STATE OF NEW JERSEY VS. BRYON O. WRIGHTÂ (11-01-0022, ESSEX 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NOT FOR PUBLICATION WITHOUT THE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-3202-15T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
BRYON O. WRIGHT, a/k/a OMAR
WRIGHT, ROGER WRIGHT,
Defendant-Appellant.
___________________________________
Submitted September 11, 2017 – Decided November 2, 2017
Before Judges Messano and Vernoia.
On appeal from the Superior Court of New
Jersey, Law Division, Essex County, Indictment
No. 11-01-0022.
Joseph E. Krakora, Public Defender, attorney
for appellant (Lee March Grayson, Designated
Counsel, on the brief).
Robert D. Laurino, Acting Essex County
Prosecutor, attorney for respondent (Tiffany
M. Russo, Special Deputy Attorney General/
Acting Assistant Prosecutor, of counsel and
on the brief).
PER CURIAM
Following a jury trial, defendant Bryon O. Wright was
convicted of various drug offenses, eluding, and resisting arrest.
The judge sentenced him to an aggregate sixteen-year term of
imprisonment. We affirmed defendant's conviction and sentence on
direct appeal, preserving for post-conviction relief (PCR) his
claim that trial counsel provided ineffective assistance (IAC).
State v. Wright, No. A-6036-11 (App. Div. Jan. 16, 2014) (slip op.
at 31). The Supreme Court denied defendant's petition for
certification. 218 N.J. 531 (2014).
In a timely-filed PCR petition, defendant alleged, among
other things, counsel failed to call certain witnesses at trial
despite indicating she would. After the court appointed PCR
counsel, defendant filed an amended petition in which he alleged
neither trial counsel nor appellate counsel discussed severing
certain counts in the indictment, charging conduct alleged to have
occurred in December 2009, from other counts that alleged conduct
occurring in February 2010. Defendant also stated counsel provided
ineffective assistance regarding the denial of defendant's pre-
trial motion to suppress evidence.
The PCR judge, who was also the trial judge but not the motion
judge, considered oral argument. In a comprehensive written
decision, the judge addressed these and defendant's other claims.
He entered an order denying PCR relief and this appeal followed.
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Before us, defendant limits his claims of error to the
following:
POINT I
TRIAL COUNSEL WAS INEFFECTIVE BY NOT MOVING
TO SEVER THE DECEMBER 16, 2009 OFFENSES FROM
THE FEBRUARY 8, 2010 OFFENSES FOR SEPARATE
TRIALS.
POINT II
BECAUSE THE LAWFULNESS OF THE MOTOR VEHICLE
STOP WAS NOT ADJUDICATED BY EITHER THE TRIAL
COURT OR THE APPELLATE DIVISION IN THE DIRECT
APPEAL, THE PCR COURT ERRED BY FINDING
DEFENDANT'S CLAIM THAT THE KNIFE SEIZED AFTER
HIS CAR WAS STOPPED ON FEBRUARY 8, 2010 SHOULD
HAVE BEEN SUPPRESSED WAS PROCEDURALLY BARRED.
POINT III
TRIAL COUNSEL WAS INEFFECTIVE BY FAILING TO
PURSUE THE SUPPRESSION MOTION AS IT PERTAINED
TO THE ISSUE THAT THE MOTOR VEHICLE STOP ON
FEBRUARY 8, 2010 WAS A PRE-TEXT TO SEARCH THE
DEFENDANT'S CAR AND TO ARREST HIM FOR THE
ALLEGED EVENTS ON DECEMBER 16, 2009.
POINT IV
THIS CASE SHOULD BE REMANDED FOR AN
EVIDENTIARY HEARING BECAUSE APPELLATE COUNSEL
WAS INEFFECTIVE BY NOT RAISING THE SEVERANCE
ISSUE AND SUPPRESSION ISSUE, AS IT PERTAINED
TO THE PRE-TEXTUAL STOP OF THE CAR, IN THE
DIRECT APPEAL.
POINT V
BECAUSE TRIAL COUNSEL FAILED TO CALL KEY
DEFENSE WITNESSES TO TESTIFY DURING THE TRIAL,
THE DEFENDANT'S CASE SHOULD BE REMANDED TO THE
PCR COURT FOR AN EVIDENTIARY HEARING.
3 A-3202-15T3
POINT VI
THE PCR COURT ERRED BY NOT GRANTING AN
EVIDENTIARY HEARING.
We have considered these arguments in light of the record and
applicable legal standards. We affirm.
To establish an IAC claim, a defendant must satisfy the two-
prong test formulated in Strickland v. Washington, 466 U.S. 668,
687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), and
adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58
(1987). First, he must show "that counsel made errors so serious
that counsel was not functioning as the 'counsel' guaranteed . . .
by the Sixth Amendment." Id. at 52 (quoting Strickland, supra,
466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). "To
satisfy prong one, [a defendant] ha[s] to overcome a strong
presumption that counsel exercised reasonable professional
judgment and sound trial strategy in fulfilling his
responsibilities." State v. Nash, 212 N.J. 518, 542 (2013)
(citations omitted).
Second, a defendant must prove that he suffered prejudice due
to counsel's deficient performance. Strickland, supra, 466 U.S.
at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. A defendant must
show by a "reasonable probability" that the deficient performance
affected the outcome. Fritz, supra, 105 N.J. at 58. "A reasonable
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probability is a probability sufficient to undermine confidence
in the outcome." State v. Pierre, 223 N.J. 560, 583 (2015)
(quoting Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068,
80 L. Ed. 2d at 698; Fritz, supra, 105 N.J. at 52). "If [a]
defendant establishes one prong of the Strickland-Fritz standard,
but not the other, his claim will be unsuccessful." State v.
Parker, 212 N.J. 269, 280 (2012). We apply the same standard to
defendant's claims of ineffective assistance by appellate counsel.
State v. Gaither, 396 N.J. Super. 508, 513 (App. Div. 2007) certif.
denied, 194 N.J. 444 (2008) (citing State v. Morrison, 215 N.J.
Super. 540, 546 (App. Div.), certif. denied, 107 N.J. 642 (1987)).
Before an evidentiary hearing is required, a defendant must
establish a "prima facie case," that is, "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."
R. 3:22-10(b). "[W]e review under the abuse of discretion standard
the PCR court's determination to proceed without an evidentiary
hearing." State v. Brewster, 429 N.J. Super. 387, 401 (App. Div.
2013) (citing State v. Marshall, 148 N.J. 89, 157-58, cert. denied,
522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997)).
We refer to our prior opinion to properly consider the
arguments made in Points I through IV. In December 2009, police
observed defendant exit his car carrying a cigarette box as he
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entered and shortly exited a vehicle owned by Joseph Plum that was
parked outside a tavern. Wright, supra, slip op. at 3. Plum had
arranged for the purchase of cocaine by calling a man he only knew
as "Scoop." Id. at 3-4. After Plum exited the tavern, he went
to his car and retrieved a cigarette box; police detained him and
found cocaine in the cigarette box. Id. at 4. Plum was arrested
and gave police a complete statement.1 Ibid. Further
investigation led to defendant's identification as Scoop; phone
records verified text messages exchanged between Plum and
defendant. Id. at 4 n.1, 6-7.
In February 2010, the same police detective, Michael Watts,
observed defendant driving the same car he used during the December
transaction. Id. at 4-5. Police attempted to conduct a motor
vehicle stop, but defendant fled before stopping the car in the
parking lot of a diner. Id. at 5. Police surrounded the vehicle,
but defendant refused their commands to exit. Id. at 6. Watts
saw a knife on the floor of the car and, given defendant's
continued refusal, broke the car window and, with the aid of the
other officers, forcibly pulled defendant from the vehicle. Ibid.
After obtaining a search warrant, police found forty bags of
cocaine in the false bottom of a can in the car. Ibid.
1
Plum testified for the State at trial.
6 A-3202-15T3
Ultimately, the jury found defendant guilty of drug offenses
related to the December 2009 events, and eluding and resisting
arrest for the February 2010 events, but it acquitted him of the
drug and weapon charges stemming from the knife and cocaine seized
at that time.
In addressing the argument raised in Point I, the PCR judge
correctly observed that the December 2009 events were the basis
for defendant's February 2010 arrest. In other words, evidence
of the December 2009 events would have likely been admitted at a
separate trial regarding the February 2010 offenses, and therefore
any motion to sever, if made, would have been denied. See State
v. Chenique-Puey, 145 N.J. 334, 341 (1996) (holding that
consolidation is appropriate if evidence of the offenses sought
to be severed would have been admissible at trial on the remaining
charges).
We agree. Because "[t]he failure to raise unsuccessful legal
arguments does not constitute ineffective assistance of counsel,"
State v. Worlock, 117 N.J. 596, 625 (1990), the judge correctly
denied PCR relief on this claim.
The motion judge conducted a pre-trial evidentiary hearing
on defendant's motion to suppress the knife and drugs found in his
car in February 2010. We affirmed the judge's denial of that
motion on direct appeal, concluding "Watts had a legitimate reason
7 A-3202-15T3
for approaching defendant's car after [defendant] eluded the
police," and his seizure of the knife was lawful under the plain
view exception to the warrant requirement. Wright, supra, slip
op. at 16-17.
Before the PCR judge, defendant argued neither the motion
judge nor our colleagues ever decided whether Watts had a
legitimate basis to initiate the stop in the first place.
Defendant alleged, without any proof, that Watt's decision to stop
the car was pretextual, and trial counsel provided ineffective
assistance by not presenting a challenge to the search on that
basis.
The PCR judge determined the claim was barred by Rule 3:22-5
because it had been expressly adjudicated on direct appeal.
Moreover, he noted defendant suffered no prejudice because the
jury acquitted him of the knife and drug charges from the February
2010 seizure.
In Points II, III and IV, defendant argues his IAC claim in
this regard was not procedurally barred because whether the stop
was initiated without a reasonable suspicion or probable cause was
never presented and adjudicated, trial counsel failed to pursue
that issue at the hearing, and appellate counsel was ineffective
for not raising the issue on direct appeal. These claims warrant
little discussion. R. 2:11-3(e)(2).
8 A-3202-15T3
Our colleagues specifically addressed the issue by assuming
arguendo some basis for defendant's claim that Watts lacked any
probable cause to stop defendant's car in the first instance. They
said:
Thus, even if his original reason for stopping
defendant did not amount to probable cause,
Watts had the right to make an arrest for the
crime of eluding. State v. Seymour, 289 N.J.
Super. 80, 87 (App. Div. 1996). As the Supreme
Court observed in State v. Crawley:
[A] defendant has no right to commit
the crime of resisting arrest,
eluding, or escape in response to an
unconstitutional stop or detention.
For compelling public safety
reasons, the resisting arrest,
eluding, and escape statutes and
interpretive case law require that
a defendant submit to an illegal
detention and that he take his
challenge to court.
[187 N.J. 440, 455, cert. denied,
549 U.S. 1078, 127 S. Ct. 740, 166
L. Ed. 2d 563 (2006)).]
[Wright, supra, slip op. at 16 (alternations
in original).]
With only bald assertions regarding the officer's bad faith, it
follows that appellate counsel was not deficient for failing to
raise a losing argument regarding the search on direct appeal.
Worlock, supra, 117 N.J. at 625.
Addressing the issue now raised in Point V, the PCR judge
listed the specific witnesses defendant alleged counsel should
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have called at trial. The judge assumed the truth of defendant's
version of these witnesses' testimony.2
He noted any testimony from defendant's father about a
conversation he had with a friend on the police force confirming
there was no knife in the car would have been hearsay. The
testimony of two people who were in the diner in February 2010,
saw defendant dragged out of the car and provided statements to
Internal Affairs, would not have been "material . . . in [the]
defense." The judge noted defense counsel had the relevant
Internal Affairs records in her possession. Finally, the judge
rejected the IAC claim regarding counsel's failure to call Plum's
landlady as a witness. She was the sister of a police sergeant
who gave a "pep talk" to Plum while he was being interrogated by
Watts. The judge correctly noted Plum was cross-examined at trial
about the landlady and the "pep talk."
Without any detailed explanation, defendant baldly asserts
that had counsel called these witnesses at trial, they would have
2
These witnesses were named in the PCR petition, although there
were no certifications or affidavits from them. See State v.
Porter, 216 N.J. 343, 355 (2013) (stating a defendant must produce
"specific facts and evidence supporting his allegations"); State
v. Cummings, 321 N.J. Super. 154, 170 (App. Div.) ("[W]hen a
petitioner claims his trial attorney inadequately investigated his
case, he must assert the facts that an investigation would have
revealed, supported by affidavits or certifications based upon the
personal knowledge of the affiant or the person making the
certification."), certif. denied, 162 N.J. 199 (1999).
10 A-3202-15T3
proven his claim that police planted the knife and drugs found in
his car. This argument lacks sufficient merit to warrant further
discussion. R. 2:11-3(e)(2).
For all these reasons, defendant failed to establish a prima
facie case for PCR relief, and the judge did not mistakenly
exercise his discretion to deny an evidentiary hearing.
Affirmed.
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