STATE OF NEW JERSEY VS. CHRISTOPHER EDWARDS (14-06-0549 AND 14-06-0550, UNION COUNTY AND STATEWIDE) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE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-1955-17T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
CHRISTOPHER EDWARDS,
a/k/a CHRISTOPH H. EDWARDS,
CHRIS ADAMS, MARK A.
EDWARDS, SAMAD EDWARDS,
CHRISTOPH FRANKLIN, SHARIFF
JONES, CHRISTOPH THOMPSON,
and CHRISTOPE EDWARDS,
Defendant-Appellant.
________________________________
Submitted October 2, 2019 – Decided October 22, 2019
Before Judges Yannotti and Firko.
On appeal from the Superior Court of New Jersey, Law
Division, Union County, Indictment Nos. 14-06-0549
and 14-06-0550.
Joseph E. Krakora, Public Defender, attorney for
appellant (Howard Woodley Bailey, Designated
Counsel, on the brief).
Lyndsay V. Ruotolo, Acting Union County Prosecutor,
attorney for respondent (Reana Garcia, Special Deputy
Attorney General/Acting Assistant Prosecutor, of
counsel and on the brief).
PER CURIAM
Defendant appeals from an order entered by the Law Division on October
13, 2017, which denied his petition for post-conviction relief. We affirm.
I.
Union County Indictment No. 14-06-0550 charged defendant with first-
degree robbery, N.J.S.A. 2C:15-1(a)(2) (count one); second-degree unlawful
possession of a weapon, N.J.S.A. 2C:39-5(b) (count two); and second degree
possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count
three). Defendant was also charged under Union County Indictment No. 14-06-
0549 with second-degree certain persons not to have weapons, N.J.S.A. 2C:39-
7 (count one).
On March 23, 2015, defendant entered a plea agreement, under which he
pled guilty to count one of Indictment No. 14-06-0550, and the State agreed to
dismiss counts two and three of the Indictment, as well as count one of
Indictment No. 14-06-0549. The State recommended a sentence of fourteen
A-1955-17T2
2
years in state prison, subject to the No Early Release Act (NERA). 1 During the
plea allocution, defendant was represented by John Johnson of the Union County
Public Defender's office.
On May 1, 2015, the court sentenced defendant to thirteen years of
imprisonment, subject to NERA, to run concurrently with defendant's custodial
sentence, which was to be imposed under Essex County Indictment No. 14-11-
2761. The State objected to the sentences running concurrently. The remaining
Union County charges were dismissed.
Defendant did not file a direct appeal. On July 5, 2016, defendant filed a
pro se petition for post-conviction relief (PCR), alleging ineffective assistance
of trial counsel. He also argued that his claims were not procedurally barred.
The PCR court appointed counsel to represent defendant, and counsel filed a
brief and supplemental certification.
In the brief and supplemental certification, defendant alleged that Johnson
erred by failing to file a direct appeal, which would have presented a meritorious
claim, specifically, his counsel allowed a guilty plea to proceed without an
adequate factual basis. He also alleges that NERA should not apply because
1
N.J.S.A. 2C:43-7.2.
A-1955-17T2
3
when he committed the robbery, he was in possession of a toy gun, not an
operational firearm, and no one sustained a serious injury.
The PCR court conducted an evidentiary hearing on October 2, 2017.
Defendant and Johnson testified at the hearing. According to defendant, he
wanted to file a direct appeal and he communicated this to Johnson. When
presented with the notice of appellate rights form at the hearing, defendant
recalled seeing the form at the time of his sentencing.
Johnson testified that he reviewed defendant's file and nothing was noted
relative to filing an appeal because defendant did not request one. It was
Johnson's practice, in his twenty-one years of experience as an attorney, to
review the form "line-by-line" with his clients, even in the case of a refusal to
sign the form.
As to the appellate rights form, Johnson testified that it indicated,
"Counsel explained rights to defendant but he refused to sign." Further, Johnson
testified that if defendant had asked him to file an appeal, he had a duty as
counsel to do so. On October 13, 2017, the PCR court issued a written decision.
The PCR court found defendant "clearly provided false testimony," and that
Johnson was "entirely credible," thereby rejecting defendant's claim he asked
Johnson to file a direct appeal.
A-1955-17T2
4
The PCR court also determined that the petition was procedurally barred
under Rule 3:22-4 because defendant could have made his arguments relative to
an inadequate factual basis during his plea allocution and his ineffective
assistance of counsel claim on direct appeal.
In addition, the PCR court found defendant was "not a credible witness,"
and that his testimony was "disorganized" and "did not comport with common
sense." Defendant contradicted himself because during his plea allocution, he
stated that he used a "real firearm," but in his pro se brief, he argued he used a
"toy" gun, and in his certification, he stated "[he] was not in possession of a real
gun . . . [but] a [BB] gun," which was inoperable. The PCR court entered an
order dated October 13, 2017, denying the petition. This appeal followed.
On appeal, defendant raises the following arguments:
POINT I:
DEFENDANT WAS DENIED THE EFFECTIVE
ASSISTANCE OF COUNSEL WHEN HIS TRIAL
ATTORNEY FAILED TO FILE A DIRECT APPEAL
FOLLOWING THE CREATION OF AN ADEQUATE
RECORD FOR APPELLATE REVIEW. U.S. CONST.
AMENDS. VI, XIV; N.J. CONST. [] ART. 1, [¶]10.
POINT II:
THE COURT MISAPPLIED ITS DISCRETION IN
APPLYING RULE 3:22-4, AS A PROCEDURAL BAR
A-1955-17T2
5
AGAINST THE DEFENDANT'S FILING FOR POST
CONVICTION RELIEF IN THIS CASE.
II.
We turn first to defendant's contention that the PCR court erred by finding
Johnson provided effective representation and that Johnson was never instructed
by defendant to file an appeal.
Claims of ineffective assistance of counsel are considered under the two-
part test enunciated in Strickland v. Washington, 466 U.S. 668, 687 (1984), and
adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). The
Strickland test requires a defendant to show that the performance of his attorney
was deficient, and counsel's deficient performance prejudiced the defense.
Strickland, 466 U.S. at 687.
To meet the first part of the Strickland test, a defendant must establish that
his attorney "made errors so serious that counsel was not functioning as the
'counsel' guaranteed the defendant by the Sixth Amendment." Ibid. The
defendant must rebut the "strong presumption that counsel's conduct falls within
the wide range of reasonable professional assistance[.]" Id. at 689.
Moreover, to satisfy the second part of the Strickland test, the defendant
must show "that counsel's errors were so serious as to deprive defendant of a
fair trial, a trial whose result is reliable." Id. at 687. The defendant must
A-1955-17T2
6
establish that there is "a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been different."
Id. at 694. The second prong of the Strickland test also requires a defendant to
show that counsel's alleged deficiency caused prejudice. Fritz, 105 N.J. at 52.
We are convinced the PCR court correctly determined that defendant did
not request a direct appeal. As the record indicates, the PCR court found
defendant was evasive when questioned about the appellate rights form he was
shown at sentencing. Johnson credibly testified that if defendant had asked him
to file an appeal, he "[a]bsolutely" would have done so and there was "[n]o
reason not to."
"Our standard of review is necessarily deferential to a PCR court's factual
findings based on its review of live witness testimony." State v. Nash, 212 N.J.
518, 540 (2013). There was sufficient credible evidence in the record to support
the PCR court's findings. Moreover, Johnson testified it was his habit and
practice to review appellate rights forms with defendants. Because defendant
never asked Johnson to appeal, his failure to file a direct appeal is not
presumptively deficient. Instead, Johnson acted reasonably under the
circumstances, overcoming the first Strickland prong. Therefore, we reject
A-1955-17T2
7
defendant's claim that Johnson failed to file an appeal, and the ineffective
assistance of counsel claim fails.
Defendant also argues that he did not provide an adequate factual basis
for the plea. He claims that he was denied the effective assistance of counsel
because the elements of the crime, and his admission of guilt, were not his own
words but the words of the court. Defendant argues he simply responded, "[y]es
sir, I did[,]" to questions posed by the court, rendering his plea invalid and
creating grounds for a direct appeal. His argument is devoid of merit. As
explained by the PCR court:
[defendant's] claim that there was an insufficient
factual basis taken is completely undermined by his
[p]etition. A review of [defendant's] submission
confirms that he concedes that he did rob the victim,
"but with a toy gun that was never recovered." Further,
[defendant] does not dispute that he committed a
robbery, but argues that he did so with a BB gun. His
issue is that he testified that he had a real gun at his
allocution. Pursuant to N.J.S.A. 2C:15-1, this is a
distinction without a difference as a BB gun is a deadly
weapon. Given [defendant's] admission of the crime in
his petition, any arguments based upon leading
questions by the [c]ourt are insufficient to grant relief.
[(internal citations omitted).]
The use of leading questions is permitted when a factual basis for a plea
is elicited. State v. Smullen, 118 N.J. 408, 412-13 (1990). It is inconsequential
A-1955-17T2
8
that defendant did not provide an adequate factual basis in narrative form. His
answers to the court's questions were sufficient to establish that he committed
the charged offense.
Therefore, we reject defendant's claim that he did not provide an adequate
factual basis for the plea, and his related claim of ineffective assistance of
counsel fails under both prongs of the Strickland test.
III.
Defendant further argues the PCR court erred by finding his petition was
procedurally barred pursuant to Rule 3:22-4, emphasizing that the issues of his
factual basis at the time of his plea and ineffective assistance of counsel could
have been raised on direct appeal. Under Rule 3:22-4, a PCR claim is
procedurally barred if the issue could have been raised on direct appeal .
Defendant argues that Rule 3:22-4 is not a procedural bar to his ineffective
assistance of counsel claim or challenge to the inadequate factual basis of his
guilty plea because he could not have raised either argument at a prior
proceeding. Furthermore, defendant contends that neither claim could have
been raised on direct appeal because Johnson failed to file the very appeal in
which the issues could have been raised. There is no evidence to support
defendant's claims.
A-1955-17T2
9
Post-conviction relief is not a substitute for a direct appeal. State v.
Echols, 199 N.J. 344, 357 (2009). Accordingly, petitions may be barred if a
petitioner could have raised an issue on direct appeal but failed to do so. Ibid.Typically, ineffective assistance of counsel claims are well-suited for post-
conviction review "because they often cannot reasonably be raised in a prior
proceeding." State v. Hess, 207 N.J. 123, 145 (2011) (quoting State v. Preciose,
129 N.J. 451, 460 (1992)). However, PCR will be precluded "if any ground for
relief could have been raised at trial or on appeal" but was not. State v. Peoples,
446 N.J. Super. 245, 254-55 (App. Div. 2016) (citing State v. Afanador, 151
N.J. 41, 50 (1997)). While there are some exceptions to the general rule, the
Supreme Court has emphasized the need to adhere to procedural bars. Echols,
199 N.J. at 357.
The PCR court correctly held that both of defendant's claims are
procedurally barred by Rule 3:22-4. Specifically, the court held
[defendant's] claims are procedurally barred.
[Defendant] could have raised the issue of his factual
basis at plea on direct appeal and is therefore barred
from doing so here. Furthermore, [defendant's] second
claim of ineffective assistance of counsel is for this
exact same conduct – conduct which was not outside of
the record, and was amenable to disposition on direct
appeal.
A-1955-17T2
10
Having thoroughly reviewed the record in light of the applicable legal
principles, we are convinced that defendant possessed all of the necessary
information to challenge the factual basis of his guilty plea on direct appeal
because it was of record. Defendant has never claimed there were any out-of-
court conversations with Johnson regarding the plea allocution that would
contribute off-the-record content to a direct appeal.
There is no proof defendant directed Johnson to file an appeal, as
determined by the PCR court. Nothing prohibited defendant from filing a direct
appeal for ineffective assistance of counsel.
Therefore, the PCR court correctly found that defendant's PCR petition
was barred by Rule 3:22-4. Accordingly, we affirm the order denying PCR.
Affirmed.
A-1955-17T2
11