STATE OF NEW JERSEY v. SURPRIS OPHILIEN (14-10-0940, 15-12-0777 AND 15-12-0778, UNION 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NOT FOR PUBLICATION WITHOUT THE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-0923-20
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
SURPRIS OPHILIEN,
a/k/a SUPRIS OPHILIEN,
SURPRIS D. SPHILIEN,
and SURPRIS OPHILLEN,
Defendant-Appellant.
_______________________
Submitted March 8, 2022 – Decided June 30, 2022
Before Judges Currier and DeAlmeida.
On appeal from the Superior Court of New Jersey, Law
Division, Union County, Indictment Nos. 14-10-0940,
15-12-0777 and 15-12-0778.
Joseph E. Krakora, Public Defender, attorney for
appellant (Andrew R. Burroughs, Designated Counsel,
on the brief).
William A. Daniel, Union County Prosecutor, attorney
for respondent (Albert Cernadas, Jr., Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Surpris Ophilien appeals from the Law Division's: (1) May 19,
2020 order denying his petition for post-conviction relief (PCR) without an
evidentiary hearing and his motion to withdraw his guilty plea on convictions
arising from a fatal motor vehicle accident he caused while driving under the
influence of alcohol and eluding police; and (2) December 15, 2020 order
denying his motion to reduce his sentence for good cause. We affirm.
I.
On July 18, 2015, Elizabeth police officers were dispatched to a nightclub
in response to a report of a fight. While en route to the scene, a unit observed a
green pick-up driving at a high rate of speed away from the club. Officers
activated their overhead lights and sirens in an attempt to stop the vehicle. The
pick-up did not stop, running through red lights and stop signs and taking
evasive measures to elude the officers.
Ultimately, the pick-up was driven the wrong way up an exit ramp from
the New Jersey Turnpike. Edward Coleman was driving his car in the correct
direction down the ramp. The truck barreled head-on into Coleman's car.
The officers were close behind the pick-up and arrived shortly after the
crash. They saw defendant crawl out of the truck through the driver's side
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window carrying a handgun. He ignored the officers' orders to stop, tossed the
gun on the ground, and ran to an overpass. Defendant climbed the overpass
fence and dropped twenty to thirty feet to the ground, where he was captured.
No one other than defendant and Coleman was seen by the officers at the site of
the crash and no other person was observed exiting the pick-up truck.
Police recovered a .45 caliber handgun where they saw defendant discard
the weapon. Defendant was transported to the hospital, where officers smelled
alcohol on his breath. Coleman died from his injuries shortly after the accident.
A grand jury indicted defendant, charging him with second-degree eluding
a law enforcement officer, N.J.S.A. 2C:29-2(b); second-degree vehicular
homicide, N.J.S.A. 2C:11-5; first-degree aggravated manslaughter by recklessly
causing the death of another, N.J.S.A. 2C:11-4(a)(1); first-degree aggravated
manslaughter by causing the death of another while eluding a law enforcement
officer, N.J.S.A. 2C:11-4(a)(2); second-degree leaving the scene of an accident
resulting in death, N.J.S.A. 2C:11-5.1; and second-degree unlawful possession
of a handgun, N.J.S.A. 2C:39-5(b)(1). A second indictment charged him with
second-degree certain persons not to possess a firearm, N.J.S.A. 2C:39-7(b)(1).
On June 29, 2017, pursuant to an agreement, defendant entered a guilty
plea to first-degree aggravated manslaughter by causing the death of another
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while eluding a law enforcement officer and second-degree certain persons not
to possess a firearm. He admitted under oath that he had been drinking alcohol,
and possibly taking narcotics, before he decided to drive his truck, was speeding
while eluding police, ignored red lights and stop signs, and caused the accident
that killed Coleman. He also admitted he was in possession of a handgun while
aware that he was prohibited from doing so because of prior felony convictions.
The same day, defendant entered a guilty plea to a violation of probation, which
had been imposed for his conviction of second-degree possession with intent to
distribute a controlled dangerous substance within 500 feet of public property. 1
On December 4, 2017, the court sentenced defendant on the manslaughter
conviction in accordance with the plea agreement to a twenty-year term of
imprisonment subject to the No Early Release Act, N.J.S.A. 2C:43-7.2 and for
the certain persons conviction to a concurrent five-year term of imprisonment,
with a five-year period of parole ineligibility. The court sentenced defendant to
an eight-year term of imprisonment for the parole violation to be served
concurrent to the sentences for manslaughter and the weapons conviction.
1
The violation of probation was based on the crimes to which defendant was
pleading guilty and his failure to complete a drug rehabilitation program.
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Defendant appealed his sentence. We affirmed. State v. Ophilien, No. A-
2405-17 (App. Div. Sep. 25, 2018).
Approximately a year later, defendant moved to withdraw his guilty plea.
He alleged he pled guilty because he thought he was responsible for Coleman's
death. However, he asserted, he did not truly know if he was guilty because of
memory lapses and alcohol consumption on the night of the accident. He also
argued his guilty plea was uninformed because his attorney did not effectively
communicate with him, show him discovery, investigate the case, or explore and
explain a potential intoxication defense. In addition, defendant cited new
evidence, the affidavit of Laquana Robinson, obtained after his conviction, that
he believes proves he was not driving the pick-up on the night of the accident.
Defendant subsequently filed a petition for PCR alleging ineffective
assistance of trial counsel. In support of his claims, defendant reiterated the
arguments he made in support of his motion to withdraw his guilty plea.
On May 19, 2020, Judge Robert Kirsch issued a thirty-six-page written
opinion denying defendant's motion and dismissing his PCR petition without an
evidentiary hearing. The judge exhaustively detailed what transpired at the plea
hearing, noting the judge taking the plea
inquired to ensure that defense counsel properly
reviewed the unique facts and circumstances of
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[defendant's] case to assist [defendant] in making an
informed decision on how he wished to proceed. For
example, the court confirmed with [defendant] that his
counsel reviewed and analyzed the legal and factual
issues in the case; discussed with [defendant] the
strengths and weaknesses of his case, both from his
perspective and the [S]tate's perspective; reviewed with
[defendant] "all the potential evidence and witnesses in
the case" and how "each piece of evidence or witness
may help or hurt [defendant];" and discussed with
[defendant] the strength[s] and weaknesses of potential
motions or defenses which may apply.
Judge Kirsch also noted that when defendant expressed reservations at the ple a
hearing with respect to whether his counsel had shown him all of the discovery,
the court questioned defendant's counsel on the record. The attorney informed
the court that "[w]e discussed – we met . . . more than several times, more than
[ten] times . . . over the course of this case. I reviewed all the discovery,
including the videotape discovery." Counsel clarified that the only discovery
defendant had not seen were photographs of the outside of the pick-up's "black
box" recovered from the crash site. The court then adjourned the hearing to
allow defendant to review the photographs. When the hearing resumed,
defendant expressed his desire to continue and pled guilty.
Judge Kirsch detailed defendant's factual admissions and his counsel's
representation to the court that he had reviewed the intoxication defense with
defendant during their "many meetings" and "that one of their principal
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discussions was the difficulty in prevailing on such a defense." Defendant's
counsel informed the court he explained to defendant the different mens rea
requirements for the two manslaughter counts and how difficult it would be to
prove his intoxication was so severe that his criminal conduct would be excused.
Judge Kirsch noted that at the plea hearing, the court read the model jury
charge of "Intoxication Negating an Element of the Offense" to defendant and
asked a series of questions to confirm counsel had explained the intoxication
defense to defendant, particularly with respect to a charge alleging recklessness.
See State v. Baum, 224 N.J. 147, 162 (2016) (holding that voluntary intoxication
is not a defense where recklessness is an element of the crime). Although
defendant was pleading guilty to the manslaughter charge alleging purposeful
conduct, had he not pled guilty, he would have faced trial on the manslaughter
charge alleging recklessness. After allowing defendant to consult with his
attorney, the court asked if, despite his consumption of alcohol, defendant was
cognizant of the recklessness of his behavior on the night of the accident.
Defendant replied that "I knew what was going on, Your Honor." He admitted
he knew driving the truck was reckless, he put people in danger, the police were
trying to stop him, and that he decided to elude the officers.
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With respect to the Robinson affidavit, which was executed more than
three years after the night in question, Judge Kirsch found that the witness
attested that she saw defendant outside the nightclub and described him as "kind
of out of it" and "very intoxicated." Robinson attested that she saw a green pick-
up truck pull up in front of the club driven by someone she did not recognize ,
and that she helped defendant get into the passenger side of the truck, which was
then driven away by the unidentified driver. Robinson came forward after she
saw a social media post by defendant stating he was incarcerated.
The judge concluded defendant satisfied none of the factors set forth in
State v. Slater, 198 N.J. 145, 155 (2009), to justify withdrawal of a guilty plea
after sentencing. The judge noted defendant's claim of innocence relies
principally, if not exclusively, on the Robinson affidavit. He concluded,
however, that even if the assertions made in the affidavit are true, Robinson was
not present at the accident scene. As the judge noted, "there was a sufficient
opportunity, out of [Robinson's] view after the green truck pulled away from the
[c]lub, for [defendant] to take control of the vehicle and for the unidentified
driver to exit the green truck." In addition, the judge noted, defendant's
admissions comport with the officers' observation of a single person in the pick-
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up before the crash, defendant crawling out the driver's side window after the
crash, and no one other than defendant and the man he killed at the crash site.
Judge Kirsch also found defendant's claim he was not properly advised
with respect to an intoxication defense did not warrant withdrawal of his plea.
The judge noted that the court that took defendant's plea engaged in an
exhaustive discussion of the defense's inapplicability to a charge alleging
recklessness. The judge also rejected defendant's claim that his counsel did not
provide adequate representation prior to entry of the plea. As the judge noted,
defendant stated at the plea hearing he was satisfied with his counsel, and the
hearing was adjourned to allow defendant to review photographs that he had not
seen, after which he agreed to continue with his plea.
Judge Kirsch found defendant was facing up to fifty years in prison i f
convicted on all charges and substantially benefitted from the plea agreement,
which he was not likely to have rejected, given the strength of the State's
evidence. The judge also found the State would be at a significant disadvantage
were it forced to try the case more than five years after the accident.
The judge rejected defendant's PCR claims, concluding he had not made
a prima facie showing of ineffective assistance of counsel. Relying on the
findings he made on defendant's motion to withdraw his plea, the judge found
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no merit in defendant's allegations concerning counsel's diligence,
consultations, and advice. In short, the judge concluded defendant received
effective representation prior to entry of his plea.
The judge also concluded defendant's counsel could not be faulted for not
finding Robinson prior to entry of the plea. Defendant did not identify Robinson
as a witness. He has no recollection of seeing her in the crowded nightclub. She
admitted the night in question was her first visit to the club and that she never
returned. Defendant does not explain how his counsel would have identified her
as a witness. In addition, as explained above, the judge concluded Robinson's
affidavit does not address what transpired after defendant left the club and is
contradicted by the eyewitness testimony of the officers. Thus, the judge found
defendant did not make a prima facie showing of either prong established in
Strickland v. Washington, 466 U.S. 668, 686 (1984), and could not demonstrate
that but for counsel's errors he would not have pled guilty and insisted on going
to trial. See State v. Gaitan, 209 N.J. 339, 350-51 (2012). Thus, the court
concluded, defendant was not entitled to PCR or a hearing.
Defendant later moved to reduce his sentence for good cause pursuant to
Rule 3:21-10(b)(3). While recognizing that a sentence of between ten and thirty
years was required by statute for his manslaughter conviction, defendant argued
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his sentence should be reduced "in good faith, so that I may live as a productive
member of society." In support of his motion, defendant argued his crimes were
the result of poor decision making, he has matured, and has made strides towards
rehabilitation while incarcerated. The State opposed the motion.
On December 15, 2020, the trial court entered an order denying
defendant's motion to reduce his sentence. The court held defendant lacked
standing to bring the motion because it was not a "joint application of the
defendant and prosecuting attorney." See R. 3:21-10(b)(3).
This appeal followed. Defendant makes the following arguments.
POINT I
AS TRIAL COUNSEL FAILED TO ADEQUATELY
INVESTIGATE A VOLUNTARY INTOXICATION
DEFENSE, DEFENDANT DID NOT RECEIVE
EFFECTIVE LEGAL REPRESENTATION WHEN
HE ENTERED A GUILTY PLEA.
POINT II
AS DEFENDANT HAS ESTABLISHED THAT HE
DID NOT KNOWINGLY, INTELLIGENTLY, AND
VOLUNTARILY ENTER A GUILTY PLEA AND HE
HAS A COLORABLE CLAIM OF INNOCENCE, THE
PCR COURT ERRED WHEN IT DENIED HIS
MOTION TO VACATE HIS GUILTY PLEA.
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POINT III
AS THERE WAS A GENUINE ISSUE OF
MATERIAL FACT IN DISPUTE, AN EVIDENTIARY
HEARING WAS REQUIRED.
POINT IV
THE TRIAL COURT ERRED WHEN IT DENIED
DEFENDANT'S MOTION FOR REDUCTION OF
SENTENCE.
II.
Because defendant's motion to withdraw his guilty plea and PCR petition
rely on the same facts and arguments, we address them together. Withdrawal of
a guilty plea after sentencing is warranted only "to correct a manifest injustice."
R. 3:21-1. "[A] plea may only be set aside in the exercise of the court's
discretion." Slater, 198 N.J. at 156. The court considers four factors to
determine if withdrawal of a guilty plea is warranted: "(1) whether the defendant
has asserted a colorable claim of innocence; (2) the nature and strength of
defendant's reasons for withdrawal; (3) the existence of a plea bargain; and (4)
whether withdrawal would result in unfair prejudice to the State or unfair
advantage to the accused." Id. at 157-58. "No factor is mandatory; if one is
missing, that does not automatically disqualify or dictate relief." Id. at 162.
"[T]he trial court's denial of defendant's request to withdraw his guilty
plea will be reversed on appeal only if there was an abuse of discretion which
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renders the lower court's decision clearly erroneous." State v. Simon, 161 N.J.
416, 444 (1999); State v. O'Donnell, 435 N.J. Super. 351, 372 (App. Div. 2014).
Under Rule 3:22-2(a), a defendant is entitled to post-conviction relief if
there was a "[s]ubstantial denial in the conviction proceedings of defendant's
rights under the Constitution of the United States or the Constitution or laws of
the State of New Jersey[.]" "A petitioner must establish the right to such relief
by a preponderance of the credible evidence." State v. Preciose, 129 N.J. 451,
459 (1992). "To sustain that burden, specific facts" which "would provide the
court with an adequate basis on which to rest its decision" must be articulated.
State v. Mitchell, 126 N.J. 565, 579 (1992).
The Sixth Amendment to the United States Constitution and Article I,
Paragraph 10 of the New Jersey Constitution guarantee criminal defendants the
right to the effective assistance of counsel. State v. O'Neil, 219 N.J. 598, 610
(2014) (citing Strickland, 466 U.S. at 686; State v. Fritz, 105 N.J. 42, 58 (1987)).
To succeed on a claim of ineffective assistance of counsel, the defendant must
meet the two-part test established by Strickland, and adopted by our Supreme
Court in Fritz. 466 U.S. at 687; 105 N.J. at 58.
Under Strickland, a defendant first must show that his or her attorney
made errors "so serious that counsel was not functioning as the 'counsel'
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guaranteed the defendant by the Sixth Amendment." 466 U.S. at 687. Counsel's
performance is deficient if it "[falls] below an objective standard of
reasonableness." Id. at 688.
A defendant also must show that counsel's "deficient performance
prejudiced the defense[,]" id. at 687, because "there is a reasonable probability
that, but for counsel's unprofessional errors, the result of the proceeding would
have been different[,]" id. at 694. "A reasonable probability is a probability
sufficient to undermine confidence in the outcome" of the trial. Ibid. "[A] court
need not determine whether counsel's performance was deficient before
examining the prejudice suffered by the defendant as a result of the alleged
deficiencies." Id. at 697; State v. Marshall, 148 N.J. 89, 261 (1997). "If it is
easier to dispose of an ineffectiveness claim on the ground of lack of sufficient
prejudice, which we expect will often be so, that course should be followed."
Strickland, 466 U.S. at 697.
We review a judge's decision to deny a PCR petition without an
evidentiary hearing for abuse of discretion. State v. Brewster, 429 N.J. Super.
387, 401 (App. Div. 2013) (citing Marshall, 148 N.J. at 157-58). A hearing is
required only when: (1) a defendant establishes a prima facie case in support of
PCR; (2) the court determines that there are disputed issues of material fact that
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cannot be resolved by review of the existing record; and (3) the court determines
that an evidentiary hearing is required to resolve the claims asserted. State v.
Porter, 216 N.J. 343, 354 (2013) (citing R. 3:22-10(b)). "A prima facie case is
established when a defendant demonstrates 'a reasonable likelihood that his or
her claim, viewing the facts alleged in the light most favorable to the defendant,
will ultimately succeed on the merits.'" Id. at 355 (quoting R. 3:22-10(b)).
"[T]o establish a prima facie claim, a petitioner must do more than make
bald assertions that he was denied effective assistance of counsel." Ibid.
(quoting State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999)). A
PCR petition must be "accompanied by an affidavit or certification by defendant,
or by others, setting forth with particularity[,]" State v. Jones, 219 N.J. 298, 312
(2014), "facts sufficient to demonstrate counsel's alleged substandard
performance[,]" Porter, 216 N.J. at 355 (quoting Cummings, 321 N.J. Super. at
170); see also R. 3:22-10(c). When a defendant argues that his attorney failed
to call an alibi witness, "he must assert the facts that would have been revealed,
'supported by affidavits or certifications based upon the personal knowledge of
the affiant or the person making the certification.'" State v. Petrozelli, 351 N.J.
Super. 14, 23 (App. Div. 2002) (quoting Cummings, 321 N.J. Super. at 170).
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Having carefully reviewed defendant's arguments in light of the record
and applicable legal principles, we affirm the May 19, 2020 order for the reasons
stated by Judge Kirsch in his thoughtful and well-reasoned written opinion.
Defendant has not demonstrated he is entitled to withdraw his guilty plea to
prevent a manifest injustice. Nor has defendant made a prima facie showing of
ineffective assistance of counsel prior to the entry of his guilty plea. He was
apprised that an intoxication defense to the manslaughter charge was not likely
to be successful and expressed his satisfaction with counsel at the plea hearing.
In addition, the belated appearance of Robinson's affidavit does not
meaningfully call defendant's guilt into question and is not evidence of an
ineffective investigation by defendant's trial counsel.
III.
We also agree with Judge Kirsch's conclusion that defendant's "good
cause" application to reduce his sentence was substantively deficient. Rule
3:21-10(b)(3) allows an application to reduce a sentence more than sixty days
after entry of a judgment of conviction "for good cause shown upon the joint
application of the defendant and the prosecuting attorney . . . ." Defendant's
application, made a year after entry of the judgment of conviction, was opposed
by the State. The court is not authorized to reduce defendant's sentence because
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he believes he has been rehabilitated and deserves a chance to return to society
before completing his lawfully entered term of imprisonment. Defendant may
seek to demonstrate his rehabilitation before the Parole Board when he is
eligible to be considered for parole.
Defendant's argument that the prosecuting attorney's decision not to join
his application is subject to judicial review for an abuse of discretion is without
sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed.
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