STATE OF NEW JERSEY VS. DANIEL A. MEDINA (14-08-2470, CAMDEN 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NOT FOR PUBLICATION WITHOUT THE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-1390-19

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DANIEL A. MEDINA,

Defendant-Appellant.
________________________

Submitted February 24, 2021 – Decided August 11, 2021

Before Judges Vernoia and Enright.

On appeal from the Superior Court of New Jersey, Law
Division, Camden County, Indictment No. 14-08-2470.

Joseph E. Krakora, Public Defender, attorney for
appellant (Kimmo H. Abbasi, 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 Daniel A. Medina appeals from an order denying his petition

for post-conviction relief (PCR) without an evidentiary hearing. Based on our

review of the record, the arguments of counsel, and the applicable legal

principles, we affirm in part, reverse in part, and remand for further proceedings.

I.

While serving parole following his release from prison, defendant was

arrested on August 30, 2012 by New Jersey State Parole Board officers when

their warrantless search of his Camden residence resulted in the seizure of

heroin, a stun gun, $2,747 in cash, a digital scale, a stamp press commonly used

to package controlled dangerous substances (CDS), and other drug related

packaging materials. A grand jury charged defendant with various drug and

weapons offenses, including first-degree maintaining or operating a CDS

production facility, N.J.S.A. 2C:35-4, and fourth-degree certain persons not to

possess weapons, N.J.S.A. 2C:39-7(a). In a superseding indictment, No. 14-08-

2470, the grand jury further charged defendant with various offenses occurring

during the weeks following his arrest, including second-degree tampering with

a witness, N.J.S.A. 2C:28-5(d).1

1
Indictment No. 14-08-2470 superseded Indictment No. 12-12-3159. The
superseding indictment included the original charges and added charges against

A-1390-19
2
 Pursuant to an agreement with the State, defendant pleaded guilty to

first-degree maintaining or operating a CDS production facility, N.J.S.A. 2C:35-

4, and second-degree tampering with a witness, N.J.S.A. 2C:28-5(d), under

Indictment No. 14-08-2470, and to third-degree aggravated assault, N.J.S.A.

2C:12-1(b)(2), under a separate indictment. 2 The court sentenced defendant in

accordance with the plea agreement to an aggregate fourteen-year custodial term

with a seven-year period of parole ineligibility.3 Defendant filed a direct appeal

from his conviction and sentence that we subsequently dismissed as withdrawn.

State v. Medina, No. A-4628-16 (App. Div. Nov. 16, 2017).

Defendant filed a PCR petition, an amended petition, and a supporting

certification claiming his trial counsel was ineffective by: failing to file a motion

defendant and three codefendants based on alleged events occurring between
September 1, 2012 and October 31, 2012. The codefendants included the mother
of defendant's children, her sister, and defendant's mother. The disposition of
the charges against the codefendants is not pertinent to the issues presented by
defendant on appeal.
2
The second indictment, No. 15-11-3402, charged defendant with three counts
of aggravated assault, N.J.S.A. 2C:12-1(b)(1) to (2), and one count of possession
of a weapon, a broomstick, for an unlawful purpose, N.J.S.A. 2C:39-4(d). The
indictment alleged defendant committed the offenses on April 9 and 10, 2015,
more than thirty-one months after defendant's August 30, 2012 arrest following
the search of his home.
3
Prior to sentencing, defendant moved to withdraw his guilty plea. The court
denied the motion on the day it imposed the sentence.
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3
to suppress the evidence seized during the August 30, 2012 search of his

residence; permitting defendant to plead guilty without an adequate factual basis

to maintaining or operating a CDS production facility; and allowing defendant

to agree to forfeit the cash seized from his home on August 30, 2012 as a

condition of his plea agreement. 4

4
Defendant also argued before the PCR court that his trial counsel was
ineffective by failing to argue for jail credits to which he claimed he was
entitled. The court rejected the claim, explaining defendant could not prove he
suffered any prejudice as a result of counsel's alleged failure because defendant
testified during his plea proceeding that he wanted to plead guilty pursuant to
the plea agreement regardless of the disposition of his claimed entitlement to the
jail credits. Defendant does not argue on appeal the court erred by rejecting the
claim. See State v. Aloi, 458 N.J. Super. 234, 243 n.6 (App. Div.) ("[A]n issue
not briefed on appeal is deemed waived." (citing Jefferson Loan Co. v. Session,
397 N.J. Super. 520, 525 n.4 (App. Div. 2008))), certif. denied, 239 N.J. 396
(2019).

Defendant also argued his trial counsel was ineffective by failing to move
to dismiss the first-degree maintaining or operating a CDS production facility
charge. We do not address the issue because defendant did not argue before the
PCR court, and does not argue on appeal, that the evidence presented to the
grand jury was inadequate to support the charge. See, e.g., State v. Vasky, 218
N.J. Super. 487, 491 (App. Div. 1987) (explaining "[a]n indictment that appears
sufficient on its face [shall] stand[] if the State present[ed] the grand jury with
at least 'some evidence' [establishing] each element of a prima facie case" for
the offense charged (citation omitted)); see also State v. Robinson, 200 N.J. 1,
20 (2009) (explaining a reviewing court may decline to consider an argument
that was not presented to the trial court and does not go to the court's jurisdiction
or concern a matter of great public interest); Aloi, 458 N.J. Super. at 243 n.6.
A-1390-19
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 In its decision on defendant's PCR petition, the court relied on a parole

officer's investigation report as the basis for its findings of fact supporting its

rejection of defendant's claim his trial counsel was ineffective by failing to move

to suppress the evidence seized during the August 30, 2012 search. The court

recited the purported facts in the report to support its conclusion the Parole

Board officers had a reasonable suspicion defendant violated the conditions of

his parole, thus permitting the search of his residence. For example, relying on

the statements contained in the report, the court found as fact that defendant

stood outside his house when vehicles transporting the officers arrived at the

residence, and that, "upon observing" them, "defendant ran inside his house and

locked the door." Based on that finding, the court determined the officers had a

reasonable suspicion defendant violated the conditions of parole due, in part, to

his flight, which the court found demonstrated a consciousness of guilt. 5 The

court relied on other statements contained in the report—including statements

that defendant first lied about being outside when the officers arrived and

defendant exhibited an irregular heart rate and irregular breathing after the

5
The court did not make a finding as to the offense, or violation of the
conditions of parole, for which defendant's purported flight demonstrated a
consciousness of guilt. And the record does not include the conditions of
defendant's parole.
A-1390-19
5
officers entered the residence—as establishing facts supporting its conclusion

the officers had a reasonable suspicion defendant violated his parole conditions

that permitted the search of his residence.

The court rejected defendant's claim his trial counsel was ineffective by

failing to file a motion to suppress the evidence seized during the search . The

court reasoned trial counsel is not ineffective by failing to make a meritless

motion, see State v. O'Neal, 190 N.J. 601, 619 (2007), and a motion to suppress

would have been unsuccessful because, based on the facts the court gleaned from

the investigation report, the search was supported by a reasonable suspicion

defendant violated the conditions of his parole.

The PCR court also rejected defendant's claim his trial counsel was

ineffective by permitting him to plead guilty to the first-degree maintaining or

operating charge. The court reasoned that, by pleading guilty to the charge,

defendant waived any claim the State lacked sufficient evidence to support the

charge. The court further found defendant's claim the CDS was for his personal

use was undermined by his testimony at his plea proceeding that he maintained

an operation to sell heroin. The court also determined other evidence, including

the drug packaging materials, drug paraphernalia, and recorded conversations

between defendant and his girlfriend, supported the maintaining or operating

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charge. The court concluded defendant failed to establish a prima facie claim

his trial counsel was ineffective, and denied the PCR petition without an

evidentiary hearing. This appeal followed.

Defendant presents the following arguments for our consideration:

POINT I

THE PCR COURT ERRED IN DENYING
DEFENDANT AN EVIDENTIARY HEARING
DESPITE THE FACT THAT HE DEMONSTRATED
A PRIMA FACIE CASE OF THE INEFFECTIVE
ASSISTANCE OF COUNSEL AS DEFENSE
COUNSEL'S CONDUCT WAS DEFICIENT FOR
SEVERAL REASONS.

A. Defense Counsel Was Ineffective In Failing To File
A Motion to Suppress The Evidence That Was
Discovered By Parole and Law Enforcement Officers
At Defendant's Residence On August 30, 2012.

B. Defense Counsel Was Ineffective For Permitting
Defendant To Plead Guilty To Count Four of
Indictment 14-08-2470 Charging First Degree
Maintenance or Operating A Controlled Dangerous
Substance Production Facility.

C. Defense Counsel Was Ineffective When Agreeing
To Make The Forfeiture of Money Seized By Law
Enforcement From Defendant's Residence on August
30, 2012 As Part of the Plea Agreement Because The
Forfeiture Was Illegal As Those Funds Were Legally
Earned By The Defendant From His Employment.

A-1390-19
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 II.

In Strickland v. Washington, the Supreme Court adopted a two-pronged

test for a determination of a PCR claim founded on an alleged ineffective

assistance of counsel. 466 U.S. 668, 687 (1984). First, a petitioner must show

counsel's performance "fell below an objective standard of reasonableness" and

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

guaranteed the defendant by the Sixth Amendment." Id. at 687-88. Second, a

"defendant must show that the deficient performance prejudiced the defense."

Id. at 687. There must be "a reasonable probability that, but for counsel's

unprofessional errors, the result of the proceeding would have been different."

Id. at 694.

To satisfy the second prong of the Strickland standard where a defendant

seeks to set aside a conviction based on a guilty plea, he or she must also

"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)); see also State v. Nuñez-Valdéz, 200 N.J.

129, 139 (2009).

A-1390-19
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 We review the legal conclusions of a PCR court de novo. State v. Harris,

181 N.J. 391, 419 (2004). The de novo standard of review also applies to mixed

questions of fact and law. Id. at 420. Where, as here, an evidentiary hearing

has not been held, it is within our authority "to conduct a de novo review of both

the factual findings and legal conclusions of the PCR court." Id. at 421. We

apply these standards here.

A.

Defendant contends his counsel was ineffective by failing to file a motion

to suppress evidence seized from his residence. Defendant contends he made a

prima facie showing that if a motion to suppress had been filed, the evidence

seized from his residence would have been suppressed, and therefore the State

would have been unable to prove the CDS and weapons offenses in Indictment

No. 14-08-2470. See Wong Sun v. United States, 371 U.S. 471, 485 (1963)

(explaining where an officer obtains "physical, tangible materials . . . during or

as a direct result of an unlawful invasion," the exclusionary rule applies and bars

such materials from trial); State v. Shaw, 213 N.J. 398, 412-13 (2012) (same).

As noted, the PCR court rejected defendant's claim his counsel was ineffective

by failing to file a suppression motion based on its finding defendant failed to

make a prima facie showing a suppression motion would have been meritorious.

A-1390-19
9
 The Fourth Amendment of the United States Constitution and Article I,

Paragraph 7 of the New Jersey Constitution guarantee "[t]he right of the people

to be secure . . . against unreasonable searches and seizures." U.S. Const.

amend. IV; N.J. Const. art. I, ¶ 7. "Because warrantless . . . searches are

presumptively invalid, the State bears the burden of establishing that any

such . . . search is justified by one of the '"well-delineated exceptions" to the

warrant requirement.'" Shaw, 213 N.J. at 409 (quoting State v. Frankel, 179 N.J.

586, 598 (2004)). The State must prove the validity of a warrantless search by

a preponderance of the evidence. Ibid. Where an officer obtains "physical,

tangible materials . . . during or as a direct result of an unlawful invasion," the

exclusionary rule applies and will bar such materials from trial. Wong Sun, 371

U.S. at 485; see also Shaw, 213 N.J. at 412-13.

A counsel's "failure to file a suppression motion does not constitute per se

ineffective assistance of counsel." State v. Fisher, 156 N.J. 494, 501 (1998)

(quoting Kimmelman v. Morrison, 477 U.S. 365, 384 (1986)). Citing to the

United States Supreme Court's decision in Kimmelman, our Supreme Court has

explained that "when counsel fails to file a suppression motion, the defendant

not only must satisfy both parts of the Strickland test[,] but [he or she] also must

prove that his [or her] Fourth Amendment claim is meritorious." Ibid. (citing

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10
Kimmelman, 477 U.S. at 375); see also State v. Johnson, 365 N.J. Super. 27, 35

(App. Div. 2003); State v. Roper, 362 N.J. Super. 248, 255 (App. Div. 2003).

In neither Kimmelman nor Fisher is the term "meritorious" defined. It has

been observed that "it is not entirely clear what 'meritorious' means in this

context," and "there is some uncertainty under federal law as to precisely what

showing is required to satisfy Strickland's prejudice prong where the ineffective

assistance of counsel claim is premised on a failure to make a suppression

motion." Maldonado v. Burge, 697 F. Supp. 2d 516, 528 (S.D.N.Y. 2010). After

surveying various cases addressing the issue, the United States District Court in

Maldonado found "[t]he weight of the authority and the logic of Kimmelman

suggest that [a] petitioner must show, at minimum, a reasonable probability that

the suppression motion would succeed, and quite possibly that . . . the

suppression motion would in fact succeed." Ibid.

In Johnson, we recognized that a defendant claiming ineffective assistance

of counsel based on a failure to file a suppression motion must "prove that his

[or her] Fourth Amendment claim is meritorious and that there is a reasonable

probability that the verdict would have been different absent the excludable

evidence . . . to demonstrate actual prejudice" under Strickland's second prong.

365 N.J. Super. at 35 (quoting Kimmelman, 477 U.S. at 375). We addressed the

A-1390-19
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"merits" of the defendant's claim, concluding the defendant demonstrated the

unfiled motion to suppress evidence was "meritorious" under the Kimmelman

standard because: the homeowner who gave consent to search the residence

where the evidence was seized "may not have been advised of his right to refuse

consent," ibid. (emphasis added); the "permission" given to search "appear[ed]

limited," and the police "seemingly far exceeded the scope of the 'invitation,'"

id. at 36 (emphasis added); and the search "appear[ed] not only to have been

unauthorized by the homeowner, but [also] well beyond the limited 'grabbable'

area surrounding and within the 'immediate reach' of [the defendant] as

otherwise incidental to his arrest," ibid. (emphasis added).

Our determination the defendant in Johnson made a prima facie showing

the unfiled suppression motion was meritorious under the Kimmelman standard

was based on what defendant demonstrated may have, or appeared to have,

happened. We concluded, however, that determination did not constitute a

finding that the "motion to suppress, if properly made, would ultimately have

been successful." Id. at 37. In other words, we determined the defendant made

a prima facie showing a motion to suppress was meritorious under the

Kimmelman standard even in the absence of a demonstration the motion would

be successful. We interpret Johnson to hold that a PCR petitioner claiming trial

A-1390-19
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counsel was ineffective by failing to make a motion to suppress makes a prima

facie showing the motion is meritorious by demonstrating there is a reasonable

probability the motion would have been successful. 6 See, e.g., Maldonado, 697

6
In Roper, we stated that for "an ineffective assistance [of counsel] claim based
on failure to file a suppression motion, the prejudice prong [of the Strickland
standard] requires a showing that the motion would have been successful," and,
somewhat incongruously, we also found that in assessing whether a petitioner
demonstrated a motion to suppress satisfied the prejudice prong, "the court may
decide first if the motion ha[s] any merit." 362 N.J. Super. at 255 (emphasis
added). In support of the former proposition, we cited Fisher, but, in that case,
our Supreme Court stated only that a PCR petitioner claiming ineffective
assistance of counsel based on a failure to file a suppression motion must satisfy
both prongs of the Strickland standard and "also must prove that his [or her]
Fourth Amendment claim is meritorious." Fisher, 156 N.J. at 501. As noted,
the Court in Fisher did not define the term meritorious, and, contrary to our
statement in Roper, the Supreme Court did not hold that a petitioner must
demonstrate a suppression motion will succeed to make a prima facie showing
the motion is meritorious. To the contrary, the Court in Fisher remanded the
matter to the PCR court to conduct a hearing to determine if trial counsel failed
to file a suppression motion based on an erroneous assumption the motion could
not be filed after defendant was no longer a fugitive, and, if the court found the
failure to file the motion to suppress was based on the error, to determine if the
defendant was prejudiced by the error by determining if the motion would have
been granted if filed. Id. at 506-08. Thus, the Court in Fisher did not require a
petitioner to demonstrate the unfiled motion to suppress would have been
successful on the merits to establish a prima facie ineffective assistance of
counsel claim based on the failure to file the suppression motion in the trial
court. In any event, for those reasons, we do not rely on our decision in Roper
as requiring a petitioner claiming ineffective assistance of counsel based on a
failure to file a motion to suppress to establish the motion would have been
successful. Instead, as we have explained, a defendant satisfies his or her burden
of establishing a prima facie case an unfiled motion to suppress is meritorious
by demonstrating there is a reasonable probability that the motion would have
been successful.
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F. Supp. 2d at 528. This is in accord with the prejudice prong of the Strickland

standard, which requires that a defendant demonstrate "there is a reasonable

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

proceeding would have been different." Strickland, 466 U.S. at 694; see, e.g.,

Thomas v. Varner, 428 F.3d 491, 502 (3d Cir. 2005) (explaining the prejudice

prong of the Strickland standard is satisfied on a claim counsel failed to file a

suppression motion by showing the defendant "would likely have prevailed on

the . . . motion and that, having prevailed, there is a reasonable likelihood that

he [or she] would not have been convicted").

Based on the limited competent evidence presented to the PCR court, we

are convinced defendant made a prima facie showing there is a reasonable

probability a motion to suppress the evidence seized from his residence would

have been successful. In our assessment of the record, we consider, as we must,

the facts in the light most favorable to defendant. See State v. Preciose, 129

N.J. 451, 462-63 (1992) (explaining a PCR court must "view the facts in the

light most favorable to a defendant to determine whether a defendant has

established a prima facie [ineffective assistance of counsel] claim").

Defendant's PCR claim is founded on the averments of fact set forth in his

verified petition, amended verified petition, and certification in support of his

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petition. See State v. Jones, 219 N.J. 298, 312 (2014) (explaining PCR petitions

must be "accompanied by an affidavit or certification by defendant, or by others,

setting forth with particularity the facts" supporting the defendant's claim).

Prior to detailing defendant's averments of fact, we note the record before the

PCR court is bereft of any certification, affidavit, or other competent evidence

from the State establishing facts contrary to those asserted in defendant's sworn

verified petitions and certification. See R. 1:6-6. Instead, the State relied on

Parole Officer Cheryl Annese's three-page August 31, 2012 "Investigation

Report" to establish the purported facts concerning the search of defendant's

residence and the seizure of evidence. Those purported facts are untethered to

any competent admissible evidence. Ibid. In a different context, we have

observed that "[f]acts intended to be relied on which do not already appear of

record and which are not judicially noticeable are required to be submitted to

the [trier of fact] by way of affidavit or testimony." Celino v. Gen. Accident

Ins., 211 N.J. Super. 538, 544 (App. Div. 1986) (first citing R. 1:6-6; and then

citing R. 4:46-2). That requirement is not a mere formality, it "go[es] to the

heart of procedural due process." Ibid.

On appeal, the State again relies on the report as the basis for its version

of the facts supporting the August 30, 2012 search of the residence that yielded

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the evidence supporting the CDS and weapons offenses, including the first -

degree maintaining or operating charge, in Indictment No. 14-08-2470. The

State's reliance on the report is misplaced, however, because it does not

constitute competent evidence establishing facts supporting its version of the

events leading to the search of defendant's residence. See R. 1:6-6; Celino, 211

N.J. Super. at 544. We therefore summarize the pertinent facts established by

the only competent evidence concerning the search submitted to the PCR court:

defendant's certification in support of his PCR petition.7

In his certification, defendant asserted that in August 2012, he was on

parole as a condition of his sentence for a second-degree robbery conviction.

He lived at the Camden residence with his girlfriend and their child, and his

mother.

Defendant further averred that on August 30, 2012, he stood outside of

the home smoking a cigarette, and, when he finished, he "went back inside and

washed [his] hands." He "heard a knock at the front door and went to see who

was there." He saw a parole officer, Annese, at the door, and "opened [it] to let

her inside." According to defendant, he had not seen Annese "in months," and

7
We rely on defendant's certification because it provides defendant's version of
the events surrounding the search of his residence. Defendant's verified petition
and amended verified petition do not aver any facts concerning the search.
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"wonder[ed]" why she was there because, at that time, his parole officer was

"Officer Scolla." 8

Defendant also asserted he was "very surprised" when Annese and

"several state police officers" entered his residence and "beg[a]n looking

around." Defendant stated Annese's request to the Sheriff's Department for a K-

9 unit was denied, and she called New Jersey State Parole Board Sergeant

Dickerson. As stated by defendant, "The various members of law enforcement

proceeded to search the entire home. They did not say what it was they were

looking for with their search."

Defendant claimed the "narcotics" found in the home were his and he

possessed them for his own use. He also asserted he earned the $2,747 found in

the residence working at his job. Defendant stated that after he was arrested and

transported to the parole office, Annese said he appeared "sleepy," and he told

her he had used narcotics.

Defendant's version of the events, which we accept as true for the purpose

of determining whether he demonstrated a prima facie ineffective assistance of

counsel claim, Preciose, 129 N.J. at 462-63, establishes there is a reasonable

probability that a motion to suppress evidence would have been successful. In

8
Officer Scolla's first name is not included in the record.
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the first instance, the search of defendant's residence is presumptively invalid

because it took place in the absence of a search warrant. See Shaw, 213 N.J. at

409.

There is an exception to the warrant requirement for a parolee's residence

where "the parole agent carrie[s] out the search pursuant to a state law which

itself satisfies th[e] Fourth Amendment reasonableness requirement." State v.

Maples, 346 N.J. Super. 408, 413-14 (App. Div. 2002). This exception to the

warrant requirement is founded on parolees' "reduced expectation of privacy."

Id. at 415. Parolees—and probationers—"enjoy . . . 'only . . . conditional

liberty properly dependent on observance of special . . . restrictions.'" Griffin

v. Wisconsin, 483 U.S. 868, 874 (1987) (second alteration in original) (quoting

Morrissey v. Brewer, 408 U.S. 471, 480 (1972)). Thus, a parolee's status "makes

reasonable a certain degree of governmental intrusion that would be

unreasonable in relation to an ordinary citizen." Maples, 346 N.J. Super. at 415.

The New Jersey Administrative Code establishes the conditions precedent

to a search of a parolee's residence. See ibid. (explaining the regulations,

N.J.A.C. 10A:26-6.3(a) and N.J.A.C. 10A:26-1.3, defining the conditions for a

search of a parolee's residence satisfy the constitutional requirements for a

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warrantless search of a parolee's residence established by the United States

Supreme Court in Griffin).9 The Code provides:

A parole officer may conduct a search of a parolee's
residence when:

(1) There is a reasonable articulable suspicion to
believe that evidence of a violation of a condition of
parole would be found in the residence or contraband
which includes any item that the parolee cannot possess

9
In Maples, we considered N.J.A.C. 10A:26-6.3(a), which, at that time, defined
the conditions permitting a parole officer's search of a parolee's residence. 346
N.J. Super. at 412. In 2002, N.J.A.C. 10A:26-6.3(a) was recodified in Chapter
72 of Title 10A of the Administrative Code, 34 N.J.R. 1918(a) (June 3, 2002),
with the transfer of the Bureau of Parole from the New Jersey Department of
Corrections to the State Parole Board as the Division of Parole. The
recodification became effective December 6, 2004. 36 N.J.R. 5359(a) (Dec. 6,
2004). Subparagraph (a)(1) in N.J.A.C. 10:26-6.3 and in its recodified version
at N.J.A.C. 10A:72-6.3(a) are identical in all respects, other than the original
regulation required a "reasonable suspicion" a parolee's residence contains
evidence of a violation of the conditions of parole and the recodified version
requires a "reasonable articulable suspicion" such evidence is present.
Subparagraph (a)(2) of the original and recodified versions both condition a
parole officer's search of a parolee's residence on the approval of the parole
officer's supervisor or the existence of circumstances requiring immediate action
without prior approval from the supervisor. The original and recodified versions
of subparagraph (a)(2) differ only in their identification of the supervisor from
whom approval must be obtained. Compare N.J.A.C. 10A:26-6.3(a) (requiring
approval from "the parole officer's supervisor"), with N.J.A.C. 10A:72-6.3(a)(2)
(requiring approval from "[a]n Assistant District Parole Supervisor or a higher
level supervisor"). In addition, the definition of "reasonable suspicion" in
N.J.A.C. 10A:26-1.3 is identical to the definition of the term in the recodified
regulation in N.J.A.C. 10A:72-1.1. For purposes of our analysis, the
recodification of the regulation does not affect the validity of our holding in
Maples.
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19
 under the conditions of parole is located in the
residence; and

(2) An Assistant District Parole Supervisor or a higher
level supervisor provides prior approval for the search
or circumstances exist which require immediate action
without prior approval from a supervisor.

[N.J.A.C. 10A:72-6.3(a); see also Maples, 346 N.J.
Super. at 412.]

The Code further defines "reasonable suspicion." N.J.A.C. 10A:72-1.1

provides that "'[r]easonable suspicion' means a belief that an action is necessary

based upon specific and articulable facts that, taken together with rational

inferences from those facts, reasonably support a conclusion such as that a

condition of parole has been or is being violated by a parolee."

Measured against these requirements for a warrantless search of a

parolee's residence, we are convinced defendant's version of the circumstances

surrounding the search of his residence makes a prima facie showing there is a

reasonable probability a motion to suppress would have been successful. As

explained by defendant, immediately after he let Annese enter his home, she and

the other officers began searching the residence. There are no facts in the

verified petitions or defendant's certification supporting a finding that the

warrantless search of the residence was based on a reasonable suspicion

permitting a search under N.J.A.C. 10A:72-6.3(a)(1), the officers obtained the

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requisite approval of a supervisor as required by N.J.A.C. 10A:72-6.3(a)(2), or

that there were circumstances requiring immediate action without prior approval

from the officers' supervisor. To the contrary, based on his verified version of

the facts, defendant simply stepped inside of his residence after smoking a

cigarette, and his home was searched by numerous officers after he did nothing

more than open the front door to let Annese and the officers in. Those

circumstances do not support or permit the warrantless search of defendant's

residence.

As noted, defendant's version of the events, as set forth in his certification,

is uncontradicted by competent evidence. That is, the State did not provide t he

PCR court with any competent evidence setting forth a version of the facts

pertinent to the search of defendant's residence, contradicting the facts in

defendant's certification, or demonstrating the legality of the search under

N.J.A.C. 10A:72-6.3(a). Thus, the PCR court was without any competent

evidence supporting the State's version of the circumstances resulting in the

warrantless search of the residence. Instead, the State relied solely on Annese's

hearsay investigation report to support its version of the pertinent events.

In denying defendant's PCR petition, the court found defendant could not

satisfy his burden of demonstrating that a suppression motion would have been

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meritorious based solely on a determination the facts set forth in the

investigation report established the warrantless search of defendant's residence

was proper. It was error for the court to rely on the report because it constituted

inadmissible hearsay, and it did not, and could not, properly support the court's

findings of fact upon which it based its determination defendant did not

demonstrate a motion would have been meritorious. 10 See R. 1:6-6.

In our de novo review of the PCR record, the only competent evidence

pertinent to whether defendant made a prima facie showing a motion to suppress

would have been meritorious is defendant's certification. The uncontroverted

10
We recognize that Rule 3:5-7(b), which governs the filing of motions to
suppress evidence, permits the State to set forth the facts supporting its
opposition to a motion to suppress a warrantless search in its brief filed with the
motion court, and the defendant is permitted to set forth his or her version of the
facts in a brief filed in response. See State v. Torres, 154 N.J. Super. 169, 172-
73 (App. Div. 1977) (holding Rule 3:5-7(b) does not require that the facts
pertaining to a disputed motion to suppress be established by affidavit pursuant
to Rule 1:6-6 for the purpose of the court's determination whether there are facts
in dispute requiring an evidentiary hearing). Rule 3:5-7(b), however, does not
apply to petitions for PCR. Rule 3:22-8, which prescribes the requirements for
filing a PCR claim, requires the submission of a "verified" petition setting forth
"with specificity the facts upon which the claim for relief is based." Thus,
defendant was required to support his factual allegations with an affidavit or
certification in accordance with Rule 1:6-6. See Jones, 219 N.J. at 312. There
is no rule permitting the State to refute the facts set forth in a defendant's verified
PCR petition or supporting certification with opposition set forth solely in a
brief. As a result, to the extent the State relies on facts in its opposition to a
PCR petition or supporting certification, due process requires that those facts be
supported by competent evidence. See generally Celino, 211 N.J. Super. at 544.
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facts set forth in the certification establish no grounds supporting a warrantless

search or satisfying the requirements of N.J.A.C. 10A:72-6.3(a). We therefore

conclude defendant made a prima facie showing there is a reasonable probability

a motion to suppress would have been successful.

Defendant's certification similarly makes a prima facie showing that, but

for counsel's alleged error in failing to file the motion to suppress, there is a

reasonable probability that the result of the matter would have been different. If

the motion had been filed and was successful, the CDS and weapons charges in

Indictment No. 14-08-2470 would have necessarily been dismissed, including

the first-degree maintaining or operating charge which, based on defendant's

circumstances, carried the prospect of an extended term life sentence. See

N.J.S.A. 2C:44-3(a). Dismissal of those charges following a successful motion

to suppress would have inexorably altered the circumstances presented in the

negotiation of defendant's plea agreement and affected defendant's decision

whether to proceed to trial. Indeed, it would have been irrational for defendant

to enter into the plea agreement that resulted in his conviction—by pleading

guilty to the first-degree offense of maintaining or operating a drug production

facility—if the motion to suppress the CDS, weapon, and drug paraphernalia

seized from his residence had been filed and granted. As such, defendant's

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certification sufficiently demonstrated that, but for his counsel's alleged error in

failing to file the motion, he would not have pleaded guilty to the charges for

which he was convicted and, instead, he would have proceeded to trial. See

Johnson, 365 N.J. Super. at 36 (noting "the critical significance of the evidence

to [the] successful prosecution" of the defendant permitted a finding that the

"defendant suffered prejudice from his attorney's failure to make a timely

suppression motion").

We do not determine that a motion to suppress would have been

successful, and we recognize there are many reasons trial counsel may have

decided not to file the motion. See id. at 37 (explaining a finding that a

defendant made a prima facie showing his trial counsel was ineffective by failing

to file a meritorious suppression motion does not constitute a finding the motion

to suppress would have been successful). For example, defendant and his

counsel may have made a well-reasoned decision not to file a motion to suppress

to take advantage of a plea offer that might have been withdrawn if a motion to

suppress had been filed and lost. 11 We decide only that defendant made a prima

11
At defendant's plea proceeding, his counsel erroneously stated the search of
defendant's residence was conducted pursuant to a search warrant. Thus, one
possibility, among many others, is that trial counsel did not file a suppression
motion because he mistakenly believed the search was supported by a search

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facie showing of ineffective assistance of counsel under the Strickland standard

based on counsel's failure to file the motion, and we remand for the court to

conduct an evidentiary hearing to consider the reasons counsel did not file a

suppression motion, and to determine whether "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. "[I]f counsel acted for sound

strategic reasons, [his] performance may not have been deficient." Fisher, 156

N.J. at 507. In that event, the court need not address the merits of the

suppression motion to assess whether defendant was prejudiced by his counsel's

purported error because defendant will have failed to establish his counsel's

performance was deficient under Strickland's first prong. See Strickland, 466

U.S. at 700 (finding a failure to establish either prong of the Strickland standard

requires denial of a PCR petition); State v. Nash, 212 N.J. 518, 542 (2013)

(same).

If the court determines trial counsel's performance was deficient by failing

to file the suppression motion, the court must also consider at the evidentiary

warrant. We make no findings concerning any of the possible reasons for the
decision not to file a suppression motion. We mention there are many
possibilities only to highlight that the actual reason the motion was not filed
must be developed to determine, as a matter of fact and law, whether trial
counsel's performance was deficient as required under Strickland's first prong.
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25
hearing the merits of the suppression motion to determine if, but for counsel's

error in failing to file the motion, there is a reasonable probability the result of

the proceeding against defendant would have been different. 12 See Strickland,

466 U.S. at 694. Of course, if the court determines at the hearing that trial

counsel's performance was deficient and the evidence would have been

suppressed, the court shall grant defendant's petition and vacate his convictions

on the offenses to which he pleaded guilty pursuant to the plea agreement. If

the court finds either counsel's performance was not deficient or that defendant

suffered no prejudice from the purported error in failing to file the motion to

suppress, the court shall deny the PCR petition.

We express no view on the merits of defendant's claim. That

determination shall be made by the remand court based on the record presented

at the hearing. We determine only that defendant's certification in support of

12
The remand court may properly first consider the merits of the suppression
motion at the evidentiary hearing to determine if defendant suffered prejudice
based on counsel's failure to file the suppression motion. "Although a
demonstration of prejudice constitutes the second part of the Strickland analysis,
courts are permitted leeway to choose to examine first whether a defendant has been
prejudiced, and if not, to dismiss the claim without determining whether counsel's
performance was constitutionally deficient." State v. Gaitan, 209 N.J. 339, 350
(2012) (citation omitted); see also Roper, 362 N.J. Super. at 255 (explaining that in
assessing whether counsel was ineffective by failing to file a suppression motion,
the court "may decide first if the motion had any merit[, and] if not, the inquiry is
over").
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26
his petition sufficiently established a prima facie ineffective assistance of

counsel claim warranting an evidentiary hearing. We therefore reverse the

court's order denying defendant's PCR claim his counsel was ineffective for

failing to file a suppression motion and remand for the court to conduct an

evidentiary hearing on the claim.

B.

Defendant also contends the court erred by rejecting the claim that his

counsel was ineffective by permitting him to plead guilty to the first -degree

maintaining or operating a CDS production facility, N.J.S.A. 2C:35-4.

Defendant argues his counsel's performance was deficient because "there was

simply insufficient evidence to sustain [the] charge." More particularly,

defendant contends the record lacks evidence "of continuity" in his use of a

facility to manufacture CDS, or evidence he "intended to operate the

manufacturing facility on more than one occasion," as required to establish he

committed the offense under N.J.S.A. 2C:35-4. State v. Kittrell, 145 N.J. 112,

122 (1996).

We reject defendant's argument because it is founded on nothing more

than a conclusory assertion the State's evidence does not support the charge.

Defendant does not identify or supply the State's evidence that was provided in

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discovery, and defendant's verified PCR petitions and certification do not detail

what the State's evidence showed or did not show concerning what defendant

testified at his plea hearing was his maintenance of a CDS production facility. 13

Defendant does not assert he reviewed all of the discovery materials that were

provided to him, and he therefore fails to establish he is even familiar with the

State's evidence supporting the charge. Moreover, defendant did not move to

dismiss either the original or superseding indictments, both of which included

the first-degree charge, and he neither argues the evidence presented before the

grand jury was inadequate to support the charge nor supplies the grand jury

transcripts supporting his claim there was insufficient evidence supporting the

charge. In sum, defendant's bald assertions the State lacked sufficient evidence

supporting the charge are insufficient to establish a prima facie claim his counsel

was ineffective by permitting him to plead guilty to the first-degree maintaining

or operating charge. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.

1999).

13
At his plea hearing, defendant acknowledged receiving complete discovery
from the State, which the State indicates included thousands of pages of
recorded intercepted phone calls with defendant. Defendant's verified petitions
and certification make no specific reference to the discovery, and he does not
supply the discovery materials, or address their contents, in support of his bald
assertion the State lacked evidence establishing the continuity of his admitted
maintenance of a CDS production facility at his residence.
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 Defendant also suggests he had a defense to the first-degree drug charge

because he possessed the heroin for his own personal use. In his certification,

defendant states he told plea counsel the CDS in his residence was for his

"personal use." He further asserts he told counsel he used CDS the day he was

arrested, and plea counsel allegedly advised "that this was not relevant

information for any of the charges in the indictment."

We are not persuaded by defendant's claim because it is undermined by

his testimony at his plea proceeding. He testified he "maintained an operation"

at his residence "where [he] actually bagged up heroin for sale," and the CDS

and drug packaging materials seized from his residence are consistent with this

testimony that he packaged heroin for sale and distribution. Moreover, his self-

serving declaration the CDS was for his personal use does not address or refute

the reasonable inference that drug packaging materials he admitted were in his

home are consistent with his admission that he maintained a CDS repackaging

and sale operation at his residence.

In any event, defendant's claim that the CDS found in his residence was

for personal use, even if accepted as true, does not establish a prima facie claim

his counsel was ineffective by failing to assert a personal use defense to the first-

degree maintaining or operating charge. See generally State v. Wilson, 421 N.J.

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Super. 301, 307-08 (App. Div. 2011) (explaining the personal use exception set

forth in N.J.S.A. 2C:35-2's definition of "manufacture" to offenses charged

under N.J.S.A. 2C:35-5). That is because defendant failed to sustain his burden

of presenting any evidence establishing that but for his counsel's alleged error

in failing to raise the defense—which would have required that defendant testify

at trial—it would have been rational for defendant to reject the plea offer and

proceed to trial. See Maldon, 422 N.J. Super. at 486. Defendant's failure to

address or sustain his burden under the prejudice prong of the Strickland

standard requires rejection of his claim his counsel was ineffective by failing to

raise the personal use defense. Strickland, 466 U.S. at 700; Nash, 212 N.J. at

542.

Defendant also contends he is entitled to PCR because his plea colloquy

was insufficient. We reject the claim because defendant moved before the trial

court to withdraw his plea, his motion was denied, and, although defendant

appealed from his conviction and sentence, he withdrew his appeal. Thus, the

claim is barred because the factual predicate for the claim was known to

defendant when his direct appeal was filed but the claim was not prosecuted in

the direct appeal, which defendant withdrew. See R. 3:22-4(a); see also State v.

Bey, 161 N.J. 233, 276-77 (1999) (finding a defendant's PCR claim he was

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denied the right to allocution was barred by Rule 3:22-4 because the denial of

the right of allocution was apparent from the record and the defendant

reasonably could have, but did not, raise the claim on direct appeal).

Additionally, "Rule 3:9-2 and our jurisprudence do not permit a court to

accept a guilty plea unless the defendant provides a factual basis establishing

that he [or she] is guilty of the offense." State v. Tate, 220 N.J. 393, 397 (2015).

"The factual basis for a guilty plea must . . . include defendant's admission of

guilt of the crime or the acknowledgement of facts constituting the essential

elements of the crime." State v. Sainz, 107 N.J. 283, 293 (1987). Although

"trial courts need not follow a 'prescribed or artificial ritual' when entering a

defendant's guilty plea," State v. Gregory, 220 N.J. 413, 420 (2015) (quoting

State v. Campfield, 213 N.J. 218, 231 (2013)), "our law requires that each

element of the offense be addressed in the plea colloquy," Campfield, 213 N.J.

at 231.

There are three elements of the crime of maintaining or operating a CDS

production facility: "maintain[ing] or operat[ing] any premises, place or

facility"; using the premises, place, or facility to manufacture CDS; and acting

knowingly. N.J.S.A. 2C:35-4; see also Model Jury Charges (Criminal),

"Maintaining or Operating a Controlled Dangerous Substance Production

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31
Facility (N.J.S.A. 2C:35-4)" (rev. Dec. 11, 2000). In our view, defendant's plea

colloquy adequately addressed each element of the offense.

Defendant testified during his plea that he "maintained an operation" "at

[his] . . . residence" that manufactured CDS by "bagg[ing] up heroin for sale."

As the Supreme Court explained in Kittrell, "maintain" means "to preserve in:

carry on: keep up: continue." 145 N.J. at 122 (citation omitted). Thus,

defendant's testimony he "maintained" an operation at his residence where he

packaged and sold heroin constituted an admission that he carried on, kept up,

or continued the operation. Based on defendant's admissions he "maintained an

operation" for bagging and selling heroin and the identified CDS and CDS

packaging materials were found at his residence, it may be reasonably inferred

he "intended to operate the manufacturing facility on more than one occasion."

Ibid. Defendant's plea testimony provided an adequate factual basis establishing

there was a continuity of his drug manufacturing operation sufficient to support

a conviction under N.J.S.A. 2C:35-4. See ibid. It can also be inferred from

defendant's testimony that he acted knowingly because he admitted his operation

consisted of bagging heroin for the purpose selling it.

In sum, we are satisfied that even if defendant's claim was not barred

under Rule 3:22-4(a), it would otherwise fail because there was a sufficient

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factual basis supporting his plea to the maintaining or operating charge under

N.J.S.A. 2C:35-4. Defendant therefore failed to make a prima facie showing his

counsel's performance was deficient under Strickland's first prong by allowing

defendant to plead guilty to an offense in the absence of an adequate factual

basis. See Strickland, 466 U.S. at 687-88.

C.

Defendant argues defense counsel was ineffective because he agreed to

forfeit $2,747 seized from defendant's home even though defendant obtained the

money through lawful employment. We find defendant's argument is moot

because the State filed a civil action against the $2,747 it sought to be forfeited,

see N.J.S.A. 2C:64-3(a); defendant and his girlfriend were notified of the action

but never filed an answer, id. at -3(c), -3(e); and, consequently, the court

properly entered an August 8, 2013 default judgment and order to forfeit the

money, State v. Melendez, 240 N.J. 268, 280 (2020) (observing if a defendant

does not timely file an answer, "the property is forfeited" (citing N.J.S.A. 2C:64-

3(e))). In other words, the order to forfeit the $2,747, entered three years before

defendant accepted the State's agreement and pleaded guilty, makes any

argument that plea counsel was ineffective for agreeing to the forfeiture of the

$2,747 moot.

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 For each of the foregoing reasons, we reverse and remand for the court to

conduct an evidentiary hearing to determine if plea counsel was ineffective by

failing to file a motion to suppress. We affirm the court's rejection of defendant's

claim his counsel was ineffective by permitting him to plead guilty to first -

degree maintaining or operating a CDS production facility, N.J.S.A. 2C:35 -4.

We further reject as moot defendant's claim his counsel was ineffective by

permitting him to agree to the forfeiture of the $2,747 recovered during the

August 30, 2012 search of defendant's residence.

Affirmed in part, reversed in part, and remanded for further proceedings

in accordance with this opinion. We do not retain jurisdiction.

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