STATE OF NEW JERSEY VS. THOMAS F. CLARY (17-03-0722, 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                                NOT FOR PUBLICATION WITHOUT THE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-3768-19

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

THOMAS F. CLARY,
a/k/a THOMAS MACKEN,
THOMAS PITCHER, THOMAS
CLARY, THOMAS JOHNSON,
THOMAS LEWIS, and THOMAS
MAKEN,

     Defendant-Appellant.
_______________________

                   Submitted April 26, 2021 – Decided May 11, 2021

                   Before Judges Fasciale and Mayer.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Camden County, Indictment No. 17-03-0722.

                   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 December 20, 2019 order 1 denying his petition

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

argues his plea counsel rendered ineffective assistance of counsel by allowing

him to plead guilty under pressure, not raising mitigating factors at sentencing,

failing to negotiate a more favorable plea deal, and failing to make a Miranda

motion. Judge Francisco Dominguez entered the order and rendered an oral

opinion.

      On appeal, defendant raises the following arguments:

            POINT I

            THE PCR [JUDGE] ERRED IN DENYING
            [DEFENDANT'S] PETITION FOR [PCR] WITHOUT
            AN EVIDENTIARY HEARING AS TESTIMONY IS
            NEEDED FROM PRIOR COUNSEL TO EXPLAIN
            WHY HE ALLOWED [] [DEFENDANT] TO
            PROCEED WITH THE PLEA HEARING WHEN HE
            KNEW [DEFENDANT] WAS BEING PRESSURED
            BY HIS FAMILY TO ACCEPT THE PLEA OFFER.

            POINT II



1
  His Amended Notice of Appeal refers to the December 23, 2019 filing date of
the order.

                                       2                                   A-3768-19
            THE PCR [JUDGE] ERRED IN DENYING
            DEFENDANT'S PETITION FOR [PCR] AS
            TESTIMONY IS NEEDED FROM PRIOR COUNSEL
            TO EXPLAIN WHY HE FAILED TO RAISE ANY
            MITIGATING FACTORS ON BEHALF OF
            [DEFENDANT] AT SENTENCING.

            POINT III

            THE PCR [JUDGE] ERRED IN DENYING
            DEFENDANT'S PETITION FOR [PCR] AS
            TESTIMONY IS NEEDED FROM PRIOR COUNSEL
            TO EXPLAIN WHY HE FAILED TO NEGOTIATE A
            LESSER-TERM    OF  IMPRISONMENT    FOR
            [DEFENDANT] IN LIGHT OF THE LACK OF
            EVIDENCE CONNECTING HIM TO THE
            SHOOTING.

            POINT IV

            THE PCR [JUDGE] ERRED IN DENYING
            DEFENDANT'S PETITION FOR [PCR] AS
            TESTIMONY IS NEEDED FROM PRIOR COUNSEL
            TO EXPLAIN WHY HE FAILED TO FILE A
            MOTION   TO    SUPPRESS   [DEFENDANT'S]
            STATEMENT TO POLICE AS [DEFENDANT] WAS
            INTOXICATED.

We are unpersuaded by defendant's contentions and affirm substantially for the

reasons expressed by Judge Dominguez. We add these remarks.

      When a PCR judge does not hold an evidentiary hearing—like here—this

court's standard of review is de novo as to both the factual inferences drawn by




                                       3                                  A-3768-19
the PCR judge from the record and the judge's legal conclusions. State v. Blake,

444 N.J. Super. 285

, 294 (App. Div. 2016).

      To establish a prima facie claim of ineffective assistance of counsel, a

defendant must satisfy the two-pronged test enumerated in Strickland v.

Washington, 

466 U.S. 668

, 687 (1984), which our Supreme Court adopted in

State v. Fritz, 

105 N.J. 42

, 58 (1987). To meet the first Strickland/Fritz prong,

a defendant must establish that his counsel "made errors so serious that counsel

was not functioning as the 'counsel' guaranteed the defendant by the Sixth

Amendment.” 466 U.S. at 687

. A defendant must rebut the "strong presumption

that counsel's conduct [fell] within the wide range of reasonable professional

assistance[.]"

Id. at 689.

Thus, this court must consider whether counsel's

performance fell below an objective standard of reasonableness.

Id. at 688.

      To satisfy the second Strickland/Fritz prong, a defendant must show "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 defendant must establish "a reasonable

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

proceeding would have been different. A reasonable probability is a probability

sufficient to undermine confidence in the outcome."

Id. at 694.

"[I]f counsel's

performance has been so deficient as to create a reasonable probability that these


                                         4                                     A-3768-19
deficiencies materially contributed to defendant's conviction, the constitutional

right will have been violated." 

Fritz, 105 N.J. at 58

. Both the United States

Supreme Court and the New Jersey Supreme Court have extended the

Strickland/Fritz test to challenges of guilty pleas based on ineffective assistance

of counsel. Lafler v. Cooper, 

566 U.S. 156

, 162-63 (2012); Missouri v. Frye,

566 U.S. 134

, 140 (2012); State v. DiFrisco, 

137 N.J. 434

, 456-57 (1994). A

defendant must demonstrate with "reasonable probability" that the result would

have been different had he received proper advice from his attorney. 

Lafler, 566

U.S. at 163

(quoting 

Strickland, 466 U.S. at 694

).

      A defendant is only entitled to an evidentiary hearing when he "'has

presented a prima facie [claim] 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) (quoting

State v. Preciose, 

129 N.J. 451

, 463 (1992)). A defendant must "do more than

make bald assertions that he was denied the effective assistance of counsel" to

establish a prima facie claim entitling him to an evidentiary hearing. State v.

Cummings, 

321 N.J. Super. 154

, 170 (App. Div. 1999). A defendant bears the

burden of establishing a prima facie claim. State v. Gaitan, 

209 N.J. 339

, 350

(2012). We "view the facts in the light most favorable to a defendant to


                                        5                                    A-3768-19
determine whether a defendant has established a prima facie claim." 

Preciose,

129 N.J. at 462-63

.

      Here, defendant pled guilty to amended second-degree aggravated assault,

N.J.S.A. 2C:12-1(b)(1).    In accordance with the plea agreement, defendant

received nine years in prison subject to the No Early Release Act (NERA),

N.J.S.A. 2C:43-7.2. Despite defendant's extensive criminal history involving

indictable state convictions, juvenile adjudications, and a federal conviction, his

plea counsel successfully negotiated a dismissal of fifteen of the sixteen counts

in the indictment. Defendant appealed the imposition of this sentence, which

we affirmed on our excessive sentence calendar. Thus, defendant's argument

that his plea counsel failed to negotiate a more favorable agreement is without

merit, especially given the prison exposure he faced.

      Even though at the plea hearing defendant understood he waived his rights

to file and present pre-trial motions, on the merits, we reject his argument that

plea counsel was ineffective for failing to make a Miranda motion. There is

nothing in the record demonstrating that defendant was—as he now argues for

the first time—under the influence during the police interrogation. But even if

his voluntary statements were suppressed, which in our view would not have

happened, there is overwhelming evidence of guilt. A witness called the police,


                                        6                                    A-3768-19
described the clothing defendant had been wearing, and based on that

information, police apprehended defendant as he was fleeing on a bus with two

handguns under his bus seat.

      Nevertheless, on this record, defendant knowingly, intelligently, and

voluntarily waived his Miranda rights.      There is no evidence that anyone

pressured defendant to plead guilty. Although he argues otherwise, the plea

judge questioned defendant at the plea hearing and established defendant pled

guilty voluntarily, knowingly, and without any coercion.

      To the extent we have not addressed defendant's remaining arguments, we

conclude that they are without sufficient merit to warrant discussion in a written

opinion. R. 2:11-3(e)(2).

      Affirmed.




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