STATE OF NEW JERSEY VS. STEPHEN E. MULLINS, JR. Â (12-08-0804 AND 13-01-0044, CUMBERLAND COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE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-4983-15T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
STEPHEN E. MULLINS, JR.,
Defendant-Appellant.
_____________________________
Submitted June 7, 2017 – Decided July 6, 2017
Before Judges Simonelli and Gooden Brown.
On appeal from the Superior Court of New
Jersey, Law Division, Cumberland County,
Indictment Nos. 12-08-0804 and 13-01-0044.
Joseph E. Krakora, Public Defender, attorney
for appellant (John V. Molitor, Designated
Counsel, on the brief).
Jennifer Webb-McRae, Cumberland County
Prosecutor, attorney for respondent (Stephen
C. Sayer, Assistant Prosecutor, of counsel and
on the brief).
PER CURIAM
Defendant Stephen Mullins appeals from the denial of his
petition for post-conviction relief (PCR) without an evidentiary
hearing. For the following reasons, we affirm.
I.
In 2012, a grand jury indicted defendant under Indictment No.
12-08-0804 for first-degree attempted murder, N.J.S.A. 2C:5-1 and
N.J.S.A. 2C:11-3 (count one);1 second-degree aggravated assault,
N.J.S.A. 2C:12-1(b)(1) (count two); fourth-degree aggravated
assault, N.J.S.A. 2C:12-1(b)(4) (count three); third-degree
terroristic threats, N.J.S.A. 2C:12-3(b) (count four); second-
degree possession of a weapon for an unlawful purpose, N.J.S.A.
2C:39-4(a) (count five); fourth-degree unlawful possession of a
defaced firearm, N.J.S.A. 2C:39-3(d) (count six); and tampering
with a witness/bribery of a witness, N.J.S.A. 2C:28-5(a) and (d)
(count seven) (the 2012 Indictment). Defendant was also charged
with several disorderly persons offenses.
In 2013, a grand jury indicted defendant under Indictment No.
13-01-0044 for third-degree aggravated assault, N.J.S.A. 2C:12-
1(b)(2) (count one); third-degree terroristic threats, N.J.S.A.
2C:12-3(b) (count two); second-degree unlawful possession of a
weapon, N.J.S.A. 2C:39-4(a) (count three); and fourth-degree
1
The court subsequently dismissed this charge.
2 A-4983-15T4
contempt, N.J.S.A. 2C:29-9(b) (count four). Defendant was also
charged with several disorderly persons offenses (the 2013
Indictment).
The charges in the 2012 Indictment stemmed from a domestic
violence incident where defendant placed a trash bag over his
girlfriend's head in an attempt to suffocate her; threatened her
with a handgun; assaulted her; and locked her in their home before
she was able to escape through a window and notify the police.2
When New Jersey State Troopers arrived, defendant eventually
surrendered and was placed in the back of a patrol car while the
Troopers conducted a protective sweep of the premises, during
which they discovered a handgun that was subsequently seized
pursuant to a search warrant. Defendant filed a motion to suppress
the handgun, arguing that the Troopers obtained the search warrant
after they had seized the weapon.
Following the denial the motion, defendant agreed to plead
guilty under count five of the 2012 Indictment to an amended charge
of second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-
5, and under count three of the 2013 Indictment to an amended
charge of third-degree unlawful possession of a shotgun, N.J.S.A.
2:39-5(c)(1). In exchange, the State agreed to dismiss all
2
The charges in the 2013 Indictment also stemmed from a domestic
violence incident between defendant and his girlfriend.
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remaining charges in both indictments, as well as the charges in
an unrelated indictment, and to recommend concurrent five-year
terms of imprisonment with a one-year period of parole
ineligibility, which was a departure from the Graves Act, N.J.S.A.
2C:43-6(1). The State also agreed to recommend that the sentence
would run concurrent to any disposition of another unrelated
indictment. The terms of the agreement were explained to defendant
at the plea and sentencing hearings.
Defendant did not appeal his conviction or sentence. Instead,
he filed a PCR petition, contending that defense counsel rendered
ineffective assistance by failing to obtain a motor vehicle
recording (MVR) from the patrol car. Defendant claimed that as
he sat in the patrol car, he observed the MVR operating. He argued
that the handgun would have been suppressed because the MVR would
have recorded the Troopers seizing the handgun before they obtained
the search warrant.
At the court's direction, the State requested a copy of the
MVR from the State Police. The State subsequently represented to
the court that an MVR did not exist and never existed. Defendant
presented no evidence to the contrary, or evidence that defense
counsel never requested the MVR.
Defendant also argued that counsel inaccurately advised him
that he would be eligible for parole almost immediately and
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released from custody quickly if he pled guilty. Defendant
asserted that but for this inaccurate advice, he would not have
pled guilty and would have gone to trial.
In a May 31, 2016 written opinion, Judge Robert G. Malestein
denied the petition without an evidentiary hearing. The judge
found that since the MVR did not exist and never existed, whether
or not defense counsel requested it was immaterial because it
would not have changed the ultimate outcome. The judge determined
that defendant's argument that the handgun would have been
suppressed based on the MVR was mere speculation and conjecture,
and his claim that defense counsel never requested the MVR was a
bald assertion unsupported by any certification.
Judge Malestein also found that the terms of defendant's
sentence were explained during the plea and sentencing hearings,
and defendant could not demonstrate he would not have pled guilty
given the favorable plea agreement he received. The judge noted
that defendant was facing three separate indictments, two of which
involved gun charges that were subject to the mandatory sentencing
provisions of the Graves Act. The judge emphasized that if
convicted, defendant faced a sentence of up to twenty years with
a ten-year period of parole ineligibility and a minimum sentence
of five-years with three years of parole ineligibility for each
indictment, and these sentences likely would have run
5 A-4983-15T4
consecutively. The judge concluded that defendant obtained the
benefit of a very favorable plea agreement, and the record did not
support his argument that counsel rendered ineffective assistance
with respect to the guilty plea.
On appeal, defendant raises the following contention:
POINT I
THIS COURT SHOULD REVERSE THE TRIAL
COURT'S DECISION TO DENY
DEFENDANT'S PETITION FOR [PCR] AND
REMAND THE MATTER FOR AN EVIDENTIARY
HEARING
The mere raising of a claim for PCR does not entitle the
defendant to an evidentiary hearing. State v. Cummings, 321 N.J.
Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).
Rather, trial courts should grant evidentiary hearings and make a
determination on the merits only if the defendant has presented a
prima facie claim of ineffective assistance, material issues of
disputed fact lie outside the record, and resolution of the issues
necessitates a hearing. R. 3:22-10(b); State v. Porter, 216 N.J.
343, 355 (2013). To establish a prima facie claim of ineffective
assistance of counsel, the defendant
must satisfy two prongs. First, he must
demonstrate that counsel made errors so
serious that counsel was not functioning as
the counsel guaranteed the defendant by the
Sixth Amendment. An attorney's representation
is deficient when it [falls] below an
objective standard of reasonableness.
6 A-4983-15T4
Second, a defendant must show that the
deficient performance prejudiced the defense.
A defendant will be prejudiced when counsel's
errors are sufficiently serious to deny him a
fair trial. The prejudice standard is met if
there is a reasonable probability that, but
for counsel's unprofessional errors, the
result of the proceeding would have been
different. A reasonable probability simply
means a probability sufficient to undermine
confidence in the outcome of the proceeding.
[State v. O'Neil, 219 N.J. 598, 611 (2014)
(citations omitted).]
"[I]n order to establish a prima facie claim, [the defendant] must
do more than make bald assertions that he was denied the effective
assistance of counsel. He must allege facts sufficient to
demonstrate counsel's alleged substandard performance." Cummings,
supra, 321 N.J. Super. at 170. The defendant must establish, by
a preponderance of the credible evidence, that he or she is
entitled to the requested relief. State v. Nash, 212 N.J. 518,
541 (2013).
With respect to a guilty plea, our Supreme Court has explained
that
[t]o set aside a guilty plea based on
ineffective assistance of counsel, a defendant
must show that (i) counsel's assistance was
not within the range of competence demanded
of attorneys in criminal cases; and (ii) 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.
7 A-4983-15T4
[State v. Nuñez-Valdéz, 200 N.J. 129, 138-39
(2009) (alterations in original) (quoting
State v. DiFrisco, 137 N.J. 434, 457 (1994)).]
We have considered defendant's contention in light of the
record and applicable legal principles and conclude it is without
sufficient merit to warrant discussion in a written opinion. R.
2:11-3(e)(2). We affirm substantially for the reasons set forth
in Judge Malestein's well-reasoned written opinion.
Affirmed.
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