NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-1181-15T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DERRICK WASHINGTON,
Defendant-Appellant.
Submitted June 7, 2017 – Decided July 18, 2017
Before Judges Alvarez and Lisa.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 10-06-1210.
Joseph E. Krakora, Public Defender, attorney for appellant (Peter B. Meadow, Designated Counsel, on the brief).
Esther Suarez, Hudson County Prosecutor, attorney for respondent (Erin M. Campbell, Assistant Prosecutor, on the brief).
PER CURIAM
Defendant Derrick Washington appeals the July 17, 2015
dismissal of his petition for post-conviction relief (PCR). He
alleges the Law Division judge abused her discretion by dismissing the matter immediately before the evidentiary hearing, and that
he received ineffective assistance of counsel when his lawyer did
not produce two witnesses. We now affirm.
Defendant entered a guilty plea, after the denial of his
motion to suppress the evidence seized resulting from a consent
search, to third-degree possession with intent to distribute
within 1000 feet of school property. N.J.S.A. 2C:35-7 and 2C:35-
5(a)(1). In accord with the plea agreement, on December 9, 2011,
he was sentenced to a term of five years imprisonment, subject to
three years of parole ineligibility.
The relevant circumstances and procedural history leading to
this appeal can be very briefly described. We further detail
facts necessary to our discussion of the motion to suppress and
the information in the PCR certifications in our discussion of
defendant's points on appeal.
On September 9, 2014, we remanded defendant's PCR petition
for hearing. State v. Washington, No. A-4304-12 (App. Div. Sept.
9, 2014) (slip op. at 6-7). By July 17, 2015, the matter had been
listed for hearing on five occasions. Because of the judge's
frustration at the unavailability of the witnesses on the five
scheduled dates, the judge directed her law clerk to send an email
notifying counsel that any witnesses either side wished to present
at the hearing would have to be subpoenaed. Although not entirely
2 A-1181-15T3 clear from the record, it appears that requests for adjournments
on the prior scheduled dates had been made by both the State as
well as defendant.
In the email, counsel was advised that the fifth adjournment
request was the last one that would be granted. The matter was
thus finally scheduled, with counsel's input, a sixth time for
July 17, 2015.
When the matter was called, defendant's attorney advised that
the two witnesses defendant had hoped to produce were unavailable.
One had a medical issue and was either "still in the hospital or
he just had an operation. He's either in the hospital or in the
rehab[.] [B]oth of the addresses of which I have and that has to
do with his medical condition." The other witness was defendant's
aunt, who was then on vacation. The attorney said, when referring
to the aunt, that he "had corresponde[d,] under subpoenas."
Counsel said he had discussed the matter with her and that "she
had every intention of being here" but for the fact that she was
away. Counsel also stated that with regard to the adjournments,
"several" were at defendant's request, and "one or two instances
on behalf of the State." He requested a sixth adjournment.
In response, the judge explained the scheduling history for
the benefit of the record, including the fact the parties had been
directed to subpoena their witnesses, and had been advised that
3 A-1181-15T3 no additional adjournments would be granted. The court applied
the factors in United States v. Burton, 584 F.2d 485, 490-91 (D.C.
Cir. 1978), certif. denied, 439 U.S. 1069, 99 S. Ct. 837, 59 L.
Ed. 2d 34 (1979), and denied the request for an additional
adjournment. She stated that after considering counsel's reasons
for the adjournment request, and in "balancing everything[,]" the
petition would be dismissed without prejudice.
On appeal, defendant raises the following points for our
consideration:
POINT ONE THE PCR COURT'S DENIAL OF DEFENDANT'S REQUEST FOR AN ADJOURNMENT TO PRESENT WITNESSES AT THE EVIDENTIARY HEARING ON HIS PETITION FOR POST- CONVICTION RELIEF WAS AN ABUSE OF DISCRETION.
POINT TWO THE PCR COURT FAILED TO MAKE AN ADEQUATE RECORD TO ALLOW APPROPRIATE APPELLATE REVIEW OF THE DECISION IN THIS CASE.
POINT THREE DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL AT POST-CONVICTION RELIEF DUE TO THE FAILURE TO SUBPOENA WITNESSES TO APPEAR AT THE EVIDENTIARY HEARING.
The notice of appeal filed in this matter mentions that
defendant "is also appealing denial of motion to vacate dismissal
of PCR and to reinstate petition for post-conviction relief."
Since no mention is made in the brief of the denial of the
subsequent motion to reinstate PCR, we will deem it waived.
4 A-1181-15T3 Telebright Corp., Inc. v. Dir., N.J. Div. of Taxation, 424 N.J.
Super. 384, 393 (App. Div. 2012) (appellant waived right to
challenge an issue due to its failure to brief the issue); Pressler
& Verniero, Current N.J. Court Rules, comment 5 on R. 2:6-2 (2017).
Discretionary rulings, such as the judge's dismissal without
prejudice of the petition in this case are discretionary. We do
not interfere unless the judge has "pursue[d] a manifestly unjust
course." Gillman v. Bally Mfg. Corp., 286 N.J. Super. 523, 528
(App. Div.), certif. denied, 144 N.J. 174 (1996). We will defer
to the trial court's exercise of discretion unless the decision
prejudiced the substantial rights of a party. State v. Munroe,
210 N.J. 429, 441-43, 448 (2012) (An exercise of discretion will
be set aside in the interests of justice).
We see no abuse of discretion in this case that resulted in
prejudice to defendant. First, contrary to defendant's contention
on appeal, his attorney did make reference to "subpoenas," in the
plural not the singular, some indication that counsel understood
his obligations and had fulfilled them. Obviously, a more detailed
inquiry and more expansive responses regarding counsel's efforts
at producing the witnesses would have been preferable. A dismissal
due to failure to produce witnesses at a sixth scheduled date,
however, is simply not an abuse of discretion. It seems a
5 A-1181-15T3 reasonable measure intended to balance a defendant's rights with
the administrative needs of the court.
Furthermore, it is questionable whether either of those
witnesses, subpoenaed or not, would have aided defendant's cause.
The issue raised in the motion to suppress was the voluntariness
of defendant's consent to search his apartment, which he shared
with his aunt. The aunt, the same one who was on vacation at the
time the hearing was scheduled, was not present when defendant
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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-1181-15T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DERRICK WASHINGTON,
Defendant-Appellant.
Submitted June 7, 2017 – Decided July 18, 2017
Before Judges Alvarez and Lisa.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 10-06-1210.
Joseph E. Krakora, Public Defender, attorney for appellant (Peter B. Meadow, Designated Counsel, on the brief).
Esther Suarez, Hudson County Prosecutor, attorney for respondent (Erin M. Campbell, Assistant Prosecutor, on the brief).
PER CURIAM
Defendant Derrick Washington appeals the July 17, 2015
dismissal of his petition for post-conviction relief (PCR). He
alleges the Law Division judge abused her discretion by dismissing the matter immediately before the evidentiary hearing, and that
he received ineffective assistance of counsel when his lawyer did
not produce two witnesses. We now affirm.
Defendant entered a guilty plea, after the denial of his
motion to suppress the evidence seized resulting from a consent
search, to third-degree possession with intent to distribute
within 1000 feet of school property. N.J.S.A. 2C:35-7 and 2C:35-
5(a)(1). In accord with the plea agreement, on December 9, 2011,
he was sentenced to a term of five years imprisonment, subject to
three years of parole ineligibility.
The relevant circumstances and procedural history leading to
this appeal can be very briefly described. We further detail
facts necessary to our discussion of the motion to suppress and
the information in the PCR certifications in our discussion of
defendant's points on appeal.
On September 9, 2014, we remanded defendant's PCR petition
for hearing. State v. Washington, No. A-4304-12 (App. Div. Sept.
9, 2014) (slip op. at 6-7). By July 17, 2015, the matter had been
listed for hearing on five occasions. Because of the judge's
frustration at the unavailability of the witnesses on the five
scheduled dates, the judge directed her law clerk to send an email
notifying counsel that any witnesses either side wished to present
at the hearing would have to be subpoenaed. Although not entirely
2 A-1181-15T3 clear from the record, it appears that requests for adjournments
on the prior scheduled dates had been made by both the State as
well as defendant.
In the email, counsel was advised that the fifth adjournment
request was the last one that would be granted. The matter was
thus finally scheduled, with counsel's input, a sixth time for
July 17, 2015.
When the matter was called, defendant's attorney advised that
the two witnesses defendant had hoped to produce were unavailable.
One had a medical issue and was either "still in the hospital or
he just had an operation. He's either in the hospital or in the
rehab[.] [B]oth of the addresses of which I have and that has to
do with his medical condition." The other witness was defendant's
aunt, who was then on vacation. The attorney said, when referring
to the aunt, that he "had corresponde[d,] under subpoenas."
Counsel said he had discussed the matter with her and that "she
had every intention of being here" but for the fact that she was
away. Counsel also stated that with regard to the adjournments,
"several" were at defendant's request, and "one or two instances
on behalf of the State." He requested a sixth adjournment.
In response, the judge explained the scheduling history for
the benefit of the record, including the fact the parties had been
directed to subpoena their witnesses, and had been advised that
3 A-1181-15T3 no additional adjournments would be granted. The court applied
the factors in United States v. Burton, 584 F.2d 485, 490-91 (D.C.
Cir. 1978), certif. denied, 439 U.S. 1069, 99 S. Ct. 837, 59 L.
Ed. 2d 34 (1979), and denied the request for an additional
adjournment. She stated that after considering counsel's reasons
for the adjournment request, and in "balancing everything[,]" the
petition would be dismissed without prejudice.
On appeal, defendant raises the following points for our
consideration:
POINT ONE THE PCR COURT'S DENIAL OF DEFENDANT'S REQUEST FOR AN ADJOURNMENT TO PRESENT WITNESSES AT THE EVIDENTIARY HEARING ON HIS PETITION FOR POST- CONVICTION RELIEF WAS AN ABUSE OF DISCRETION.
POINT TWO THE PCR COURT FAILED TO MAKE AN ADEQUATE RECORD TO ALLOW APPROPRIATE APPELLATE REVIEW OF THE DECISION IN THIS CASE.
POINT THREE DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL AT POST-CONVICTION RELIEF DUE TO THE FAILURE TO SUBPOENA WITNESSES TO APPEAR AT THE EVIDENTIARY HEARING.
The notice of appeal filed in this matter mentions that
defendant "is also appealing denial of motion to vacate dismissal
of PCR and to reinstate petition for post-conviction relief."
Since no mention is made in the brief of the denial of the
subsequent motion to reinstate PCR, we will deem it waived.
4 A-1181-15T3 Telebright Corp., Inc. v. Dir., N.J. Div. of Taxation, 424 N.J.
Super. 384, 393 (App. Div. 2012) (appellant waived right to
challenge an issue due to its failure to brief the issue); Pressler
& Verniero, Current N.J. Court Rules, comment 5 on R. 2:6-2 (2017).
Discretionary rulings, such as the judge's dismissal without
prejudice of the petition in this case are discretionary. We do
not interfere unless the judge has "pursue[d] a manifestly unjust
course." Gillman v. Bally Mfg. Corp., 286 N.J. Super. 523, 528
(App. Div.), certif. denied, 144 N.J. 174 (1996). We will defer
to the trial court's exercise of discretion unless the decision
prejudiced the substantial rights of a party. State v. Munroe,
210 N.J. 429, 441-43, 448 (2012) (An exercise of discretion will
be set aside in the interests of justice).
We see no abuse of discretion in this case that resulted in
prejudice to defendant. First, contrary to defendant's contention
on appeal, his attorney did make reference to "subpoenas," in the
plural not the singular, some indication that counsel understood
his obligations and had fulfilled them. Obviously, a more detailed
inquiry and more expansive responses regarding counsel's efforts
at producing the witnesses would have been preferable. A dismissal
due to failure to produce witnesses at a sixth scheduled date,
however, is simply not an abuse of discretion. It seems a
5 A-1181-15T3 reasonable measure intended to balance a defendant's rights with
the administrative needs of the court.
Furthermore, it is questionable whether either of those
witnesses, subpoenaed or not, would have aided defendant's cause.
The issue raised in the motion to suppress was the voluntariness
of defendant's consent to search his apartment, which he shared
with his aunt. The aunt, the same one who was on vacation at the
time the hearing was scheduled, was not present when defendant
signed the consent to search. She did not arrive at the premises
until after defendant's arrest and the search was completed.
The request to search was precipitated by the officers'
observations of defendant appearing to engage in a series of drug
transactions. According to the judge who decided the motion, the
officers confronted defendant, who said he lived "upstairs on the
second floor[.]" When requested, he signed a consent to search
form. At the motion hearing, defendant testified that he was
coerced into signing the consent. When defendant's aunt appeared
on the scene, she too signed a consent form. Drugs and
paraphernalia were found in the apartment.
The judge who decided the motion to suppress noted that
defendant's testimony stood in contrast with the officers'
testimony. He testified that he was merely visiting his aunt and
was waiting for her in the apartment, contrary to the statements
6 A-1181-15T3 he made at the scene. Defendant also testified that he was struck
by the officers, and signed the consent for that reason and because
he was afraid his aunt would be arrested. The judge found
defendant incredible, concluding his consent was voluntary.
The first witness defendant intended to produce at the PCR
hearing was not even mentioned during the course of the suppression
hearing. This individual certified, in support of defendant's PCR
petition, that he was present and watched the arrest — a claim
that is not credible given the details set forth in the
certification. He provided a third version of events, different
from defendant's version and the police version. Thus even if
the matter had gone forward with the witnesses, their testimony
would not have changed the outcome. This discretionary dismissal
therefore need not be set aside on the basis that it resulted in
any manifest injustice, or be set aside in the interest of justice.
The standard for ineffective assistance of counsel is oft
repeated. A defendant must be able to establish substandard
professional assistance and prejudice to the outcome as a result.
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052,
2064, 80 L. Ed. 2d 674, 693 (1984). The Strickland two-prong
standard in this case was not met. We do not agree that counsel
was ineffective at the PCR hearing.
Affirmed.
7 A-1181-15T3