STATE OF NEW JERSEY VS. JASON E. MCKINNONÂ STATE OF NEW JERSEY VS. GARRY MADDOX(07-09-0124, CAMDEN COUNTY AND STATEWIDE)(CONSOLIDATED)

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APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5751-14T3
A-0192-15T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JASON E. MCKINNON, a/k/a JASON
E. MORRIS,
Defendant-Appellant.
____________________________
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
GARY MADDOX, a/k/a GARY FOSTER,
Defendant-Appellant.
_____________________________
Submitted (A-5751-14) and Argued (A-0192-15)
October 11, 2017 – Decided November 17, 2017
Before Judges Hoffman and Gilson.
On appeal from Superior Court of New Jersey,
Law Division, Camden County, Indictment No.
07-09-0124.
Joseph E. Krakora, Public Defender, attorney
for appellant Jason E. McKinnon (Suzannah
Brown, Designated Counsel, on the brief).
Kelly Anderson Smith argued the cause for
appellant Gary Maddox.
Christopher S. Porrino, Attorney General,
attorney for respondent in A-5751-14 (Emily
R. Anderson, Deputy Attorney General, of
counsel and on the brief).
Claudia J. DeMitro, Deputy Attorney General,
argued the cause for respondent in A-0192-15
(Christopher S. Porrino, Attorney General,
attorney; Ms. DeMitro, of counsel and on the
brief).
Appellant Jason E. McKinnon filed a pro se
supplemental brief.
PER CURIAM
Co-defendants Jason McKinnon and Gary Maddox appeal from
orders denying their petitions for post-conviction relief (PCR).
In these back-to-back appeals, which we consolidate for purposes
of this opinion, we affirm because neither defendant established
a prima facie case of ineffective assistance of trial or appellate
counsel.
I.
The charges against defendants arose out of evidence
collected during a State Police narcotics investigation. Using a
confidential informant (CI), the State Police made a series of
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controlled purchases of drugs from defendants. Investigators also
obtained a wiretap warrant and recorded numerous phone calls
between defendants and other individuals.
Defendants were tried together in 2009. At trial, the State
presented testimony from a detective and the CI detailing the
controlled buys from both defendants. The State also introduced
and played numerous recorded phone calls about narcotic
transactions involving defendants and other individuals.
In addition, the State presented testimony from an individual
who supplied cocaine to both defendants. That supplier told the
jury that he engaged in multiple narcotics transactions with
defendants over the course of several years. He testified that
he supplied Maddox with cocaine, observed Maddox selling pills,
and Maddox told him he sold methamphetamine. The supplier also
testified that between 2006 and 2007, he supplied McKinnon with
approximately one kilogram of cocaine per week and that McKinnon
was his main customer.
The State's evidence also detailed other persons who worked
with defendants. Specifically, the State played numerous recorded
conversations between defendants, during which they discussed
certain associates who could complete a kilogram sale of cocaine
with the CI. The evidence established that many of defendants'
associates were close friends and family members.
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When the State Police arrested defendants, they also executed
search warrants. During the search of Maddox's home, the police
seized small amounts of cocaine and marijuana, money orders and
receipts totaling $10,000, approximately $3000 in United States
currency, and eight vehicles. A search of a storage unit owned
by McKinnon resulted in the seizure of over eight ounces of
cocaine, cutting agents for cocaine, sealing and packaging
materials, and a Smith & Wesson .375 magnum revolver.
After hearing the testimony and considering the evidence
presented at trial, a jury convicted both defendants of first-
degree racketeering, N.J.S.A. 2C:41-2(c); first-degree leading a
narcotics trafficking network, N.J.S.A. 2C:2-6 and N.J.S.A. 2C:35-
3; and related first-, second-, and third-degree drug offenses.
McKinnon was also convicted of second-degree certain persons not
to have weapons, N.J.S.A. 2C:39-7.
Defendants were sentenced in August 2009. On the convictions
for first-degree leader of a narcotics trafficking network, both
defendants were sentenced to life in prison with thirty years of
parole ineligibility. On the convictions for racketeering,
defendants were sentenced to fifteen years in prison to run
consecutively to the life sentence. On all other convictions,
defendants were sentenced to concurrent prison terms.
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Accordingly, both Maddox and McKinnon were sentenced to aggregate
prison terms of life plus fifteen years.
Each defendant filed direct appeals and we affirmed both
defendants' convictions and sentences in a consolidated opinion.
State v. Maddox, No. A-1856-09 (App. Div. July 8, 2013). The
Supreme Court denied defendants' petitions for certification.
State v. Maddox, 217 N.J. 285 (2014).
On June 30, 2014, both defendants filed self-represented
petitions for PCR. Defendants were each assigned counsel who
filed additional briefs and materials in support of their
petitions. Defendants also filed supplemental papers in support
of their petitions.
Judge Michele M. Fox denied Maddox's petition in an oral
opinion and order dated May 8, 2015. Judge Fox denied McKinnon's
petition, without oral argument, in a written opinion and order
dated May 29, 2015.
Defendants now appeal those orders. Because defendants
presented some of the same arguments, and because the underlying
convictions were the result of one trial, we address defendants'
appeals in this consolidated opinion.
II.
On this appeal, Maddox raises the following arguments, which
he articulates as follows:
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POINT I – THE COURT ERRED IN DENYING DEFENDANT
AN EVIDENTIARY HEARING.
POINT II – DEFENDANT'S COUNSEL PROVIDED
INEFFECTIVE ASSISTANCE OF COUNSEL.
A. Trial Counsel, as well as
Appellate Counsel, Failed to
Adequately Address, Prepare, and
Defend against the Charge of a
Leader of a Narcotics Organization.
B. The Failure of Trial Counsel to
Make Critical Objections Throughout
the Trial Denied the Defendant a
Fair Trial as Guaranteed by the
Constitution.
POINT III – THE PCR COURT ERRED IN DENYING
DEFENDANT AN EVIDENTIARY HEARING TO CONSIDER
A JUROR WHO FAILED TO FULLY DISCLOSE KNOWLEDGE
OF THE CASE AND WHO OPENLY DISREGARDED
JUDICIAL DIRECTIONS NOT TO DISCUSS THE TRIAL.
POINT IV – DEFENDANT'S POST-CONVICTION RELIEF
COUNSEL PROVIDED INEFFECTIVE ASSISTANCE OF
COUNSEL.
POINT V – COUNSEL'S CUMULATIVE ERRORS RESULTED
IN A MANIFEST INJUSTICE.
In his reply brief, Maddox agues:
POINT I – THE TRIAL COURT IMPROPERLY RENDERED
A WRITTEN DECISION PRIOR TO ORAL ARGUMENT.
McKinnon presents the following arguments:
POINT I – THE LOWER COURT ERRED IN DENYING MR.
MCKINNON'S PETITION FOR POST-CONVICTION
RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY
HEARING.
POINT II – THE PCR COURT ERRED IN DENYING MR.
MCKINNON'S PETITION FOR POST CONVICTION RELIEF
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WITHOUT AFFORDING POST CONVICTION RELIEF
COUNSEL AN OPPORTUNITY TO PRESENT ORAL
ARGUMENT.
POINT III – THE MATTER SHOULD BE REMANDED FOR
A NEW PCR HEARING AND THE ASSIGNMENT OF NEW
PCR COUNSEL BECAUSE R. 3:22-6(d) WAS VIOLATED.
Defendants' petitions arise from the application of Rule
3:22-2, which permits collateral attack of a conviction based upon
a claim of ineffective assistance of counsel within five years of
the conviction. See R. 3:22-12(a)(1); see also Strickland v.
Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed.
2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 58 (1987). To
establish a claim of ineffective assistance of counsel, a defendant
must satisfy the two-part Strickland test by showing: (1) "counsel
made errors so serious that counsel was not functioning as the
'counsel' guaranteed the defendant by the Sixth Amendment[,]" and
(2) "the deficient performance prejudiced the defense."
Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed.
2d at 693 (quoting U.S. Const. amend. VI); Fritz, supra, 105 N.J.
at 58-59 (adopting the Strickland two-part test in New Jersey).
Rule 3:22-10(b) provides that a defendant is only entitled
to an evidentiary hearing if he or she establishes a prima facie
case in support of PCR. Moreover, there must be "material issues
of disputed fact that cannot be resolved by reference to the
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existing record," and the court must determine that "an evidentiary
hearing is necessary to resolve the claims for relief." State v.
Porter, 216 N.J. 343, 354 (2013) (quoting R. 3:22-10(b)). To
establish a prima facie case, a defendant must demonstrate "the
reasonable likelihood of succeeding under the test set forth in
Strickland." State v. Preciose, 129 N.J. 451, 463 (1992).
In her oral opinion issued on April 24, 2015, and May 8,
2015, Judge Fox analyzed all of the arguments put forward by Maddox
in support of his petition. She then applied the well-established
law and found that Maddox had not presented a prima facie showing
of ineffective assistance by either his trial or appellate counsel.
On May 29, 2015, Judge Fox issued a forty-eight page opinion where
she analyzed the arguments put forward by McKinnon. After
addressing all of those arguments, including the arguments
McKinnon made on his own behalf, Judge Fox denied McKinnon's PCR
petition. Having reviewed defendants' arguments on these appeals,
we affirm the denial of their petitions for PCR substantially for
the reasons explained by Judge Fox in her detailed oral and written
opinions.
We also address two arguments only raised by defendants on
these appeals. First, defendants contend that Judge Fox improperly
rendered her decisions prior to affording them oral argument.
Second, McKinnon argues that his matter should be remanded for a
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new PCR hearing and the assignment of new PCR counsel because he
contends that Rule 3:22-6(d) was violated. We find no merit in
either of these arguments, and we will analyze them in turn.
A. The Alleged Failure to Hear Oral Argument
Judge Fox conducted three hearings on Maddox's PCR petition.
She heard oral argument on March 20, 2015, and April 24, 2015.
She then read a prepared opinion into the record on April 24,
2015, and May 8, 2015. Nevertheless, Maddox contends that Judge
Fox did not afford him a real opportunity to be heard because she
interrupted his counsel during oral argument and had a prepared
decision before hearing all of counsel's arguments.
Judge Fox conducted one hearing on May 29, 2015, to address
McKinnon's PCR petition. At the beginning of that hearing, the
judge informed counsel that she had a prepared written opinion,
which she handed out to both counsel. McKinnon was also present
and he was provided with a copy of the opinion. McKinnon's PCR
counsel thanked the judge, stated that he would review the opinion
with McKinnon, and did not ask to present oral argument.
Our Supreme Court has emphasized "that there is a strong
presumption in favor of oral argument in connection with the
initial petition for post-conviction relief." State v. Parker,
212 N.J. 269, 283 (2012) (citing State v. Mayron, 344 N.J. Super.
382, 387 (App. Div. 2001)). The purpose of oral argument is to
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ensure that defendant has a full hearing and that all his or her
positions are presented and understood by the PCR court. The
Court has also explained that a PCR judge has some "residuum of
discretion" not to hear oral argument, but the judge must explain
why oral argument is not necessary. Parker, supra, 212 N.J. at
282. Thus, the Court explained that
when a trial judge does reach the
determination that the arguments presented in
the papers do not warrant oral argument, the
judge should provide a statement of reasons
that is tailored to the particular
application, stating why the judge considered
oral argument unnecessary. A general
reference to the issues not being particularly
complex is not helpful to a reviewing court
when a defendant later appeals on the basis
that the denial of oral argument was an abuse
of the trial court's discretion.
[Ibid. at 282-83.]
Here, we find no abuse of discretion. Maddox was afforded
oral argument. While his current counsel contends that Judge Fox
interrupted oral argument, a review of the transcript discloses
that she listened carefully to the arguments that were presented
and asked questions where appropriate. Just as critically, the
record discloses that Judge Fox carefully considered all of the
arguments put forward by Maddox and addressed those arguments in
detail.
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In addressing McKinnon's PCR petition, Judge Fox conducted a
brief hearing. Critically, PCR counsel for McKinnon did not ask
to present oral argument or supplement the arguments that had been
set forth in his brief, as well as the brief McKinnon prepared
himself. Importantly, Judge Fox's detailed written opinion
addressed all of McKinnon's arguments. Thus, the record here
establishes that McKinnon had a full and fair opportunity to
present all of his arguments.
B. The Alleged Violation of Rule 3:22-6(d)
McKinnon contends that his PCR counsel violated Rule 3:22-
6(d) by not listing, or incorporating by reference, all of the
contentions made by McKinnon in his pro se petition. Thus,
McKinnon requests that his matter be remanded and that he be
assigned a new PCR counsel and afforded a new PCR hearing.
Rule 3:22-6(d) states that assigned PCR counsel should
advance "all of the legitimate arguments requested by defendant
that the record will support." The rule goes on to provide that
"[i]f defendant insists upon the assertion of any grounds for
relief that counsel deems to be without merit, counsel shall list
such claims in the petition or amended petition or incorporate
them by reference. Pro se briefs can also be submitted."
Here, the record establishes that Judge Fox considered all
of the contentions raised by defendant himself, as well as his PCR
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counsel. McKinnon filed a pro se petition. PCR counsel
subsequently filed a brief in support of McKinnon's petition and
made additional arguments. McKinnon also submitted a
certification in which he made additional contentions. Judge Fox
addressed each of the points McKinnon raised in her comprehensive
written decision. Accordingly, defendant received the PCR court's
full consideration of all of his arguments.
The orders denying both defendants' PCR petitions are
affirmed.
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