PLEA COUNSEL'S HANDWRITTEN NOTES INDICATED [DEFENDANT] REQUESTED THE MOTION BE FILED. (Raised Below).
POINT II THE PCR [JUDGE] ERRED IN DENYING DEFENDANT AN EVIDENTIARY HEARING AS TESTIMONY IS NEEDED REGARDING [PLEA] COUNSEL'S FAILURE TO NEGOTIATE A PLEA OFFER LESS THAN TWENTY-EIGHT YEARS SUBJECT TO NERA. (Raised Below).
POINT III THE PCR [JUDGE] ERRED IN DENYING DEFENDANT AN EVIDENTIARY HEARING AS TESTIMONY IS NEEDED REGARDING [PLEA] COUNSEL'S FAILURE TO INVESTIGATE AND RAISE MITIGATING FACTOR [FOUR] AT SENTENCING. (Raised Below).
1 We remanded for the limited purpose of correcting typographical errors in the judgment of conviction as to defendant's date of birth and the spelling of defendant's name from "Stevens" to "Stephens." A-3957-18T1 3 We disagree and affirm substantially for the reasons given by Judge Fox in her
thorough and thoughtful written opinion. We add the following remarks.
To obtain relief based on ineffective assistance of counsel, a defendant
must demonstrate not only that counsel's performance was constitutionally
deficient, but also that the deficiency prejudiced his right to a fair trial.
Strickland v. Washington, 466 U.S. 668, 687 (1984). This two-part test was
adopted by the New Jersey Supreme in State v. Fritz, 105 N.J. 42, 58 (1987).
Under the first prong of the Strickland/Fritz test, the defendant must demonstrate
that "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. Under the second prong, the defendant must show, "there is a
reasonable probability that, but for counsel's unprofessional errors, the result of
the proceeding would have been different." Id. at 694. Furthermore, a defendant
is entitled to an evidentiary hearing only when he "has presented a prima facie
[case] in support of [PCR]," meaning that a defendant "must demonstrate a
reasonable likelihood that his . . . claim will ultimately succeed on the merits."
State v. Marshall, 148 N.J. 89, 158 (1997) (first alteration in original) (quoting
State v. Preciose, 129 N.J. 451, 462-63 (1992)).
A-3957-18T1 4 We first address defendant's argument that his trial counsel rendered
ineffective assistance by failing to file a Miranda2 motion. As Judge Fox aptly
noted, by pleading guilty pursuant to the negotiated agreement, defendant
waived the right to file pretrial motions. The transcript of the plea colloquy
confirms that defendant knowingly and expressly waived this right.
We agree with Judge Fox that any such motion to suppress would have
been unsuccessful. "[W]hen 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 [constitutional] claim is meritorious." State v. Fisher, 156 N.J.
494, 501 (1998) (citing Kimmelman v. Morrison, 477 U.S. 365, 375 (1986)).
See also State v. Roper, 362 N.J. Super. 248, 255 (App. Div. 2003) ("In an
ineffective assistance claim based on failure to file a suppression motion, the
prejudice prong requires a showing that the motion would have been
successful.") (citing Fisher, 156 N.J. at 501).
Defendant contends that during the custodial interrogation, police did not
scrupulously honor his request to stop when he asserted that he was hungry and
was not feeling well, when he asserted that he needed a cigarette, and when he
asserted "I don't know nothing" with respect to the shooting. As Judge Fox
2 Miranda v. Arizona, 384 U.S. 436 (1966). A-3957-18T1 5 noted, defendant continued to engage the officers in conversation. The
transcript of the interrogation clearly shows that defendant's request for a
cigarette, which police complied with, and his claim that he was hungry and not
feeling well were not assertions of the right to terminate questioning. Nor did
defendant assert the right to stop questioning when he claimed to know nothing
about the fatal shooting. That statement, rather, was an exculpatory denial of
complicity in the homicide, consistent with his claim that he was being framed
by someone else.
Defendant also contends the officers did not honor his request to speak to
an attorney when he stated, "I want to have somebody here with me" and then
"I just rather have somebody here with me, an attorney, come and (inaudible)."3
3 The relevant portion of the interrogation is as follows:
Clifford Stephens (CS): I want to have somebody here with me. Detective Kevin Lutz (KL): What, um, can you explain to me one thing? CS: What? KL: How you ended up from South Camden to East Camden? CS: I just went[sic] rather have my lawyer here with me. KL: I’m sorry, I can’t hear ya. CS: I just rather have somebody here with me, an attorney, come and (inaudible). Sr. Investigator Lance Saunders (LS): Ok my friend, come on.
A-3957-18T1 6 The record before us shows that at the moment defendant mentioned the word
"attorney," police scrupulously honored his invocation of the right to counsel
and ceased posing further questions. Even were we to assume that police should
have interpreted defendant's immediately preceding statement "I want to have
someone here with me" as either a request for an attorney or a request to stop
the interrogation, we note that defendant did not answer the officer's subsequent
question. Any motion to suppress on this ground, therefore, could not have
changed the outcome because there was nothing to suppress.
We likewise reject defendant's argument that counsel was ineffective for
failing to negotiate a more favorable plea bargain. Defendant argues "there was
room to negotiate" because the State's plea offer of twenty-eight years was only
two years less than the maximum sentence, he could have received on his
aggravated manslaughter conviction. However, that argument proceeds from
the wrong premise. Defendant was indicted for murder and thus faced a life
term of imprisonment. N.J.S.A. 2C:11-3(b). The minimum sentence for murder
is thirty years without possibility of parole. Ibid. By pleading guilty pursuant
to the plea agreement to the lesser offense of aggravated manslaughter,
defendant significantly reduced his penal exposure. Defendant received a
twenty-eight year NERA sentence that included a 23.8-year term of parole
A-3957-18T1 7 ineligibility (85% of the sentence). 4 We note that had defendant been convicted
of murder, he would have been subject to a statutory minimum parole
ineligibility term of thirty years—over six years more than the negotiated term
of parole ineligibility he actually received.
It also bears noting that as a result of the negotiated agreement, the State
dismissed the remaining ten counts in the indictment—including two certain
persons gun charges—which might have resulted in consecutive sentences. We
therefore deem it to be baseless speculation that counsel could somehow have
induced the prosecutor to tender a more generous plea offer. We add that
defendant at the plea colloquy stated that he was satisfied with his counsel's
services. As such, his subsequent change of heart affords no basis for the relief
he now seeks.
Finally, we reject defendant's contention that he would have received a
lesser sentence had counsel investigated his mental health issues and argued for
application of mitigating factor four, N.J.S.A. 2C:44-1(b)(4).5 In support of his
4 As noted, we upheld that sentence on direct appeal, ruling "the sentence is not manifestly excessive or unduly punitive and does not constitute an abuse of discretion." Stevens, No. A-004576-14 (slip op. at 1). 5 N.J.S.A. 2C:44-1(b)(4) establishes a mitigating sentencing factor where "[t]here were substantial grounds tending to excuse or justify defendant's conduct, though failing to establish a defense." A-3957-18T1 8 PCR contention, defendant produced a pre-sentence report from an earlier
conviction and prison medical records from March 2012. A close examination
of these documents shows that while defendant claims to have received
outpatient mental health treatment, he denied having any mania, psychosis, or
major depressive disorder. The medical records include a notation that
"[q]uestions arise about the presence of malingering vs an underlying depressive
and/or psychotic [disorder]."
We note that Judge Fox reviewed this information prior to sentencing and
found no reason to reject the plea or undercut the sentence contemplated in the
plea agreement. Furthermore, defendant has produced no new evidence or
certification as to his mental health at the time of the present homicide. See
State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999) (holding that
"when a [defendant] claims his trial [counsel] inadequately investigated his case,
he must assert the facts that an investigation would have revealed, supported by
affidavits or certifications based upon the personal knowledge of the affiant or
the person making the certification.") (citation omitted). Judge Fox aptly
concluded in her PCR opinion that defendant presented no insight into "what
further investigation into his mental health would have revealed that would have
resulted in a reduction of his sentence under the plea agreement[.]"
A-3957-18T1 9 We add that Judge Fox was the judge who accepted the guilty plea and
imposed sentence. At the sentencing hearing, she found that the aggravating
factors clearly, convincingly, and substantially outweighed the mitigating
factors, and we upheld that finding on direct appeal. We see no reason to disturb
her conclusion that the additional factor relating to defendant's mental health
would not have tipped the scales and changed the sentencing outcome.
Strickland, 466 U.S. at 695.
Affirmed.
A-3957-18T1 10