NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-5435-15T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
TIMOTHY CHMIEL,
Defendant-Appellant. ______________________________
Argued September 25, 2017 – Decided October 11, 2017
Before Judges Whipple and Rose.
On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Municipal Appeal No. 16-015.
Luke C. Kurzawa argued the cause of appellant (Reisig Criminal Defense & DWI Law, LLC, attorneys; Mr. Kurzawa, on the brief).
Mary R. Juliano, Assistant Prosecutor, argued the cause for respondent (Christopher J. Gramiccioni, Monmouth County Prosecutor, attorney; Ms. Juliano, of counsel and on the brief; Vanessa L. Coleman, Legal Assistant, on the brief).
PER CURIAM Defendant Timothy Chmiel appeals from a Law Division order
denying his petition for post-conviction relief ("PCR") without
an evidentiary hearing. We affirm.
Defendant was charged with driving while intoxicated ("DWI"),
N.J.S.A. 39:4-50(a), refusal to submit to a breath test, N.J.S.A.
39:4-50.4(a),1 reckless driving, N.J.S.A. 39:4-96, and unsafe lane
change, N.J.S.A. 39:4-88(b).
Defendant, represented by counsel, pled guilty to DWI in
Brielle Municipal Court. The State dismissed the remaining
charges. Defendant was sentenced as a fourth-time offender to 180
days in jail, mandatory fines, and penalties. Defendant did not
appeal the conviction.
Defendant filed a PCR petition with the municipal court,
pursuant to Rule 7:10-2, claiming that plea counsel was ineffective
for failure to challenge the motor vehicle stop. The municipal
judge denied the petition. Subsequently, pursuant to Rule 3:23-
1, defendant appealed the municipal judge's order to the Law
Division on the same grounds.
Defendant now appeals from the Law Division's order denying
his PCR petition. Renewing his previous argument, defendant
presents the following issue for our consideration:
1 The summons was incorrectly cited as N.J.S.A. 39:4-50.2.
2 A-5435-15T3 THE LAW DIVISION ERRED WHEN IT FOUND THAT [] DEFENDANT FAILED TO ESTABLISH A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF COUNSEL, AND AS A RESULT, HIS APPLICATION FOR POST- CONVICTION RELIEF SHOULD BE GRANTED, HIS CONVICTION VACATED, AND THE MATTER REMANDED TO ANOTHER MUNCIPAL COURT WITHIN THE MONMOUTH VICINAGE FOR FURTHER PROCEEDINGS.
I.
We glean the facts pertinent to this appeal from the record. 2
Following a telephone call from defendant's concerned female
friend to the Brielle Police Department, Officer Gary Olsen was
dispatched to defendant's residence to conduct a welfare check.
Upon arrival, a male neighbor met Olsen and advised he had just
observed defendant lying on the ground appearing intoxicated.
According to the neighbor, defendant then entered his red, older
model Ford Explorer and drove from the area. The neighbor
disclosed that defendant often drove to a nearby convenience store
to purchase alcohol and cigarettes.
Acting on the information provided by defendant's neighbor,
Olsen drove to the nearest convenience store and observed defendant
enter a red Ford Explorer and drive onto Higgins Avenue toward
Highway 71. Olsen followed defendant and activated his vehicle's
2 As noted in the State's brief, the facts are garnered from the police report proffered by defendant to support his claim that plea counsel was ineffective. The trial judge cited these facts in his opinion.
3 A-5435-15T3 emergency lights. Defendant did not pull over, but eventually
drove onto Highway 35. Olsen activated his vehicle's sirens, but
defendant failed to stop until he reached the driveway of his
residence. Olsen approached the driver's side of defendant's
vehicle and detected an odor of alcohol emanating from the interior
through the open window. Defendant's eyes were bloodshot and
watery, and his movements were slow and deliberate. Defendant
stated he had been shaking all day and his only relief resulted
from drinking vodka. Defendant was arrested and charged as set
forth above.
II.
We review the PCR court's findings of fact under a clear
error standard, and conclusions of law under a de novo standard.
See State v. Harris, 181 N.J. 391, 420-21 (2004), cert.
denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005).
Where, as here, however, "no evidentiary hearing has been held,
we 'may exercise de novo review over the factual inferences drawn
from the documentary record by the [PCR judge].'" State v. Reevey,
417 N.J. Super. 134, 146-47 (App. Div. 2010) (alteration in
original) (quoting Harris, supra, 181 N.J. at 421), certif.
denied, 206 N.J. 64 (2011).
When petitioning for PCR, the defendant must establish, by a
preponderance of the credible evidence, entitlement to the
4 A-5435-15T3 requested relief. State v. Preciose, 129 N.J. 451, 459 (1992).
The mere raising of a claim for PCR does not, however, entitle the
defendant to an evidentiary hearing. State v. Cummings, 321 N.J.
Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (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, supra, 129
N.J. at 459-64; R. 3:22-10(b).
Pursuant to the two-pronged test established in Strickland
v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984), and United States v. Cronic, 466 U.S. 648, 104 S. Ct.
2039, 80 L. Ed. 2d 657 (1984), as adopted by the New Jersey Supreme
Court in State v. Fritz, 105 N.J. 42 (1987), the defendant must
demonstrate counsel's performance was both deficient and
prejudicial. State v. Martini, 160 N.J. 248, 264 (1999) (citing
Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed.
2d at 693)). The performance of counsel is "deficient" if it
falls "below an objective standard of reasonableness" measured by
"prevailing professional norms." Strickland, supra, at 466 U.S.
at 687-88, 104 S. Ct. at 2064-65, 80 L. Ed. 2d at 693-94. In the
context of a PCR petition challenging a guilty plea based on the
ineffective assistance of counsel, the second prong is established
when the defendant demonstrates a "'reasonable probability that,
5 A-5435-15T3 but for counsel's errors, [the defendant] would not have pled
guilty and would have insisted on going to trial.'" State v.
Nuñez-Valdéz, 200 N.J. 129, 139 (2009) (alteration in original)
(quoting State v. DiFrisco, 137 N.J. 434, 457 (1994)).
Defendant asserts that plea counsel was constitutionally
ineffective because he failed to file a motion to suppress the
motor vehicle stop. When a defendant's ineffective assistance of
counsel claim is based on a failure to file a suppression motion,
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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-5435-15T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
TIMOTHY CHMIEL,
Defendant-Appellant. ______________________________
Argued September 25, 2017 – Decided October 11, 2017
Before Judges Whipple and Rose.
On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Municipal Appeal No. 16-015.
Luke C. Kurzawa argued the cause of appellant (Reisig Criminal Defense & DWI Law, LLC, attorneys; Mr. Kurzawa, on the brief).
Mary R. Juliano, Assistant Prosecutor, argued the cause for respondent (Christopher J. Gramiccioni, Monmouth County Prosecutor, attorney; Ms. Juliano, of counsel and on the brief; Vanessa L. Coleman, Legal Assistant, on the brief).
PER CURIAM Defendant Timothy Chmiel appeals from a Law Division order
denying his petition for post-conviction relief ("PCR") without
an evidentiary hearing. We affirm.
Defendant was charged with driving while intoxicated ("DWI"),
N.J.S.A. 39:4-50(a), refusal to submit to a breath test, N.J.S.A.
39:4-50.4(a),1 reckless driving, N.J.S.A. 39:4-96, and unsafe lane
change, N.J.S.A. 39:4-88(b).
Defendant, represented by counsel, pled guilty to DWI in
Brielle Municipal Court. The State dismissed the remaining
charges. Defendant was sentenced as a fourth-time offender to 180
days in jail, mandatory fines, and penalties. Defendant did not
appeal the conviction.
Defendant filed a PCR petition with the municipal court,
pursuant to Rule 7:10-2, claiming that plea counsel was ineffective
for failure to challenge the motor vehicle stop. The municipal
judge denied the petition. Subsequently, pursuant to Rule 3:23-
1, defendant appealed the municipal judge's order to the Law
Division on the same grounds.
Defendant now appeals from the Law Division's order denying
his PCR petition. Renewing his previous argument, defendant
presents the following issue for our consideration:
1 The summons was incorrectly cited as N.J.S.A. 39:4-50.2.
2 A-5435-15T3 THE LAW DIVISION ERRED WHEN IT FOUND THAT [] DEFENDANT FAILED TO ESTABLISH A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF COUNSEL, AND AS A RESULT, HIS APPLICATION FOR POST- CONVICTION RELIEF SHOULD BE GRANTED, HIS CONVICTION VACATED, AND THE MATTER REMANDED TO ANOTHER MUNCIPAL COURT WITHIN THE MONMOUTH VICINAGE FOR FURTHER PROCEEDINGS.
I.
We glean the facts pertinent to this appeal from the record. 2
Following a telephone call from defendant's concerned female
friend to the Brielle Police Department, Officer Gary Olsen was
dispatched to defendant's residence to conduct a welfare check.
Upon arrival, a male neighbor met Olsen and advised he had just
observed defendant lying on the ground appearing intoxicated.
According to the neighbor, defendant then entered his red, older
model Ford Explorer and drove from the area. The neighbor
disclosed that defendant often drove to a nearby convenience store
to purchase alcohol and cigarettes.
Acting on the information provided by defendant's neighbor,
Olsen drove to the nearest convenience store and observed defendant
enter a red Ford Explorer and drive onto Higgins Avenue toward
Highway 71. Olsen followed defendant and activated his vehicle's
2 As noted in the State's brief, the facts are garnered from the police report proffered by defendant to support his claim that plea counsel was ineffective. The trial judge cited these facts in his opinion.
3 A-5435-15T3 emergency lights. Defendant did not pull over, but eventually
drove onto Highway 35. Olsen activated his vehicle's sirens, but
defendant failed to stop until he reached the driveway of his
residence. Olsen approached the driver's side of defendant's
vehicle and detected an odor of alcohol emanating from the interior
through the open window. Defendant's eyes were bloodshot and
watery, and his movements were slow and deliberate. Defendant
stated he had been shaking all day and his only relief resulted
from drinking vodka. Defendant was arrested and charged as set
forth above.
II.
We review the PCR court's findings of fact under a clear
error standard, and conclusions of law under a de novo standard.
See State v. Harris, 181 N.J. 391, 420-21 (2004), cert.
denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005).
Where, as here, however, "no evidentiary hearing has been held,
we 'may exercise de novo review over the factual inferences drawn
from the documentary record by the [PCR judge].'" State v. Reevey,
417 N.J. Super. 134, 146-47 (App. Div. 2010) (alteration in
original) (quoting Harris, supra, 181 N.J. at 421), certif.
denied, 206 N.J. 64 (2011).
When petitioning for PCR, the defendant must establish, by a
preponderance of the credible evidence, entitlement to the
4 A-5435-15T3 requested relief. State v. Preciose, 129 N.J. 451, 459 (1992).
The mere raising of a claim for PCR does not, however, entitle the
defendant to an evidentiary hearing. State v. Cummings, 321 N.J.
Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (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, supra, 129
N.J. at 459-64; R. 3:22-10(b).
Pursuant to the two-pronged test established in Strickland
v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984), and United States v. Cronic, 466 U.S. 648, 104 S. Ct.
2039, 80 L. Ed. 2d 657 (1984), as adopted by the New Jersey Supreme
Court in State v. Fritz, 105 N.J. 42 (1987), the defendant must
demonstrate counsel's performance was both deficient and
prejudicial. State v. Martini, 160 N.J. 248, 264 (1999) (citing
Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed.
2d at 693)). The performance of counsel is "deficient" if it
falls "below an objective standard of reasonableness" measured by
"prevailing professional norms." Strickland, supra, at 466 U.S.
at 687-88, 104 S. Ct. at 2064-65, 80 L. Ed. 2d at 693-94. In the
context of a PCR petition challenging a guilty plea based on the
ineffective assistance of counsel, the second prong is established
when the defendant demonstrates a "'reasonable probability that,
5 A-5435-15T3 but for counsel's errors, [the defendant] would not have pled
guilty and would have insisted on going to trial.'" State v.
Nuñez-Valdéz, 200 N.J. 129, 139 (2009) (alteration in original)
(quoting State v. DiFrisco, 137 N.J. 434, 457 (1994)).
Defendant asserts that plea counsel was constitutionally
ineffective because he failed to file a motion to suppress the
motor vehicle stop. When a defendant's ineffective assistance of
counsel claim is based on a failure to file a suppression motion,
defendant must establish that the suppression motion has merit.
State v. O'Neal, 190 N.J. 601, 618–19 (2007); State v. Fisher, 156
N.J. 494, 501 (1998). "It is not ineffective assistance of counsel
for defense counsel not to file a meritless motion[.]" O'Neal,
supra, 190 N.J. at 619. Here, defendant has not demonstrated that
a motion to suppress the stop of his vehicle would have been
successful. Rather, based on his assessment of the totality of
the circumstances, Olsen had a reasonable and articulable
suspicion that defendant was intoxicated while driving. State v.
Stovall, 170 N.J. 346, 356 (2002).
The standards governing motor vehicle stops are familiar and
well-settled, and we need not review them at length here. See,
e.g., Delaware v. Prouse, 440 U.S. 648, 99 S. Ct. 1391, 59 L. Ed.
2d 660 (1979); State v. Locurto, 157 N.J. 463, 470 (1997); State
v. Golotta, 178 N.J. 205, 213 (2003). An officer must have at
6 A-5435-15T3 least a reasonable and articulable suspicion of a motor vehicle
violation or criminal offense in order to effectuate an
investigatory stop. Golotta, supra, 178 N.J. at 213. The
underlying issue in this appeal is whether the officer had a
sufficient basis to stop defendant on suspicion he was under the
influence of alcohol. The answer turns on the reliability of the
neighbor's report.
Contrary to defendant's claims, Olsen did not act on an
anonymous tip, but rather pursuant to specific information
provided by his concerned neighbor. The principles in Golotta
guide our analysis here. We begin by looking at the source and
circumstances of the "tip." The tip did not come from someone
from the criminal milieu who might seek some favor in return.
Rather, it came from a citizen who, in this case, expressed concern
for public safety by reporting he had just witnessed defendant
acting intoxicated then driving from his residence.3 See id. at
219-20 (distinguishing between citizen and criminal informants).
If the informer is a "'concerned citizen' or a known person[,]"
Amelio, supra, 197 N.J. at 212-13 (quoting Wildoner v. Borough
of Ramsey, 162 N.J. 375, 390 (2000)), less scrutiny attaches to
3 It is likewise well-settled that symptoms of intoxication are common knowledge capable of description by a lay person. State v. Amelio, 197 N.J. 207, 214-15, cert. denied, 556 U.S. 1237, 129 S. Ct. 2402, 173 L. Ed. 2d 1297 (2009) (citations omitted).
7 A-5435-15T3 the informant's reliability because a citizen "acts with an intent
to aid the police in law enforcement because of his concern for
society or for his own safety." Ibid. (internal citation and
quotation marks omitted); see also State v. Williams, 251 N.J.
Super. 617, 626-27 (App. Div. 1991).
Here, while the neighbor is not named in the police report,
he provided information to Olsen in person, outside his residence,
and did not seek some favor in return. Olsen not only corroborated
the identity of the vehicle described by the citizen informant,
but also confirmed the specifically described vehicle, a red Ford
Explorer, had been driven to the nearest convenience store as
suggested by the neighbor. Further, defendant twice failed to
stop his vehicle when Olsen signaled by first activating his
vehicle's emergency lights, and then activating his vehicle's
siren.4
We are satisfied that Officer Olsen had a reasonable and
articulable suspicion to conduct the stop in light of: the
reliability of his concerned neighbor's providing detailed
information; the corroboration of the neighbor's identification
4 Even if Olsen's initial signal to stop were not supported by reasonable suspicion, however, defendant's subsequent refusal to stop was contrary to the well-settled principle that a defendant does not have a right to elude police in response to an unconstitutional stop. State v. Herrerra, 211 N.J. 308, 334-35 (2012)(citations omitted).
8 A-5435-15T3 of the vehicle, and the vehicle's location; and the danger to
public safety posed by the operation of a motor vehicle that twice
failed to stop when signaled to do so by law enforcement.
Therefore, a motion to suppress the stop was meritless, and the
PCR judge correctly ruled that defendant failed to establish a
prima facie case of ineffective assistance of counsel entitling
him to a hearing as defendant failed to satisfy either of the
Strickland prongs.
Affirmed.
9 A-5435-15T3