STATE OF NEW JERSEY VS. DONALD PETERSON (12-07-0564, SOMERSET 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NOT FOR PUBLICATION WITHOUT THE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-2948-18T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DONALD PETERSON,

Defendant-Appellant.
_______________________

Submitted October 26, 2020 – Decided January 05, 2021

Before Judges Fasciale and Susswein.

On appeal from the Superior Court of New Jersey, Law
Division, Somerset County, Indictment No. 12-07-
0564.

Joseph E. Krakora, Public Defender, attorney for
appellant (John V. Molitor, Designated Counsel, on the
brief).

Michael H. Robertson, Prosecutor, attorney for
respondent (Amanda Frankel, Assistant Prosecutor, of
counsel and on the brief).

PER CURIAM
 Defendant appeals from a December 7, 2018 order denying his petition

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

contends that his trial and appellate counsel provided ineffective assistance.

Judge Anthony F. Picheca, Jr., entered the order and rendered a comprehensive

and well-reasoned fourteen-page opinion. We affirm.

In July 2012, defendant was indicted for second-degree possession of a

firearm by a previously convicted person, N.J.S.A. 2C:39-7(b), and fourth-

degree possession of a non-firearm weapon (a machete) by a previously

convicted person, N.J.S.A. 2C:39-7(a).1 Defendant was the subject of an

investigation into the unexplained death of a sixteen-year old boy, J.M. 2

Pursuant to the investigation, police obtained warrants to search defendant's

apartment and trucks for microscopic and other evidence that connect ed

defendant and J.M. The police subsequently found a rifle in defendant's

apartment and a machete in one of his vehicles. Defendant moved to suppress

the evidence, claiming police exceeded the scope of the warrant and that the

1
Defendant was previously convicted of aggravated assault, precluding him
from thereafter possessing a firearm and other specified weapons.
2
An autopsy of J.M. revealed that he died of acute alcohol poisoning.
Defendant was not charged in connection with the death.

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warrant application failed to particularly describe the weapons that were seized.

In December 2013, the motion court suppressed the rifle and machete. The

motion court rejected the State's argument that this evidence was lawfully seized

under the plain view doctrine, reasoning that police were aware the firearm

would be present based on a statement defendant gave to police before the

warrant was executed. 3 We granted the State's interlocutory motion for leave

to appeal and reversed the suppression order, holding that the weapons were

admissible under the inevitable discovery exception to the exclusion rule. State

v. Peterson, No. A-2161-13T2 (App. Div. Dec. 12, 2014).

In April 2015, defendant pled guilty to both weapons charges pursuant to

a negotiated plea agreement. Defendant appealed his convictions, claiming once

again that the evidence should have been suppressed. We dismissed defendant's

appeal, ruling that we had already decided that issue in the interlocutory appeal.

State v. Peterson, No. A-0356-15 (App. Div. Apr. 13, 2016). The Supreme Court

denied defendant's petition for certification. State v. Peterson, 228 N.J. 240

(2016). Thereafter, the PCR judge entered the order under review.

3
We note that in State v. Gonzales, the New Jersey Supreme Court
prospectively eliminated the "inadvertence" element of the plain view exception
to the warrant requirement. 227 N.J. 77, 99 (2016). That decision applies only
to searches conducted after November 15, 2016.
A-2948-18T2
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On appeal, defendant argues:

POINT I
THIS COURT SHOULD REVERSE THE [PCR]
COURT'S DECISION TO DENY DEFENDANT'S
PETITION FOR POST-CONVICTION RELIEF
BECAUSE DEFENDANT'S ATTORNEYS WERE
INEFFECTIVE WHEN THEY DID NOT ARGUE
THERE WAS NO PROBABLE CAUSE TO SUPPORT
THE ISSUANCE OF A WARRANT TO SEARCH
DEFENDANT'S APARTMENT

POINT II
THIS COURT SHOULD REVERSE THE [PCR]
COURT'S DECISION TO DENY DEFENDANT'S
PETITION FOR POST-CONVICTION RELIEF
BECAUSE DEFENDANT'S ATTORNEYS WERE
INEFFECTIVE WHEN THEY DID NOT REQUEST A
HEARING CHALLENGING THE VERACITY OF
THE WARRANT APPLICATION

POINT III
THIS COURT SHOULD REVERSE THE [PCR]
COURT'S DECISION TO DENY DEFENDANT'S
PETITION FOR POST-CONVICTION RELIEF
BECAUSE DEFENDANT'S ATTORNEYS NEVER
OFFERED A COUNTER-ARGUMENT TO THE
APPELLATE DIVISION'S HOLDING THAT THE
INEVITABLE DISCOVERY EXCEPTION TO THE
EXCLUSIONARY RULE APPLIED

POINT IV
DEFENDANT'S FIRST ATTORNEY WAS
INEFFECTIVE FOR ABANDONING HIS
CHALLENGE TO THE ADMISSION OF
DEFENDANT'S ALLEGED CONFESSION

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 POINT V
DEFENDANT'S FIRST ATTORNEY WAS
INEFFECTIVE FOR REFUSING TO ALLOW
DEFENDANT TO TESTIFY BECAUSE
DEFENDANT WAS THE ONLY PERSON WHO
COULD HAVE REFUTED SCHUTTA'S
TESTIMONY REGARDING THE
CIRCUMSTANCES SURROUNDING
DEFENDANT'S FOUR STATEMENTS

FPOINT VI
THIS COURT SHOULD REVERSE THE PCR
JUDGE'S DECISION TO DENY DEFENDANT'S
CLAIM THAT HIS FIRST ATTORNEY PROVIDED
INACCURATE ADVICE ON THE MAXIMUM
SENTENCE DEFENDANT COULD RECEIVE

We disagree and affirm substantially for the reasons given by Judge Picheca.

We add the following remarks.

Post-conviction relief serves the same function as a federal writ of habeas

corpus. State v. Preciose, 129 N.J. 451, 459 (1992). It is not a substitute for

direct appeal. State v. Mitchell, 126 N.J. 565, 583 (1992). To establish a

violation of the right to the effective assistance of counsel, a defendant must

meet the two-part test articulated in Strickland v. Washington, 466 U.S. 668

(1984), and adopted in State v. Fritz, 195 N.J. 42 (1987). "First, the defendant

must show that counsel's performance was deficient. . . . Second, the defendant

A-2948-18T2
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must show that the deficient performance prejudiced the defense." Strickland,

466 U.S. at 687.

To meet the first prong of the Strickland/Fritz test, a defendant must show

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

'counsel' guaranteed by the Sixth Amendment." Ibid. Reviewing courts indulge

in a "strong presumption that counsel's conduct falls within the wide range of

reasonable professional assistance." Id. at 689. The second prong of the

Strickland/Fritz test requires the defendant to show that counsel's errors created

a "reasonable probability" that the outcome of the proceedings would have been

different than if counsel had not made the errors. Strickland, 466 U.S. at 694.

The Strickland/Fritz two-pronged standard also applies to claims of

ineffective assistance of appellate counsel. State v. Morrison, 215 N.J. Super.

540, 547 (App. Div. 1987). The hallmark of effective appellate advocacy is the

ability to "winnow[] out weaker arguments on appeal and focus[] on one central

issue if possible, or at most, on a few key issues." Jones v. Barnes, 463 U.S.

745, 751–52 (1983). Importantly for purposes of this appeal, it is well-settled

that failure to pursue a meritless claim does not constitute ineffective assistance .

State v. Webster, 187 N.J. 254, 256 (2006). Appellate counsel has no obligation

to raise spurious issues on appeal. Ibid.

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 Short of obtaining immediate relief, a defendant may prove that an

evidentiary hearing is warranted to develop the factual record in connection with

an ineffective assistance claim. Preciose, 129 N.J. at 462–63. The PCR court

should grant an evidentiary hearing only when a defendant is able to prove a

prima facie case of ineffective assistance of counsel, there are material issues of

disputed fact that must be resolved with evidence outside of the record, and the

hearing is necessary to resolve the claims for relief. R. 3:22-10(b); Preciose,

129 N.J. at 462. To meet the burden of proving a prima facie case, a defendant

must show a reasonable likelihood of success under the Strickland/Fritz test.

Preciose, 129 N.J. at 463.

After carefully reviewing the record in light of these legal principles, we

conclude that defendant is unable to meet the Strickland/Fritz prongs as to any

of his contentions. Nor has he established a prima facie case warranting an

evidentiary hearing.

We begin by considering defendant's argument—made for the first time

on this appeal—that both his trial and appellate counsel rendered ineffective

assistance in failing to challenge the validity of the search warrants. Defendant

now claims there was no probable cause to search for microscopic and other

evidence relating to J.M.'s death. We disagree. The record contains defendant's

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statements to police confirming his interactions with J.M. Furthermore,

distinctive post-mortem lividity and skin compression marks on J.M.'s body

matched the pattern of the ridges on the bed liner of defendant's F250 truck,

suggesting the youth had been transported after his death. These circumstances,

and especially the apparent link between J.M.'s corpse and defendant's truck,

established ample probable cause to support the issuance of the search warrants.

Neither trial nor appellate counsel rendered ineffective assistance by failing to

pursue a baseless suppression argument. Nor was defendant prejudiced by their

failure to raise an argument that ultimately would have proved unsuccessful.

Strickland, 466 U.S. at 687.

We likewise reject defendant's argument, also raised for the first time on

this appeal, that his trial and appellate counsel were ineffective for failing to

challenge the veracity of the affidavit in support of the search warrants under

Franks v. Delaware, 438 U.S. 154 (1978), and State v. Howery, 80 N.J. 563

(1979). Those cases require a hearing only when a defendant makes a

substantial preliminary showing that the search warrant affiant presented a

deliberate falsehood or demonstrated a reckless disregard for the truth. Franks,

438 U.S. at 171; Howery, 80 N.J. at 567. Furthermore, a defendant must show

A-2948-18T2
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that the warrant would not be supported by probable cause without the false

information. Franks, 438 U.S. at 172; Howery, 80 N.J. at 568.

Defendant now argues that the search warrant affiant did not inform the

warrant judge that an initial cursory consent search of defendant's residence

found nothing of evidential value. This argument lacks sufficient merit to

warrant extensive discussion. R. 2:11-3(e)(2). Defendant acknowledges in his

appeal brief that, "[a]dmittedly, Franks does not prohibit the police from

omitting crucial facts. Nevertheless, to the extent the doctrine first announced

in Franks does not address the precise scenario herein, the doctrine should be

expanded." We agree with defendant only insofar that Franks and Howery do

not require that search warrant applications include every fact and circumstance

known to the affiant. In these circumstances, however, the fact that police failed

to find microscopic evidence during the initial consent search was not

exculpatory and had no bearing on whether there was probable cause to believe

a more thorough search would reveal evidence relating to J.M.'s demise. Many

of the items described in the search warrant, see note 3, supra, could not have

been detected or properly collected in the truncated consent search. In any

event, we decline defendant's invitation to extend the Franks/Howery doctrine

to situations that lack deliberate falsehoods or a reckless disregard for the truth.

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 We next turn to defendant's argument that his appellate counsel did not

address the inevitable discovery doctrine that we relied on to reverse the trial

court's order suppressing the rifle and machete. In resolving search and seizure

issues, we are not bound by the legal theory relied on by a trial court. See, e.g.,

State v. Esteves, 93 N.J. 498 (1983) (sustaining search based on a theory not

relied on at the trial court level where the record contained facts from which the

Court could decide the applicability of another warrant exception). See also

State v. Guerra, 93 N.J. 146 (1983) (sustaining search even though the

telephonic warrant application was defective because the record on appeal

contained an objective basis for the Court to conclude that no warrant was

required to search the car).

Defendant nonetheless contends that because we addressed the inevitable

discovery exception sua sponte, he was deprived of the opportunity to argue

against its application. Defendant suffered no prejudice, however, from our

resolution of the inevitable discovery issue in the interlocutory appeal. We have

carefully reviewed defendant's current arguments and find no basis upon which

to reach a different conclusion than the one we previously reached. All of the

elements of the inevitable discovery exception were established, clearly and

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convincingly, based on the record that was before us when we heard the

interlocutory appeal. See State v. Sugar (II), 100 N.J. 214 (1985). 4

We add that appellate counsel petitioned for certification from our

subsequent order dismissing defendant's appeal. That circumstance belies

defendant's current contention that his initial appellate counsel failed to pursue

the inevitable discovery issue. Defendant has thus failed to establish that the

result would probably have been different had his initial appellate counsel

argued against invocation of the inevitable discovery exception to the

exclusionary rule. Strickland, 466 U.S. at 694.

We next address defendant's contention that his counsel was ineffective

for withdrawing a motion to suppress statements defendant gave to police during

4
To invoke the inevitable discovery doctrine, a court must find there is clear
and convincing evidence that

(1) proper, normal and specific investigatory
procedures would have been pursued in order to
complete the investigation of the case; (2) under all of
the surrounding relevant circumstances the pursuit of
those procedures would have inevitably resulted in the
discovery of the evidence; and (3) the discovery of the
evidence through the use of such procedures would
have occurred wholly independently of the discovery of
such evidence by unlawful means.

Sugar, 100 N.J. at 238.

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a custodial interrogation. On two occasions during the interrogation, defendant

invoked his right to counsel. Each time he did so, the detectives immediately

ceased posing questions. After each invocation, defendant on his own initiative

informed the detectives that he had changed his mind and wanted to continue

the interview.

Trial counsel intended initially to argue that police did not scrupulou sly

honor defendant's invocation of the right to consult with an attorney. Counsel

withdrew the motion to suppress defendant's statements, however, when he

reviewed the transcript of the interrogation and realized that defendant twice re-

initiated the conversation and was provided each time with fresh Miranda

warnings.5 See State v. Mallon, 288 N.J. Super. 139, 147 (App. Div. 1996) ("[I]f

a defendant initiates further police conversations after invoking his right to

remain silent, the resumption of police questioning will not constitute a failure

to scrupulously honor that right."). See also Oregon v. Bradshaw, 462 U.S.

1039, 1044 (1983) (addressing when reinitiation of interrogation by the accused

after invoking the right to counsel indicates a waiver of the Fifth Amendment

right to have counsel present during the interrogation). Importantly, as we have

noted, in both instances, the detectives re-administered Miranda warnings before

5
Miranda v. Arizona, 384 U.S. 436 (1966).
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resuming the interrogation, thereby establishing that defendant was kno wingly

and voluntarily waiving his right to have counsel present notwithstanding his

prior invocations of that right.

Counsel explained to the trial court the reason for withdrawing the

Miranda suppression motion, acknowledging,

I can't in good faith claim a Miranda issue at this point
in time. I don't have one. I raised it because I felt there
might have been an issue depending on what Detective
Schutta said, but he has satisfied me, and the transcripts
corroborate what he said, that the defendant was
Mirandized.

We agree with Judge Picheca that counsel's decision to withdraw the

Miranda motion and focus instead on the motion to suppress physical evidence

was a reasonable strategy that "falls within the wide range of reasonable

professional assistance." Stickland, 466 U.S. at 689. As we have noted, an

attorney is not required to pursue a meritless argument. Defendant cannot meet

the second prong of the Strickland test, moreover, because any such motion

would not have resulted in the suppression of defendant's statements.

We also reject defendant's related contention that counsel rendered

ineffective assistance by advising him not to testify to refute Detective Schutta's

testimony at the suppression hearing. As Judge Picheca aptly noted in his

written opinion:

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 [T]here are strategic reasons for a defense attorney to
refrain from calling the defendant to testify at the
pretrial hearing on a motion to suppress evidence. For
instance, providing such testimony may prematurely
reveal trial strategy and hinder one's defense, or such
testimony may later be used against a defendant if he
also chooses to testify at trial. There are likely many
other reasons to refrain from calling a defendant at such
a hearing.

In State v. Arthur, the Court remarked that, "a defense attorney's decision

concerning which witness to call to the stand is 'an art,' and a court's review of

such a decision should be 'highly deferential[.]'" 184 N.J. 307, 321 (2005)

(quoting Strickland, 466 U.S. at 693). Applying that deferential standard, we

conclude counsel's decision to prevent his client from testifying—and being

subjected to cross examination—was a sound strategic decision reflecting

reasonable professional assistance. We add that defendant has not shown that

had he testified the outcome would have been different.

Finally, we consider defendant's contention that his counsel misinformed

him regarding the maximum sentence that could be imposed. This contention

lacks sufficient merit to warrant all but brief discussion. R. 2:11-3(e)(2).

Counsel correctly informed defendant that by virtue of his criminal history, he

would be subject to an extended term as a repeat offender if he rejected the plea

offer and was convicted at trial. The plea form that defendant initialed explained

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that by pleading guilty, he could be sentenced to a seven-year prison term with

a five-year period of parole ineligibility. In accordance with the plea agreement,

the State did not seek an extended term and defendant ultimately received the

sentence contemplated in the agreement.

Affirmed.

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