STATE OF NEW JERSEY VS. JOHN MCNEAL (10-01-0082, PASSAIC 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NOT FOR PUBLICATION WITHOUT THE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-0674-14T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOHN MCNEAL,

Defendant-Appellant.

____________________________________

Submitted November 17, 2016 – Decided March 20, 2017

Before Judges O'Connor and Whipple.

On appeal from Superior Court of New Jersey,
Law Division, Passaic County, Indictment No.
10-01-0082.

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

Camelia M. Valdes, Passaic County
Prosecutor, attorney for respondent (Marc A.
Festa, Senior Assistant Prosecutor, of
counsel and on the brief).

PER CURIAM
 Defendant appeals from the June 12, 2014 Law Division order

denying his petition for post-conviction relief (PCR) without an

evidentiary hearing. For the reasons that follow, we affirm.

I

In 2011, defendant pled guilty to third-degree distribution

of a controlled dangerous substance within 1000 feet of school

property, N.J.S.A. 2C:35-7; third-degree resisting arrest,

N.J.S.A. 2C:29-2(a)(3); and fourth-degree aggravated assault

upon a police officer, N.J.S.A. 2C:12-9(b)(5)(a). He was

sentenced to an aggregate four-year term of imprisonment, with a

two-year period of parole ineligibility, to run consecutively

with a sentence he was then serving. Defendant did not file a

direct appeal from his convictions or sentence.

In 2012, defendant filed a PCR petition. Designated

counsel filed a brief, which was not attached, but we surmise

from the record defendant argued plea counsel was ineffective

for withdrawing a motion to suppress evidence contrary to

defendant's wishes. In that motion, defendant contended

evidence seized pursuant to a search warrant must be suppressed

because the warrant was fatally defective. We further discern

defendant included in his petition a request to withdraw his

guilty plea. On June 12, 2014, Judge Marilyn C. Clark denied

defendant's petition.
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 On appeal, defendant presents the following issues for our

consideration:

POINT I – THE DEFENDANT WAS DENIED THE RIGHT
TO 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.

POINT II – THE PLEA SHOULD BE VACATED
BECAUSE THE FACTUAL BASIS WAS CONFUSING AND
GLARINGLY INCONSISTENT.

POINT III – THE DEFENDANT SHOULD BE GRANTED
RELIEF OR THE MATTER SHOULD BE REMANDED FOR
AN EVIDENTIAL HEARING.

As he did before the trial court, defendant argues counsel

was ineffective for advising him to withdraw a meritorious

motion to suppress evidence, which had been seized as the result

of a hopelessly flawed search warrant. He also contends his

guilty plea should be vacated because the factual basis for his

plea was "confusing" and "inconsistent." Finally, he contends

the PCR judge erred by failing to order an evidentiary hearing

on his claim counsel was ineffective. A brief summary of what

occurred before defendant pled guilty is necessary to put the

issues in perspective.

Defendant was charged with twenty drug-related offenses.

In addition to other charges and those to which he pled guilty,

defendant was indicted for first-degree leader of a narcotics

trafficking network, N.J.S.A. 2C:35-3; second-degree employing a
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juvenile in a drug distribution scheme, N.J.S.A. 2C:35-6 and

N.J.S.A. 2C:35-5; and second-degree possession with intent to

distribute controlled dangerous substances within 500 feet of a

public park, N.J.S.A. 2C:35-7.1, N.J.S.A. 2C:35-5(a), and

N.J.S.A. 2C:2-6. At the time he pled, defendant had eleven

indictable and numerous disorderly persons convictions; most of

his convictions were drug-related.

Some of the new charges stemmed from the seizure of

controlled dangerous substances from a residence; these charges

were the subject of the suppression motion, in which defendant

challenged the legality of the search warrant. Before the

motion was argued, the State made a plea offer that defendant

serve an eight-year term of imprisonment, with a five-year

period of parole ineligibility, to run consecutively to the

sentence defendant was then serving. At that time defendant was

serving an eight-year term of imprisonment, with a four-year

parole ineligibility period. Defendant rejected the State's

offer.

After the motion was partially argued, Judge Clark, who was

not only the PCR judge but also the judge who handled the

suppression motion and presided over the plea hearing, advised

the parties she believed the search warrant had "very serious

issues." Defendant was present when the judge made this
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comment. However, the judge further noted that, even if the

evidence recovered from the search warrant were suppressed, a

number of charges would still remain. Continued argument on the

matter was adjourned for approximately two weeks.

When the parties returned to complete oral argument, they

advised the court defendant accepted a plea offer in which the

State would recommend a four-year term of imprisonment, with a

two-year parole ineligibility period, to run consecutively to

the sentence defendant was then serving, and all other counts

would be dismissed.

During the plea colloquy, defendant stated, on the date in

question, he was selling heroin on a street corner. The street

corner was within 1000 feet of a public school. Specifically,

he arranged for a "stash" of heroin to be brought to him to

sell, and gave the heroin to two juveniles to store nearby.

However, defendant admitted such heroin remained under his

possession and control. At one point, at defendant's direction,

one of the juveniles made a sale of the heroin. Defendant

admitted the juvenile provided him with the proceeds from the

sale. Finally, defendant admitted to resisting arrest and, in

the course of doing so, kicked and swung at the police officers.

While probing defendant about his decision to plead guilty,

the judge asked, "And you understand that while I'm informed
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that you are pleading, and are withdrawing your motion[], I am

telling you I would have suppressed the search warrant. Do you

understand that?" Defendant replied, "Yes."

In her decision denying defendant's petition on the ground

counsel was ineffective, Judge Clark stated:

I do not find that there has been [a]
sufficient basis to justify [an evidentiary]
hearing. I do not believe there is any
reasonable probability that a hearing would
be successful. . . .

I basically told everyone [the search
warrant] was going to be suppressed. But a
search warrant that has a defect does not
justify assaults on police officers. That
is a whole separate matter, even though it
is connected to the search warrant. And he
pled guilty to those.

[Defense counsel] indicated he was
withdrawing the [suppression motion] because
[of] the [c]ourt's comments on the legal
issues that existed and the renegotiation
which far reduced his custodial exposure,
resulted in the attorney saying we're not
going to pursue the [m]otions anymore.

I have no reason to believe Mr. McNeal was
telling [defense counsel] to pursue motions
which I had already said as to the search
warrant [motion], was going to be
successful. And because of that, the plea
renegotiation took place. . . .

[This is a plea] agreement that very
substantially benefitted defendant. . . .
[T]he search warrant in my opinion was
defective. The rest of the evidence was
not. And the rest of the evidence covered a
great deal of, well the rest of the case
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 involved a great deal of inculpatory
evidence against his defendant.

I believe the four with the two resolution
was extremely fair. The State could have
sought a . . . higher sentence even without
the search warrant. There [was]
distribution within a thousand feet of a
school, employing a juvenile which is ten
years with five without parole . . .
potentially consecutively. . . .

So, based upon everything that I have gone
through, I believe that there was effective
assistance of counsel.

Judge Clark rejected defendant's request to withdraw his

guilty plea, noting defendant failed to assert a colorable claim

of innocence, see State v. Slater, 198 N.J. 145, 158 (2009), and

demonstrate his conviction was manifestly unjust, see id. at

156.

II

The standard for determining whether counsel's performance

was ineffective for purposes of the Sixth Amendment was

formulated in Strickland v. Washington, 466 U.S. 668, l04 S. Ct.

2052, 80 L. Ed. 2d 674 (1984), and adopted by our Supreme Court

in State v. Fritz, l05 N.J. 42 (l987). In order to prevail on a

claim of ineffective assistance of counsel, defendant must meet

a two-prong test establishing: (l) counsel made errors so

egregious he or she was not functioning effectively as

guaranteed by the Sixth Amendment to the United States
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Constitution; and (2) there exists a "reasonable probability

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

proceeding would have been different." Strickland, supra, 466

U.S. at 687, 694, l04 S. Ct. at 2064, 2068, 80 L. Ed. 2d at 693,

698.

After reviewing the record in light of the contentions

advanced on appeal, we conclude defendant's argument counsel was

ineffective is devoid of merit. We affirm for substantially the

same reasons expressed by Judge Clark in her well-reasoned oral

decision of June 12, 2014. Further, the PCR court correctly

concluded there was no basis to order an evidentiary hearing.

See State v. Preciose, 129 N.J. 451, 462-63 (1992).

Defendant's contention his plea must be vacated on the

ground his factual basis was confusing and inconsistent is

similarly without merit and does not warrant discussion in a

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

Affirmed.

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