STATE OF NEW JERSEY VS. JOSHUA E. HIGGINS (14-08-1383, HUDSON 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NOT FOR PUBLICATION WITHOUT THE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-0118-19
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JOSHUA E. HIGGINS,
Defendant-Appellant.
_______________________
Submitted December 9, 2020 – Decided May 19, 2021
Before Judges Accurso and Enright.
On appeal from the Superior Court of New Jersey, Law
Division, Hudson County, Indictment No. 14-08-1383.
Joseph E. Krakora, Public Defender, attorney for
appellant (Suzannah Brown, Designated Counsel, on
the brief).
Esther Suarez, Hudson County Prosecutor, attorney for
respondent (Ednin D. Martinez, Assistant Prosecutor,
on the brief).
PER CURIAM
Defendant Joshua E. Higgins appeals from the denial of his petition for
post-conviction relief (PCR), contending he established a prima facie case of
ineffective assistance of counsel requiring an evidentiary hearing. Because the
trial judge correctly determined the evidence insufficient to sustain defendant's
burden, we affirm.
The State alleged defendant, along with two other men, carjacked an
Infinity G35 outside a nightclub in Newark near midnight on a Saturday night
in early April 2014, using a .22 caliber handgun. An hour or so later, defendant
and one of those men robbed a couple outside their Jersey City home, fatally
shooting the husband in the process. All three men were arrested and charged
in a single, multi-count indictment. Defendant was the only one charged with
murder. Defendant and some combination of his co-defendants were also
charged with felony murder, armed robbery, theft, receiving stolen property,
weapons offenses and carjacking.
Defendant's statement to the police two days later was suppressed because
the judge found defendant did not knowingly and voluntarily waive his Miranda 1
rights based on his low IQ and "specific inability to understand the concept of
rights in general, and the specific components" of the Miranda warnings. We
1
Miranda v. Arizona, 384 U.S. 436 (1966).
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granted the State's motion for leave to appeal that ruling. We subsequently
remanded the case to the trial court to allow defendant to enter a guilty plea
pursuant to an agreement he negotiated with the State.
Defendant agreed to plead guilty to first-degree murder on the indictment
earlier discussed, No. 14-08-1383, as well as to another count of first-degree
carjacking under a different indictment 2 arising from a 2013 carjacking in
Bayonne, in exchange for the State's recommendation of a forty-year NERA 3
sentence on the murder conviction and a concurrent ten-year NERA term on the
carjacking, dismissal of the remaining charges, and an express reservation of his
right to urge a lesser sentence.
The same judge who suppressed defendant's statement took his plea.
Defendant provided a factual basis for his guilty plea to both offenses, telling
the judge he struck and injured the driver of a Honda in Bayonne in June 2013
attempting to take the car from him, and that he shot the victim of the April 2014
Jersey City robbery twice, killing him. Defendant told the judge he reviewed
2
Neither the separate indictment, No. 15-03-0316, nor the judgment of
conviction reflecting the plea to first-degree carjacking is included in the record
on this appeal. The judgment of conviction was, however, included in the
appendix in defendant's direct appeal of his sentence, allowing us to review it as
part of that file.
3
No Early Release Act, N.J.S.A. 2C:43-7.2.
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the plea forms with his counsel, his answers on those forms were truthful, he
was satisfied with the services of his counsel, and he entered his plea freely and
voluntarily.
Defendant was sentenced in accordance with his agreement, and we
dismissed the State's appeal of the order denying admission of defendant's
statement. Defendant subsequently challenged his sentence, which we heard on
a sentencing calendar, see Rule 2:9-11, and affirmed. The Supreme Court
denied his petition for certification.
Defendant filed a timely petition for PCR alleging he received ineffective
assistance from his counsel, who reportedly failed to review the discovery with
him, failed to prepare for trial and improperly pressured him into pleading guilty
by failing to investigate and support his alibi. Defendant also alleged his counsel
never explained that by pleading guilty, this court would not rule on whether his
statement was properly suppressed. The judge denied the petition without an
evidentiary hearing.
The judge found defendant provided no specific facts or any evidence to
support his claim his plea counsel failed to review the discovery with him. As
to defendant's claim his counsel failed to explain we would not rule on admission
of his statement after entry of his plea, the judge noted it was the State that
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appealed the decision regarding defendant's statement, not defendant. When
defendant entered his plea, the order suppressing his statement was still in effect.
Defendant's plea mooted the State's appeal, leaving the trial court order
suppressing defendant's statement in place. The judge thus rejected defendant's
claim his counsel was ineffective by failing to advise him a guilty plea would
moot the then-pending interlocutory appeal, leaving him without "any issue
pending before the Appellate Division."
Finally, the judge ruled defendant affirmatively represented under oath he
was pleading guilty voluntarily, and that no one had pressured him to do so.
Defendant never identified anyone to support his alibi beyond the one person
the defense interviewed, making his claim that counsel rejected requests to
interview others who could support his alibi no better than a bald assertion. See
State v. Jones, 219 N.J. 298, 311-12 (2014) (noting "bald assertions" are not
enough to establish a petitioner's prima facie case of ineffective assistance of
counsel). The judge accordingly rejected defendant's claim that he was
pressured to plead guilty by his counsel's failure to develop his alibi defense as
belied by the record.
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On appeal, defendant contends only that the court erred in denying his
claim his counsel pressured him into pleading guilty without holding an
evidentiary hearing. We disagree.
To succeed on a claim of ineffective assistance, defendant must establish,
first, that "counsel's representation fell below an objective standard of
reasonableness" and, second, "there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding would have been
different." Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984). In the
context of a guilty plea, that means defendant must show his counsel's assistance
fell outside "the range of competence demanded of attorneys in criminal cases,"
and "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. Nuñez-Valdéz, 200 N.J. 129, 139 (2009) (quoting State v. DiFrisco, 137
N.J. 434, 457 (1994)).
Measured by that standard, we agree with the trial judge defendant did not
establish he received ineffective assistance from his plea counsel based on
counsel pressuring him into pleading guilty by the failure to develop his alibi
defense. First, defense counsel clearly investigated defendant's alibi defense,
locating defendant's great uncle, who provided a statement to an investigator.
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The uncle told the investigator he and defendant barbequed in the uncle's
backyard "due to the nice weather." He insisted defendant was with him from
about 7:00 p.m. on April 5, 2014, until the early hours of April 6, defendant only
leaving the yard for a few minutes to use the bathroom inside the house. The
uncle explained it was "very typical for him to hang out all night with his family
members," and that "no one else hung out with them all night," and thus he was
unable to provide the investigator with anyone who could corroborate his
account other than defendant.
As the trial judge noted, defendant never identified anyone else he
contends his counsel should have interviewed to support the alibi defendant's
great uncle provided, and that witness advised there was no one else who could
support it. The trial judge found the weakness of defendant's great uncle as an
alibi witness under those circumstances "clear." Defendant was twenty years
old facing first-degree murder and carjacking charges, exposing him to a life
term plus thirty years.
We agree with the trial court that counseling defendant to accept a plea to
those charges in return for a forty-year NERA term on the murder charge and a
concurrent ten-year NERA term on the carjacking, an entirely separate crime
committed the year before, thereby leveraging the uncertain outcome of the
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State's interlocutory appeal of the order suppressing defendant's statement,
cannot be found to be outside "the range of competence demanded of attorneys
in criminal cases." Nuñez-Valdéz, 200 N.J. at 139. For defendant to have
rejected the plea under those circumstances and proceeded to trial on such a
flimsy alibi, even assuming his statement remained suppressed, would simply
not have been rational. See Padilla v. Kentucky, 559 U.S. 356, 372 (2010).
We also reject defendant's argument the judge should have held an
evidentiary hearing on the petition. A judge's decision as to whether to hold an
evidentiary hearing on a PCR petition alleging ineffective assistance of counsel
is discretionary. State v. Preciose, 129 N.J. 451, 462 (1992); R. 3:22-10(b). No
hearing is required unless defendant has established a prima facie case, that is,
a reasonable likelihood of success under Strickland. Preciose, 129 N.J. at 462-
63. As defendant did not establish a prima facie case for relief, no evidentiary
hearing was required.
Affirmed.
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