STATE OF NEW JERSEY VS. JAMAR COCKREN

We adopt the essential facts from our previous unpublished

decision remanding defendant's PCR petition for an evidentiary

hearing:

The record reveals that, on January 10, 2006, a grand jury issued an indictment charging defendant with third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1); third-degree possession with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3); and third-degree possession with intent to distribute on or near school property, N.J.S.A. 2C:35-7.

On the same day, the grand jury issued another indictment, for a separate incident, charging defendant with third-degree possession of a CDS, N.J.S.A. 2C:3510(a)(1); third-degree distribution of CDS, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:355(b)(3); and third-degree distribution of CDS on or near school property, N.J.S.A. 2C:35-7.

On February 21, 2006, a grand jury issued a third indictment that charged defendant with second-degree burglary, N.J.S.A. 2C:18-2; nine counts of firstdegree armed robbery, N.J.S.A. 2C:15-1; and a disorderly persons offense for possession of drug paraphernalia, N.J.S.A. 2C:36-2.

The indictments were based on three separate events. First, on July 19, 2005, defendant allegedly sold cocaine to an undercover police officer within a school zone. Second, on October 19, 2005, defendant, armed with a BB gun, and two other men allegedly entered an apartment, forced the occupants onto the floor, and stole marijuana, cash, and other valuables.

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That same day, the police arrested defendant at his girlfriend's apartment after one of the robbery victims identified him from a photo array. In searching defendant incident to the arrest, the police found cocaine on his person.

When the police asked defendant for permission to search the apartment, he declined because it was his girlfriend's apartment. The police immediately contacted defendant's girlfriend, who signed a consent form allowing the police to search the apartment. The search revealed drug paraphernalia and a cell phone taken from one of the robbery victims.

After defendant's arrest, the police contacted his mother, who came to the station and, at the request of the police, spoke with defendant. As a result of their multiple conversations, defendant agreed to cooperate with police and led them to two guns utilized in the robbery. Subsequently, the police gave defendant his Miranda warnings, and he gave a formal statement implicating himself in the robbery.

On [June 15, 2006], pursuant to a plea agreement, defendant pled guilty to one count from each indictment. Specifically, he pled guilty to two counts of third-degree possession with intent to distribute on or near school property, with the State recommending two five-year terms with three years of parole ineligibility. Defendant also pled guilty to one count of firstdegree armed robbery, with the State recommending an eight-year term with an eighty-five percent parole bar pursuant to the No Early Release Act, N.J.S.A. 2C:437.2. All sentences were to be concurrent to each other.

[On August 7, 2006], the judge sentenced defendant in accordance with the

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plea agreement and, at the request of the State, dismissed all remaining counts of the three indictments. Defendant then appealed his sentence, which we affirmed. State v. Cockren, No. A-0165-06 (App. Div. Mar. 27, 2007) [(Cockren I)]. The Supreme Court denied defendant's petition for certification. State v. Cockren, 192 N.J. 293 (2007).

[State v. Cockren, No. A-0651-11 (App. Div. Oct. 29, 2013) (slip op. at 1-4) (Cockren II).]

After his petition for certification was denied, defendant

filed a PCR petition on May 4, 2010. Defendant supplied three

certifications in support of his PCR petition. We previously

summarized the certifications:

In support of defendant's petition, he supplied his girlfriend's certified statement. She asserted that she had been coerced by the police into consenting to the search when they threatened to "trash" her apartment if forced to obtain a warrant. He also supplied his mother's certified statement. She averred that one of the investigating police officers, who was her nephew and defendant's cousin, persuaded her to talk to defendant and get him to provide information to the police about the robbery. Defendant's mother claimed that the police provided questions for her to ask defendant and she conveyed the answers to the police. She stated that she only cooperated because her nephew threatened that she would lose her public housing if she did not.

Defendant also submitted his own certification, where he claimed that his attorney told him he had a "great relationship" with the police, but did not reveal that he was a friend of defendant's

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cousin, who investigated the robbery. He also certified that he once saw his attorney give some money to the prosecutor.

[Id. at 6-7.]

Defendant argued in his PCR petition that his trial counsel

was ineffective because counsel failed to investigate the

"coercion . . . and the threats and trickery used in obtaining

[his] pre-Miranda cooperation and statements," and, as a result,

counsel "lacked the appropriate information to make a strategic

decision regarding bringing any motions to suppress." Id. at 7.

Defendant further argued that motions to suppress the physical

evidence and statements would have been successful. Id. at 8.1

After a non-evidentiary hearing, the PCR petition was denied on

January 28, 2011. Defendant appealed, and we remanded the

matter for an evidentiary hearing "concerning counsel's failure

to move to suppress defendant's confession, evidence seized as a

result of defendant's statements, and evidence seized from the

apartment search." Id. at 16-17.

The remand hearing took place on March 18, 2014. Defendant

testified, as did his mother and girlfriend. The State

presented testimony from defendant's trial counsel. The PCR

judge denied defendant's petition in a twenty-four-page written

1 Defendant also made an argument based on defense counsel's alleged conflict of interest, which we rejected. Id. at 12-13.

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opinion dated June 2, 2014. The judge concluded that the

"suppression issues were 'meritorious'" because the police

conduct was "constitutionally infirm[,]" and there was "at least

a reasonable probability" that the guns, the evidence seized

from defendant's girlfriend's apartment, and his initial

statement "would have been suppressed."

However, the judge concluded that the decision by defense

counsel not to file a suppression motion and to advise defendant

to enter a favorable plea deal "was not constitutionally

deficient." The judge relied on counsel's testimony that he

spoke with both the mother and girlfriend, as well as notations

in his file "clearly indicat[ing] that he saw [defendant's]

interaction with [defendant's cousin, a police officer,] as

problematic and potentially coercive." The judge noted

counsel's testimony that had the case proceeded in the absence

of a plea, he would have filed suppression motions. The judge

further noted:

Most importantly, considering [the Middlesex County Prosecutor's Office's] escalating plea policy, [counsel] was concerned about losing a very favorable plea offer and an opportunity to resolve all three indictments at once. Although [defendant] testified that he was not particularly concerned about the drug charges, [counsel] noticed that those indictments were a real issue. A conviction on both CDS indictments would have exposed [defendant] to the extended term provisions

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of N.J.S.A. 2C:43-6(f). Moreover, considering the circumstances of those drug offenses, the sentences would likely have run consecutive to each other. . . . A subsequent conviction on the first-degree robbery charges would have exposed [defendant] to an additional ten to twenty years in state prison.

In light of all these permutations and the inherent risks involved in filing motions, counsel advised that [defendant] accept an eight-year sentence, [eighty-five percent] of which he would be ineligible for parole. This [c]ourt finds that counsel made a sound strategic decision to forego certain suppression issues after undertaking an adequate investigation. It was entirely permissible for counsel to consider the risk of losing a "global plea resolution" when he rendered professional advice.

Defendant raises the following arguments on appeal:

POINT I

DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL ENTITLING HIM TO POST-CONVICTION RELIEF.

A. TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO FILE A MOTION TO SUPPRESS DEFENDANT'S STATEMENTS MADE TO THE POLICE.

B. TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO FILE A MOTION TO SUPPRESS EVIDENCE FROM AN ILLEGAL SEARCH.

POINT II

UNDER THE DOCTRINE OF CUMULATIVE ERROR[,] A NEW TRIAL SHOULD BE ORDERED PURSUANT TO STATE v. ORECCHIO, 16 N.J. 125, 129 (1954).

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"Post-conviction relief is New Jersey's analogue to the

federal writ of habeas corpus." State v. Preciose, 129 N.J.

451, 459 (1992). Under Rule 3:22-2(a), a criminal defendant is

entitled to post-conviction relief if there was a "[s]ubstantial

denial in the conviction proceedings of defendant's rights under

the Constitution of the United States or the Constitution or

laws of the State of New Jersey[.]" "A petitioner must

establish the right to such relief by a preponderance of the

credible evidence." Preciose, supra, 129 N.J. at 459 (citations

omitted). "To sustain that burden, specific facts" that

"provide the court with an adequate basis on which to rest its

decision[]" must be articulated. State v. Mitchell, 126 N.J.

565, 579 (1992).

Claims of constitutionally ineffective assistance of

counsel are well suited for post-conviction review. See R.

3:22-4(a)(2); Preciose, supra, 129 N.J. at 460. In determining

whether a defendant is entitled to relief on the basis of

ineffective assistance of counsel, New Jersey courts apply the

two-prong test articulated by the United States Supreme Court in

Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct.

2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984), and United

States v. Cronic, 466 U.S. 648, 658-60, 104 S. Ct. 2039, 2046

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47, 80 L. Ed. 2d 657, 667-68 (1984). Preciose, supra, 129 N.J.

at 463; State v. Fritz, 105 N.J. 42, 49-50 (1987).

Under the first prong of the Strickland test, a "defendant

must show that [defense] counsel's performance was deficient."

Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L.

Ed. 2d at 693. Under the second prong, a defendant must

demonstrate "a reasonable probability that, but for counsel's

unprofessional errors, the result of the proceeding would have

been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d

at 698.

Our review of an order granting or denying PCR contains

consideration of mixed questions of law and fact. State v.

Harris, 181 N.J. 391, 415-16 (2004), cert. denied, 545 U.S.

1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). We defer to a

PCR court's factual findings and will uphold those findings that

are "supported by sufficient credible evidence in the record."

State v. Nash, 212 N.J. 518, 540 (2013). However, a PCR court's

interpretations of law are provided no deference and are

reviewed de novo. Id. at 540-41.

Defendant argues that trial counsel provided ineffective

assistance by failing to file the appropriate suppression

motions. We disagree and affirm substantially for the reasons

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set forth in the comprehensive and well-reasoned opinion of the

PCR judge. We briefly add the following.

We note that "[a]dequate assistance of an attorney is

measured according to whether the counsel has professional

skills comparable to other practitioners in the field." State

v. Davis, 116 N.J. 341, 351 (1989). "The test is not whether

defense counsel could have done better, but whether he [or she]

met the constitutional threshold for effectiveness." Nash,

supra, 212 N.J. at 543.

Here, when considered in conjunction with defendant's

potential exposure to a substantial period of incarceration if

convicted after trial, defense counsel procured a favorable plea

agreement. Moreover, counsel's "tactical" decision was

influenced by the State's escalating plea policy and, as the PCR

judge aptly noted, the "inherent risks" in filing the motions.

When reviewing tactical or strategic decisions we engage in

"highly deferential" scrutiny of trial counsel with an eye to

"avoid viewing [counsel's] performance under the distorting

effects of hindsight." State v. Arthur, 184 N.J. 307, 318-19

(2005) (citations and internal quotation marks omitted). "In

matters of trial strategy, we accord great deference to the

decisions of counsel[.]" State v. Biegenwald, 126 N.J. 1, 56

(1991). "Decisions as to trial strategy or tactics are

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virtually unassailable on ineffective assistance of counsel

grounds[.]" State v. Cooper, 410 N.J. Super. 43, 57 (App. Div.

2009), certif. denied, 201 N.J. 155 (2010). A defendant in a

PCR petition "must overcome the presumption that . . . the

challenged action 'might be considered sound trial strategy.'"

Arthur, supra, 184 N.J. at 319 (quoting Strickland, supra, 466

U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694-95). We

find trial counsel's performance with respect to his

representation of defendant — which included interviews

regarding the police investigation, as well as obtaining a

favorable plea agreement — was within the minimum standard of

effective assistance of counsel.

Accordingly, we conclude, as did the PCR judge, that there

was no basis to find that counsel's performance was deficient or

that counsel was not functioning in a manner guaranteed by the

Sixth Amendment.