STATE OF NEW JERSEY VS. CLIFFORD STEPHENS (13-12-3514, CAMDEN COUNTY AND STATEWIDE)

S
                                NOT FOR PUBLICATION WITHOUT THE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-3957-18T1

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

CLIFFORD STEPHENS,
a/k/a CLIFFORD J. STEVENS,
CLIFFORD JAY STEVENS,
CLIFFORD STEVENS,

     Defendant-Appellant.
______________________________

                    Submitted September 29, 2020 – Decided January 8, 2021

                    Before Judges Fasciale and Susswein.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Camden County, Indictment No. 13-12-3514.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Karen A. Lodeserto, Designated Counsel, on
                    the brief).

                    Jill S. Mayer, Acting Camden County Prosecutor,
                    attorney for respondent (Kevin J. Hein, Special Deputy
                    Attorney General/Acting Assistant Prosecutor, of
                    counsel and on the brief).
PER CURIAM

      Defendant appeals from a March 4, 2019 order denying his petition for

post-conviction relief (PCR) without an evidentiary hearing.        Defendant

contends his trial counsel rendered ineffective assistance. Judge Michele M.

Fox entered the order denying PCR and rendered a comprehensive and well -

reasoned twenty-nine-page written opinion. We affirm.

      Defendant does not contest that he shot and killed the victim. Defendant

was charged by indictment with first-degree murder, N.J.S.A. 2C:11-3(a)(1);

two counts of first-degree felony murder, N.J.S.A. 2C:11-3(a)(3); first-degree

carjacking, N.J.S.A. 2C:15-2; first-degree robbery, N.J.S.A. 2C:15-1; second-

degree possession of a weapon for unlawful purpose, N.J.S.A. 2C:39-4(a); two

counts of second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b);

fourth-degree possession of a defaced firearm, N.J.S.A. 2C:39-3(d); and two

counts of second-degree possession of a firearm by a previously-convicted

person, N.J.S.A. 2C:39-7(b). In March 2015, defendant pled guilty to a reduced

charge of aggravated manslaughter, N.J.S.A 2C:11-4(a)(1). In accordance with

the negotiated plea agreement, the State dismissed counts all other charges.

Judge Fox sentenced defendant to a term of twenty-eight years in prison subject

to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. We upheld the

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conviction and sentence. 1 State v. Stevens, No. A-4576-14 (App. Div. Dec. 15,

2015) (slip op. at 1).

      On appeal, defendant argues:

             POINT I
             THE PCR [JUDGE] ERRED IN DENYING
             DEFENDANT AN EVIDENTIARY HEARING AS
             TESTIMONY IS NEEDED REGARDING [PLEA]
             COUNSEL'S FAILURE TO FILE A SUPPRESSION
             MOTION, ESPECIALLY WHEN PLEA COUNSEL'S
             HANDWRITTEN            NOTES  INDICATED
             [DEFENDANT] REQUESTED THE MOTION BE
             FILED. (Raised Below).

             POINT II
             THE PCR [JUDGE] ERRED IN DENYING
             DEFENDANT AN EVIDENTIARY HEARING AS
             TESTIMONY IS NEEDED REGARDING [PLEA]
             COUNSEL'S FAILURE TO NEGOTIATE A PLEA
             OFFER LESS THAN TWENTY-EIGHT YEARS
             SUBJECT TO NERA. (Raised Below).

             POINT III
             THE PCR [JUDGE] ERRED IN DENYING
             DEFENDANT AN EVIDENTIARY HEARING AS
             TESTIMONY IS NEEDED REGARDING [PLEA]
             COUNSEL'S FAILURE TO INVESTIGATE AND
             RAISE MITIGATING FACTOR [FOUR] AT
             SENTENCING. (Raised Below).




1
  We remanded for the limited purpose of correcting typographical errors in the
judgment of conviction as to defendant's date of birth and the spelling of
defendant's name from "Stevens" to "Stephens."
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We disagree and affirm substantially for the reasons given by Judge Fox in her

thorough and thoughtful written opinion. We add the following remarks.

      To obtain relief based on ineffective assistance of counsel, a defendant

must demonstrate not only that counsel's performance was constitutionally

deficient, but also that the deficiency prejudiced his right to a fair trial.

Strickland v. Washington, 

466 U.S. 668

, 687 (1984). This two-part test was

adopted by the New Jersey Supreme in State v. Fritz, 

105 N.J. 42

, 58 (1987).

Under the first prong of the Strickland/Fritz test, the defendant must demonstrate

that "counsel made errors so serious that counsel was not functioning as the

'counsel' guaranteed the defendant by the Sixth Amendment." 

Strickland, 466 U.S. at 687

. Under the second prong, the defendant must show, "there is a

reasonable probability that, but for counsel's unprofessional errors, the result of

the proceeding would have been different."

Id. at 694.

Furthermore, a defendant

is entitled to an evidentiary hearing only when he "has presented a prima facie

[case] in support of [PCR]," meaning that a defendant "must demonstrate a

reasonable likelihood that his . . . claim will ultimately succeed on the merits."

State v. Marshall, 

148 N.J. 89

, 158 (1997) (first alteration in original) (quoting

State v. Preciose, 

129 N.J. 451

, 462-63 (1992)).




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       We first address defendant's argument that his trial counsel rendered

ineffective assistance by failing to file a Miranda2 motion. As Judge Fox aptly

noted, by pleading guilty pursuant to the negotiated agreement, defendant

waived the right to file pretrial motions. The transcript of the plea colloquy

confirms that defendant knowingly and expressly waived this right.

       We agree with Judge Fox that any such motion to suppress would have

been unsuccessful. "[W]hen counsel fails to file a suppression motion, the

defendant not only must satisfy both parts of the Strickland test but also must

prove that his [constitutional] 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, 

362 N.J. Super. 248

, 255 (App. Div. 2003) ("In an

ineffective assistance claim based on failure to file a suppression motion, the

prejudice prong requires a showing that the motion would have been

successful.") (citing 

Fisher, 156 N.J. at 501

).

       Defendant contends that during the custodial interrogation, police did not

scrupulously honor his request to stop when he asserted that he was hungry and

was not feeling well, when he asserted that he needed a cigarette, and when he

asserted "I don't know nothing" with respect to the shooting. As Judge Fox


2
    Miranda v. Arizona, 

384 U.S. 436

(1966).
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                                        5
noted, defendant continued to engage the officers in conversation.               The

transcript of the interrogation clearly shows that defendant's request for a

cigarette, which police complied with, and his claim that he was hungry and not

feeling well were not assertions of the right to terminate questioning. Nor did

defendant assert the right to stop questioning when he claimed to know nothing

about the fatal shooting. That statement, rather, was an exculpatory denial of

complicity in the homicide, consistent with his claim that he was being framed

by someone else.

        Defendant also contends the officers did not honor his request to speak to

an attorney when he stated, "I want to have somebody here with me" and then

"I just rather have somebody here with me, an attorney, come and (inaudible)."3


3
    The relevant portion of the interrogation is as follows:

              Clifford Stephens (CS): I want to have somebody here
              with me.
              Detective Kevin Lutz (KL): What, um, can you explain to
              me one thing?
              CS: What?
              KL: How you ended up from South Camden to East
              Camden?
              CS: I just went[sic] rather have my lawyer here with me.
              KL: I’m sorry, I can’t hear ya.
              CS: I just rather have somebody here with me, an attorney,
              come and (inaudible).
              Sr. Investigator Lance Saunders (LS): Ok my friend, come on.


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The record before us shows that at the moment defendant mentioned the word

"attorney," police scrupulously honored his invocation of the right to counsel

and ceased posing further questions. Even were we to assume that police should

have interpreted defendant's immediately preceding statement "I want to have

someone here with me" as either a request for an attorney or a request to stop

the interrogation, we note that defendant did not answer the officer's subsequent

question. Any motion to suppress on this ground, therefore, could not have

changed the outcome because there was nothing to suppress.

      We likewise reject defendant's argument that counsel was ineffective for

failing to negotiate a more favorable plea bargain. Defendant argues "there was

room to negotiate" because the State's plea offer of twenty-eight years was only

two years less than the maximum sentence, he could have received on his

aggravated manslaughter conviction. However, that argument proceeds from

the wrong premise. Defendant was indicted for murder and thus faced a life

term of imprisonment. N.J.S.A. 2C:11-3(b). The minimum sentence for murder

is thirty years without possibility of parole.

Ibid. By pleading guilty

pursuant

to the plea agreement to the lesser offense of aggravated manslaughter,

defendant significantly reduced his penal exposure.       Defendant received a

twenty-eight year NERA sentence that included a 23.8-year term of parole


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ineligibility (85% of the sentence). 4 We note that had defendant been convicted

of murder, he would have been subject to a statutory minimum parole

ineligibility term of thirty years—over six years more than the negotiated term

of parole ineligibility he actually received.

      It also bears noting that as a result of the negotiated agreement, the State

dismissed the remaining ten counts in the indictment—including two certain

persons gun charges—which might have resulted in consecutive sentences. We

therefore deem it to be baseless speculation that counsel could somehow have

induced the prosecutor to tender a more generous plea offer. We add that

defendant at the plea colloquy stated that he was satisfied with his counsel's

services. As such, his subsequent change of heart affords no basis for the relief

he now seeks.

      Finally, we reject defendant's contention that he would have received a

lesser sentence had counsel investigated his mental health issues and argued for

application of mitigating factor four, N.J.S.A. 2C:44-1(b)(4).5 In support of his


4
  As noted, we upheld that sentence on direct appeal, ruling "the sentence is not
manifestly excessive or unduly punitive and does not constitute an abuse of
discretion." Stevens, No. A-004576-14 (slip op. at 1).
5
    N.J.S.A. 2C:44-1(b)(4) establishes a mitigating sentencing factor where
"[t]here were substantial grounds tending to excuse or justify defendant's
conduct, though failing to establish a defense."
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                                         8
PCR contention, defendant produced a pre-sentence report from an earlier

conviction and prison medical records from March 2012. A close examination

of these documents shows that while defendant claims to have received

outpatient mental health treatment, he denied having any mania, psychosis, or

major depressive disorder.      The medical records include a notation that

"[q]uestions arise about the presence of malingering vs an underlying depressive

and/or psychotic [disorder]."

      We note that Judge Fox reviewed this information prior to sentencing and

found no reason to reject the plea or undercut the sentence contemplated in the

plea agreement. Furthermore, defendant has produced no new evidence or

certification as to his mental health at the time of the present homicide. See

State v. Cummings, 

321 N.J. Super. 154

, 170 (App. Div. 1999) (holding that

"when a [defendant] claims his trial [counsel] 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.") (citation omitted).      Judge Fox aptly

concluded in her PCR opinion that defendant presented no insight into "what

further investigation into his mental health would have revealed that would have

resulted in a reduction of his sentence under the plea agreement[.]"


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      We add that Judge Fox was the judge who accepted the guilty plea and

imposed sentence. At the sentencing hearing, she found that the aggravating

factors clearly, convincingly, and substantially outweighed the mitigating

factors, and we upheld that finding on direct appeal. We see no reason to disturb

her conclusion that the additional factor relating to defendant's mental health

would not have tipped the scales and changed the sentencing outcome.

Strickland, 466 U.S. at 695

.

      Affirmed.




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