STATE OF NEW JERSEY VS. THOMAS F. CLARY (17-03-0722, CAMDEN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-3768-19
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
THOMAS F. CLARY,
a/k/a THOMAS MACKEN,
THOMAS PITCHER, THOMAS
CLARY, THOMAS JOHNSON,
THOMAS LEWIS, and THOMAS
MAKEN,
Defendant-Appellant.
_______________________
Submitted April 26, 2021 – Decided May 11, 2021
Before Judges Fasciale and Mayer.
On appeal from the Superior Court of New Jersey, Law
Division, Camden County, Indictment No. 17-03-0722.
Joseph E. Krakora, Public Defender, attorney for
appellant (Karen A. Lodeserto, Designated Counsel, on
the brief).
Jill S. Mayer, Acting Camden County Prosecutor,
attorney for respondent (Kevin J. Hein, Special Deputy
Attorney General/Acting Assistant Prosecutor, of
counsel and on the brief).
PER CURIAM
Defendant appeals from a December 20, 2019 order 1 denying his petition
for post-conviction relief (PCR) without an evidentiary hearing. Defendant
argues his plea counsel rendered ineffective assistance of counsel by allowing
him to plead guilty under pressure, not raising mitigating factors at sentencing,
failing to negotiate a more favorable plea deal, and failing to make a Miranda
motion. Judge Francisco Dominguez entered the order and rendered an oral
opinion.
On appeal, defendant raises the following arguments:
POINT I
THE PCR [JUDGE] ERRED IN DENYING
[DEFENDANT'S] PETITION FOR [PCR] WITHOUT
AN EVIDENTIARY HEARING AS TESTIMONY IS
NEEDED FROM PRIOR COUNSEL TO EXPLAIN
WHY HE ALLOWED [] [DEFENDANT] TO
PROCEED WITH THE PLEA HEARING WHEN HE
KNEW [DEFENDANT] WAS BEING PRESSURED
BY HIS FAMILY TO ACCEPT THE PLEA OFFER.
POINT II
1
His Amended Notice of Appeal refers to the December 23, 2019 filing date of
the order.
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THE PCR [JUDGE] ERRED IN DENYING
DEFENDANT'S PETITION FOR [PCR] AS
TESTIMONY IS NEEDED FROM PRIOR COUNSEL
TO EXPLAIN WHY HE FAILED TO RAISE ANY
MITIGATING FACTORS ON BEHALF OF
[DEFENDANT] AT SENTENCING.
POINT III
THE PCR [JUDGE] ERRED IN DENYING
DEFENDANT'S PETITION FOR [PCR] AS
TESTIMONY IS NEEDED FROM PRIOR COUNSEL
TO EXPLAIN WHY HE FAILED TO NEGOTIATE A
LESSER-TERM OF IMPRISONMENT FOR
[DEFENDANT] IN LIGHT OF THE LACK OF
EVIDENCE CONNECTING HIM TO THE
SHOOTING.
POINT IV
THE PCR [JUDGE] ERRED IN DENYING
DEFENDANT'S PETITION FOR [PCR] AS
TESTIMONY IS NEEDED FROM PRIOR COUNSEL
TO EXPLAIN WHY HE FAILED TO FILE A
MOTION TO SUPPRESS [DEFENDANT'S]
STATEMENT TO POLICE AS [DEFENDANT] WAS
INTOXICATED.
We are unpersuaded by defendant's contentions and affirm substantially for the
reasons expressed by Judge Dominguez. We add these remarks.
When a PCR judge does not hold an evidentiary hearing—like here—this
court's standard of review is de novo as to both the factual inferences drawn by
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the PCR judge from the record and the judge's legal conclusions. State v. Blake,
444 N.J. Super. 285, 294 (App. Div. 2016).
To establish a prima facie claim of ineffective assistance of counsel, a
defendant must satisfy the two-pronged test enumerated in Strickland v.
Washington, 466 U.S. 668, 687 (1984), which our Supreme Court adopted in
State v. Fritz, 105 N.J. 42, 58 (1987). To meet the first Strickland/Fritz prong,
a defendant must establish that his counsel "made errors so serious that counsel
was not functioning as the 'counsel' guaranteed the defendant by the Sixth
Amendment." 466 U.S. at 687. A defendant must rebut the "strong presumption
that counsel's conduct [fell] within the wide range of reasonable professional
assistance[.]" Id. at 689. Thus, this court must consider whether counsel's
performance fell below an objective standard of reasonableness. Id. at 688.
To satisfy the second Strickland/Fritz prong, a defendant must show "that
counsel's errors were so serious as to deprive the defendant of a fair trial, a trial
whose result is reliable." Id. at 687. A defendant must establish "a reasonable
probability that, but for counsel's unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome." Id. at 694. "[I]f counsel's
performance has been so deficient as to create a reasonable probability that these
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deficiencies materially contributed to defendant's conviction, the constitutional
right will have been violated." Fritz, 105 N.J. at 58. Both the United States
Supreme Court and the New Jersey Supreme Court have extended the
Strickland/Fritz test to challenges of guilty pleas based on ineffective assistance
of counsel. Lafler v. Cooper, 566 U.S. 156, 162-63 (2012); Missouri v. Frye,
566 U.S. 134, 140 (2012); State v. DiFrisco, 137 N.J. 434, 456-57 (1994). A
defendant must demonstrate with "reasonable probability" that the result would
have been different had he received proper advice from his attorney. Lafler, 566
U.S. at 163 (quoting Strickland, 466 U.S. at 694).
A defendant is only entitled to an evidentiary hearing when he "'has
presented a prima facie [claim] in support of [PCR],'" meaning that a defendant
must demonstrate "a reasonable likelihood that his . . . claim will ultimately
succeed on the merits." State v. Marshall, 148 N.J. 89, 158 (1997) (quoting
State v. Preciose, 129 N.J. 451, 463 (1992)). A defendant must "do more than
make bald assertions that he was denied the effective assistance of counsel" to
establish a prima facie claim entitling him to an evidentiary hearing. State v.
Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999). A defendant bears the
burden of establishing a prima facie claim. State v. Gaitan, 209 N.J. 339, 350
(2012). We "view the facts in the light most favorable to a defendant to
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determine whether a defendant has established a prima facie claim." Preciose,
129 N.J. at 462-63.
Here, defendant pled guilty to amended second-degree aggravated assault,
N.J.S.A. 2C:12-1(b)(1). In accordance with the plea agreement, defendant
received nine years in prison subject to the No Early Release Act (NERA),
N.J.S.A. 2C:43-7.2. Despite defendant's extensive criminal history involving
indictable state convictions, juvenile adjudications, and a federal conviction, his
plea counsel successfully negotiated a dismissal of fifteen of the sixteen counts
in the indictment. Defendant appealed the imposition of this sentence, which
we affirmed on our excessive sentence calendar. Thus, defendant's argument
that his plea counsel failed to negotiate a more favorable agreement is without
merit, especially given the prison exposure he faced.
Even though at the plea hearing defendant understood he waived his rights
to file and present pre-trial motions, on the merits, we reject his argument that
plea counsel was ineffective for failing to make a Miranda motion. There is
nothing in the record demonstrating that defendant was—as he now argues for
the first time—under the influence during the police interrogation. But even if
his voluntary statements were suppressed, which in our view would not have
happened, there is overwhelming evidence of guilt. A witness called the police,
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described the clothing defendant had been wearing, and based on that
information, police apprehended defendant as he was fleeing on a bus with two
handguns under his bus seat.
Nevertheless, on this record, defendant knowingly, intelligently, and
voluntarily waived his Miranda rights. There is no evidence that anyone
pressured defendant to plead guilty. Although he argues otherwise, the plea
judge questioned defendant at the plea hearing and established defendant pled
guilty voluntarily, knowingly, and without any coercion.
To the extent we have not addressed defendant's remaining arguments, we
conclude that they are without sufficient merit to warrant discussion in a written
opinion. R. 2:11-3(e)(2).
Affirmed.
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