STATE OF NEW JERSEY VS. ROBERT S. MYLES (17-01-0062, CAPE MAY 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NOT FOR PUBLICATION WITHOUT THE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-2433-19
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ROBERT S. MYLES,
a/k/a SCOTT MYLES,
Defendant-Appellant.
_______________________
Submitted May 5, 2021 – Decided June 10, 2021
Before Judges Ostrer and Enright.
On appeal from the Superior Court of New Jersey, Law
Division, Cape May County, Indictment No. 17-01-
0062.
Joseph E. Krakora, Public Defender, attorney for
appellant (Craig S. Leeds, Designated Counsel, on the
brief).
Jeffrey H. Sutherland, Cape May County Prosecutor,
attorney for respondent (Gretchen A. Pickering, Senior
Assistant Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Robert S. Myles appeals from the February 4, 2020 order
denying his petition for post-conviction relief (PCR) without an evidentiary
hearing. We affirm, substantially for the reasons set forth in Judge Michael J.
Donohue's comprehensive written opinion dated October 17, 2019.
Judge Donohue's opinion recounts the relevant facts, which need not be
repeated at length here. Briefly, in August 2017, defendant pled guilty to
second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1), pursuant to a plea
agreement. In exchange for his guilty plea, the State agreed to recommend that
defendant be sentenced in the third-degree range and serve a four-year prison
term, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. In
September 2017, Judge Donohue sentenced defendant in accordance with the
plea agreement. Defendant subsequently filed and voluntarily withdrew a notice
of appeal.
On November 26, 2018, defendant filed a timely PCR petition; his
designated counsel filed a supplemental brief several months later. Defendant's
petition alleged plea counsel was ineffective because he: (1) did not allow
defendant sufficient time to assess his circumstances before pleading guilty; (2)
failed to interview certain witnesses whose names defendant provided to plea
counsel; (3) did not file a motion to suppress incriminating statements defendant
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made to the police; and (4) neglected to argue in favor of certain mitigating
factors at sentencing. On October 15, 2019, Judge Donohue conducted oral
argument to address these contentions. Two days later, the judge issued a letter
opinion denying defendant PCR relief without an evidentiary hearing; he entered
a conforming order on February 4, 2020.
On appeal, defendant renews the arguments he raised before Judge
Donohue, as follows:
POINT I
[DEFENDANT] WAS DENIED THE EFFECTIVE
ASSISTANCE OF TRIAL COUNSEL IN
VIOLATION OF THE UNITED STATES AND NEW
JERSEY CONSITUTIONS AND THE LOWER
COURT ERRED IN CONCLUDING OTHERWISE.
A. TRIAL COUNSEL WAS INEFFECTIVE FOR
FAILING TO EFFECTIVELY
COMMUNICATE WITH [DEFENDANT.]
B. TRIAL COUNSEL WAS INEFFECTIVE IN
FAILING TO CONDUCT PRE-TRIAL
INVESTIGATION.
C. TRIAL COUNSEL WAS INEFFECTIVE IN
FAILING TO FILE A MOTION TO SUPPRESS
[DEFENDANT'S] STATEMENT PURSUANT
TO MIRANDA V. ARIZONA, 384 U.S. 436(1966).
D. TRIAL COUNSEL'S REPRESENTATION
AT SENTENCING WAS INEFFECTIVE
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RESULTING IN AN IMPROPER, EXCESSIVE
AND/OR OTHERWISE
UNCONSTITUTIONAL SENTENCE.
E. THE CUMULATIVE EFFECT OF THE
ERRORS COMPLAINED OF RENDERED THE
PROCEEDINGS UNFAIR.
POINT II
THE LOWER COURT ERRED IN DENYING
[DEFENDANT'S] PETITION FOR [PCR] WITHOUT
AFFORDING HIM AN EVIDENTIARY HEARING.
Both the Sixth Amendment of the United States Constitution and Article
I, ¶ 10 of the New Jersey State Constitution guarantee the right to effective
assistance of counsel at all stages of criminal proceedings. Strickland v.
Washington, 466 U.S. 668, 686 (1984) (citing McMann v. Richardson, 397 U.S.
759, 771 n.14 (1970)); State v. Fritz, 105 N.J. 42, 58 (1987). To establish a
violation of the right to the effective assistance of counsel, a defendant must
satisfy the two-prong test outlined in Strickland. Fritz, 105 N.J. at 58. "First,
the defendant must show that counsel's performance was deficient. . . . Second,
the defendant must show that the deficient performance prejudiced the
defense." Strickland, 466 U.S. at 687. Accordingly, a defendant must show
"that counsel made errors so serious that counsel was not functioning as the
'counsel' guaranteed the defendant by the Sixth Amendment" and "that counsel's
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errors were so serious as to deprive the defendant of a fair trial, a trial whose
result is reliable." Ibid. Reviewing courts indulge in a "strong presumption that
counsel's conduct falls within the wide range of reasonable professional
assistance." Id. at 689. Thus, a defendant must show there was a "reasonable
probability" that the outcome of the proceedings would have been different than
if counsel had not made the errors. Id. at 694.
This assessment is necessarily fact-specific to the context in which the
alleged errors occurred. For example, when, as in this case, a defendant seeks
"[t]o set aside a guilty plea based on ineffective assistance of counsel, a
defendant must show . . . '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) (first alteration in original) (quoting State v. DiFrisco, 137 N.J. 434, 457
(1994) (second alteration in original)). Defendant must also show doing so
"would have been rational under the circumstances." Padilla v. Kentucky, 559
U.S. 356, 372 (2010).
Additionally, a defendant seeking an evidentiary hearing must prove a
hearing is warranted to develop the factual record in connection with an
ineffective assistance claim. State v. Preciose, 129 N.J. 451, 462-63 (1992).
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The PCR court should grant an evidentiary hearing when (1) a defendant is able
to prove a prima facie case of ineffective assistance of counsel, (2) there are
material issues of disputed fact that must be resolved with evidence outside of
the record, and (3) the hearing is necessary to resolve the claims for relief. Id. at
462; R. 3:22-10(b). "[C]ourts should view the facts in the light most favorable
to a defendant to determine whether a defendant has established a prima facie
claim." Id. at 462-63.
To meet the burden of proving a prima facie case, a defendant must show
a reasonable likelihood of success under the Strickland test. Preciose, 129 N.J.
at 463. "[I]n order to establish a prima facie claim, a petitioner must do more
than make bald assertions that [he or she] was denied the effective assistance of
counsel." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999). The
petitioner must allege specific facts sufficient to support a prima facie
claim. Ibid. Furthermore, the petitioner must present these facts in the form of
admissible evidence. In other words, the relevant facts must be shown through
"affidavits or certifications based upon the personal knowledge of the affiant or
the person making the certification." Ibid.6 A-2433-19
Applying these foundational principles, we agree with Judge Donohue
that defendant did not establish he received ineffective assistance of counsel or
that he was entitled to an evidentiary hearing.
Regarding defendant's claim plea counsel did not effectively communicate
with him, Judge Donohue found this assertion was belied by the record. The
judge observed "submissions of PCR counsel and the pro se submissions of
defendant [were] somewhat contradictory," but defendant outlined "multiple
instances of discussions [he had] with his attorney covering the full gamut of
issues of his case." Such discussions included defendant asking plea counsel to
"go back to the prosecut[o]r and ask her to offer [defendant] a 4 flat or 5 flat and
[he'd] plead guilty." Defendant's PCR submission also reflects his attorney
advised him the prosecutor rejected a request for a lesser sentence, so plea
counsel asked for and received an adjournment of two to three weeks to permit
defendant "some time to think about accepting" the State's offer. Subsequently,
defendant testified at his plea hearing that he "was satisfied with the plea
agreement and that he was satisfied with his attorney's representation and
handling" of the case. He also confirmed the NERA sentence that he negotiated
through counsel was "the sentence [he] want[ed] the court to impose."
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Judge Donohue next determined from defendant's submissions that he and
plea counsel discussed, "more than once, the list of so-called witnesses that
defendant believed should be interviewed," "that defense counsel made some
effort to reach out to some of these people," and "never got through to them or
they never got back to him." The judge concluded defendant offered
essentially no representation as to what information
these people possessed that would have assisted his
defense. Defendant offers no certification or other
competent evidence to establish that information from
these people, or any of them, would have undermined
the State's proofs or reasonably impacted defendant's
thought process to the point where he would have
rejected the plea offer.
The record supports Judge Donohue's findings in this regard.
We also agree with Judge Donohue that defendant unpersuasively argued
trial counsel was ineffective for failing to file a suppression motion. When a
claim of ineffective assistance of counsel is based on the failure to file a
suppression motion, "defendant not only must satisfy both parts of the Strickland
test but also must prove that his Fourth Amendment claim is meritorious." State
v. Fisher, 156 N.J. 494, 501 (1998) (citing Kimmelman v. Morrison, 477 U.S.
365, 375 (1986)). See also State v. Roper, 378 N.J. Super. 236 (App. Div. 2005).
Here, as Judge Donohue properly found, defendant offered "only bald
allegations that such a motion would have been viable," but did not "establish
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the likelihood that such a motion would have been successful if brought prior to
his plea," particularly since the State was "in possession of substantial
evidence," including the available "testimony of the victim of defendant's
second-degree aggravated assault."
Given our review of the record in this matter, we further conclude Judge
Donohue correctly dispensed with defendant's argument that plea counsel was
ineffective for not arguing in favor of mitigating factors three, N.J.S.A. 2C:44-
1(b)(3), and four, N.J.S.A. 2C:44-1(b)(4). The judge found defendant was "not
provoked by nor did he have an excuse to assault" his victim, so "[i]t would be
unreasonable to conclude that plea counsel should have argued for these factors
in mitigation since there was no reasonable, good faith argument to be made for
their application." We perceive no basis to second-guess these findings, noting
an attorney's performance cannot be deemed deficient for failing to raise a
frivolous argument. See State v. O'Neal, 190 N.J. 601, 618-19 (2007).
Defendant also argues for the first time on appeal that plea counsel should
have argued in favor of mitigating factor twelve, N.J.S.A. 2C:44-1(b)(12).
Ordinarily, "an appellate court will not consider issues, even constitutional ones,
which were not raised below." State v. Galicia, 210 N.J. 364, 383 (2012). For
the sake of completeness, however, we determine that it was not ineffective for
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plea counsel to refrain from arguing for this mitigating factor. The fact
defendant voluntarily went to the police and confessed he assaulted his victim,
after his victim reported this criminal behavior, does not constitute the type of
cooperation envisioned under mitigating factor twelve. See State v. Read, 397
N.J. Super. 598, 613 (App. Div. 2008).
We also note Judge Donohue, who took defendant's plea and sentenced
him, specifically found that when he sentenced defendant, he considered factors
in mitigation, including that defendant took "responsibility for committing a
second-degree assault." Additionally, the judge concluded the plea "agreement
itself in some measure defines the mitigating effect of the plea on the court's
discretionary decision whether to downgrade the sentence," citing State v.
Balfour, 135 N.J. 30, 39 (1994). It also is worthy of mention that defendant's
negotiated plea agreement contemplated the dismissal of three other pending
charges, including second-degree sexual assault, N.J.S.A. 2C:14-2(c)(1), and
allowed defendant to be sentenced in the third-degree range on the aggravated
assault charge. Under these circumstances, defendant has not established there
was a reasonable probability that but for plea counsel's purported errors, he
would not have pled guilty or that going to trial "would have been rational under
the circumstances." Padilla, 559 U.S. at 372.
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Moreover, we agree with Judge Donohue that defendant received "the
sentence that he bargained for," that his sentence was "not illegal," and his
excessive sentencing claim was "not an appropriate issue for determination on a
petition for PCR." Any such claim of excessiveness should have been raised on
direct appeal. Pressler & Verniero, Current N.J. Court Rules, cmt. 3.3. on R.
2:10-3 (2021). See also State v. Clark, 65 N.J. 426, 437-38 (1974).
Finally, we disagree with defendant's contention Judge Donohue erred in
not conducting an evidentiary hearing. The denial of an evidentiary hearing for
a PCR petition is reviewed for an abuse of discretion. State v. Brewster, 429
N.J. Super. 387, 401 (App. Div. 2013) (citing State v. Marshall, 148 N.J. 89,
157-58 (1997)). Here, the existing record provides more than sufficient
evidence that defendant did not establish a prima facie case
of ineffective assistance of counsel and, therefore, no evidentiary hearing was
required.
To the extent we have not specifically addressed defendant's remaining
arguments, we are convinced they lack sufficient merit to warrant discussion in
a written opinion. R. 2:11-3(e)(2).
Affirmed.
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