STATE OF NEW JERSEY VS. EL-AMIN BASHIR (99-04-0217, SOMERSET 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NOT FOR PUBLICATION WITHOUT THE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-3541-17T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
EL-AMIN BASHIR,
f/k/a LAURENCE JONES,
Defendant-Appellant.
_____________________________
Submitted January 24, 2019 – Decided February 19, 2019
Before Judges Alvarez and Mawla.
On appeal from Superior Court of New Jersey, Law
Division, Somerset County, Indictment No. 99-04-
0217.
Joseph E. Krakora, Public Defender, attorney for
appellant (Karen A. Lodeserto, Designated Counsel, on
the brief).
Michael H. Robertson, Somerset County Prosecutor,
attorney for respondent (Lauren R. Casale, Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant El-Amin Bashir appeals from an October 6, 2017 order denying
his petition for post-conviction relief (PCR). We affirm for the reasons set forth
in the thorough and well-reasoned opinion of Judge Kevin M. Shanahan.
By way of background, in April 1999, a Somerset County grand jury
indicted defendant on third-degree possession of a controlled dangerous
substance (CDS), N.J.S.A. 2C:35-10(a)(1), and third-degree possession of CDS
with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and (b)(3). In July 1999,
defendant pled guilty to both counts of the indictment and was sentenced to four
years imprisonment.
In May 2000, defendant was released to intensive supervision parole.
However, he violated the terms of his release, was returned to custody, and
paroled again in April 2002. After defendant's release, he was detained in
Florida on federal drug distribution charges. He received a 142-month sentence
for the federal charge.
Defendant filed a PCR petition in February 2016. The petition was filed
twelve years after the five-year time limit prescribed in Rule 3:22-12(a), and
three and one half years after his release from prison in Florida. Defendant's
petition asserted he had been deprived of effective assistance by plea counsel
because his attorney did not advise him there would be greater penal
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consequences if he were convicted of another offense in the future. He also
asserted his attorney was ineffective because he failed to adequately investigate
the matter and file motions to suppress evidence seized by police. Defendant
argued his plea was involuntary because he entered into it under duress and had
not been advised of future penal consequences. Defendant also filed a pro se
brief raising additional points in support of his petition. In pertinent part, he
argued the merits of his petition should be considered and should not be time -
or procedurally-barred.
Judge Shanahan considered defendant's arguments and issued a
comprehensive thirty-seven page written decision addressing each argument
raised in the petition. The judge concluded defendant's petition was time-barred.
The judge also reached the merits of the petition and found no basis for an
ineffective assistance of counsel claim to either grant PCR relief or hold an
evidentiary hearing. The judge also thoroughly analyzed defendant's plea-
related claims and "agree[d] with the State that his bare allegations of asserted
threats and narcotics use amount to an 'attempted manipulation of the criminal
justice system.'" This appeal followed.
Defendant raises the following points on this appeal.
POINT ONE – DEFENDANT IS ENTITLED TO
POST-CONVICTION RELIEF BECAUSE HIS PLEA
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WAS NOT KNOWINGLY GIVEN DUE TO PLEA
COUNSEL'S FAILURE TO ADVISE HIM OF THE
FUTURE PENAL CONSEQUENCES OF HIS
GUILTY PLEA.
POINT TWO – THE FIVE-YEAR TIME BAR
SHOULD BE RELAXED DUE TO PETITIONER'S
EXCUSABLE NEGLECT AND/OR THE INTERESTS
OF JUSTICE.
To establish ineffective assistance of counsel, defendant must satisfy a
two-prong test:
First, the defendant must show that counsel's
performance was deficient. This requires showing that
counsel made errors so serious that counsel was not
functioning as the "counsel" guaranteed the defendant
by the Sixth Amendment. Second, the defendant must
show that the deficient performance prejudiced the
defense. This requires showing that counsel's errors
were so serious as to deprive the defendant of a fair
trial, a trial whose result is reliable. Unless a defendant
makes both showings, it cannot be said that the
conviction . . . resulted from a breakdown in the
adversary process that renders the result unreliable.
[State v. Fritz, 105 N.J. 42, 52 (1987) (alteration in
original) (quoting Strickland v. Washington, 466 U.S.
668, 687 (1984)).]
Counsel's performance is evaluated with extreme deference, "requiring 'a
strong presumption that counsel's conduct falls within the wide range of
reasonable professional assistance[.]'" Ibid. "To rebut that strong presumption,
a [petitioner] must establish . . . trial counsel's actions did not equate to 'sound
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trial strategy.'" State v. Castagna, 187 N.J. 293, 314 (2006) (quoting Strickland,
466 U.S. at 689). "Mere dissatisfaction with a 'counsel's exercise of judgment'
is insufficient to warrant overturning a conviction." State v. Nash, 212 N.J. 518,
542 (2013) (quoting State v. Echols, 199 N.J. 344, 358 (2009)).
The Supreme Court has stated:
When a guilty plea is part of the equation, we have
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.'"
[State v. Nunez-Valdez, 200 N.J. 129, 139 (2009)
(alterations in original) (quoting State v. DiFrisco, 137
N.J. 434, 457 (1994)).]
To demonstrate prejudice, "'actual ineffectiveness' . . . must [generally] be
proved[.]" Fritz, 105 N.J. at 52 (quoting Strickland, 466 U.S. at 692-93).
Defendant must show the existence of "a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding would have be en
different. A reasonable probability is a probability sufficient to undermine
confidence in the outcome." Ibid. (quoting Strickland, 466 U.S. at 694).
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Trial judges should grant evidentiary hearings only if defendant has
presented a prima facie claim of ineffective assistance of counsel. State v.
Preciose, 129 N.J. 451, 462 (1992). "If the court perceives that holding an
evidentiary hearing will not aid the court's analysis of whether the defendant is
entitled to post-conviction relief, or that the defendant's allegations are too
vague, conclusory, or speculative to warrant an evidentiary hearing, then an
evidentiary hearing need not be granted." State v. Marshall, 148 N.J. 89, 158
(1997) (citations omitted); see also Rule 3:22-10(e).
"[W]here the [PCR] court does not hold an evidentiary hearing, we may
exercise de novo review over the factual inferences the trial court has drawn
from the documentary record." State v. O'Donnell, 435 N.J. Super. 351, 373
(App. Div. 2014) (citing State v. Harris, 181 N.J. 391, 420-21 (2004)). Thus, if
warranted, we may "conduct a de novo review of both the factual findings and
legal conclusions of the [trial] court[.]" Harris, 181 N.J. at 421 (emphasis
omitted).
Guided by these principles and having reviewed the record, we conclude
defendant's arguments are without sufficient merit to warrant discussion in a
written opinion and affirm for the reasons set forth in Judge Shanahan's October
6, 2017 decision. R. 2:11-3(e)(2).
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Affirmed.
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