STATE OF NEW JERSEY VS. MILES MCCLOUD (05-07-1664, 06-03-0779 AND 06-03-0785, ESSEX 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NOT FOR PUBLICATION WITHOUT THE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-5444-18

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MILES MCCLOUD, a/k/a
MATHEW MCCLOUD,
MATHEW REEVES,
NAHSEIM RUSSELL,
and NASEIM RUSSELL,

Defendant-Appellant.
_______________________

Submitted December 2, 2020 – Decided February 9, 2021

Before Judges Fuentes and Whipple.

On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Indictment Nos. 05-07-1664,
06-03-0779 and 06-03-0785.

Joseph E. Krakora, Public Defender, attorney for
appellant (Kevin G. Byrnes, Designated Counsel, on
the brief).

Theodore N. Stephens II, Acting Essex County
Prosecutor, attorney for respondent (Caroline C. Galda,
 Special Deputy Attorney General/Acting Assistant
Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant appeals from the April 29, 2019, Law Division order denying

his petition for post-conviction relief (PCR) without an evidentiary hearing. We

affirm.

In 2005, defendant plead guilty to third-degree possession of controlled

dangerous substances (CDS) with intent to distribute, N.J.S.A. 2C:35-5(a)(1)

and was sentenced to a three-year prison term. The next year, an Essex County

grand jury returned two more indictments charging defendant with a total of

twelve drug-related offenses. For these new charges, defendant pled guilty to

third-degree conspiracy to possess CDS, N.J.S.A. 2C:35-10, two counts of third-

degree possession with intent to distribute within 1,000 feet of a school zone,

N.J.S.A. 2C:35-7 and third-degree possession with intent to distribute, N.J.S.A.

2C:35-5(a)(1). The trial court sentenced defendant to an aggregate four years

and the remaining ten counts were dismissed.

On July 11, 2018, defendant filed this petition for PCR. In his petition,

defendant argued general assertions. He focused on how his plea attorney was

ineffective in counseling him to accept a plea offer, as well as specifically

asserting that his plea attorney failed to advise him that if he committed federal

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offenses in the future, he would be subject to enhanced penalties because of his

State convictions. At the time of his plea hearing, Judge Michael A. Petrolle

tried to have defendant brought to court for oral argument but could not because

he was in federal custody on new charges after having served his New Jersey

state sentence. Finally, on April 29, 2019, Judge Petrolle heard the matter over

counsel's objection that defendant was not produced by the Bureau of Priso ns.

The judge stated:

[T]hey're indicating that they need some other
paperwork.

This is not expected to be a testimonial hearing and this
matter has to be addressed. I gave you an adjourned
date in order to try to get the prisoner here, but I'm not
receiving cooperation from the Federal Government.
And, therefore, in the absence of the need for a
testimonial hearing, he has no right to be present. Since
he had no right to be present, I expect to proceed today.

Following oral argument, the judge rendered an oral opinion denying

defendant's petition for PCR on the merits. The judge found that an evidentiary

hearing was not required because there was no dispute as to any of the material

facts underlying defendant's petition as they were largely "bald assertions." The

judge accepted, however, defendant's contention that his plea attorney did not

tell him that if he continued to commit crimes, he would face enhanced

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punishment. But on that front, the court found enhanced penalties for further

criminal activity were a matter of "common sense."

Citing State v. Wilkerson, the judge held that defendant's plea counsel had

no duty to give advice concerning the sentencing features of other state or

federal laws. 321 N.J. Super. 219, 223 (App. Div. 1999). Thus, the judge

concluded that defendant failed to satisfy the two-prong test of Strickland v.

Washington, which requires a showing that plea counsel's performance was

deficient and that, but for deficient performance, the result would have been

different. 466 U.S. 668, 687 (1984). This appeal followed.

On appeal, defendant raises the following points.

POINT I: THE DEFENDANT WAS DENIED DUE
PROCESS OF LAW AS GUARANTEED BY THE
FOURTEENTH AMENDMENT TO THE UNITED
STATES CONSTITUTION AND ART. I, PAR. 1 OF
THE NEW JERSEY CONSTITUTION BY THE
UNEXPLAINED FAILURE OF THE FEDERAL
GOVERNMENT TO PRODUCE THE DEFENDANT
SO THAT HE MAY CONSULT WITH COUNSEL
AND PARTICIPATE MEANINGFULLY IN HIS
[PCR] PROCEEDING.

POINT II: THE DEFENDANT WAS DENIED
EFFECTIVE ASSISTANCE OF COUNSEL AS
GUARANTEED BY THE SIXTH AMENDMENT TO
THE UNITED STATES CONSTITUTION AND ART.
1, PAR 10 OF THE NEW JERSEY CONSTITUTION.

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 A. Trial Counsel Failed to Explain the
Collateral Consequences of the Guilty
Pleas that Bear Directly on Defendant's
Liberty Interests.
B. Trial Counsel Failed to Investigate the
Case.

C. Trial Counsel Coerced the Defendant
into Entering Guilty pleas.

POINT III: THE DEFENDANT IS ENTITLED TO AN
EVIDENTIARY HEARING.

POINT IV: THE OUT-OF-TIME PCR FILING WAS
DUE TO EXCUSABLE NEGLECT.

POINT V: THE DEFENDANT IS ENTITLED TO DE
NOVO REVIEW, AND NO DEFERENCE SHOULD
BE GIVEN TO THE ERRONEOUS CONCLUSION
BELOW.

In defendant's first point on appeal, he asserts that he was denied his right

to a fairly conducted PCR hearing because the PCR judge abused his discretion

in ruling defendant did not have the right to be present. We disagree.

Although a defendant "must be present for every scheduled event unless

excused by the court for good cause shown," Rule 3:16(a), at a PCR hearing, a

"defendant's presence is not required . . . except as provided in R. 3:22-10." R.

3:16(b). Rule 3:22-10(a) specifies that "[a] defendant in custody may be present

in court in the court's discretion" and "shall be entitled to be present w hen oral

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testimony is adduced." See also State v. Mayron, 344 N.J. Super. 382, 386 (App.

Div. 2001) (noting that the language of Rule 3:22-10 "permits, but does not

mandate, [a] defendant's presence when a [PCR] petition is heard") (citing State

v. Flores, 228 N.J. Super. 586, 589-90 (App. Div. 1988)).

We are satisfied that the PCR judge did not abuse his discretion in

conducting the PCR hearing in defendant's absence. See United States v. Scurry,

193 N.J. 492 (2008) (quoting Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571

(2002)). (explaining how a trial court decision will constitute an abuse of

discretion where "the 'decision [was] made without a rational explanation,

inexplicably departed from established policies, or rested on an impermissible

basis.'"). The judge explained no oral testimony was taken, and despite

unsuccessful attempts to bring defendant to the PCR hearing, the hearing could

proceed because defendant was not entitled to be present. R. 3:22-10.

Having reviewed the record in its entirety, we find no merit to defendant's

remaining arguments. The mere raising of a claim for PCR does not entitle the

defendant to an evidentiary hearing. State v. Cummings, 321 N.J. Super. 154,

170 (App. Div. 1999). Rather, trial courts should grant evidentiary hearings and

make a determination on the merits only if the defendant has presented a prima

facie claim of ineffective assistance of counsel, material issues of disputed fact

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lie outside the record and resolution of those issues necessitates a hea ring. R.

3:22-10(b); State v. Porter, 216 N.J. 343, 355 (2013).

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

defendant must satisfy two prongs. See State v. O'Neil, 219 N.J. 598, 611. First,

he must show that his attorney failed to "function[] as the 'counsel guaranteed'

the defendant by the Sixth Amendment." Ibid. (citing Strickland, 466 U.S. at

687). An attorney's performance "is deficient when 'it [falls] below an objective

standard of reasonableness.'" Ibid. (citing Strickland, 466 U.S. at 488).

Second, a defendant must show that the deficient performance prejudiced

the defense. See State v. Marshall, 148 N.J. 89, 157 (1997) (citations omitted).

A defendant will be prejudiced when counsel's errors are sufficiently serious to

deny him a fair trial. Ibid. The prejudice standard is met if there is a "reasonable

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

proceeding would have been different." Ibid. A reasonable probability simply

means a probability sufficient to undermine confidence in the outcome of the

proceeding. O'Neil, 219 N.J. at 611 (citations omitted).

To set aside a guilty plea on an ineffective assistance of counsel theory,

"a defendant must show that (i) counsel's assistance was 'not within the range of

competence demanded of attorneys in criminal cases'; and (ii) 'that there is a

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reasonable probability that, but for counsel's errors, [the defendant] would not

have pled guilty and would have insisted on going to trial.'" State v. Nunez-

Valdez, 200 N.J. 129, 139 (2009) (alteration in original) (quoting State v.

DiFrisco, 137 N.J. 434, 457 (1994)). We review a judge's decision to deny a

PCR petition without an evidentiary hearing for abuse of discretion. See R. 3:22-

10; State v. Preciose, 129 N.J. 451, 462 (1992). We discern no abuse of

discretion here.

We also find no support for the proposition that a defendant must be

advised of the potential consequences of future criminal activity. Whether one

will be foreclosed from a potential diversionary program in the event of a future

crime is far different from being exposed to additional loss of liberty or rights

as a result of a crime already committed. Holding otherwise would add to a

counsel's duties an obligation to advise on a plethora of consequences which

have no logical stopping point. Judge Petrolle correctly relied upon our decision

in Wilkerson, where we held there is "no constitutional requirement that a

defense attorney must advise a client or defendant that if he or she commits

future criminal offenses that there may be adverse consequences by way of

enhancement of the penalty" in connection with a plea agreement. 321 N.J.

Super. at 223. Instead, we noted that "generally individuals should be aware as

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a matter of common sense that a continuing course of anti-social or criminal

conduct may lead to increased penalties." Ibid. Because defendant's plea

attorney was therefore not ineffective for failing to provide this advice,

defendant was unable to meet either of the Strickland prongs.

Defendant's other arguments are without sufficient merit to warrant

discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.

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