STATE OF NEW JERSEY VS. NASHON BROWN (14-07-1749, 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NOT FOR PUBLICATION WITHOUT THE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-0114-18T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
NASHON BROWN,
Defendant-Appellant.
____________________________
Submitted October 8, 2019 – Decided November 1, 2019
Before Judges Currier and Firko.
On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Indictment No. 14-07-1749.
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 (Frank J. Ducoat,
Special Deputy Attorney General/Acting Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Nashon Brown appeals from an order of the Law Division
denying his petition for post-conviction relief (PCR). We affirm.
I.
The following facts are taken from the record. On April 26, 2014,
defendant was the subject of a search by parole officers who found more than
fourteen grams of heroin hidden in a shoe box. Defendant admitted during his
plea allocution that it was his intent to sell, share, or give the heroin to others.
On July 10, 2014, defendant was indicted for third-degree possession of a
controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a) (count one); first-
degree possession of a CDS with intent to distribute, N.J.S.A. 2C:35-5(a)(1)
(count two); and third-degree possession of a CDS with intent to distribute
within 1000 feet of a school, N.J.S.A. 2C:35-7(a) (count three).
On September 25, 2015, defendant pled guilty pursuant to a negotiated
plea agreement to count two, as amended to second-degree possession of a CDS,
with intent to distribute, N.J.S.A. 2C:35-5(a)(1).
Pursuant to the plea agreement, the State agreed to dismiss counts one and
three of the indictment, and recommended a sentence of a five-year term of
imprisonment with no parole ineligibility term. On March 28, 2016, the court
sentenced defendant to a five-year sentence, to run concurrent with a separate
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parole violation under a different Essex County Indictment, No. 09-05-1460,
without a period of parole ineligibility.
On June 9, 2016, defendant filed an appeal of his sentence, arguing he was
illegally deprived of jail credit. Defendant's sentence was affirmed. We found
no deprivation of jail credit. State v. Brown, No. A-4243-15 (App. Div. Nov.
15, 2016).
On November 29, 2016, defendant filed a pro se petition for PCR, and on
April 21, 2017, he filed a notice of motion for jail time credit alleging his trial
counsel was ineffective for leading defendant to believe he would receive
twenty-three months of jail credit. Defendant filed another pro se petition for
PCR on August 14, 2017 seeking the same relief.
On August 25, 2017, the trial court denied defendant's motion for jail
credit because of his parole violation. Thereafter, on September 26, 2017, the
PCR court appointed counsel, who submitted a brief in support of defendant's
PCR petition. Defendant alleged that his plea counsel was ineffective for: (1)
failing to meet with him and provide discovery prior to the plea bargain; (2)
threatening defendant with an extended sentence if he did not accept the plea
offer; and (3) misleading him as to the amount of jail credit he would receive.
The PCR court heard argument and issued a written opinion denying the petition
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without an evidentiary hearing on June 19, 2018. In her opinion, the PCR court
found defendant's ineffective assistance of counsel claims failed because
defendant presented no evidence supporting his allegations, only bald assertions.
Specifically, the PCR court found notwithstanding defendant's criminal record,
he was given the lowest possible sentence for a second-degree crime, therefore,
no prejudice was shown. This appeal followed.
II.
On appeal, defendant raises, through counsel, the following issues:
POINT I
THE DEFENDANT'S PCR PETITION WAS NOT
PROCEDURALLY BARRED.
POINT II
THE POST-CONVICTION RELIEF COURT ERRED
IN DENYING THE DEFENDANT'S PETITION FOR
POST-CONVICTION RELIEF 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 TO PROVIDE DEFENDANT WITH
FULL DISCOVERY AND TO KEEP HIM
FULLY INFORMED OF THE STATUS OF THE
CASE.
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C. FAILURE OF PLEA COUNSEL TO
CORRECTLY ADVISE DEFENDANT AS TO
JAIL CREDITS.
D. FAILURE OF PCR COURT TO CONDUCT AN
EVIDENTIARY HEARING.
In his pro se brief, defendant raised these additional issues:
POINT ONE
JAIL TIME SHOULD BE AWARDED IN
ACCORDANCE WITH THE PLEA AGREEMENT
AND PURSUANT TO THE FOURTH
AMENDMENT.
POINT TWO
COUNSEL AND THE COURT [WERE]
INEFFECTIVE, IN VIOLATION OF THE
DEFENDANT'S SIXTH AND FOURTEENTH
AMENDMENT[] [RIGHTS].
The Sixth Amendment to the United States Constitution and Article I,
paragraph 10 of the New Jersey Constitution guarantee that a defendant in a
criminal proceeding has the right to the assistance of counsel in his defense. The
right to counsel includes "the right to the effective assistance of counsel." State
v. Nash, 212 N.J. 518, 541 (2013) (quoting Strickland v. Washington, 466 U.S.
668, 686 (1984)).
In Strickland, the Court established a two-prong test, later adopted by our
Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987), to determine whether a
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defendant has been deprived of the effective assistance of counsel. Strickland,
466 U.S. at 687; Fritz, 105 N.J. at 58.
Under the first prong of the Strickland/Fritz standard, a petitioner "must
show that counsel's performance was deficient." Strickland, 466 U.S. at 687. It
must be demonstrated that counsel's representation "fell below an objective
standard of reasonableness," and that "counsel made errors so serious that
counsel was not functioning as the 'counsel' guaranteed the defendant by the
Sixth Amendment." Id. at 687-88.
Under the second prong of the Strickland/Fritz standard, a defendant
"must show that the deficient performance prejudiced the defense." Id. at 687.
There must be a "reasonable probability that, but for counsel's unprofession al
errors, the result of the proceeding would have been different." Id. at 694.
Defendant must demonstrate 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 petitioner must establish both prongs of the Strickland/Fritz standard in
order to obtain a successful reversal of the challenged conviction. Id. at 697;
Fritz, 105 N.J. at 52. A failure to satisfy either prong of the Strickland/Fritz
standard requires the denial of a petition for PCR. Strickland, 466 U.S. at 700;
State v. Parker, 212 N.J. 269, 280 (2012).
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A PCR court should grant an evidentiary hearing "to resolve ineffective-
assistance-of-counsel claims" if a defendant has demonstrated a "reasonable
likelihood" of succeeding under the Strickland/Fritz standard. State v. Preciose,
129 N.J. 451, 462-63 (1992). In deciding whether to grant an evidentiary
hearing, the court must view the facts presented in support of the PCR petition
"in the light most favorable to [the] defendant." Ibid.
A defendant may assert a claim of ineffective assistance of counsel "when
counsel fails to conduct an adequate pre-trial investigation." State v. Porter, 216
N.J. 343, 352 (2013). This claim is based on the trial counsel's "dut y to make
reasonable investigations or to make a reasonable decision that makes particular
investigations unnecessary." State v. Chew, 179 N.J. 186, 217 (2004) (quoting
Strickland, 466 U.S. at 691).
A PCR petition that alleges trial counsel was deficient due to counsel's
failure to adequately investigate must include "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." State
v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999). When presented with
such supporting documents, the appellate court "consider[s] petitioner's
contentions indulgently and view[s] the facts asserted by him in the light most
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favorable to him." Porter, 216 N.J. at 353 (alterations in original) (quoting
Cummings, 321 N.J. Super. at 170).
Viewing the facts asserted by a defendant in the light most favorable to
him or her does not mean that the court should treat bare assertions included in
the PCR petition as sufficient proof for a prima facie case of ineffectiveness.
Cummings, 321 N.J. Super. at 170-71. Without evidence as to what testimony
or evidence would have been discovered had trial counsel investigated further,
a defendant's allegations do not create a prima facie showing of ineffective
assistance of counsel. Id. at 171.
Based upon our review of the record, we are convinced the PCR court
correctly concluded that defendant failed to establish the first prong of the
Strickland standard. Beyond the conclusory assertion that his plea counsel was
ineffective, defendant's petition and submissions are devoid of any facts
supported by affidavit or certification demonstrating his counsel's performance
was deficient. The Court Rules require "that factual assertions in a petition for
post-conviction relief be made by affidavit or certification in order to secure an
evidentiary hearing." State v. Jones, 219 N.J. 298, 312 (2014) (citing R. 3:22-
10(c)). As the PCR court correctly noted, defendant did not "voice any concerns
about the manner in which his attorney met with him" and defendant failed to
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provide any evidence supporting his claim that plea counsel failed to meet with
him in a sufficient matter.
As to discovery, the PCR court found "[d]efendant does not state what, if
any, discovery plea counsel failed to provide." Likewise, the PCR court
concluded with respect to defendant's claim that he was pressured to accept the
plea by being threatened with an extended sentence, defendant presented "no
support or evidence from the record" and he simply made a "bald assertion."
Moreover, even assuming that plea counsel was deficient, defendant did
not present any cognizable evidence establishing that there is a "reasonable
probability that, but for" his counsel's alleged failure and actions the result of
his outcome would have been different. Strickland, 466 U.S. at 694. The record
supports the PCR court's finding that defendant made no showing that there was
any discovery plea counsel failed to provide, or that any threat or force was
made that would have affected the outcome here.
Defendant additionally argues that his plea counsel told him he would
receive twenty-three months of jail credit or at a minimum, twelve months of
jail credit and based upon this representation, defendant entered his guilty plea.
Ultimately, he received 132 days of jail credit. The record does not support
defendant's contentions.
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At the plea hearing, defendant was asked by the court if he was currently
serving a parole violation and he responded "yes." At the originally scheduled
sentencing date on November 17, 2015, the court informed defendant that he
would not receive the jail credit he was seeking due to his parole violation. After
defendant began "balking" about not receiving jail credit, his plea counsel spoke
to him and explained the court's reasoning.
At the sentencing hearing held on March 28, 2016, defense counsel again
argued that defendant was entitled to twenty-three months of jail credit based on
his time in jail from the date of his arrest. Alternatively, defense counsel argued
that defendant was entitled to twelve months of jail credit, from the time of his
arrest and his re-sentencing on the parole violation. The sentencing court, who
was also the plea court and PCR court, stated:
I do note, as I said before, that there is . . . no jail credit,
because this a parole violation, but what I will ask them
[Parole], because the original date of sentencing was
November 17th, I will ask now - - that is up to Parole
whether they will give it you or not, but I will ask that
and put on the [judgment of conviction] to ask that you
will be given jail credit from 11/17 until yesterday's
date, 3/27/16, because that was the day you will have
started earning jail credit before you got into a whole
question of why you didn't get jail credit.
I think it was explained I think you had a right of
understanding but I'm going to give the jail credit from
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that . . . period, so you do not lose anything, as if it was
the date that you were originally sentenced.
We discern no error. In State v. Black, our Supreme Court held "when a
parolee is taken into custody on a parole warrant, the confinement is attributable
to the original offense on which the parole was granted and not to any offense
or offenses committed during the parolee's release." 153 N.J. 438, 461 (1998).
There is no evidence in this record that defense counsel provided any erroneous
advice to defendant on the subject of jail credit. Moreover, on his direct appeal
we found there was no deprivation of any jail credit to defendant. We are
unpersuaded by defendant's argument that a change in assistant prosecutors on
the case before his sentencing somehow negatively impacted his sentence.
Defendant further argues that the PCR court erred by finding his petition
was procedurally barred under Rule 3:22-5. His argument is devoid of merit.
The PCR court correctly determined that defendant was aware of the jail credit
issue and could have asserted it during the plea bargain, at sentencing, or in a
motion to withdraw his plea, but he chose not to. Moreover, this court and the
trial court denied defendant's request for jail credit based upon controlling law.
The PCR court correctly barred defendant's jail credit claim under Rule 3:22-5.
We are therefore satisfied the PCR court correctly concluded that defendant did
not satisfy the second prong of the Strickland standard.
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III.
We also reject defendant's claim that the court should have conducted an
evidentiary hearing. A hearing is required when a defendant presents a prima
facie case for PCR under the Strickland standard, the existing record is
inadequate to resolve defendant's claim, and the court determines an evidentiary
hearing is required. Porter, 216 N.J. at 354 (citing R. 3:22-10(b)). A failure to
satisfy either prong of the Strickland standard requires the denial of a petition
for PCR. Strickland, 466 U.S. at 700. Here, the existing record provided an
adequate basis for the court's finding that defendant did not establish a prima
facie case of ineffective assistance of counsel under the Strickland standard, and
therefore an evidentiary hearing was not required. Furthermore, in his plea
colloquy, defendant testified that he was satisfied with his counsel's
representation.
We have considered the contentions which defendant raised in his pro se
petition and find that they are without sufficient merit to warrant discus sion. R.
2:11-3(e)(2).
Affirmed.
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