STATE OF NEW JERSEY v. DARRYL DAVIS (07-10-3549, ESSEX COUNTY AND STATEWIDE) ( 2022 )

NOT FOR PUBLICATION WITHOUT THE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-0735-20
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DARRYL DAVIS,
Defendant-Appellant.
_______________________
Submitted February 14, 2022 – Decided February 23, 2020
Before Judges Fasciale and Sumners.
On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Indictment No. 07-10-3549.
Joseph E. Krakora, Public Defender, attorney for
appellant (David A. Gies, Designated Counsel, on the
briefs).
Theodore N. Stephens II, Acting Essex County
Prosecutor, attorney for respondent (Caroline C. Galda,
Special Deputy Attorney General/Acting Assistant
Prosecutor, of counsel and on the brief).
Appellant filed a pro se supplemental brief.
PER CURIAM
Defendant appeals from a March 31, 2020 order entered on remand
denying his petition for post-conviction relief (PCR). Defendant maintains that
his trial counsel rendered ineffective assistance of counsel. The PCR judge
conducted an evidentiary hearing, 1 entered the order under review, and rendered
a lengthy written decision.
On appeal, defendant argues:
POINT ONE
THE ABSENCE OF A FORMAL PLEA OFFER DOES
NOT EXCUSE DEFENSE COUNSEL FROM
ADVISING DEFENDANT TO FOREGO PLEA
NEGOTIATIONS BASED SOLELY ON AN
UNSUBSTANTIATED RELIANCE UPON
DEFENDANT'S ASSERTION THAT HE WAS NOT
GUILTY.
POINT TWO
DEFENDANT'S ASSERTION THAT HE WAS NOT
GUILTY IS NOT EQUIVALENT TO AN
ASSERTION THAT HE WOULD LIE UNDER OATH
TO PLEAD GUILTY.
1
The evidentiary hearing addressed defendant's petition for PCR as well as co -
defendant's PCR petition. The PCR judge took testimony from the trial assistant
prosecutor, defendant and his trial counsel, and co-defendant and his trial
counsel.
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In his pro se brief, defendant raises the following additional points, which we
have renumbered:
POINT [THREE]
THE PCR [JUDGE] ERRED WHEN [HE]
CONCLUDED THAT THE PERFORMANCE OF
DEFENDANT'S TRIAL ATTORNEY WAS NOT
DEFICIENT WHERE HE DID NOT REVIEW
WITH . . . DEFENDANT THE STRENGTHS AND
WEAKNESS OF THE CASE BEFORE . . .
DEFENDANT FORMALLY REJECTED THE PLEA
OFFER.
POINT [FOUR]
[THE] PCR [JUDGE] ERRED WHEN [HE] RULED
THAT DEFENDANT WAS NOT PREJUDICED
WHERE, IN ADDITION TO A MORE SEVERE
PRISON TERM BEING IMPOSED AFTER A TRIAL
AT WHICH HE WAS FOUND GUILTY, IT
APPEARS . . . DEFENDANT WANTED TO
AMICABLY RESOLVE THIS MATTER PRIOR TO
TRIAL BY PLEADING GUILTY TO A LESSER
TERM.
We disagree with these contentions and affirm substantially for the reasons
expressed by the PCR judge. We add these remarks.
Our standard of review is well-settled. When a PCR judge holds an
evidentiary hearing—like here—we defer to the judge's factual findings "when
supported by adequate, substantial and credible evidence." State v. Harris,
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181 N.J. 391, 415 (2004) (quoting Toll Bros., Inc. v. Twp. of W. Windsor,
173 N.J. 502, 549 (2002)).
The PCR judge found credible the assistant prosecutor and co-defendant's
trial counsel, who corroborated that the State did not make either defendant an
offer to plead guilty. The PCR judge explained that the documentary evidence—
the pre-trial memoranda—corroborated that no offer was made. He rejected
testimony from defendant's trial counsel that a few days before the trial, it is
possible that the State may have given defendant the opportunity to plead guilty.
The PCR judge found that such testimony about a possible plea offer "strains
credulity." He also found that defendant's testimony, which "parroted" co-
defendant's testimony, was "questionable" and that defendants had the
opportunity to collaborate about their testimony before the evidentiary hearing.
Importantly, if there had been an offer (which is not the case), the PCR
judge found that defendant "sidestepped" answering whether he would have pled
guilty if given the opportunity to do so. According to the PCR judge, defendant's
unwillingness to "give a forthright" answer is consistent with defendant's
position that he was not guilty. The PCR judge characterized defendant's
testimony as evasive and pointed out in his written opinion that "even at the time
of the evidentiary hearing, [defendant] did not express his willingness to say he
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killed the two male victims" and that he was unwilling to "inculpate his co -
defendant in the crime."
To establish a prima facie claim of ineffective assistance of counsel, a
defendant must satisfy the two-pronged test enumerated in Strickland v.
Washington, 466 U.S. 668, 687 (1984), which our Court adopted in State v.
Fritz, 105 N.J. 42, 58 (1987). To meet the first Strickland/Fritz prong, a
defendant must establish that his counsel "made errors so serious that counsel
was not functioning as the 'counsel' guaranteed the defendant by the Sixth
Amendment." 466 U.S. at 687. The defendant must rebut the "strong
presumption that counsel's conduct [fell] within the wide range of reasonable
professional assistance." Id. at 689. Thus, we consider whether counsel's
performance fell below an objective standard of reasonableness. Id. at 687-88.
Having done so, defendant is unable to demonstrate the first prong of the
Strickland test.
To satisfy the second Strickland/Fritz prong, a defendant must show "that
counsel's errors were so serious as to deprive the defendant of a fair trial, a trial
whose result is reliable." Id. at 687. A defendant must establish "a reasonable
probability that, but for counsel's unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is a probability
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sufficient to undermine confidence in the outcome." Id. at 694. "[I]f counsel's
performance has been so deficient as to create a reasonable probability that these
deficiencies materially contributed to defendant's conviction, the constitutional
right will have been violated." Fritz, 105 N.J. at 58. In the context of plea
offers, "a defendant must show the outcome of the plea process would have been
different with competent advice." Lafler v. Cooper, 566 U.S. 156, 163 (2012).
He fails to meet the second prong as well.
As to defendant's contentions on appeal, he must "do more than make bald
assertions that he was denied the effective assistance of counsel." State v.
Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999). It is settled that a
defendant bears the burden of establishing a prima facie claim of ineffective
assistance of counsel. State v. Gaitan, 209 N.J. 339, 350 (2012). Here, on this
record, defendant cannot establish such a prima facie claim because his
arguments also amount to bald assertions.
To the extent we have not addressed defendant's arguments, we conclude
they are without sufficient merit to warrant discussion in a written opinion. R.
2:11-3(e)(2).
Affirmed.
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