NOT FOR PUBLICATION WITHOUT THE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-0847-18T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DOUGLAS E. WOODSON,
a/k/a DOUGLASS E. WOODSON,
and LIL JOEY,
Defendant-Appellant.
_____________________________
Submitted March 4, 2020 – Decided April 28, 2020
Before Judges Whipple, Gooden Brown and Mawla.
On appeal from the Superior Court of New Jersey, Law
Division, Burlington County, Indictment No. 16-04-
0366.
Joseph E. Krakora, Public Defender, attorney for
appellant (Steven J. Sloan, Designated Counsel, on the
brief).
Scott A. Coffina, Burlington County Prosecutor,
attorney for respondent (Nicole Handy, Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant appeals from the July 16, 2018 Law Division order denying his
petition for post-conviction relief (PCR) without an evidentiary hearing. We
affirm.
On April 26, 2016, defendant was charged in a Burlington County
indictment with first-degree robbery, N.J.S.A. 2C:15-1(a)(1) (count one);
fourth-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39 -
4(e) (count two); and fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a)(2)
(count three). The charges stemmed from defendant's commission of an armed
robbery with a fake gun at a Wendy's where he had previously worked, followed
by a police search when he fled into the woods and his subsequent apprehension
hiding under the brush.
On August 29, 2016, defendant, who was extended term eligible, entered
a negotiated guilty plea to the robbery. In exchange, the State would move to
dismiss the remaining counts, and recommend a twelve-year sentence, subject
to an eighty-five percent period of parole ineligibility pursuant to the No Early
Release Act (NERA), N.J.S.A. 2C:43-7.2, to run concurrent with a parole
violation sentence on a prior robbery conviction. Under the plea agreement,
defendant also agreed to waive his right to appeal.
A-0847-18T1
2
On October 28, 2016, defendant was sentenced in accordance with the
plea agreement. However, the sentencing judge imposed an eleven-year NERA
sentence, instead of the twelve years recommended by the State. On July 28,
2017, defendant filed a timely pro se petition for PCR, alleging ineffective
assistance of counsel (IAC), and was assigned PCR counsel. To support his
petition, defendant certified his "attorney [coerced him] into taking a plea ." He
asserted his attorney failed to "undertake certain investigations" to establish,
among other things, that his reason for being at the scene was to obtain "free
food" that was "discard[ed]" at closing time. He also asserted his attorney failed
to file "specific motions," including moving to exclude the show-up
identification by the store manager and suppress his arrest and alleged
statements to police based on a Miranda1 violation.
Following oral argument, Judge Jeanne T. Covert denied defendant's
petition. In a July 16, 2018 written decision, the judge reviewed the factual
background and procedural history of the case, applied the applicable legal
principles, and concluded defendant failed to establish a prima facie case of
IAC. The judge found defendant failed to show that either counsel's
performance fell below the objective standard of reasonableness set forth in
1
Miranda v. Arizona, 384 U.S. 436 (1966).
A-0847-18T1
3
Strickland v. Washington, 466 U.S. 668, 687 (1984), and adopted by our
Supreme Court in State v. Fritz, 105 N.J. 42, 49-53 (1987), or that the outcome
would have been different without the purported deficient performance as
required under the second prong of the Strickland/Fritz test. Additionally, in
rejecting defendant's request for an evidentiary hearing, the judge concluded
defendant failed to present any issues that could not be resolved by reference to
the existing record.
Initially, the judge recounted the facts as follows:
On November 19, 2015, at approximately 12:50
a.m., New Jersey State troopers responded to a report
of a robbery at a Wendy's fast food restaurant located
at 102 Fort Dix Street, Wrightstown . . . . Upon arrival,
troopers spoke with the Wendy's employees who stated
that, around the time of closing, a man, later identified
as [defendant], wearing all black clothing and carrying
a gun entered the Wendy's in search of money. After
unsuccessfully attempting to locate the money
[defendant] fled on foot.
. . . . A short time later, troopers spotted a man,
matching the description of the suspect . . . running
from the rear of the Wendy's parking lot. The troopers
pursued the man . . . on foot into a wooded area. . . . An
aviation team and K-9 unit were called to the scene.
The K-9 officer led the troopers to a sewer basin
canal where [defendant] was lying face-down in the
water. The troopers identified themselves and ordered
[defendant] to show his hands. [Defendant] did not
comply. At this time, the K-9 officer was deployed for
A-0847-18T1
4
apprehension of [defendant]. [Defendant] continued to
ignore demands to show his hands and the troopers
entered the water to secure [defendant]. [Defendant]
was wearing a black jacket, black shirt, black pants,
black sneakers, and had a black ski mask. While
apprehending him, troopers asked [defendant] where
the gun was located. [Defendant] responded that he had
dropped the gun along the tree line after he fell down a
hill.
After apprehension of [defendant], [the store
manager] was brought to the scene of the arrest. At the
scene, a show-up identification was conducted and [the
manager] told the troopers that he recognized
[defendant] as the suspect of the robbery by his voice
and stature. . . . At the police barracks, [defendant] was
read his Miranda warnings and signed a Miranda card.
The next day troopers returned to the scene of arrest and
located a black gun in the wooded area near the location
of the arrest.
A few weeks later, [the manager] gave an audio
recorded statement to police. [He] told police that
. . . [a]t approximately 12:45 a.m., [he] was outside of
the restaurant and he noticed a person standing near the
drive-thru lane. The person was wearing all black,
including a ski mask and gloves. During this statement,
he told the police he was certain that [defendant] was
the person who committed the robbery. [The manager]
explained that [defendant] previously worked at the
Wendy's and he frequently closed the store at night and
was aware of the closing procedures. Another
employee . . . who gave an audio recorded statement to
the police a few weeks after the robbery, said . . . he
saw a man, [defendant], in all black enter the Wendy's
and waive a gun. [The employee] said [defendant] did
not say a word and he walked towards the restaurant's
back office where the safe was located.
A-0847-18T1
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In addressing defendant's contention that he received IAC by virtue of his
attorney's failure to move to suppress his arrest and alleged statements to police
based on a Miranda violation, the judge explained:
[Defendant] denies he was read his Miranda rights, but
this is an unsubstantiated self-serving certification. . . .
[A]ccording to police reports, [defendant] volunteered
a statement that he committed the robbery because he
was "homeless and looking for money" after being read
his Miranda rights [at the time of his arrest]. According
to police, he did not make this statement as a result of
a police interrogation, and even if he was not read his
Miranda rights, the statement would have likely been
admissible because it was volunteered. Additionally, a
recording of this statement was not taken at the scene
of the arrest not only because this would have been
logistically difficult but also because of [defendant's]
refusal to make a statement while being recorded.
[Defendant] admitted he was familiar with law
enforcement procedures and stated that he would not
give a recorded statement . . . because it "came back to
bite him" in a past encounter with law enforcement.
A signed Miranda card was completed by
[defendant] at the police barracks. No recorded
statement was taken at the police barracks apparently
because [defendant] refused to give one. . . .
[Defendant's] new assertion at oral argument that the
signature on the Miranda card was not his lacks either
substantiation or credibility.
However, all credibility issues aside, under the
prejudice prong of Strickland, [defendant's] arguments
are irrelevant. The weight of the evidence against
[defendant] was overwhelming. Even if these
incriminating statements were not used at trial, it is
A-0847-18T1
6
highly unlikely that [defendant] would have prevailed.
If his statement that he was "homeless and looking for
money" and about dropping the gun were suppressed,
the police would have inevitably went back the
following day, as they did, and found the gun near the
scene of the arrest. The evidence of the gun would have
been introduced at trial. The fact that [defendant] was
seen fleeing from the Wendy's, hid from the police in
the woods, refused to comply to turn himself in, knew
intimately the Wendy's closing procedures and exactly
what door to enter and where the safe was located (as a
former employee), and was arrested wearing clothing
matching the description of the suspect, was identified
by two witnesses, among other facts, would lead a
reasonable juror to find [defendant] guilty beyond a
reasonable doubt. There is no indication that the result
of the proceedings would have been different.
Thus, it is far from certain that [defendant] would
have successfully argued a motion to suppress and
regardless, he is unable to meet the second prong of
Strickland because of the weight of the evidence
against him.
In addressing defendant's contention that his statement about dropping the
gun would have been suppressed had his attorney filed the necessary motion,
relying on State v. Stephenson, 350 N.J. Super. 517 (App. Div. 2002), the judge
determined that a "potential motion to suppress his statement pertaining to the
gun would not have been meritorious" because the public safety exception
applied. See id. at 525 (explaining that the "unwarned questioning about the
presence or whereabouts of a gun" permitted under the public safety exception
A-0847-18T1
7
to the Miranda rule is authorized when the State "demonstrate[s] '(1) there was
an objectively reasonable need to protect the police or the public; (2) from an
immediate danger; (3) associated with a weapon; and that (4) the questions asked
were related to that danger and reasonably necessary to secure public safety.'"
(quoting State v. Prim, 730 N.E.2d 455, 463 (1999))).
In that regard, Judge Covert stated "the police had an objectively
reasonable need to protect themselves and the public from immediate danger
related to the handgun and the questioning related to the handgun was about its
location on [defendant] or in the wooded area." The judge expounded:
When the officers asked where the gun was located, it
was unknown to them whether [defendant] still
possessed the gun or not. Additionally, [defendant]
was hiding in a public wooded area, and although it was
at night, the general public could have found the gun
causing a threat to the public at large, not to mention
the harm that could have befallen the police officers by
being shot on the scene.
Likewise, relying on State v. Wright, 444 N.J. Super. 347 (App. Div.
2016), the judge rejected defendant's argument that his attorney was ineffective
by failing to challenge the manager's identification. See id. at 360-61 (upholding
trial court's finding that misidentification was unlikely based on "the victim's
ability to see . . . and provide a 'highly accurate' description" of the assailant
prior to the identification, notwithstanding "the inherent suggestibility of a
A-0847-18T1
8
showup [identification] . . . compounded . . . by several system variables,"
including "the police impermissibly signal[ing] the victim in a variety of ways"
that they believed they had the assailant).
Judge Covert explained:
Here, a Henderson[2] hearing may have been
appropriate because the record . . . does not indicate
whether [the manager] was brought to the scene to
conduct the show-up identification within a two-hour
timeframe. . . . Additionally, there is no evidence from
the police reports regarding whether [the manager] was
told that [defendant] may not be the perpetrator even
though he was arrested and that he should not feel
compelled to make an identification. These two system
variables are essential to a show-up identification and
essential to a trial court in determining whether a
Henderson hearing is necessary.
However, even if a Henderson hearing was
conducted, it is highly unlikely that [defendant] would
have been successful in suppressing the show-up
identification. . . . Taking [into] account [the
manager's] ability to observe [defendant] at the time of
the robbery, not to mention the inescapable and obvious
fact that [defendant] was dressed identical to the
perpetrator, in all black with a ski mask, uniquely and
exceedingly unusual, there was little chance of an
irreparable misidentification.
[The manager] had the opportunity to view
[defendant] at the time of the robbery. . . . [He] told the
detectives the man said something, maybe to him, but
that it was just a few words and difficult to decipher
2
State v. Henderson, 208 N.J. 208 (2011).
A-0847-18T1
9
. . . . [The manager] was able to list all the items of
clothes being worn by [defendant] and he described the
gun in precise detail. . . . These descriptors demonstrate
the level of attention that [he] exhibited at the crime
scene. In his recorded statement, [he] stated that seeing
[defendant] at the arrest scene "triggered his mind" and
that he was sure that the suspect he saw commit the
[robbery] was [defendant] . . . .
Based on these facts, and a weighing of the
system variables and estimator variables[, defendant]
has failed to prove that his motion to suppress the show-
up identification would have been meritorious even if
he was granted a Henderson hearing.
Turning to defendant's claim that his attorney was ineffective by failing
to "investigate the reason he was at Wendy's" on the night in question, Judge
Covert stated:
On June 24, 2016, trial counsel mailed a letter to
[defendant] . . . explaining to him that his argument that
he was at Wendy's, wearing the same clothes as the
suspect and around the same time as the robbery, asking
for free food and ran from the Wendy's because he had
an outstanding warrant was "too coincidental." In
addition, there was strong evidence to rebut this
explanation. [Defendant] was arrested wearing the
same clothes as the robbery suspect, he told troopers
where to find the gun he used for the robbery, and [the
manager] identified him at the scene of arrest.
Furthermore, the jury would have heard that
[defendant] had worked the night shift at the Wendy's,
as recently as approximately two months before the
robbery, and knew the closing procedures, that the back
door would be propped open, the location of the back
room of the restaurant and that there is a safe located in
A-0847-18T1
10
that room. This is all evidence that weighed in favor of
[defendant's] guilt and against his explanation for why
he was at the Wendy's.
Next, the judge categorically rejected defendant's assertion that his
attorney coerced him into pleading guilty, explaining:
Trial counsel was able to negotiate a plea that was
beneficial to [defendant]. [Defendant] was extended
term eligible for sentencing because of his past criminal
history. Specifically, [defendant] had been sentenced
for a previous first-degree robbery to ten years in state
prison and he was on parole when this charge and
conviction occurred. Trial counsel was able to
negotiate a fair deal . . . . Trial counsel reviewed the
discovery and explained her reasoning to [defendant] as
to why it was likely a jury would find him guilty. At
his sentencing, [defendant] told the trial court that he
was entering his plea freely, knowingly, and voluntarily
and that he was satisfied with his counsel's
representation.
Based on these facts and the facts surrounding the
circumstances leading to [defendant's] conviction, he
was not forced to plead guilty nor did trial counsel fail
to fully investigate his case.
On appeal, defendant makes the following arguments:
THE PCR COURT MISAPPLIED THE LAW IN
DENYING THE DEFENDANT'S PETITION FOR
[PCR] WITHOUT AFFORDING HIM AN
EVIDENTIARY HEARING TO FULLY ADDRESS
THIS CONTENTION HE WAS PROVIDED WITH
INADEQUATE ASSISTANCE OF COUNSEL.
A-0847-18T1
11
1. THE SHOW-UP IDENTIFICATION
WAS IMPERMISSIBLY SUGGESTIVE
AND THERE WAS A SUBSTANTIAL
LIKELIHOOD OF AN IRREPARABLE
MISIDENTIFICATION.
2. THE ARREST WAS UNLAWFUL
WHEN THE POLICE FAILED TO
ADMINISTER MIRANDA WARNINGS
TO THE DEFENDANT ADVISING HIM
OF HIS RIGHTS.
3. DEFENDANT'S ALLEGED
STATEMENT TO THE POLICE THAT
HE DROPPED THE GUN WHEN HE
FELL DOWN A HILL WHILE RUNNING
FROM THE POLICE SHOULD HAVE
BEEN SUPPRESSED AS IT WAS NOT
WITHIN THE PUBLIC SAFETY
EXCEPTION TO THE MIRANDA
REQUIREMENT.
4. DEFENDANT SHOULD HAVE
BEEN PERMITTED TO WITHDRAW
HIS PLEA BARGAIN TO CORRECT A
MANIFEST INJUSTICE.
We reject defendant's arguments and affirm substantially for the reasons
articulated in Judge Covert's comprehensive and well-reasoned written opinion.
We add only the following comments.
A trial court should grant an evidentiary hearing only if the defendant has
presented a prima facie claim of IAC, material issues of disputed fact lie outside
the record, and resolution of those issues necessitates a hearing. R. 3:22-10(b);
A-0847-18T1
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State v. Porter, 216 N.J. 343, 355 (2013). In deciding whether to grant an
evidentiary hearing, a PCR court "should view the facts in the light most
favorable to a defendant." State v. Preciose, 129 N.J. 451, 463 (1992). See also
State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999). In turn, we
review under the abuse of discretion standard the PCR court's determination to
proceed without an evidentiary hearing. State v. Marshall, 148 N.J. 89, 157
(1997). Additionally, where, as here, "no evidentiary hearing has been held, we
'may exercise de novo review over the factual inferences drawn from the
documentary record by the [PCR judge].'" State v. Reevey, 417 N.J. Super. 134,
146-47 (App. Div. 2010) (alteration in original) (quoting State v. Harris, 181
N.J. 391, 421 (2004)). We also review de novo the PCR judge's legal
conclusions. Harris, 181 N.J. at 415-16 (citing Toll Bros., Inc. v. Twp. of W.
Windsor, 173 N.J. 502, 549 (2002)).
To establish a prima facie claim of IAC, defendant must satisfy the two -
prong Strickland test: he must show that (l) "counsel's performance was
deficient" and he "made errors so serious that counsel was not functioning as the
'counsel' guaranteed . . . by the Sixth Amendment" to the United States
Constitution; and (2) "there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been different."
A-0847-18T1
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Id. at 687, 694; see also Fritz, 105 N.J. at 52. A defendant "bears the burden of
proving" both prongs of an IAC claim "by a preponderance of the evidence."
State v. Gaitan, 209 N.J. 339, 350 (2012).
Under the first Strickland prong, "a defendant must overcome a 'strong
presumption' that counsel exercised 'reasonable professional judgment' and
'sound trial strategy' in fulfilling his responsibilities." State v. Hess, 207 N.J.
123, 147 (2011) (quoting Strickland, 466 U.S. at 689-90). Indeed, "counsel is
strongly presumed to have rendered adequate assistance," Strickland, 466 U.S.
at 690, as measured by a standard of "reasonable competence." Fritz, 105 N.J.
at 53. However, "'[r]easonable competence' does not require the best of
attorneys." State v. Davis, 116 N.J. 341, 351 (1989). Nonetheless, an attorney's
failure to investigate "is a serious deficiency that can result in the reversal of a
conviction." Porter, 216 N.J. at 353. Indeed, "counsel has a duty to make
reasonable investigations or to make a reasonable decision that makes particular
investigations unnecessary." Strickland, 466 U.S. at 691.
Under the second Strickland prong, defendant must prove prejudice.
Fritz, 105 N.J. at 52. In order to establish the Strickland prejudice prong to set
aside a guilty plea based on IAC, a defendant must show "there is a reasonable
probability that, but for counsel's errors, [the defendant] would not have pled
A-0847-18T1
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guilty and would have insisted on going to trial." State v. DiFrisco, 137 N.J.
434, 457 (1994) (alteration in original) (quoting Hill v. Lockhart, 474 U.S. 52,
59 (1985)). Moreover, "'a [defendant] must convince the court that a decision
to reject the plea bargain'" and "insist on going to trial" would have been
"'rational under the circumstances.'" State v. Maldon, 422 N.J. Super. 475, 486
(App. Div. 2011) (quoting Padilla v. Kentucky, 559 U.S. 356, 372 (2010)). That
determination should be "based on evidence, not speculation." Ibid.
Applying these standards, we are satisfied defendant failed to make a
prima facie showing of IAC under the Strickland/Fritz test, and we discern no
abuse of discretion in the judge's denial of defendant's PCR petition without an
evidentiary hearing. As Judge Covert astutely pointed out, his attorney's letter
demonstrated her thoughtful consideration of the evidence, which was
overwhelming, as well as her evaluation of defendant's version of events, which
was illogical. Further, neither a Henderson motion to challenge the
identification nor a Miranda motion to challenge the statements would have been
meritorious. "It is not ineffective assistance of counsel for defense counsel not
to file a meritless motion." State v. O'Neal, 190 N.J. 601, 619 (2007). Thus, a
decision to reject the plea bargain would not have been rational under the
circumstances.
A-0847-18T1
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Moreover, defendant failed to establish that he was entitled to withdraw
his plea under State v. Slater, 198 N.J. 145 (2009). 3 He lacks a credible claim
of innocence, and the State would undoubtedly suffer unfair prejudice given the
passage of time. See State v. O'Donnell, 435 N.J. Super. 351, 371 (App. Div.
2014) ("[A] defendant may fail on a motion to withdraw a plea under Slater,
because he or she lacks a colorable claim of innocence (factor one), and the State
would suffer prejudice (factor four) as a result of delay and witness
unavailability.").
Affirmed.
3
See Slater, 198 N.J. at 157-58 (establishing four factors trial courts must
"consider and balance . . . in evaluating motions to withdraw a guilty plea,"
namely, "(1) whether the defendant has asserted a colorable claim of innocence;
(2) the nature and strength of defendant's reasons for withdrawal; (3) the
existence of a plea bargain; and (4) whether withdrawal would result in unfair
prejudice to the State or unfair advantage to the accused.").
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