STATE OF NEW JERSEY VS. HOPETON B. BROWN, JR. (10-11-1702, MIDDLESEX 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NOT FOR PUBLICATION WITHOUT THE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-3411-18T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
HOPETON B. BROWN, JR.,
a/k/a HOPETON B. BROWN
and HOPETON BROWN,
Defendant-Appellant.
_________________________
Submitted October 15, 2020 – Decided November 17, 2020
Before Judges Ostrer and Accurso.
On appeal from the Superior Court of New Jersey, Law
Division, Middlesex County, Indictment No. 10-11-
1702.
Joseph E. Krakora, Public Defender, attorney for
appellant (Karen Ann Lodeserto, Designated Counsel,
on the brief).
Yolanda Ciccone, Middlesex County Prosecutor,
attorney for respondent (Joie D. Piterit, Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Hopeton B. Brown, Jr. appeals from the trial court's order denying,
without an evidentiary hearing, his petition for post-conviction relief (PCR).
Brown collaterally challenges his conviction of second-degree conspiracy to
commit robbery, N.J.S.A. 2C:5–2, N.J.S.A. 2C:15–1(a), and fourth-degree
criminal trespass, N.J.S.A. 2C:18–3, which was charged as a lesser-included
offense of attempted armed robbery. We affirmed those convictions on direct
appeal. See State v. Brown, No. A-2466-13 (App. Div. Aug. 1, 2017).
Brown contends that both his trial and appellate counsel were ineffective.
He argues:
POINT I
THE PCR COURT ERRED IN DENYING
DEFENDANT AN EVIDENTIARY HEARING AS
TESTIMONY IS NEEDED REGARDING TRIAL
COUNSEL'S FAILURE TO REQUEST A
RENUNCIATION CHARGE FOR THE
CONSPIRACY TO COMMIT ARMED ROBBERY
CHARGE.
POINT II
THE PCR COURT ERRED IN DENYING
DEFENDANT AN EVIDENTIARY HEARING AS
TESTIMONY IS NEEDED REGARDING
APPELLATE COUNSEL'S FAILURE TO ARGUE
MR. BROWN'S CONVICTION FOR CRIMINAL
TRESPASS SHOULD HAVE BEEN VACATED.
A-3411-18T1
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We affirm the trial court's order rejecting the claim of ineffectiveness of
trial counsel, and reverse and remand as to the claim regarding appellate
counsel.
To prevail on a claim of ineffective assistance of counsel, a defendant (1)
must prove his counsel's performance fell below the standard established in the
Sixth Amendment of the United States Constitution, and (2) "must show that
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, 694 (1984); see also State v. Fritz, 105 N.J. 42 (1987).
Because the PCR court did not hold an evidentiary hearing, we review de novo
both the PCR court's factual inferences and its legal conclusions. State v. Harris,
181 N.J. 391, 420–21 (2004).
I.
Brown contends that his trial counsel was ineffective by failing to ask the
court to include a renunciation charge within the conspiracy-to-commit-robbery
charge. We are unpersuaded. "The failure to raise unsuccessful legal arguments
does not constitute ineffective assistance of counsel." State v. Worlock, 117
N.J. 596, 625 (1990). The trial court would have correctly rejected the request
if made. Therefore, counsel's failure to make the request was not ineffective.
A-3411-18T1
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As we discussed in our prior opinion, Brown and his two cohorts, Lamar
Jones and Keree Wade, intended to rob a drug-dealer while the dealer was at
home. So testified Wade, who was convicted in a prior trial and decided to
cooperate with the State. At Brown's and Jones's joint trial, Wade testified that
they all got cold feet when they observed children in the proposed victim's home.
Meanwhile, a neighbor had reported to police that he saw three men acting
suspiciously. While the men were reconsidering their plan outside the proposed
victim's house, police arrived. Brown, slip op. at 2–3.
The trial judge delivered a renunciation charge regarding the attempt -to-
commit-robbery count, as trial counsel requested. But trial counsel did not
request, and the trial court did not deliver, a renunciation charge regarding the
conspiracy count.
At the charge conference, Jones's trial counsel acknowledged that
renunciation of attempt, see N.J.S.A. 2C:5–1(d), differs significantly from
renunciation of conspiracy, see N.J.S.A. 2C:5–2(e), and that the evidence
supported a jury instruction on the former, but not the latter. Brown's counsel
agreed with Jones's counsel that the court should not instruct the jury on
renunciation of conspiracy.
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To renounce the criminal purpose element of a criminal attempt, a
defendant "must prove by a preponderance of the evidence that he abandoned
his effort to commit the crime or otherwise prevented its commission, under
circumstances manifesting a complete and voluntary renunciation of his
criminal purpose." N.J.S.A. 2C:5–1(d). A defendant's renunciation is not
voluntary if he abandons his attempt because of a newly-increased chance of
detection or apprehension. Ibid.
Here, the jury could reasonably conclude that Brown and his cohorts
decided not to rob the home, and that they did so out of concern for the welfare
of the children inside the home and not out of increased fear that they would get
caught.
By contrast, to renounce the criminal purpose element of a conspiracy, a
defendant need do more than drop out of the plan. He must inform authorities
and thwart the plan. To establish the affirmative defense under the statute, a
defendant "must prove by a preponderance of the evidence that he, after
conspiring to commit a crime, informed the authority of the existence of the
conspiracy and his participation therein, and thwarted or caused to be thwarted
the commission of any offense in furtherance of the conspiracy." N.J.S.A. 2C:5–
2(e). The defendant must prove that he informed authorities and thwarted the
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conspiracy in addition to establishing "circumstances manifesting a complete
and voluntary renunciation of criminal purpose as defined in" N.J.S.A. 2C:5–
1(d) (regarding renunciation of attempt). N.J.S.A. 2C:5–2(e).
We are unaware of any basis in the record — and Brown points to none
— for the jury to conclude that Brown informed authorities of the plan, let alone
affirmatively acted to thwart the plan.1 Consequently, a request to charge
renunciation of conspiracy would have failed, because a court is not obliged to
issue a jury instruction when there was no "rational basis to do so based on the
evidence." See State v. Daniels, 224 N.J. 168, 181 (2016) (citing State v.
Walker, 203 N.J. 73, 86–87 (2010)). But even if the court would have granted
the request, counsel's failure to make the request did not prejudice Brown; the
jury would have found no evidentiary basis for renunciation. In other words,
there was no reasonable probability that the result would have been different.
Strickland, 466 U.S. at 694.
In sum, the PCR court correctly denied Brown's claim that his trial counsel
was ineffective by failing to request a renunciation charge related to the
conspiracy count.
1
At the charge conference, Jones's trial counsel conceded that "[t]here [was] no
evidence" that Jones informed authorities or thwarted the conspiracy. The judge
agreed. The evidence regarding Brown was no different.
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II.
We reach a different conclusion regarding Brown's claim that appellate
counsel was ineffective for failing to challenge Brown's criminal trespass
conviction.
The court instructed the jury that, if they found Brown or Jones not guilty
of attempting to commit robbery at the proposed victim's address, they should
consider (as a lesser-included offense) whether Brown or Jones committed
criminal trespass at the same place. The jury found both men guilty of criminal
trespass.
We reversed co-defendant Jones's criminal-trespass-of-a-dwelling
conviction because the State presented no evidence that Jones entered the
proposed victim's home. We also held that, because the State presented no
evidence of a warning or sign, there was no basis to find Jones guilty of defiant
trespass, a petty disorderly persons offense, for entering the proposed victim's
yard. Brown, slip op. at 19–22. Brown, however, did not challenge his criminal
trespass conviction, and we did not address it. Now, Brown contends he is
entitled to PCR because his appellate counsel was ineffective in failing to mount
that challenge, as it would have succeeded.
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We agree it would have succeeded, for the same reason it succeeded in
Jones's case: the State presented no evidence that Brown or Jones entered the
intended victim's dwelling. As we discussed in Brown, slip op. at 19–22, an
essential element of fourth-degree criminal trespass of a dwelling under N.J.S.A.
2C:18–3(a) is entering or surreptitiously remaining in a dwelling. True, Wade
testified that he and Brown hid in the hallway of an open house nearby after
police arrived. But, because the indictment charged that Brown entered the
proposed victim's house, proof of entry into another one did not suffice. And
the verdict sheet, too, referenced only the proposed victim's address.2
Nor was it enough that Brown entered the proposed victim's yard. That
fact may have been an element of petty disorderly-persons defiant trespass,
N.J.S.A. 2C:18–3(b), but that offense would require proof of another element —
2
Furthermore, had the State charged Brown with criminal trespass of the house
near the proposed robbery victim's house, Brown conceivably could have
presented evidence that the house was abandoned, N.J.S.A. 2C:18–3(d)(1)
(stating affirmative defense if the structure under N.J.S.A. 2C:18–3(a) was
"abandoned"), or that it was open to the public — for example, the open hallway
of a multi-family dwelling, see N.J.S.A. 2C:18–3(d)(2) (stating affirmative
defense if "structure was at the time open to members of the public and the actor
complied with all lawful conditions imposed on access to or remaining in the
structure").
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that fencing, a sign, or communication to the actor informed him that he should
keep out. The State offered no such proof.3
A defendant is entitled to "effective assistance of appellate counsel on
direct appeal." State v. O'Neil, 219 N.J. 598, 610 (2014). To prevail on a claim
that appellate counsel was ineffective, a defendant must establish two elements:
that "counsel unreasonably failed to discover nonfrivolous issues," and that "a
reasonable probability" existed "that, but for his counsel's unreasonable failure
. . . he would have prevailed on his appeal." Smith v. Robbins, 528 U.S. 259,
285 (2000). We recognize that an appellate counsel "need not (and should not)
raise every nonfrivolous claim, but rather may select from among them in order
to maximize the likelihood of success on appeal." Id. at 288. "Experienced
advocates since time beyond memory have emphasized the importance of
winnowing out weaker arguments on appeal and focusing on one central issue if
possible, or at most on a few key issues." Jones v. Barnes, 463 U.S. 745, 751–
3
We suspect the jury found Brown guilty because the jury instruction and
verdict sheet conflated criminal trespass of a dwelling, which a person commits
if he or she "enters or surreptitiously remains" in a dwelling, and disorderly-
persons defiant trespass, which covers entry or remaining "in any place." See
N.J.S.A. 2C:18–3(a), (b). Under the heading "CRIMINAL TRESPASS," the
verdict sheet asked, ungrammatically, "On August 26, 2010, in North
Brunswick, did defendant Hopeton Brown knowing that he was not licensed or
privileged to do so was in any place or enter the premises known as [address]."
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52 (1983). When an appellate counsel files a brief that presents one or more
nonfrivolous issues, but omits another, the petitioner must show that the omitted
"issue was clearly stronger than issues that counsel did present." Smith, 528
U.S. at 288.
Of course, an issue that would have succeeded is stronger than one that
failed. But whether an omitted issue was "clearly" stronger may depend on the
state of the law. "Appellate counsel must be competent, not clairvoyant."
Moore v. Mitchell, 708 F.2d 760, 794 (6th Cir. 2013). As the Supreme Court
stated in O'Neil, 219 N.J. at 616, "The Strickland/Fritz standard may not require
appellate counsel to have the foresight to raise a cutting-edge issue or anticipate
a change in the law not evident in existing jurisprudence." Thus, an appellate
counsel is not necessarily ineffective where he or she omits a nonfrivolous
argument for a change in the law, even if that argument ultimately succeeds in
another case. See Bullock v. Carver, 297 F.3d 1036, 1052–53 (10th Cir. 2002)
(rejecting ineffective assistance claim "where a defendant 'faults his former
counsel not for failing to find existing law, but for failing to predict future law'"
(quoting United States v. Gonzalez-Lerma, 71 F.3d 1537, 1542 (10th Cir.
1995))); but see Lucas v. O'Dea, 179 F.3d 412, 420 (6th Cir. 1999) (affirming
district court decision and stating that "counsel's failure to raise an issue whose
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resolution is clearly foreshadowed by existing decisions might constitute
ineffective assistance of counsel").
However, where controlling authority is established, a lawyer cannot as
easily justify the failure to raise what would be a successful appellate argument.
In O'Neil, the Supreme Court held that appellate counsel was ineffective for
failing to use a recent, controlling decision of our court to challenge an
aggravated manslaughter conviction. "Although informed 'strategic choices'
made by counsel will rarely be subject to challenge, no deference must be paid
to a choice made in disregard of standing precedent." O'Neil, 219 N.J. at 616
(citing Strickland, 466 U.S. at 690) (citation omitted).
We recognize that defendant's eighteen-month sentence on his trespass
conviction was ordered to run concurrent to his seven-year sentence (with an
eighty-five-percent parole disqualifier) on his conspiracy conviction. Perhaps
appellate counsel winnowed out a challenge directed to the trespass conviction
because a reversal would not reduce Brown's aggregate sentence, but would
instead detract from his challenges to the conspiracy conviction. Alternatively,
perhaps appellate counsel believed that the issue was not preserved under Rule
2:10–1 (stating that "the issue of whether a jury verdict was against the weight
of the evidence shall not be cognizable on appeal unless a motion for a new trial
A-3411-18T1
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on that ground was made in the trial court"), although we held it was as to Jones,
Brown, slip op. at 19 n.2. We note that the trial court deemed Brown's post-
verdict motion to fall under both Rule 3:18–2 (motion for judgment of acquittal)
and Rule 3:20–1 (motion for a new trial), although the counsel did not expressly
address the trespass conviction in oral argument and the court did not address it
in its decision.
However, we doubt the reasonableness of a strategic decision to leave
standing a conviction — even on a minor count — that clearly lacks evidential
support. Furthermore, even a minor additional conviction could affect paro le.
And, if appellate counsel is successful in securing reversal and a new trial on a
major count, the undisturbed conviction could present a strategic problem upon
retrial.
In sum, we conclude that Brown has established a prima facie case of
ineffective assistance of appellate counsel, because counsel failed to appeal the
trespass conviction. As Brown has requested, we remand for an evidentiary
hearing on that claim. See State v. Preciose, 129 N.J. 451, 462 (1992) (stating
that "trial courts ordinarily should grant evidentiary hearings to resolve
ineffective-assistance-of-counsel claims if a defendant has presented a prima
facie claim in support of post-conviction relief").
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Affirmed in part, and reversed and remanded in part. We do not retain
jurisdiction.
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