RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-2767-19
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
D.L.A.,
Defendant-Appellant. _______________________
Submitted April 27, 2021 – Decided May 11, 2021
Before Judges Haas and Mawla.
On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 11-02-0116.
Joseph E. Krakora, Public Defender, attorney for appellant (Anderson D. Harkov, Designated Counsel, on the brief).
Angelo J. Onofri, Mercer County Prosecutor, attorney for respondent (Kaelyn Barbour, Assistant Prosecutor, on the brief).
PER CURIAM Defendant appeals from the January 30, 2020 Law Division order denying
his petition for post-conviction relief (PCR) without an evidentiary hearing. We
affirm.
The following facts are set forth in a police report that was submitted to
the PCR judge. On April 9, 2010, a man wearing a white jacket approached a
woman in a parking garage, forced her into her car, and then sexually assaulted
her. During the attack, the man confined the victim for a substantial period of
time inside the car. The man told the victim he had a knife, forced her to perform
oral sex on him, asked her for money, and threatened to "throw her body in the
river" if she did not comply. He also bit the victim's breasts and penetrated her
vagina with his finger and wiped blood on her shirt and face. Eventually, the
victim was able to attract the attention of a passer-by and the man fled the scene.
The police quickly secured surveillance footage which showed the
assailant in various locations in the garage. On April 13, two detectives
interviewed defendant, who matched the description of the suspect. After the
detectives read defendant his Miranda 1 rights, he agreed to speak to them after
signing a written waiver. Defendant denied any involvement in the April 10
1 Miranda v. Arizona, 384 U.S. 436 (1966).
2 A-2767-19 attack and declined to provide a buccal swab for possible DNA comparison.
Therefore, the detectives terminated the interview.
By April 15, the detectives had spoken to multiple sources who identified
defendant as the man in the surveillance video. After learning that defendant
had active warrants, the detectives arrested him and brought him to police
headquarters. The detectives advised defendant of his Miranda rights, which he
waived by executing a written waiver form. Defendant again denied any
involvement in the attack on the woman and agreed to permit the detectives to
search his room at the facility where he was then living.
The detectives transported defendant to the facility so he could be present
during the search. The detectives seized two pairs of pants with red stains on
them, but did not locate the white jacket. They then brought defendant back to
the headquarters interview room. Once there, the police again read defendant
his Miranda rights, which he waived by signing the appropriate form. During
the course of the interview, defendant declined another request to provide a
buccal swab and refused to answer any further questions. The detectives
immediately ended the interview and began to process defendant.
While the police were securing defendant's property, he asked several
times if he could again speak to the detectives. The detectives brought defendant
3 A-2767-19 back to the interview room and advised him of his Miranda rights. After
defendant signed the waiver form, he gave a statement to them concerning his
involvement in the April 9 attack. 2
Defendant claimed he had known the victim for about a month prior to
April 9 and that they would meet on Fridays in the parking garage to "'make out'
(kiss) in her vehicle." Defendant asserted that, on April 9, he and the victim
were kissing in the back seat of her car when she pulled her pants down.
Defendant stated he put his finger into her vagina but stopped when he noticed
she was bleeding. Defendant alleged the victim voluntarily performed oral sex
on him for about twenty-five minutes before the passer-by interrupted them.
Defendant then fled the scene. He admitted he was wearing a white jacket that
day, but claimed he later gave it to another resident at his facility.
A Mercer County grand jury subsequently returned a seven-count
indictment charging defendant with first-degree kidnapping, N.J.S.A. 2C:13-
1(b) (count one); two counts of first-degree aggravated sexual assault, N.J.S.A.
2C:14-2(a)(3) (counts two and three); two counts of aggravated criminal sexual
contact, N.J.S.A. 2C:14-3(a) (counts four and five); third-degree terroristic
2 All four of the interviews were video-recorded.
4 A-2767-19 threats, N.J.S.A. 2C:12-3(b) (count six); and first-degree robbery, N.J.S.A.
2C:15-1(a)(1) (count seven).
Prior to the pretrial conference, defendant pled guilty to first-degree
kidnapping and first-degree aggravated sexual assault under counts one and two.
In return for defendant's plea, the State agreed to dismiss the remaining five
counts of the indictment.
The trial judge later sentenced defendant in accordance with his
negotiated plea agreement to a seventeen-year term on the kidnapping charge,
and a concurrent ten-year term on the aggravated sexual assault charge, with
both sentences being subject to an 85% period of parole ineligibility under the
No Early Release Act, N.J.S.A. 2C:43-7.2. The judge also sentenced defendant
to parole supervision for life and ordered him to serve his custodial sentence at
the Adult Diagnostic and Treatment Center at Avenel.
Defendant appealed his sentence. We heard the appeal on our Excessive
Sentence Oral Argument calendar pursuant to Rule 2:9-11, and affirmed
defendant's sentence. State v. D.L.A., No. 2115-13 (App. Div. Apr. 28, 2014),
certif. denied, 220 N.J. 40 (2014).
Defendant then filed a timely petition for PCR. Among other things, he
alleged that his attorney provided him with ineffective assistance because he did
5 A-2767-19 not file a motion to suppress the statements he gave to the police during his four
interviews. However, defendant did not submit a certification setting forth any
grounds upon which such a motion could have been based. 3 Defendant also did
not supply copies of the recordings or written transcripts of these interviews.
After conducting oral argument, Judge J. Adam Hughes rendered a
thorough written decision rejecting defendant's contention. The judge found
that defendant
offer[ed] no other evidence or certifications and has not indicated with specificity how he could have successfully challenged the admissibility of his statements. On the contrary, the records provided by [defendant] suggest that the statement was made knowingly and voluntarily after [defendant] was advised multiple times of his Miranda rights, and after he reinitiated contact with the officers to provide a non- criminal explanation for his encounter with the victim. . . .
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RECORD IMPOUNDED
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-2767-19
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
D.L.A.,
Defendant-Appellant. _______________________
Submitted April 27, 2021 – Decided May 11, 2021
Before Judges Haas and Mawla.
On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 11-02-0116.
Joseph E. Krakora, Public Defender, attorney for appellant (Anderson D. Harkov, Designated Counsel, on the brief).
Angelo J. Onofri, Mercer County Prosecutor, attorney for respondent (Kaelyn Barbour, Assistant Prosecutor, on the brief).
PER CURIAM Defendant appeals from the January 30, 2020 Law Division order denying
his petition for post-conviction relief (PCR) without an evidentiary hearing. We
affirm.
The following facts are set forth in a police report that was submitted to
the PCR judge. On April 9, 2010, a man wearing a white jacket approached a
woman in a parking garage, forced her into her car, and then sexually assaulted
her. During the attack, the man confined the victim for a substantial period of
time inside the car. The man told the victim he had a knife, forced her to perform
oral sex on him, asked her for money, and threatened to "throw her body in the
river" if she did not comply. He also bit the victim's breasts and penetrated her
vagina with his finger and wiped blood on her shirt and face. Eventually, the
victim was able to attract the attention of a passer-by and the man fled the scene.
The police quickly secured surveillance footage which showed the
assailant in various locations in the garage. On April 13, two detectives
interviewed defendant, who matched the description of the suspect. After the
detectives read defendant his Miranda 1 rights, he agreed to speak to them after
signing a written waiver. Defendant denied any involvement in the April 10
1 Miranda v. Arizona, 384 U.S. 436 (1966).
2 A-2767-19 attack and declined to provide a buccal swab for possible DNA comparison.
Therefore, the detectives terminated the interview.
By April 15, the detectives had spoken to multiple sources who identified
defendant as the man in the surveillance video. After learning that defendant
had active warrants, the detectives arrested him and brought him to police
headquarters. The detectives advised defendant of his Miranda rights, which he
waived by executing a written waiver form. Defendant again denied any
involvement in the attack on the woman and agreed to permit the detectives to
search his room at the facility where he was then living.
The detectives transported defendant to the facility so he could be present
during the search. The detectives seized two pairs of pants with red stains on
them, but did not locate the white jacket. They then brought defendant back to
the headquarters interview room. Once there, the police again read defendant
his Miranda rights, which he waived by signing the appropriate form. During
the course of the interview, defendant declined another request to provide a
buccal swab and refused to answer any further questions. The detectives
immediately ended the interview and began to process defendant.
While the police were securing defendant's property, he asked several
times if he could again speak to the detectives. The detectives brought defendant
3 A-2767-19 back to the interview room and advised him of his Miranda rights. After
defendant signed the waiver form, he gave a statement to them concerning his
involvement in the April 9 attack. 2
Defendant claimed he had known the victim for about a month prior to
April 9 and that they would meet on Fridays in the parking garage to "'make out'
(kiss) in her vehicle." Defendant asserted that, on April 9, he and the victim
were kissing in the back seat of her car when she pulled her pants down.
Defendant stated he put his finger into her vagina but stopped when he noticed
she was bleeding. Defendant alleged the victim voluntarily performed oral sex
on him for about twenty-five minutes before the passer-by interrupted them.
Defendant then fled the scene. He admitted he was wearing a white jacket that
day, but claimed he later gave it to another resident at his facility.
A Mercer County grand jury subsequently returned a seven-count
indictment charging defendant with first-degree kidnapping, N.J.S.A. 2C:13-
1(b) (count one); two counts of first-degree aggravated sexual assault, N.J.S.A.
2C:14-2(a)(3) (counts two and three); two counts of aggravated criminal sexual
contact, N.J.S.A. 2C:14-3(a) (counts four and five); third-degree terroristic
2 All four of the interviews were video-recorded.
4 A-2767-19 threats, N.J.S.A. 2C:12-3(b) (count six); and first-degree robbery, N.J.S.A.
2C:15-1(a)(1) (count seven).
Prior to the pretrial conference, defendant pled guilty to first-degree
kidnapping and first-degree aggravated sexual assault under counts one and two.
In return for defendant's plea, the State agreed to dismiss the remaining five
counts of the indictment.
The trial judge later sentenced defendant in accordance with his
negotiated plea agreement to a seventeen-year term on the kidnapping charge,
and a concurrent ten-year term on the aggravated sexual assault charge, with
both sentences being subject to an 85% period of parole ineligibility under the
No Early Release Act, N.J.S.A. 2C:43-7.2. The judge also sentenced defendant
to parole supervision for life and ordered him to serve his custodial sentence at
the Adult Diagnostic and Treatment Center at Avenel.
Defendant appealed his sentence. We heard the appeal on our Excessive
Sentence Oral Argument calendar pursuant to Rule 2:9-11, and affirmed
defendant's sentence. State v. D.L.A., No. 2115-13 (App. Div. Apr. 28, 2014),
certif. denied, 220 N.J. 40 (2014).
Defendant then filed a timely petition for PCR. Among other things, he
alleged that his attorney provided him with ineffective assistance because he did
5 A-2767-19 not file a motion to suppress the statements he gave to the police during his four
interviews. However, defendant did not submit a certification setting forth any
grounds upon which such a motion could have been based. 3 Defendant also did
not supply copies of the recordings or written transcripts of these interviews.
After conducting oral argument, Judge J. Adam Hughes rendered a
thorough written decision rejecting defendant's contention. The judge found
that defendant
offer[ed] no other evidence or certifications and has not indicated with specificity how he could have successfully challenged the admissibility of his statements. On the contrary, the records provided by [defendant] suggest that the statement was made knowingly and voluntarily after [defendant] was advised multiple times of his Miranda rights, and after he reinitiated contact with the officers to provide a non- criminal explanation for his encounter with the victim. . . . Based on these points, it is unlikely that a motion to suppress would have been meritorious.
Thus, the judge concluded that defendant failed to satisfy the two-prong
test of Strickland v. Washington, 466 U.S. 668, 687 (1984), which requires a
showing that trial counsel's performance was deficient and that, but for the
deficient performance, the result would have been different. Because defendant
3 Defendant's attorney asserted in a letter to the court that the "statements were coerced." However, the attorney did not support this claim with a certification and provided no further explanation for this assertion.
6 A-2767-19 was unable to establish a prima facie case of ineffective assistance of counsel,
the judge also determined that an evidentiary hearing was not required. This
appeal followed.
On appeal, defendant raises the same arguments he unsuccessfully
presented to Judge Hughes. Defendant contends:
POINT ONE
THE PCR COURT ERRED WHEN IT FAILED TO GRANT DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING BECAUSE THERE WAS NO RATIONAL EXPLANATION WHY DEFENSE COUNSEL FAILED TO LITIGATE A VIABLE MOTION TO SUPPRESS WHEN THE RULES OF COURT SPECIFICALLY ALLOW FOR SUCH MOTIONS TO BE LITIGATED AND DECIDED BEFORE A DEFENDANT CHOOSES TO PLEAD GUILTY OR PROCEED TO TRIAL AND THEREFORE, DEFENDANT ESTABLISHED A PRIMA FACIE CASE THAT PLEA COUNSEL FAILED TO PROVIDE DEFENDANT WITH THE EFFECTIVE ASSISTANCE OF COUNSEL REQUIRED BY THE NEW JERSEY AND FEDERAL CONSTITUTIONS.
POINT TWO
THE FAILURE OF PLEA COUNSEL TO LITIGATE A VIABLE MOTION TO SUPPRESS DEFENDANT'S INCRIMINATING STATEMENT TO LAW ENFORCEMENT, AND USE R[ULE] 3:9-1(e) FOR DEFENDANT'S BENEFIT, DEPRIVED DEFENDANT OF HIS CONSTITUTIONAL RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL.
7 A-2767-19 When petitioning for PCR, the defendant must establish, by a
preponderance of the credible evidence, that he or she is entitled to the requested
relief. State v. Nash, 212 N.J. 518, 541 (2013); State v. Preciose, 129 N.J. 451,
459 (1992). To sustain that burden, the defendant must allege and articulate
specific facts that "provide the court with an adequate basis on which to rest its
decision." State v. Mitchell, 126 N.J. 565, 579 (1992).
The mere raising of a claim for PCR does not entitle the defendant to an
evidentiary hearing and the defendant "must do more than make bald assertions
that he [or she] was denied the effective assistance of counsel." State v.
Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999). Rather, trial courts
should grant evidentiary hearings and make a determination on the merits only
if the defendant has presented a prima facie claim of ineffective assistance.
Preciose, 129 N.J. at 462.
To establish a prima facie claim of ineffective assistance of counsel, the
defendant is obliged to show not only the particular manner in which counsel's
performance was deficient, but also that the deficiency prejudiced his or her
right to a fair trial. Strickland v. Washington, 466 U.S. at 687; State v. Fritz,
105 N.J. 42, 58 (1987). The United States Supreme Court has extended these
principles to a criminal defense attorney's representation of an accused in
8 A-2767-19 connection with a plea negotiation. Lafler v. Cooper, 566 U.S. 156, 162-63
(2012); Missouri v. Frye, 566 U.S. 134, 143-44 (2012).
There is a strong presumption that counsel "rendered adequate assistance
and made all significant decisions in the exercise of reasonable professional
judgment." Strickland, 466 U.S. at 690. Further, because prejudice is not
presumed, Fritz, 105 N.J. at 52, the defendant must demonstrate "how specific
errors of counsel undermined the reliability" of the proceeding. United States
v. Cronic, 466 U.S. 648, 659 n.26 (1984).
We have considered defendant's contentions on appeal in light of the
record and applicable legal principles and conclude that they are without
sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We
affirm substantially for the reasons expressed by Judge Hughes in his written
opinion and add the following comments.
Where, as here, a defendant asserts his attorney was ineffective by failing
to file a motion, he must establish that the motion would have been successful.
"It is not ineffective assistance of counsel for defense counsel not to file a
meritless motion . . . ." State v. O'Neal, 190 N.J. 601, 619 (2007). For example,
where a defendant complains his or her counsel should have filed a suppression
motion, "the defendant not only must satisfy both parts of the Strickland test but
9 A-2767-19 also must prove that his [or her] Fourth Amendment claim is meritorious." State
v. Fisher, 156 N.J. 494, 501 (1998).
Here, defendant has failed to demonstrate that a motion to suppress his
statement to the detectives would have been successful. Indeed, defendant has
not even identified a cognizable basis for such a motion. Defendant did not
provide a certification alleging any defect or coercion in the interrogation
process which, according to the police report he has submitted on appeal, 4 was
conducted in complete compliance with all of the requirements imposed by
Miranda. Defendant even failed to submit copies of the recordings or transcripts
of the four interviews for the trial court's or our review.
As already noted, a defendant is obliged to establish the right to PCR by
a preponderance of the evidence. Preciose, 129 N.J. at 459. The court must
consider the defendant's "contentions indulgently and view the facts asserted by
him in the light most favorable to him." Cummings, 321 N.J. Super. at 170.
However, a defendant must present facts "supported by affidavits or
certifications based upon the personal knowledge of the affiant or the person
making the certification." Ibid.
4 Defendant also never filed a certification disputing any of the facts set forth in the police report.
10 A-2767-19 Judged against this standard, it is clear that defendant's petition is
unsupported by cognizable evidence. Defendant presented no first-hand
certification attesting to any grounds that might have supported a successful
motion to suppress any of the statements he gave to the detectives. He also
failed to identify any legal theory supporting such a motion. Under these
circumstances, we are satisfied that Judge Hughes correctly found that defendant
did not establish either prong of the Strickland test.
In sum, defendant's trial attorney was not ineffective because he did not
file a motion to suppress the statements defendant voluntarily gave to the
detectives after waiving his Miranda rights. Because defendant did not establish
a prima facie case of ineffective assistance of counsel under Strickland, Judge
Hughes was not required to conduct an evidentiary hearing on defendant's PCR
application. Preciose, 129 N.J. at 462.
Affirmed.
11 A-2767-19