Opinion
DOCKET NO. A-3261-13T3
07-30-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. TODD DORN, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Kevin G. Byrnes, Designated Counsel, on the brief). James P. McClain, Atlantic County Prosecutor, attorney for respondent (Mario C. Formica, Chief Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Yannotti and Lihotz. On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 08-12-3042. Joseph E. Krakora, Public Defender, attorney for appellant (Kevin G. Byrnes, Designated Counsel, on the brief). James P. McClain, Atlantic County Prosecutor, attorney for respondent (Mario C. Formica, Chief Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Todd Dorn appeals from an order entered by the Law Division on December 10, 2013, denying his petition for post-conviction relief ("PCR"). We affirm.
I.
Defendant was charged under Atlantic County Indictment No. 08-12-3042, with third-degree possession of a controlled dangerous substance ("CDS"), N.J.S.A. 2C:35-10a(1); and second-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5a(1) and -5b(2). On February 24, 2009, defendant pled guilty to second-degree possession of CDS with intent to distribute. The State agreed to recommend that defendant be sentenced to a term of probation, specifically Drug Court, conditioned upon his successful completion of the program. If defendant failed to successfully complete the program, the State would recommend a five-year term of incarceration, concurrent to the sentence imposed on Atlantic County Indictment No. 08-05-1247. On February 24, 2009, the court sentenced defendant to a term of probation in Drug Court.
Several months before defendant entered his plea on Indictment No. 08-12-3042, defendant pled guilty to possession of CDS, as charged in Indictment No. 08-05-1247 and the court sentenced him to a probationary term in Drug Court, or four years in jail if he failed to successfully complete the Drug Court program. --------
On September 27, 2011, defendant appeared in court after he was charged with violating the conditions of probation by accruing new charges involving the distribution of CDS. The court allowed defendant to continue his participation in the Drug Court program, pending resolution of the alleged violation of probation based on the new charges, or resolution of the new charges.
On September 4, 2012, defendant appeared in court for resentencing. He had been charged with violating the terms of probation, after testing positive for illegal drug use. Defense counsel informed the court that he had consulted with defendant, and defendant had agreed that further Drug Court participation would not be productive, particularly in view of the pending CDS charges. Counsel asked the court to terminate probation and impose the alternative sentences provided for in the plea agreements.
The court sentenced defendant to five years of incarceration on Indictment No. 08-12-3042, and four years of incarceration on Indictment No. 08-05-1247. The court ordered that the sentences be served concurrently. Thereafter, defendant filed a motion in the trial court seeking reconsideration of the sentences. The court denied the motion.
On September 24, 2012, defendant filed a pro se petition for PCR. The court appointed PCR counsel for defendant, and counsel filed a brief in support of the petition. An amended PCR petition, dated October 16, 2013, also was filed. Defendant claimed that he had been denied the effective assistance of plea counsel. He also argued that his conviction should be set aside on the basis of fundamental fairness. He sought an evidentiary hearing on the petition.
The PCR court heard oral argument on November 12, 2013, and filed a written opinion dated December 10, 2013, concluding that defendant had not been denied the effective assistance of counsel and that an evidentiary hearing was not required. Defendant appeals and argues:
POINT I
THE DEFENDANT'S GUILTY PLEA TO POSSESSION OF CDS WITH THE INTENT TO DISTRIBUTE MUST BE SET ASIDE, AS THERE IS NO FACTUAL BASIS TO SUPPORT THE GUILTY PLEA (Not Raised Below)
POINT II
THE DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL, AS GUARANTEED BY THE SIXTH AMENDEMENT TO THE [UNITED STATES CONSTITUTION] AND ART. I, PAR. 1 OF THE [NEW JERSEY CONSTITUTION] WAS VIOLATED
A. Trial Counsel Failed To Investigate the Case Adequately
B. Trial Counsel Failed To File a Motion To Dismiss the Indictment, Which Would Have Been Granted
POINT III
THE DEFENDANT SHOULD BE GRANTED RELIEF OR THE MATTER SHOULD BE REMANDED FOR AN EVIDENTIA[RY] HEARING.
II.
We reject defendant's contention that his guilty plea should be set aside because he failed to provide an adequate factual basis for the plea. At the plea hearing, defendant admitted that on March 15, 2008, in Atlantic City, he possessed fourteen grams, or approximately one-half ounce of cocaine. Defendant said he had purchased the drugs from a person he identified as co-defendant William Thompson. He also acknowledged that he intended to share the cocaine with his girlfriend.
Defendant argues that sharing is not distribution for purposes of establishing that he intended to distribute the CDS. We disagree. See State v. Heitzman, 209 N.J. Super. 617, 619-21 (App. Div. 1986) (holding that evidence the defendant possessed marijuana with the intent to distribute some of it at no cost to social guests was sufficient to establish possession of the CDS with intent to distribute), aff'd, 107 N.J. 603 (1987); see also State v. S.C., 289 N.J. Super. 61, 70 (App. Div.) (noting that the defendant's admission he purchased CDS and intended to share the drugs with his fiancée was sufficient to establish a "drug distribution scheme"), certif. denied, 145 N.J. 373 (1996).
In support of his argument, defendant relies upon State v. Lopez, 359 N.J. Super. 222 (App. Div.), certif. granted sub. nom. State v. Garcia, 177 N.J. 576, appeal dismissed, 178 N.J. 372 (2003). Defendant's reliance upon Lopez is misplaced. In that case, the two defendants were charged with possession of CDS with intent to distribute. Id. at 226. The State's theory of culpability was that joint possession of the CDS by the two defendants was sufficient to show possession with intent to distribute. Id. at 233. We rejected that argument, stating that "[h]aving an object with the intent to distribute presumes that the intended recipient does not have possession of it. Therefore, as a matter of law, two or more defendants cannot intend to distribute to each other drugs they jointly possess." Ibid. In this case, however, the State did not charge defendant with distributing the CDS to another person who was alleged to be in joint possession of the drugs. Thus, Lopez provides no support for defendant's argument.
We conclude that the PCR court correctly determined that defendant provided an adequate factual basis for his plea.
III.
Defendant further argues he was denied the effective assistance of counsel, as guaranteed by the Constitution of the United States and the New Jersey Constitution. He claims his attorney failed to investigate the case adequately and erred by failing to file a motion to dismiss the indictment. Defendant also argues the PCR court should have conducted an evidentiary hearing on his petition.
A defendant's claim that he was denied the effective assistance of counsel as guaranteed by the Sixth Amendment to the United States Constitution is considered under the standards enunciated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). In order to prevail on such a claim, a defendant first must show that his attorney's handling of the matter "fell below an objective standard of reasonableness." Id. at 688, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.
A defendant also must show that there exists 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. Our Supreme Court has adopted the Strickland test for consideration of claims of ineffective assistance raised under the New Jersey Constitution. State v. Fritz, 105 N.J. 42, 58 (1987).
Furthermore, where, as in this case, a defendant seeks to set aside a guilty plea based upon the alleged ineffective assistance of counsel in connection with a plea, the defendant must establish that "counsel's assistance was not 'within the range of competence demanded of attorneys in criminal cases[.]'" State v. DiFrisco, 137 N.J. 434, 457 (1994) (quoting Tollett v. Henderson, 411 U.S. 258, 266, 93 S. Ct. 1602, 1608, 36 L. Ed. 2d 235, 243 (1973)). The defendant also must show "'that there is a reasonable probability that, but for counsel's errors, [the defendant] would not have pled guilty and would have insisted on going to trial.'" Ibid. (alteration in original) (citing Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 210 (1985)).
Defendant alleges that his attorney failed to obtain relevant discovery and conduct an adequate investigation. The record of the plea hearing indicates that defense counsel told the court that he needed additional time to conduct discovery. However, the assistant prosecutor noted that he had discussed the case at length with defendant's counsel two weeks before the plea hearing, and counsel had stated he possessed more information than the prosecutor had at that time.
Moreover, the prosecutor who was involved in the investigation of the case was present in court and the assistant prosecutor indicated that "a simple discussion" could address any of defense counsel's concerns. That discussion apparently took place while the court considered other matters. Defense counsel did not seek to postpone the plea hearing and defendant went forward with his plea.
Even if we agreed that defense counsel erred by failing to seek a postponement and undertake a further investigation of the case, defendant has not shown that he was prejudiced by the error. A defendant who claims that his attorney failed to adequately investigate his case "'must assert the facts that an investigation would have revealed, supported by affidavits or certifications based upon the personal knowledge of the affiant or the person making the certification.'" State v. Porter, 216 N.J. 343, 353 (2013) (quoting State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999)). Here, defendant provided no evidence to the PCR court showing what a further investigation would have revealed, or that the results of the investigation would have been favorable to the defense.
Defendant also claims that his attorney should have filed a motion to dismiss the indictment. He contends the indictment was deficient because the State failed to present a prima facie case that he possessed the CDS with intent to distribute.
An indictment will not be dismissed, however, when there is at least "some evidence" to establish each element of the State's prima facie case. State v. Scherzer, 301 N.J. Super. 363, 428 (App. Div. 1997) (internal quotation marks and citation omitted). Here, Sergeant Rodney Ruark ("Ruark") testified before the grand jury that he had been a police officer for twenty-one years, made more than 1500 narcotics arrests, led numerous investigations of narcotics offenses, participated in thousands of narcotics-related arrests, and interviewed hundreds of persons to gather relevant information over his career.
Ruark discussed this investigation, which involved multiple drug sales that Thompson and another co-defendant made to a confidential informant. Those sales led to the use of a wiretap, which intercepted a conversation leading to the distribution of one ounce of cocaine to defendant. Ruark stated that the purchase of one ounce of cocaine for a price of $800 would, based on his training and experience, be possession of cocaine "[w]ith the intent to distribute."
We are convinced that the State presented sufficient evidence before the grand jury to support the charge of possession of CDS with intent to distribute. Thus, if defendant's attorney had filed a motion to dismiss the indictment for lack of sufficient proof, the motion would have been meritless. The failure to file that motion does not constitute the ineffective assistance of counsel.
Defendant further argues that the PCR court erred because it did not conduct an evidentiary hearing on his petition. Again, we disagree. An evidentiary hearing is only required when a defendant establishes a prima facie case in support of PCR, there are material issues of fact that cannot resolved based on the existing record, and the court determines an evidentiary hearing is required to resolve the claims presented. Porter, supra, 216 N.J. at 354 (citing R. 3:22-10(b)). "A prima facie case is established when a defendant demonstrates 'a reasonable likelihood that his or her claim, viewing the facts alleged in the light most favorable to the defendant, will ultimately succeed on the merits.'" Id. at 355 (quoting R. 3:22-10(b)).
In this case, there was no genuine issue of material fact relative to defendant's claim of ineffective assistance of counsel, and the existing record was sufficient to resolve the claims presented. Furthermore, as we have determined, defendant failed to establish a prima facie case for relief. We conclude that the PCR court correctly found that an evidentiary hearing was not required. See Id. at 355; see also State v. Preciose, 129 N.J. 451, 462 (1992).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION