STATE OF NEW JERSEY VS. MARVIN EURE, JR. (15-08-1860, ESSEX COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE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-5595-18
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MARVIN EURE, JR., a/k/a
MARVIN EURIE and
MARVIN EURE,
Defendant-Appellant.
________________________
Submitted January 12, 2021 – Decided March 5, 2021
Before Judges Fisher and Moynihan.
On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Indictment No. 15-08-1860.
Joseph E. Krakora, Public Defender, attorney for
appellant (Michele A. Adubato, Designated Counsel,
on the brief).
Theodore N. Stephens II, Acting Essex County
Prosecutor, attorney for respondent (Lucille M.
Rosano, Special Deputy Attorney General/Acting
Assistant Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Marvin Eure, Jr. pleaded guilty to conspiracy to commit
murder, N.J.S.A. 2C:5-2, N.J.S.A. 2C:11-3, aggravated manslaughter, N.J.S.A.
2C:11-4(a), amended from the indicted charge of murder, and unlawful
possession of a weapon, N.J.S.A. 2C:39-5(b), was sentenced and did not file a
direct appeal but instead later filed a post-conviction relief (PCR) petition that
was denied. He now argues:
POINT I
THE [PCR] COURT ERRED IN DENYING . . .
DEFENDANT'S PETITION FOR [PCR] WITHOUT
AFFORDING HIM AN EVIDENTIARY HEARING
TO FULLY ADDRESS HIS CONTENTION THAT HE
FAILED TO RECEIVE ADEQUATE LEGAL
REPRESENTATION FROM PLEA COUNSEL.
A. LEGAL PRINCIPLES.
B. FAILURE OF PLEA COUNSEL TO
CONDUCT AN ADEQUATE
INVESTIGATION.
C. FAILURE TO INVESTIGATE ALIBI
DEFENSE.
D. FAILURE TO FILE ON APPEAL ON
BEHALF OF DEFENDANT.
E. FAILURE OF ATTORNEY TO GIVE
PROPER ADVICE REGARDING
DEFENDANT'S DECISION TO PLEAD
GUILTY.
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F. FAILURE OF PCR COURT TO
CONDUCT AN EVIDENTIARY
HEARING.
Reviewing the PCR court's factual inferences drawn from the record and its legal
conclusions de novo because it did not conduct an evidentiary hearing, State v.
Blake, 444 N.J. Super. 285, 294 (App. Div. 2016), we reverse and remand for
an evidentiary hearing.
Defendant's claims that counsel failed to: appeal his conviction; review
discovery with him; "ensure[] that he was fully cognizant of the elements and
consequences of a guilty plea"; and pressured him to take an involuntary plea,
are bald and belied by the record. During the plea colloquy, defendant had all
discovery save for a copy of a polygraph he received that day and had reviewed
discovery with counsel. The court and assistant prosecutor also reviewed the
charges and plea agreement, including the sentence, dismissals and the rights
defendant was waiving. Defendant confirmed no one pressured or coerced him
to give up those rights; he did so voluntarily. He also stated no one forced,
coerced or promised anything, other than what was stated on the record, that
caused him to plead guilty. Furthermore, defendant has not set forth any
arguments he would have made if an appeal had been filed.
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A "defendant must allege specific facts and evidence supporting his
allegations," State v. Porter, 216 N.J. 343, 355 (2013), and "do more than make
bald assertions that he was denied the effective assistance of counsel" to
establish a prima facie claim, State v. Cummings, 321 N.J. Super. 154, 170 (App.
Div. 1999). "Defendant may not create a genuine issue of fact, warranting an
evidentiary hearing, by contradicting his prior statements without expl anation."
Blake, 444 N.J. Super. at 299. Defendant's bald averments, belied by the record,
do not establish a prima facie claim. And, an evidentiary hearing is not to be
used to explore PCR claims. See State v. Marshall, 148 N.J. 89, 157-58 (1997).
As such, the PCR court properly denied an evidentiary hearing as to those issues.
Defendant did, however, submit certifications from Khalil Sykes and
Jahson Coles who swore they were with defendant on the evening of the murder,
which the State alleged to have occurred at approximately 11:28 p.m. The PCR
court rejected defendant's contention that his trial counsel failed to investigate
his alibi defense and interview an alibi witness because
a careful review of the [alibi witnesses'] statements
shows that . . . defendant would not have had an alibi
from 11:00 p.m. to 12:50 a.m., the time when the crime
is alleged to have occurred. As such, Mr. Sykes would
not have been able to serve as an effective alibi witness.
In his certification, Mr. Sykes says he went into his
apartment at 11:00 p.m. leaving [defendant] in the car,
and that he was not with . . . defendant from 11:15 p.m.
to 12:50 a.m. The State alleges that the murder
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occurred approximately at 11:28 p.m. when by the very
account of his "alibi" witnesses they were not with him.
According to Jahson Cole's certification, he was with
. . . defendant until about 10:15 p.m. or 10:30 p.m.
Therefore, he could not have testified about . . .
defendant's whereabouts at the time of the murder. As
such, there is nothing in the record to support that an
alibi defense would have been successful at the time of
trial and that based on his alibi he would have secured
his release.
Coles certified defendant left Coles's home at 10:30 p.m. He swore
defendant left with Sykes. Though Sykes certified he left Coles's house with
defendant at 10:00 p.m., went to Wendy's before going to the Essex County jail
and Delaney Hall to make deposits to commissary accounts, and then stopped at
Sykes's home, where Sykes left defendant in the car until Sykes "came back out"
around 11:00 p.m., the PCR court misapprehended that Sykes was not with
defendant "from 11:15 p.m. to 12:50 a.m." Sykes certified after he re-joined
defendant at 11:00 p.m., the two made their way to defendant's home, arriving
at about 11:15 p.m. They did not go inside the house but went further down the
block; defendant exited the vehicle and "was talking to a few people that he
knew" while Sykes stayed in the car and "was on [his] phone." Sykes also
certified they "stayed out there [until] about" 12:50 a.m. when they drove back
to defendant's home. They sat in the car for ten minutes before defendant went
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into his home. Sykes drove home, arriving at 1:20 a.m. 1 when he let defendant
know he had arrived.
Contrary to the PCR court's finding, the certifications evidence that Sykes
was with defendant at the time of the alleged murder. Defendant, therefore,
established a prima facie case by presenting specific evidence of ineffective
assistance of his counsel who he alleges did not interview the witnesses. See
Porter, 216 N.J. at 355. The court should have conducted an evidentiary hearing
regarding that issue. See R. 3:22-10(b); State v. Preciose, 129 N.J. 451, 462-63
(1992).
The PCR court should not have considered defendant's admissions during
the plea colloquy in light of his contention that he may not have made those
admissions if his counsel had investigated the alibi defense. When he gave up
the right to present witnesses on his behalf, he did so without an investigation
of the alibi witnesses. Had that investigation been performed, defendant may
not have waived that right.
Nevertheless, we do not suggest any factual findings and legal
conclusions, leaving those to the PCR court to make after hearing from the
witnesses produced at the evidentiary hearing and then perpending the
1
The certification sets forth the time as 1:20 p.m., an obvious typographical
error considering the timeframe Sykes recounted.
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Strickland-Fritz prongs.2 That includes whether defendant has shown "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 [pleaded] guilty and
would have insisted on going to trial.'" State v. Nuñez-Valdéz, 200 N.J. 129,
139 (2009) (first alteration in original) (quoting State v. DiFrisco, 137 N.J. 434,
457 (1994)); see also State v. Gideon, ___ N.J. ___, ___ (2021) (slip op. at 14-
16). It also includes an assessment of the strength of the State's proofs. See
Gideon, ___, N.J. at ___ (slip op. at 23-24).
Thus the PCR court could again properly consider that: defendant faced
a minimum prison term of thirty years, all of it parole-ineligible, see N.J.S.A.
2C:11-3(b)(1), on the murder charge; his criminal record exposed him to a
possible extended term of life in prison; and he accepted a plea deal calling for
an aggregate twenty-year prison sentence, subject to the No Early Release Act,
2
To establish a PCR claim of ineffective assistance of counsel, a defendant
must satisfy the two-pronged test formulated 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), first by "showing that counsel made errors so serious that
counsel was not functioning as the 'counsel' guaranteed . . . by the Sixth
Amendment," Fritz, 105 N.J. at 52 (quoting Strickland, 466 U.S. at 687); then
by proving he suffered prejudice due to counsel's deficient performance,
Strickland, 466 U.S. at 687, 691-92; see also Fritz, 105 N.J. at 52. Defendant
must show by a "reasonable probability" that the deficient performance affected
the outcome. Fritz, 105 N.J. at 58.
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N.J.S.A. 2C:43-7.2, which the sentencing court reduced to eighteen years,
concurrent to his federal sentence, resulting in what the PCR court said was, in
effect, a net six-year sentence on these State charges. We do not advocate for
that repeated analysis; we note only that those circumstances can be validly
considered. We leave it to the PCR court to determine if defendant met both
Strickland-Fritz prongs.
Affirmed in part, reversed in part and remanded for proceedings consistent
with this opinion. We do not retain jurisdiction.
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