Opinion
DOCKET NO. A-2970-11T2
03-03-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. RAJKEITH REED, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Thomas Menchin, Designated Counsel, on the brief). Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Linda A. Shashoua, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Reisner and Ostrer.
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 09-04-1223.
Joseph E. Krakora, Public Defender, attorney for appellant (Thomas Menchin, Designated Counsel, on the brief).
Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Linda A. Shashoua, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Rajkeith Reed appeals from a November 17, 2011, order denying, without oral argument or an evidentiary hearing, his petition for post-conviction relief (PCR). We remand for oral argument or a statement of reasons supporting the denial of oral argument.
I.
Pursuant to a plea agreement, defendant was sentenced in February 2010 to a ten-year term of incarceration, with a five-year parole bar, after he pleaded guilty to first-degree possession of cocaine with the intent to distribute, N.J.S.A. 2C:35-5. He entered his plea on the eve of a hearing on a motion to suppress evidence. Pursuant to a search warrant, police had seized seven ounces of cocaine from a safe in defendant's residence. According to the affidavit in support of the warrant, the police had previously arrested defendant, without a warrant, after observing him engage in a drug transaction in a vehicle. That arrest followed extensive surveillance of defendant's drug activities. The suppression motion focused on the warrantless arrest. In his plea hearing, defendant admitted that he alone possessed the cocaine in the safe with the intention of selling it. He exonerated his girlfriend, with whom he lived.
Before filing his motion, defendant had rejected the State's Brimage plea offer with the recommendation of a nine-year sentence, and a thirty-nine month parole bar. Once the State has filed its brief in response to a defendant's motion, Brimage guidelines generally require an escalation of the State's offer. N.J. Office of the Att'y Gen., Brimage Guidelines 2 29 (2004). The Brimage worksheet is not included in the record before us.
Defendant was continued on bail pending sentencing on January 29, 2010. However, he did not appear and a warrant was issued for his arrest. He voluntarily surrendered on January 30. His attorney asserted that defendant had traveled to the Dominican Republic and was unable to return on time because he lost his passport. Defense counsel moved for sentencing in accord with the plea agreement without further argument. Defendant declined to speak before sentencing. Defendant did not file an appeal.
Defendant asserted in his pro se PCR petition that his attorney was ineffective by failing "to properly argue pre-trial motions such as: Bill of Particulars; Motion to Suppress evidence; and Motion to Dismiss Indictment." He argued that his attorney should have argued mitigating factors at sentencing and should have secured an agreement to plea within the second-degree range. In a brief filed by appointed counsel, defendant argued that his counsel was ineffective for failing to pursue the suppression motion. He argued that the search warrant was obtained after a warrantless search and seizure of the home. He supplied no cognizable evidence to support that assertion. According to a certification by defendant's trial counsel submitted to the PCR court, defendant on the day of the suppression hearing, with witnesses at the ready, sought the plea arrangement that resulted in the dismissal of the charges against his girlfriend and the other codefendant.
The PCR judge denied the petition on the papers by order entered in November 2011. In a written opinion, he construed defendant's petition to present the argument that he received an excessive sentence, which should have been raised on direct appeal. Citing the high threshold for a down-graded sentence set by N.J.S.A. 2C:44-1f(2) and State v. Megargel, 143 N.J. 484 (1996), the court also rejected defendant's argument that if counsel had argued various mitigating factors, he would have received a sentence in the second-degree range.
The court rejected defendant's other claims of ineffective assistance, concluding that, contrary to defendant's argument, his attorney did file a motion to suppress, but then withdrew it at defendant's behest. Moreover, defendant had failed to submit any proof of his newly minted claim in his PCR that the home was subject to a warrantless search before the police obtained a warrant. The court also concluded that defendant had failed to demonstrate that trial counsel was ineffective by failing to file other motions, as defendant had failed to demonstrate any other motions would have had merit.
II.
On this appeal, defendant presents two points:
POINT I
DEFENDANT'S PETITION SHOULD NOT HAVE BEEN DISMISSED WITHOUT A HEARING.
POINT II
DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF POST-CONVICTION COUNSEL.
Defendant argues that the PCR judge should at least have heard oral argument on his PCR application. He cites State v. Parker, 212 N.J. 269 (2012) and State v. Mayron, 344 N.J. Super. 382, 387 (App. Div. 2001). He also argues that his PCR attorney was ineffective by: (1) failing to obtain a certification or other cognizable evidence to support the claim that the police conducted a pre-warrant search of the home; and (2) failing to make clear that trial counsel was ineffective for failing to argue for a lower sentence.
In Parker, supra, decided after the PCR court denied defendant's petition without oral argument, the Court outlined the considerations governing whether a PCR court should entertain oral argument. Noting that the Court Rules do not explicitly require oral argument, 212 N.J. at 280, the Court held that a trial court nonetheless should approach a PCR petition "with the view that oral argument should be granted." Id. at 282. The Court expressed agreement with our statement in Mayron, supra, that there should be a "'significant presumption in favor of argument.'" Id. at 282 (quoting Mayron, supra, 344 N.J. Super. at 387). The Court held that in deciding whether to hear oral argument, "facts should be viewed through the same generous lens" used to decide whether to hold an evidentiary hearing. Ibid.
As a procedural matter, "when the trial judge does reach the determination that the arguments presented in the papers do not warrant oral argument, the judge should provide a statement of reasons that is tailored to the particular application, stating why the judge considers oral argument unnecessary." Id. at 282. The Court should consider "'the apparent merits and complexity of the issues . . . , whether argument of counsel [would] add to the written positions . . . , and in general, whether the goals and purposes of the post-conviction procedure are furthered by oral argument.'" Id. at 282 (quoting Mayron, supra, 344 N.J. Super. at 387). Although trial courts exercise a "residuum of discretion" in weighing these factors, it is not enough for a trial court to deny argument by stating summarily that the issues are not complex. Id. at 282-83.
Here, the court decided defendant's first PCR petition on the papers and provided no explanation as to why oral argument was not conducted. In view of Parker, we are constrained to remand this matter for forty-five days to allow the judge to either hear oral argument and issue a reconsidered decision, or issue a statement of reasons as to why oral argument was denied. At this stage, we withhold comment on the merits of defendant's petition.
As for defendant's argument that his PCR counsel was ineffective, a defendant has a constitutional right to effective assistance of counsel in a petition for PCR when raising for the first time ineffective assistance of trial counsel. State v. Quixal, 431 N.J. Super. 502, 513 (App. Div. 2013). However, just as our Court has disfavored ineffective-assistance-of-trial-counsel claims on direct appeal, we would be inclined against entertaining an ineffective-assistance-of-PCR-counsel on appeal from the denial of a first PCR petition. Ineffective-assistance-of-trial-counsel claims are generally inappropriate for consideration on direct appeal because they "involve allegations and evidence that lie outside the trial record." State v. Preciose, 129 N.J. 451, 460 (1992). Likewise, defendant's claim that his PCR counsel was ineffective relies on evidence outside the PCR record — specifically, evidence pertaining to the absence of a certification from defendant, his girlfriend, or anyone else to support the claim of a pre-warrant search. Consequently, any claim that PCR counsel was ineffective should first be presented to the trial court upon the filing of a separate petition for relief, as opposed to on appeal from the denial of the initial petition.
Although PCR counsel did not expressly address defendant's argument that trial counsel was ineffective by failing to argue mitigating factors, the point was made in defendant's pro se submission that PCR counsel incorporated by reference. The PCR court expressly addressed the argument. The PCR court concluded that defendant did not suffer any prejudice from trial counsel's silence at sentencing, inasmuch as defendant could not surmount the high hurdle set by N.J.S.A. 2C:44-1f(2) and Megargel, supra.
--------
Remanded. We retain jurisdiction.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION