STATE OF NEW JERSEY VS. JUSTIN HUGHES(11-02-0198, UNION COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: September 8, 2017
• Docket: A-2156-15T1
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-2156-15T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JUSTIN HUGHES,

Defendant-Appellant.

________________________________________________________________

Submitted August 30, 2017 – Decided September 8, 2017

Before Judges Rothstadt and Vernoia.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 11-02-0198.

Joseph E. Krakora, Public Defender, attorney for appellant (Steven E. Braun, Designated Counsel, on the brief).

Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Stephen William Bondi, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM Defendant Justin Hughes appeals from the denial of his

petition for post-conviction relief (PCR) without an evidentiary

hearing. For the reasons that follow, we affirm.

Defendant pled guilty to second-degree possession of a

controlled dangerous substance with intent to distribute,

N.J.S.A. 2C:35-5(a)(1), N.J.S.A. 2C:35-5(b)(2), and second-

degree possession of a firearm while in the course of committing

a narcotics offense, N.J.S.A. 2C:39-4.1(a). On October 26,

2012, the sentencing court imposed an aggregate sentence of

eleven years subject to a three-year period of parole

ineligibility.

The details of the events leading to defendant's arrest and

conviction need not be repeated here for our purposes. Suffice

it to say at the time defendant pled guilty, he had been charged

in an eleven count indictment that exposed him to a possible

sentence of sixty-five years, and the court had already denied

his motion to suppress. His plea agreement called for the

dismissal of all but two counts and recommend a maximum exposure

of eleven years.

Defendant filed a direct appeal, and an excessive

sentencing panel of this court affirmed his sentence but

remanded the matter for the trial court to correct the judgment

of conviction so that it reflected that the sentence on each

2 A-2156-15T1 count ran consecutively. State v. Hughes, No. A-3621-12 (App.

Div. June 3, 2014). The sentencing court entered an amended

judgment of conviction on June 24, 2014.

Defendant filed a PCR petition on August 13, 2014, in which

he did not argue any specific acts of ineffective assistance of

counsel, but contended that while he recognized his petition

could not be a substitute for direct appeal, "under the unique

circumstances here present this matter falls under the

exceptions . . . in R[ule] 3:22-4(a)."

A brief and amended petition were subsequently submitted on

behalf of defendant. In the brief, defendant argued that he

received ineffective assistance of counsel due to trial

counsel's conflicts that were created by "ethics violations" and

by counsel's "failure to call a key witness." Defendant also

claimed that counsel failed to adequately "investigat[e] and

prepare a defense," and properly cross-examine a State's

witness, "did not use reports or testimony by a hired private

investigator," and failed to supply a written notice of

witnesses, consult with defendant to "prepare the case," and

"develop mitigating circumstances for sentencing purposes." In

addition, defendant explained that he filed an ethics claim

3 A-2156-15T1 against trial counsel who was suspended from the practice of law

after the date of defendant's sentencing.1

Judge Stuart Peim, who had decided the suppression motion

and accepted his plea, denied defendant's petition after

considering counsels' oral arguments by order dated August 26,

2015, accompanied by a sixteen-page statement of reasons. In

his comprehensive written statement, Judge Peim reviewed

defendant's contentions and the applicable law. Judge Peim also

observed that trial counsel's ethics issues related to claims

totally unrelated to defendant and were not the subject of any

investigation or involvement by the same prosecutor's office

that was responsible for the claims against defendant, but

resulted in counsel being barred from the practice of law before

defendant was sentenced. In addition, the judge found that

defendant's allegations of ineffective assistance were not

supported by any proof.

Defendant presents the following issues for our

consideration in his appeal:

1 In fact, trial counsel had been suspended after defendant pled guilty but before his sentencing. See In re Chambers, 217 N.J. 196 (2014). A different attorney appeared on defendant's behalf at sentencing.

4 A-2156-15T1 POINT I

THE FACT THAT TRIAL DEFENSE COUNSEL'S MISCONDUCT OCCURRED OUTSIDE OF UNION COUNTY IS NOT DISPOSITIVE OF THE ISSUE OF WHETHER [DEFENDANT] WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL; RATHER, ANY INSTANCE OF ILLEGAL CONDUCT BY AN ATTORNEY IN NEW JERSEY SHOULD AMOUNT TO [PER SE] INEFFECTIVE ASSISTANCE OF COUNSEL FOR ANY CLIENT ABSENT A VALID WAIVER BY THE CLIENT.

POINT II

TRIAL DEFENSE COUNSEL DID NOT ADEQUATELY INVESTIGATE THE CASE, THEREBY RESULTING IN INEFFECTIVE ASSISTANCE OF COUNSEL.

We are not persuaded by any of these arguments. We

conclude that defendant failed to make a prima facie showing of

ineffectiveness of trial counsel, see Strickland v. Washington,

466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v.

Fritz, 105 N.J. 42 (1987), and affirm substantially for the

reasons expressed by Judge Peim in his thoughtful written

decision. Accordingly, Judge Peim correctly concluded that an

evidentiary hearing was not warranted. See State v. Preciose,

129 N.J. 452, 462-63 (1992). We only add our observation that

"allegations of defense counsel's . . . disciplinary problems

are, standing alone, insufficient to establish that defense

counsel's performance fell below an objective standard of

5 A-2156-15T1 reasonableness, as required under the first prong under the

Strickland/Fritz standard." State v. Allegro, 193 N.J. 352, 369

(2008). They may be relevant, however, if the questioned

conduct that was the subject of such proceedings is similar to

the issues raised on the PCR. Id. at 372. Defendant here

failed to satisfy that standard.

Affirmed.

6 A-2156-15T1