NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-3307-16T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MAURICE HIGHLAND,
Defendant-Appellant. _____________________________
Submitted June 4, 2018 – Decided June 12, 2018
Before Judges Whipple and Rose.
On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 12-04-0584.
Joseph E. Krakora, Public Defender, attorney for appellant (Monique Moyse, Designated Counsel, on the brief).
Dennis Calo, Acting Bergen County Prosecutor, attorney for respondent (Justin Blasi, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
PER CURIAM
This matter returns to us after a remand to the Law Division
for an evidentiary hearing on defendant Maurice Highland's
petition for post-conviction relief ("PCR"). State v. Highland, No. A-742-15 (App. Div. Oct. 17, 2016). On remand, the court
conducted a hearing and denied PCR. On appeal, defendant renews
his claim that plea counsel provided incorrect legal advice,
leading to his guilty plea to first-degree robbery. Having
considered the record developed at the evidentiary hearing, we
affirm primarily for the reasons stated in the cogent written
opinion of the PCR judge. We add the following remarks.
We incorporate by reference the facts and procedural history
set forth in our October 17, 2016 sua sponte order. In sum, in
April 2011, defendant was one of four participants in a jewelry
store robbery in Wyckoff. Pertinent to this appeal, one of the
participants was armed with a sledgehammer, which he used to
shatter the display cases. Defendant prevented the occupants of
the store from leaving while two of his accomplices removed jewelry
from the cases.
Although he was charged in a fifteen-count indictment,
including five counts of first-degree robbery as an accomplice,
N.J.S.A. 2C:2-6 and N.J.S.A. 2C:15-1, defendant pled guilty to one
count of first-degree robbery as an accomplice, and third-degree
resisting arrest, N.J.S.A. 2C:29-2(a)(3)(a). He was sentenced to
an aggregate fourteen-year prison term, subject to the No Early
Release Act, N.J.S.A. 2C:43-7.2. During the plea hearing,
defendant acknowledged he was extended-term eligible because of
2 A-3307-16T4 his criminal record. Defendant further acknowledged he was
relinquishing his right to have defense motions decided by the
court, including his motion to dismiss the robbery counts for
insufficient evidence to sustain first-degree charges.
On October 23, 2013, we denied defendant's direct appeal,
which was limited to the adequacy of the factual basis for his
guilty plea, and the sentence imposed. State v. Highland, A-5544-
12 (App. Div. Oct. 23, 2013). On June 5, 2014, the Supreme Court
denied certification. State v. Highland, 217 N.J. 623 (2014).
On June 9, 2015, the judge denied PCR. In our sua sponte
order remanding the matter for a hearing we framed the issue raised
by defendant as follows:
[D]efendant filed a PCR petition asserting ineffective assistance of counsel because of his lawyer's alleged failure to explain the State's burden to prove the sledgehammer was used in a threatening and menacing manner, not simply to break the display case. In his supporting certification, defendant stated:
Before entering the guilty plea in this case, I spoke with my attorney about the charges against me. I emphasized to him that I was never in possession of the hammer [and] that it was never my intent that the hammer be used to cause or threaten harm to anyone in the store. The only reason that the hammer was even brought into the store was to break the glass.
3 A-3307-16T4 My attorney told me that it did not matter why the hammer was brought or how it was intended to be used. [Counsel advised] that the hammer itself was a deadly weapon and therefore the robbery was considered a first[-]degree crime. I was never told that [I could argue] to a jury that the crime was only a second[-]degree crime if [my] intent was not to cause harm or threaten to cause harm.
[alterations in original.]
We, therefore, found defendant had established a prima facie
claim of ineffective assistance of counsel, and a hearing was
necessary "to determine what his plea counsel advised in regard
to the grading of his offense." Specifically, "[i]f defendant's
lawyer told him his or his co-defendants' intended use of the
sledgehammer was irrelevant, such advice was patently incorrect."
See State v. Rolan, 199 N.J. 575, 583 (2009) (recognizing that the
actor's intent determines whether the item used is a "deadly
weapon" when the item has other legitimate uses).
On January 3, 2017, defendant and his former attorney
testified at the evidentiary hearing. Their testimony varied
sharply regarding plea counsel's legal advice regarding use of the
sledgehammer as a deadly weapon.
At the time of the hearing, plea counsel was employed by the
Public Defender's Office and had been practicing criminal defense
4 A-3307-16T4 law for thirty-five years. He recalled discussing with defendant
"whether or not a jury would construe a sledgehammer to be a weapon
for purposes of the armed robbery statute." In particular, counsel
informed defendant the jury would determine "whether or not they
found proof beyond a reasonable doubt that [defendant] and his co-
defendants possessed the sledgehammer for more than just smashing
the jewelry cases." He testified further, "I'm sure that I told
him that it would have to be determined by the manner in which
[the sledgehammer] was used primarily and the perceptions of the
people who were the victims of the crime."
Plea counsel also testified about his discussion with
defendant regarding his complicity in the offense based on
the circumstances of the case where he went in there with two other people, started smashing . . . the display cases and people were being dragged around the store by their hair and screaming and things like that and being locked in rooms, I thought that there was a good chance that . . . the actions of the other defendants would be imputed to him since they all arrived in the car together and fled together that they were acting together.
Conversely, defendant denied discussing accomplice liability
with his former attorney. Rather, he claimed "We didn't discuss
really anything, he told me that the hammer was a deadly weapon
and he told me it did not matter who had the hammer."
5 A-3307-16T4 On January 4, 2017, the trial judge issued a written opinion
soundly recognizing defendant's claims lacked merit. Among other
things, the judge credited counsel's recollection that "he and the
defendant reviewed the discovery and the strength and weaknesses
of the defendant's case in detail [as] more credible than the
defendant's claim that he was given incorrect legal advice."
Our review of a PCR claim after a court has held an
evidentiary hearing "is necessarily deferential to [the] PCR
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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-3307-16T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MAURICE HIGHLAND,
Defendant-Appellant. _____________________________
Submitted June 4, 2018 – Decided June 12, 2018
Before Judges Whipple and Rose.
On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 12-04-0584.
Joseph E. Krakora, Public Defender, attorney for appellant (Monique Moyse, Designated Counsel, on the brief).
Dennis Calo, Acting Bergen County Prosecutor, attorney for respondent (Justin Blasi, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
PER CURIAM
This matter returns to us after a remand to the Law Division
for an evidentiary hearing on defendant Maurice Highland's
petition for post-conviction relief ("PCR"). State v. Highland, No. A-742-15 (App. Div. Oct. 17, 2016). On remand, the court
conducted a hearing and denied PCR. On appeal, defendant renews
his claim that plea counsel provided incorrect legal advice,
leading to his guilty plea to first-degree robbery. Having
considered the record developed at the evidentiary hearing, we
affirm primarily for the reasons stated in the cogent written
opinion of the PCR judge. We add the following remarks.
We incorporate by reference the facts and procedural history
set forth in our October 17, 2016 sua sponte order. In sum, in
April 2011, defendant was one of four participants in a jewelry
store robbery in Wyckoff. Pertinent to this appeal, one of the
participants was armed with a sledgehammer, which he used to
shatter the display cases. Defendant prevented the occupants of
the store from leaving while two of his accomplices removed jewelry
from the cases.
Although he was charged in a fifteen-count indictment,
including five counts of first-degree robbery as an accomplice,
N.J.S.A. 2C:2-6 and N.J.S.A. 2C:15-1, defendant pled guilty to one
count of first-degree robbery as an accomplice, and third-degree
resisting arrest, N.J.S.A. 2C:29-2(a)(3)(a). He was sentenced to
an aggregate fourteen-year prison term, subject to the No Early
Release Act, N.J.S.A. 2C:43-7.2. During the plea hearing,
defendant acknowledged he was extended-term eligible because of
2 A-3307-16T4 his criminal record. Defendant further acknowledged he was
relinquishing his right to have defense motions decided by the
court, including his motion to dismiss the robbery counts for
insufficient evidence to sustain first-degree charges.
On October 23, 2013, we denied defendant's direct appeal,
which was limited to the adequacy of the factual basis for his
guilty plea, and the sentence imposed. State v. Highland, A-5544-
12 (App. Div. Oct. 23, 2013). On June 5, 2014, the Supreme Court
denied certification. State v. Highland, 217 N.J. 623 (2014).
On June 9, 2015, the judge denied PCR. In our sua sponte
order remanding the matter for a hearing we framed the issue raised
by defendant as follows:
[D]efendant filed a PCR petition asserting ineffective assistance of counsel because of his lawyer's alleged failure to explain the State's burden to prove the sledgehammer was used in a threatening and menacing manner, not simply to break the display case. In his supporting certification, defendant stated:
Before entering the guilty plea in this case, I spoke with my attorney about the charges against me. I emphasized to him that I was never in possession of the hammer [and] that it was never my intent that the hammer be used to cause or threaten harm to anyone in the store. The only reason that the hammer was even brought into the store was to break the glass.
3 A-3307-16T4 My attorney told me that it did not matter why the hammer was brought or how it was intended to be used. [Counsel advised] that the hammer itself was a deadly weapon and therefore the robbery was considered a first[-]degree crime. I was never told that [I could argue] to a jury that the crime was only a second[-]degree crime if [my] intent was not to cause harm or threaten to cause harm.
[alterations in original.]
We, therefore, found defendant had established a prima facie
claim of ineffective assistance of counsel, and a hearing was
necessary "to determine what his plea counsel advised in regard
to the grading of his offense." Specifically, "[i]f defendant's
lawyer told him his or his co-defendants' intended use of the
sledgehammer was irrelevant, such advice was patently incorrect."
See State v. Rolan, 199 N.J. 575, 583 (2009) (recognizing that the
actor's intent determines whether the item used is a "deadly
weapon" when the item has other legitimate uses).
On January 3, 2017, defendant and his former attorney
testified at the evidentiary hearing. Their testimony varied
sharply regarding plea counsel's legal advice regarding use of the
sledgehammer as a deadly weapon.
At the time of the hearing, plea counsel was employed by the
Public Defender's Office and had been practicing criminal defense
4 A-3307-16T4 law for thirty-five years. He recalled discussing with defendant
"whether or not a jury would construe a sledgehammer to be a weapon
for purposes of the armed robbery statute." In particular, counsel
informed defendant the jury would determine "whether or not they
found proof beyond a reasonable doubt that [defendant] and his co-
defendants possessed the sledgehammer for more than just smashing
the jewelry cases." He testified further, "I'm sure that I told
him that it would have to be determined by the manner in which
[the sledgehammer] was used primarily and the perceptions of the
people who were the victims of the crime."
Plea counsel also testified about his discussion with
defendant regarding his complicity in the offense based on
the circumstances of the case where he went in there with two other people, started smashing . . . the display cases and people were being dragged around the store by their hair and screaming and things like that and being locked in rooms, I thought that there was a good chance that . . . the actions of the other defendants would be imputed to him since they all arrived in the car together and fled together that they were acting together.
Conversely, defendant denied discussing accomplice liability
with his former attorney. Rather, he claimed "We didn't discuss
really anything, he told me that the hammer was a deadly weapon
and he told me it did not matter who had the hammer."
5 A-3307-16T4 On January 4, 2017, the trial judge issued a written opinion
soundly recognizing defendant's claims lacked merit. Among other
things, the judge credited counsel's recollection that "he and the
defendant reviewed the discovery and the strength and weaknesses
of the defendant's case in detail [as] more credible than the
defendant's claim that he was given incorrect legal advice."
Our review of a PCR claim after a court has held an
evidentiary hearing "is necessarily deferential to [the] PCR
court's factual findings based on its review of live witness
testimony." State v. Nash, 212 N.J. 518, 540 (2013); see also
State v. O'Donnell, 435 N.J. Super. 351, 373 (App. Div. 2014) ("If
a court has conducted an evidentiary hearing on a petition for
PCR, we necessarily defer to the trial court's factual findings.").
Where an evidentiary hearing has been held, we should not disturb
"'the PCR court's findings that are supported by sufficient
credible evidence in the record.'" State v. Pierre, 223 N.J. 560,
576 (2015) (quoting Nash, 212 N.J. at 540). We review any legal
conclusions of the trial court de novo. Nash, 212 N.J. at 540-
41; State v. Harris, 181 N.J. 391, 419 (2004).
"[A] defendant asserting ineffective assistance of counsel
on PCR bears the burden of proving his or her right to relief by
a preponderance of the evidence." State v. Gaitan, 209 N.J. 339,
350 (2012). A defendant must prove counsel's performance was
6 A-3307-16T4 deficient; it must be demonstrated that counsel's handling of the
matter "fell below an objective standard of reasonableness" and
that "counsel made errors so serious that counsel was not
functioning as the 'counsel' guaranteed the defendant by the Sixth
Amendment." Strickland v. Washington, 466 U.S. 668, 687-88 (1984);
State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland
two-part test in New Jersey).
A defendant must also prove counsel's "deficient performance
prejudiced the defense." Strickland, 466 U.S. at 687. Prejudice
is established by showing a "reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding
would have been different." Id. at 694. Thus, petitioner must
establish that counsel's performance was deficient and petitioner
suffered prejudice in order to obtain a reversal of the challenged
conviction. Id. at 687; Fritz, 105 N.J. at 52.
Here, the testimony adduced at the evidentiary hearing belies
defendant's contention that plea counsel failed to render proper
advice. We find nothing in the record to support defendant's
assertion that counsel failed to advise him about "the State's
burden to prove the sledgehammer was used in a threatening and
menacing manner, not simply to break the display case." Further,
as the PCR judge observed, counsel had filed a motion to dismiss
7 A-3307-16T4 the indictment, which defendant knowingly withdrew when he entered
his guilty plea.
We see no reason to disturb the PCR court's factual and
credibility findings. Those findings are entitled to our
deference. State v. Robinson, 200 N.J. 1, 15 (2009).
Affirmed.
8 A-3307-16T4