STATE OF NEW JERSEY VS. ROBERT S. MYLES (17-01-0062, CAPE MAY COUNTY AND STATEWIDE)

S
                                NOT FOR PUBLICATION WITHOUT THE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-2433-19

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

ROBERT S. MYLES,
a/k/a SCOTT MYLES,

     Defendant-Appellant.
_______________________

                   Submitted May 5, 2021 – Decided June 10, 2021

                   Before Judges Ostrer and Enright.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Cape May County, Indictment No. 17-01-
                   0062.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Craig S. Leeds, Designated Counsel, on the
                   brief).

                   Jeffrey H. Sutherland, Cape May County Prosecutor,
                   attorney for respondent (Gretchen A. Pickering, Senior
                   Assistant Prosecutor, of counsel and on the brief).

PER CURIAM
      Defendant Robert S. Myles appeals from the February 4, 2020 order

denying his petition for post-conviction relief (PCR) without an evidentiary

hearing. We affirm, substantially for the reasons set forth in Judge Michael J.

Donohue's comprehensive written opinion dated October 17, 2019.

      Judge Donohue's opinion recounts the relevant facts, which need not be

repeated at length here. Briefly, in August 2017, defendant pled guilty to

second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1), pursuant to a plea

agreement. In exchange for his guilty plea, the State agreed to recommend that

defendant be sentenced in the third-degree range and serve a four-year prison

term, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. In

September 2017, Judge Donohue sentenced defendant in accordance with the

plea agreement. Defendant subsequently filed and voluntarily withdrew a notice

of appeal.

      On November 26, 2018, defendant filed a timely PCR petition; his

designated counsel filed a supplemental brief several months later. Defendant's

petition alleged plea counsel was ineffective because he: (1) did not allow

defendant sufficient time to assess his circumstances before pleading guilty; (2)

failed to interview certain witnesses whose names defendant provided to plea

counsel; (3) did not file a motion to suppress incriminating statements defendant


                                       2                                   A-2433-19
made to the police; and (4) neglected to argue in favor of certain mitigating

factors at sentencing. On October 15, 2019, Judge Donohue conducted oral

argument to address these contentions. Two days later, the judge issued a letter

opinion denying defendant PCR relief without an evidentiary hearing; he entered

a conforming order on February 4, 2020.

      On appeal, defendant renews the arguments he raised before Judge

Donohue, as follows:

            POINT I

            [DEFENDANT] WAS DENIED THE EFFECTIVE
            ASSISTANCE   OF   TRIAL   COUNSEL    IN
            VIOLATION OF THE UNITED STATES AND NEW
            JERSEY CONSITUTIONS AND THE LOWER
            COURT ERRED IN CONCLUDING OTHERWISE.

            A.    TRIAL COUNSEL WAS INEFFECTIVE FOR
                  FAILING      TO       EFFECTIVELY
                  COMMUNICATE WITH [DEFENDANT.]

            B.    TRIAL COUNSEL WAS INEFFECTIVE IN
                  FAILING  TO    CONDUCT PRE-TRIAL
                  INVESTIGATION.

            C.    TRIAL COUNSEL WAS INEFFECTIVE IN
                  FAILING TO FILE A MOTION TO SUPPRESS
                  [DEFENDANT'S] STATEMENT PURSUANT
                  TO MIRANDA V. ARIZONA, 

384 U.S. 436

                  (1966).

            D.    TRIAL COUNSEL'S REPRESENTATION
                  AT SENTENCING WAS INEFFECTIVE

                                       3                                  A-2433-19
                  RESULTING IN AN IMPROPER, EXCESSIVE
                  AND/OR                   OTHERWISE
                  UNCONSTITUTIONAL SENTENCE.

            E.    THE CUMULATIVE EFFECT OF THE
                  ERRORS COMPLAINED OF RENDERED THE
                  PROCEEDINGS UNFAIR.

            POINT II

            THE LOWER COURT ERRED IN DENYING
            [DEFENDANT'S] PETITION FOR [PCR] WITHOUT
            AFFORDING HIM AN EVIDENTIARY HEARING.

      Both the Sixth Amendment of the United States Constitution and Article

I, ¶ 10 of the New Jersey State Constitution guarantee the right to effective

assistance of counsel at all stages of criminal proceedings. Strickland v.

Washington, 

466 U.S. 668

, 686 (1984) (citing McMann v. Richardson, 

397 U.S.

759

, 771 n.14 (1970)); State v. Fritz, 

105 N.J. 42

, 58 (1987). To establish a

violation of the right to the effective assistance of counsel, a defendant must

satisfy the two-prong test outlined in Strickland. Fritz, 

105 N.J. at 58

. "First,

the defendant must show that counsel's performance was deficient. . . . Second,

the defendant must show that the deficient performance prejudiced the

defense." Strickland, 

466 U.S. at 687

. Accordingly, a defendant must show

"that counsel made errors so serious that counsel was not functioning as the

'counsel' guaranteed the defendant by the Sixth Amendment" and "that counsel's



                                       4                                   A-2433-19
errors were so serious as to deprive the defendant of a fair trial, a trial whose

result is reliable." 

Ibid.

 Reviewing courts indulge in a "strong presumption that

counsel's conduct falls within the wide range of reasonable professional

assistance." 

Id. at 689

. Thus, a defendant must show there was a "reasonable

probability" that the outcome of the proceedings would have been different than

if counsel had not made the errors. 

Id. at 694

.

      This assessment is necessarily fact-specific to the context in which the

alleged errors occurred. For example, when, as in this case, a defendant seeks

"[t]o set aside a guilty plea based on ineffective assistance of counsel, a

defendant 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.'" State v. Nunez-Valdez, 

200 N.J. 129

, 139

(2009) (first alteration in original) (quoting State v. DiFrisco, 

137 N.J. 434

, 457

(1994) (second alteration in original)). Defendant must also show doing so

"would have been rational under the circumstances." Padilla v. Kentucky, 

559

U.S. 356

, 372 (2010).

      Additionally, a defendant seeking an evidentiary hearing must prove a

hearing is warranted to develop the factual record in connection with an

ineffective assistance claim. State v. Preciose, 

129 N.J. 451

, 462-63 (1992).


                                        5                                    A-2433-19
The PCR court should grant an evidentiary hearing when (1) a defendant is able

to prove a prima facie case of ineffective assistance of counsel, (2) there are

material issues of disputed fact that must be resolved with evidence outside of

the record, and (3) the hearing is necessary to resolve the claims for relief. 

Id. at

462

; R. 3:22-10(b). "[C]ourts should view the facts in the light most favorable

to a defendant to determine whether a defendant has established a prima facie

claim." 

Id. at 462-63

.

      To meet the burden of proving a prima facie case, a defendant must show

a reasonable likelihood of success under the Strickland test. Preciose, 

129 N.J.

at 463

. "[I]n order to establish a prima facie claim, a petitioner must do more

than make bald assertions that [he or she] was denied the effective assistance of

counsel." State v. Cummings, 

321 N.J. Super. 154

, 170 (App. Div. 1999). The

petitioner must allege specific facts sufficient to support a prima facie

claim. 

Ibid.

 Furthermore, the petitioner must present these facts in the form of

admissible evidence. In other words, the relevant facts must be shown through

"affidavits or certifications based upon the personal knowledge of the affiant or

the person making the certification." 

Ibid.

6

                                    A-2433-19
      Applying these foundational principles, we agree with Judge Donohue

that defendant did not establish he received ineffective assistance of counsel or

that he was entitled to an evidentiary hearing.

      Regarding defendant's claim plea counsel did not effectively communicate

with him, Judge Donohue found this assertion was belied by the record. The

judge observed "submissions of PCR counsel and the pro se submissions of

defendant [were] somewhat contradictory," but defendant outlined "multiple

instances of discussions [he had] with his attorney covering the full gamut of

issues of his case." Such discussions included defendant asking plea counsel to

"go back to the prosecut[o]r and ask her to offer [defendant] a 4 flat or 5 flat and

[he'd] plead guilty." Defendant's PCR submission also reflects his attorney

advised him the prosecutor rejected a request for a lesser sentence, so plea

counsel asked for and received an adjournment of two to three weeks to permit

defendant "some time to think about accepting" the State's offer. Subsequently,

defendant testified at his plea hearing that he "was satisfied with the plea

agreement and that he was satisfied with his attorney's representation and

handling" of the case. He also confirmed the NERA sentence that he negotiated

through counsel was "the sentence [he] want[ed] the court to impose."




                                         7                                    A-2433-19
      Judge Donohue next determined from defendant's submissions that he and

plea counsel discussed, "more than once, the list of so-called witnesses that

defendant believed should be interviewed," "that defense counsel made some

effort to reach out to some of these people," and "never got through to them or

they never got back to him." The judge concluded defendant offered

            essentially no representation as to what information
            these people possessed that would have assisted his
            defense. Defendant offers no certification or other
            competent evidence to establish that information from
            these people, or any of them, would have undermined
            the State's proofs or reasonably impacted defendant's
            thought process to the point where he would have
            rejected the plea offer.

The record supports Judge Donohue's findings in this regard.

      We also agree with Judge Donohue that defendant unpersuasively argued

trial counsel was ineffective for failing to file a suppression motion. When a

claim of ineffective assistance of counsel is based on the failure to file a

suppression motion, "defendant not only must satisfy both parts of the Strickland

test but also must prove that his Fourth Amendment claim is meritorious." State

v. Fisher, 

156 N.J. 494

, 501 (1998) (citing Kimmelman v. Morrison, 

477 U.S.

365

, 375 (1986)). See also State v. Roper, 

378 N.J. Super. 236

 (App. Div. 2005).

Here, as Judge Donohue properly found, defendant offered "only bald

allegations that such a motion would have been viable," but did not "establish

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the likelihood that such a motion would have been successful if brought prior to

his plea," particularly since the State was "in possession of substantial

evidence," including the available "testimony of the victim of defendant's

second-degree aggravated assault."

      Given our review of the record in this matter, we further conclude Judge

Donohue correctly dispensed with defendant's argument that plea counsel was

ineffective for not arguing in favor of mitigating factors three, N.J.S.A. 2C:44-

1(b)(3), and four, N.J.S.A. 2C:44-1(b)(4). The judge found defendant was "not

provoked by nor did he have an excuse to assault" his victim, so "[i]t would be

unreasonable to conclude that plea counsel should have argued for these factors

in mitigation since there was no reasonable, good faith argument to be made for

their application." We perceive no basis to second-guess these findings, noting

an attorney's performance cannot be deemed deficient for failing to raise a

frivolous argument. See State v. O'Neal, 

190 N.J. 601

, 618-19 (2007).

      Defendant also argues for the first time on appeal that plea counsel should

have argued in favor of mitigating factor twelve, N.J.S.A. 2C:44-1(b)(12).

Ordinarily, "an appellate court will not consider issues, even constitutional ones,

which were not raised below." State v. Galicia, 

210 N.J. 364

, 383 (2012). For

the sake of completeness, however, we determine that it was not ineffective for


                                        9                                    A-2433-19
plea counsel to refrain from arguing for this mitigating factor.       The fact

defendant voluntarily went to the police and confessed he assaulted his victim,

after his victim reported this criminal behavior, does not constitute the type of

cooperation envisioned under mitigating factor twelve. See State v. Read, 

397

N.J. Super. 598

, 613 (App. Div. 2008).

      We also note Judge Donohue, who took defendant's plea and sentenced

him, specifically found that when he sentenced defendant, he considered factors

in mitigation, including that defendant took "responsibility for committing a

second-degree assault." Additionally, the judge concluded the plea "agreement

itself in some measure defines the mitigating effect of the plea on the court's

discretionary decision whether to downgrade the sentence," citing State v.

Balfour, 

135 N.J. 30

, 39 (1994). It also is worthy of mention that defendant's

negotiated plea agreement contemplated the dismissal of three other pending

charges, including second-degree sexual assault, N.J.S.A. 2C:14-2(c)(1), and

allowed defendant to be sentenced in the third-degree range on the aggravated

assault charge. Under these circumstances, defendant has not established there

was a reasonable probability that but for plea counsel's purported errors, he

would not have pled guilty or that going to trial "would have been rational under

the circumstances." Padilla, 

559 U.S. at 372

.


                                      10                                   A-2433-19
      Moreover, we agree with Judge Donohue that defendant received "the

sentence that he bargained for," that his sentence was "not illegal," and his

excessive sentencing claim was "not an appropriate issue for determination on a

petition for PCR." Any such claim of excessiveness should have been raised on

direct appeal. Pressler & Verniero, Current N.J. Court Rules, cmt. 3.3. on R.

2:10-3 (2021). See also State v. Clark, 

65 N.J. 426

, 437-38 (1974).

      Finally, we disagree with defendant's contention Judge Donohue erred in

not conducting an evidentiary hearing. The denial of an evidentiary hearing for

a PCR petition is reviewed for an abuse of discretion. State v. Brewster, 

429

N.J. Super. 387

, 401 (App. Div. 2013) (citing State v. Marshall, 

148 N.J. 89

,

157-58 (1997)). Here, the existing record provides more than sufficient

evidence    that   defendant   did    not   establish   a   prima     facie    case

of ineffective assistance of counsel and, therefore, no evidentiary hearing was

required.

      To the extent we have not specifically addressed defendant's remaining

arguments, we are convinced they lack sufficient merit to warrant discussion in

a written opinion. R. 2:11-3(e)(2).

      Affirmed.




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