STATE OF NEW JERSEY VS. CHRISTOPH H. EDWARDS (14-11-2761 AND 14-12-2838, ESSEX 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NOT FOR PUBLICATION WITHOUT THE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-4573-17T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
CHRISTOPH H. EDWARDS,
a/k/a MARK A. EDWARDS,
CHRIS ADAMS, CHRISTOPH
FRANKLIN, SHARIF JONES,
and CHRISTOPH THOMPSON,
Defendant-Appellant.
———————————————
Submitted October 17, 2019 – Decided December 11, 2019
Before Judges Nugent and Suter.
On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Indictment No. 14-11-2761
and 14-12-2838.
Joseph E. Krakora, Public Defender, attorney for
appellant (Kimmo Hussain Abbasi, Designated
Counsel, on the brief).
Theodore N. Stephens II, Acting Essex County
Prosecutor, attorney for respondent (Frank J. Ducoat,
Special Deputy Attorney General/Acting Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Christoph Edwards appeals from the denial of his petition for
post-conviction relief (PCR) without an evidentiary hearing. For the reasons
that follow, we affirm.
Defendant pleaded guilty to charges in two separate indictments. Under
indictment 14-11-2761, he pleaded guilty to first-degree robbery (count one),
N.J.S.A. 2C:15-1, and second-degree possession of a firearm for an unlawful
purpose (count three), N.J.S.A. 2C:39-4. Count two of that indictment was
dismissed. Under indictment 14-12-2838, defendant pleaded guilty to two
counts of first-degree robbery (counts two and three), N.J.S.A. 2C:15-1. Counts
one, four and five were dismissed. The sentencing court imposed an aggregate
twelve-year sentence of incarceration with an eighty-five percent period of
parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43 -
7.2.1
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Defendant was sentenced to ten years in prison with a five-year period of
parole ineligibility under count three of indictment 14-11-2761. He was
sentenced to twelve years in prison subject to NERA on count one of indictment
14-11-2761 and on counts two and three of indictment 14-12-2838. Each
sentence was concurrent to the other and to a separate indictment in Union
County, number 14-06-0550.
A-4573-17T1
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Defendant did not file a direct appeal from his convictions or sentence.
The facts underlying defendant's convictions were acknowledged by him
at his plea allocution. For indictment 14-11-2761, defendant testified that on
February 15, 2014, he went to a convenience store on Stuyvesant Avenue in
Irvington with the purpose of robbing it. He did not have a permit for the
handgun that he brandished at the store clerk. Defendant agreed that the
handgun was operable, meaning that it was capable of being fired. He admitted
taking money from the cash register.
For indictment 14-12-2838, defendant testified that on March 5, 2014, he
and two accomplices agreed to rob a grocery store on Mount Vernon Avenue in
Irvington. Defendant testified he knew one of the accomplices had a gun.
Defendant and that accomplice robbed money and cell phones from the store,
not intending to return either. The accomplice brandished the gun in the store.
Defendant admitted that "[w]e all knew [the co-conspirator] had a gun . . . ."
Defendant advised the court during the plea that he was not forced or
threatened to enter into it. He explained to the court he was "copping out to a
lesser term right now basically." Defendant said "yes" that he was satisfied with
his attorney and "no" that he did not need more time to speak with his attorney.
Defendant said "yes I am" when the court asked him if he was entering his plea
A-4573-17T1
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"freely and voluntarily." Defendant acknowledged to the court that he had
reviewed the plea forms with his attorney, all the answers were true and his
attorney had answered all his questions to his satisfaction. The trial court foun d
defendant's guilty plea was entered "freely and voluntarily," that this was "after
the advice of competent counsel with whom the defendant is satisfied" and that
defendant admitted the offenses. The court accepted the guilty plea.
Defendant filed a PCR petition on September 23, 2016. A brief and
certification were submitted on behalf of defendant in January 2017 alleging
ineffective assistance of counsel.
The Law Division judge denied defendant's petition by order dated
February 23, 2018. The court found that the plea colloquy—during which
defendant stated that no one forced or threated him to enter the plea —showed
that defendant's attorney did not pressure him to plead guilty.
The court rejected defendant's claim that his trial attorney should have
challenged the applicability of NERA to his convictions. Defendant pleaded
guilty to robbery, which was the type of offense to which NERA applied. It also
rejected his claim he used a toy gun during the February 15, 2016 robbery
because that was not supported by defendant's statements at the plea hearing
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where he specifically acknowledged the gun he used was operable, meaning it
was capable of being fired.
The court found no evidence offered by defendant that he was under the
influence of drugs or asthma medication when he gave a statement to the police.
The court noted defendant "voluntarily went to the police headquarters to be
interviewed[,]" was given the Miranda2 warnings, stated that he understood his
rights and gave a statement. The detective's report did not indicate defendant
was impaired when he gave the statement. The court concluded "it was
reasonable for plea counsel not to request a Miranda hearing."
The court found the transcript of the plea did not support defendant's
claim that his counsel pressured him to say that he knew the accomplice had a
gun. Defendant stated that they all knew the accomplice had a gun.
Defendant's claim his attorney should have filed an excessive sentence
appeal did not support post-judgment relief. Defendant received the benefit of
the plea bargain because his sentences were less than the statutory maximum
exposure of twenty years each and were imposed concurrently.
2
Miranda v. Arizona, 384 U.S. 436 (1966).
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The court found defendant entered his plea "knowingly, voluntarily and
intelligently" based on the record. Because defendant failed to make a prima
facie showing that his counsel was constitutionally ineffective, the PCR court
found the time bar in Rule 3:22-4(c) applied because the claims could have been
raised on appeal. This also meant defendant was not entitled to an evidentiary
hearing.
Defendant presents the following issue for our consideration in his appeal:
THE POST-CONVICTION RELIEF COURT ERRED
IN DENYING THE DEFENDANT'S PETITION FOR
POST-CONVICTION RELIEF WITHOUT
AFFORDING HIM AN EVIDENTIARY HEARING
TO FULLY ADDRESS HIS CONTENTION THAT HE
FAILED TO RECEIVE ADEQUATE LEGAL
REPRESENTATION FROM PLEA COUNSEL.
We are not persuaded by any of these arguments and affirm. The standard
for determining whether counsel's performance was ineffective for purposes of
the Sixth Amendment was formulated in Strickland v. Washington, 466 U.S.
668 (1984), and adopted by our Supreme Court in State v. Fritz, l05 N.J. 42
(l987). In order to prevail on a claim of ineffective assistance of counsel,
defendant must meet the two-prong test of establishing both that: (l) counsel's
performance was deficient and he or she made errors that were so egregious that
counsel was not functioning effectively as guaranteed by the Sixth Amendment
A-4573-17T1
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to the United States Constitution; and (2) the defect in performance prejudiced
defendant's rights to a fair trial such that there exists a "reasonable probability
that, but for counsel's unprofessional errors, the result of the proceeding would
have been different." Strickland, 466 U.S. at 694.
We are satisfied from our review of the record that defendant failed to
make a prima facie showing of ineffectiveness of trial counsel within the
Strickland-Fritz test for the reasons set forth in Judge Richard T. Sules'
comprehensive written decision filed February 23, 2018. We add only a few
brief comments.
Defendant's allegations are supported only by self-serving assertions and
bare allegations. See State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.
1999). ("[A] petitioner must do more than make bald assertions that he was
denied the effective assistance of counsel."). In fact, they are inconsistent with
statements he made under oath when pleading guilty. These unsupported
assertions are inadequate to provide post-judgment relief.
Defendant did not appeal his guilty plea or sentence. Many of the issues
defendant is raising now could have been raised in a direct appeal. Defendant
is precluded from raising an issue on PCR that could have been raised on direct
appeal. State v. McQuaid, 147 N.J. 464, 483 (1997).
A-4573-17T1
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Defendant does not allege that he wanted a trial; he requests resentencing
to twelve years without NERA. However, in the plea bargain context, "a
defendant must prove 'that there is a reasonable probability that, but for counsel's
errors, [he or she] would not have pled guilty and would have insisted on going
to trial,'" State v. Gaitan, 209 N.J. 339, 351 (2012) (alteration in original)
(quoting State v. Nuñez-Valdéz, 200 N.J. 129, 139 (2009)), and that "a decision
to reject the plea bargain would have been rational under the circumstances."
Padilla v. Kentucky, 559 U.S. 356, 372 (2010). Because defendant does not
allege he would not have pleaded guilty, this is not a basis for post-judgment
relief.
Defendant has not shown he was denied the effective assistance of counsel
because his attorney did not pursue an excessive sentencing appeal. The NERA
argument was based on his claim he had a toy gun but this was contradicted by
defendant's testimony at the plea hearing. Defendant has not argued it was
reasonably probable the sentencing judge would have reduced the negotiated
sentence on any other basis.
We are satisfied from our review of the record that defendant failed to
make a prima facie showing of ineffectiveness of trial counsel within the
Strickland-Fritz test. Accordingly, the Law Division judge correctly concluded
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that an evidentiary hearing was not warranted. See State v. Preciose, 129 N.J.
451, 462-63 (1992).
Affirmed.
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