Opinion
DOCKET NO. A-5205-13T4
06-28-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. LAWRENCE CRAWFORD, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Karen A. Lodeserto, Designated Counsel, on the brief). Esther Suarez, Hudson County Prosecutor, attorney for respondent (Jennifer J. Ljungberg, Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges St. John and Vernoia. On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 86-09-1324. Joseph E. Krakora, Public Defender, attorney for appellant (Karen A. Lodeserto, Designated Counsel, on the brief). Esther Suarez, Hudson County Prosecutor, attorney for respondent (Jennifer J. Ljungberg, Assistant Prosecutor, on the brief). PER CURIAM
Defendant Lawrence Crawford appeals an April 16, 2014 order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.
I.
We discern the following facts and procedural history from the record. In 1986 defendant was indicted by a grand jury for unlawful possession of a weapon, a handgun, in violation of N.J.S.A. 2C:39-5(b). On February 9, 1988, defendant pled guilty to the charge. On March 31, 1988, defendant was sentenced to a five-year probationary term, directed to participate in a drug treatment program to be designated by the probation department, and ordered to pay fines.
On July 1, 2013, defendant filed a pro se petition for PCR and was assigned counsel. Defendant filed additional pro se submissions and his PCR counsel filed a brief on his behalf. Defendant claimed that his plea counsel was ineffective by failing to file a motion to suppress evidence; object to a defect in the indictment; challenge the indictment on grounds that it violated the Foreign Sovereign Immunity Act, 28 U.S.C.A. §§ 1602-1611; and object to the indictment because it was preempted.
Defendant also requested the recusal of the judge assigned to his petition for PCR. On March 24, 2014, the judge denied defendant's request. Defendant does not appeal the court's denial, and we therefore do not address the issue.
The court heard oral argument on March 27, 2014, and on April 16, 2014, issued a written opinion denying defendant's petition. The court first found that the petition was time-barred under Rule 3:22-12(a). The court also considered the merits of the petition and determined that defendant failed to sustain his burden of establishing a prima facie claim of ineffective assistance of counsel. The court entered an order denying defendant's petition for PCR. This appeal followed.
On appeal, defendant makes the following arguments:
POINT ONE:
DEFENDANT SHOULD BE GRANTED AN EVIDENTIARY HEARING BECAUSE HIS PLEA COUNSEL WAS INEFFECTIVE IN FAILING TO OBJECT TO THE INDICTMENT PROCESS.
POINT TWO:
THE FIVE[-]YEAR TIME BAR SHOULD BE RELAXED DUE TO DEFENDANT'S EXCUSABLE NEGLECT AND/OR THE INTERESTS OF JUSTICE.
II.
Based upon our review of the record here, we affirm substantially for the reasons set forth in the court's detailed and well-reasoned decision. We add the following comments.
We review the legal conclusions of a PCR court de novo. State v. Harris, 181 N.J. 391, 419 (2004) (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). The de novo standard of review applies to mixed questions of fact and law. Id. at 420. Where an evidentiary hearing has not been held, it is within our authority "to conduct a de novo review of both the factual findings and legal conclusions of the PCR court." Id. at 421.
The Sixth Amendment to the United States Constitution and Article I, Paragraph 10 of the New Jersey Constitution guarantee that a defendant in a criminal proceeding has the right to the assistance of counsel in his or her defense. The right to counsel includes "the right to the effective assistance of counsel." State v. Nash, 212 N.J. 518, 541 (2013) (quoting Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2063, 80 L. Ed. 2d 674, 692 (1984)).
In Strickland, the Court established a two-part test, which was adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987), to determine whether a defendant has been deprived of the effective assistance of counsel. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Under the first prong of the Strickland standard, a petitioner must show that counsel's performance was 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." Id. at 687-88, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.
Under the second prong of the Strickland standard, a defendant "must show that the deficient performance prejudiced the defense." Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. There must be a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.
"With respect to both prongs of the Strickland test, 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) (citing State v. Echols, 199 N.J. 344, 357 (2009); State v. Goodwin, 173 N.J. 583, 593 (2002)), cert. denied, ___ U.S. ___, 133 S. Ct. 1454, 185 L. Ed. 2d 361 (2013). A failure to satisfy either prong of the Strickland standard requires the denial of a petition for PCR. Strickland, supra, 466 U.S. at 700, 104 S. Ct. at 2071, 80 L. Ed. 2d at 702; Nash, supra, 212 N.J. at 542; Fritz, supra, 105 N.J. at 52.
A PCR petition must be filed within five years of the entry of the judgment of conviction unless the defendant demonstrates "excusable neglect" for missing the deadline and that "enforcement of the time bar would result in a fundamental injustice." R. 3:22-12(a)(1). A petition for PCR may also be filed within one year of "the courts recogniz[ing] a new constitutional right or defendant discover[ing] a previously unknown factual predicate justifying relief from the conviction." State v. Brewster, 429 N.J. Super. 387, 398 (App. Div. 2013) (citing R. 3:22-12(a)(2)).
Defendant's petition was filed twenty-five years after his judgment of conviction was entered. As correctly noted by the PCR court, defendant's petition and supplemental submissions are devoid of any facts establishing either excusable neglect or a fundamental injustice under Rule 3:22-12(a)(1). See State v. Mitchell, 126 N.J. 565, 576-77 (1992) (finding that a PCR "petition itself must allege the facts relied on to support the claim"); State v. Cann, 342 N.J. Super. 93, 101-02 (App. Div.) ("A [PCR] petition is time-barred if it does not claim excusable neglect, or allege the facts relied on to support that claim."), certif. denied, 170 N.J. 208 (2001). The court therefore properly concluded that defendant's petition was time-barred.
We are also convinced that the PCR court correctly determined that defendant failed to establish a prima facie claim of ineffective assistance of counsel under the Strickland standard. Defendant asserted that his counsel failed to challenge the validity of the indictment and otherwise object to the charges returned against him. Defendant failed, however, to demonstrate that there was any merit to the challenge and objections he contends counsel should have made.
Defendant also asserted that his counsel failed to file a motion to suppress evidence, but the undisputed record showed that his counsel filed a motion to suppress and the court conducted a suppression hearing on the motion. --------
"The failure to raise unsuccessful legal arguments does not constitute ineffective assistance of counsel." State v. Worlock, 117 N.J. 596, 625 (1990). The PCR court correctly found that counsel was not deficient under the first prong of the Strickland standard by failing to make a challenge to the validity of the indictment and assert other objections which would have been unsuccessful. Ibid.; see also State v. O'Neal, 190 N.J. 601, 619 (2007) (holding that counsel is not ineffective by failing to file a meritless motion).
Moreover, because defendant did not demonstrate that any of the challenges or objections had merit, he also failed to establish a "reasonable probability that, but for" his trial counsel's purported errors, "the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. As correctly determined by the PCR court, defendant failed to satisfy his burden under the second prong of the Strickland standard.
We also reject defendant's claim that the court should have conducted an evidentiary hearing on his PCR claim. A hearing is required when a defendant presents a prima facie case for PCR under the Strickland standard, the existing record is inadequate to resolve defendant's claim, and the court determines an evidentiary hearing is required. State v. Porter, 216 N.J. 343, 354 (2013) (citing R. 3:22-10(b)). Here, the existing record provided an adequate basis for the court's finding that defendant did not establish a prima facie case of ineffective assistance of counsel and therefore an evidentiary hearing was not required.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION