STATE OF NEW JERSEY v. RASHAWN McCLINTON

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Defendant Rashawn McClinton appeals from a January 17, 2014

order denying his petition for post-conviction relief (PCR). On

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.

March 6, 2017 appeal, defendant challenges the denial of his PCR and his request

for an evidentiary hearing, arguing:



POINT I



THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE MATTER REMANDED FOR AN EVIDENTIARY HEARING BECAUSE DEFENDANT MADE A PRIMA FACIE SHOWING OF INEFFECTIVE ASSISTANCE OF COUNSEL.



POINT II



THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED BECAUSE IT VIOLATED DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT OT THE UNITED STATES CONSTITUTION.



POINT III



THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED BECAUSE THE PCR COURT MISAPPLIED THE PROCEDURAL BARS OF R. 3:22-4 AND R. 3:22-5.



Following review of the record and applicable law, we reject

defendant's challenges. We affirm the order denying his petition

for PCR substantially for the reasons stated by the PCR judge.

On direct appeal, in an unpublished opinion, we detailed

evidence presented by the State to support defendant's conviction,

which we incorporate by reference. State v. McClinton, No. A

1321-05 (App. Div. Nov. 6, 2006) (slip op. 1-4). After merger,

defendant was sentenced to a fourteen-year term of imprisonment

on four counts of first-degree armed robbery, N.J.S.A. 2C:15-1,

to be served concurrently, subject to an 85% period of parole

ineligibility, and a concurrent three-year term for possession of

a sawed-off shotgun, N.J.S.A. 2C:39-3(b). After a separate trial

conducted immediately following the first, defendant was sentenced

to a consecutive nine-month term, for certain persons not to

possess weapons, N.J.S.A. 2C:39-7(a).

Defendant's appointed counsel filed a PCR petition alleging

nine separate grounds of ineffective assistance of trial counsel.

Defendant also submitted a pro se supplemental brief, repeating

the issues raised by counsel. Primarily, the requests for relief

focused on trial counsel's failure to file motions to suppress the

State's evidence, particularly, the witness identifications, a

shotgun found in his sister's home, and an out-of-court

identification. Following oral argument, in a written statement

of reasons attached to the January 17, 2014 order, the PCR judge

denied relief and the request for an evidentiary hearing. This

appeal ensued.

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

federal writ of habeas corpus." State v. Goodwin, 173 N.J. 583,

593 (2002) (quoting State v. Preciose, 129 N.J. 451, 459 (1992)).

"A petitioner must establish the right to such relief by a

preponderance of the credible evidence." Preciose, supra, 129

N.J. at 459.



New Jersey has adopted the two-prong test handed down by the

United States Supreme Court in the companion cases of Strickland

v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674

(1984), and United States v. Cronic, 466 U.S. 648, 104 S. Ct.

2039, 80 L. Ed. 2d 657 (1984). See State v. Fritz, 105 N.J. 42,

58 (1987) (adopting Strickland's two-pronged test). To establish

a prima facie case of ineffective assistance of counsel:

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.



[Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.]



Under the first prong, a defendant must demonstrate

"counsel's representation fell below an objective standard of

reasonableness." Id. at 688, 104 S. Ct. at 2064, 80 L. Ed. 2d at

693. Thus, "th[e] test requires the defendant to identify specific

acts or omissions that are outside the 'wide range of reasonable

professional assistance[.]'" State v. Jack, 144 N.J. 240, 249

(1996) (citation omitted). "'Reasonable competence' does not

require the best of attorneys, but certainly not one so ineffective







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as to make the idea of a fair trial meaningless." State v. Davis,

116 N.J. 341, 351 (1989).

To meet the second prong, "[a] defendant must show that there

is 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 694, 104 S. Ct. at 2068, 80 L. Ed.

2d at 698. "A reasonable probability is a probability sufficient

to undermine confidence in the outcome." Ibid.

In our review, we defer to the motion judge's findings if

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

v. Nash, 212 N.J. 518, 540 (2013). See State v. Elders, 192 N.J.

224, 244 (2007) ("A trial court's findings should be disturbed

only if they are so clearly mistaken that the interest of justice

demand intervention and correction.") (citation omitted). Legal

conclusions which flow from those facts, however, are reviewed de

novo. Nash, supra, 212 N.J. at 540–41.

Although the PCR judge identified procedural bars to preclude

certain issues defendant raised, he, nevertheless, considered the

merits of each argument. We affirm substantially for the reasons

expressed in that opinion and add these comments.

In overarching statements, defendant's PCR petition asserted

trial counsel failed to file meritorious pretrial motions, object

to inadmissible hearsay testimony, communicate with defendant, and







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object to the unwarranted and excessive number of sheriff's

officers in the courtroom. Addressing these broad claims,

defendant's pleadings recited trial events, such as impermissible

admission of the victim's identification testimony. He then

recited the legal proposition underpinning a Wade1 hearing;

however, factual links substantiating why counsel's handling of

the matter amounted to ineffective assistance were missing. State

v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied,

162 N.J. 199 (1999).

The pattern continues in the present appeal. For example,

defendant asserts:

contrary to the PCR [c]ourt's findings, there was a "connect" between the claimed deficiencies by trial counsel to the law and to the Strickland test. It is wellestablished that trial counsel has a duty to file appropriate pretrial motions seeking the suppression of wrongfully obtained evidence. Trial counsel has a duty to file an [sic] pretrial motion to preclude admission of an improperly secured out-of-court identification. Trial counsel has a duty to object to inappropriate prejudicial jury instructions and to seek appropriate limiting jury instructions ameliorating the prejudice caused by the admission of inadmissible hearsay. Trial counsel has a duty to communicate with defendant in a timely manner.





Defendant also he suggests appellate counsel was ineffective and

failed to engage "a meaningful opportunity to root out the claimed

injustices," but treated the appeal like "a pro forma exercise."

Again, defendant lists alleged problems, but the claims are

untethered to facts showing how counsel's conduct deviated from

acceptable standards of representation or any showing of the impact

resulting from the suggested omissions. We offer these

illustrations.

Relating to suppression of the gun evidence, defendant

accurately sets forth constitutional protections against

warrantless searches and seizures. He notes the shotgun introduced

by the State was found under the steps of his sister's home and

claims she did not recall giving consent and, alternatively, was

coerced. Defendant concludes his Fourth Amendment rights were

violated and suppression was required. See State v. Fisher, 156

N.J. 494, 501 (1998) ("[W]hen counsel fails to file a suppression

motion, the defendant not only must satisfy both parts of the

Strickland test but also must prove that his Fourth Amendment

claim is meritorious.") (citing Kimmelman v. Morrison, 477 U.S.

365, 384, 106 S. Ct. 2574, 2583, 91 L. Ed. 2d 305, 325 (1986)).

Therefore, counsel must have been ineffective because the gun was

not suppressed.







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This reasoning omits significant evidence that easily defeats

any suppression claim. At trial, defendant's sister acknowledged

her signature on the consent to search form and no evidence

supported defendant somehow held a reasonable expectation of

privacy for items placed under exterior steps at his sister's

house. See State v. Hempele, 120 N.J. 182, 200 (1990) (holding

the Fourth Amendment is not violated when there is not a reasonable

expectation of privacy in the area searched). Furthermore, the

specific issue was considered on direct appeal, and the reviewing

panel concluded there was no evidence of coercion for the consent

to search, making it "not a close case."

This example shows the insufficiency of defendant's alleged

PCR claims. We reviewed each of the other additional claims,

which suggest trial counsel failed to communicate with defendant,

should have requested a mistrial, failed to oppose admission of

hearsay testimony (a matter raised and rejected on direct appeal),

did not effectively object to improper remarks in the State's

summation (also rejected on direct appeal), and failed to recognize

the prejudice suffered as a result of numerous Sheriff's officers

present during trial.

Even if we consider defendant's contentions indulgently, we

find no basis to grant relief. Repetition of claimed errors

unsupported by "facts sufficient to demonstrate counsel's alleged

substandard performance" amounts to nothing more than "bald

assertions that he was denied the effective assistance of counsel."

Cummings, supra, 321 N.J. Super. at 170. Without more, we agree

with the PCR judge the petition filed was insufficient to support

a prima facie case of ineffectiveness as there is nothing to

demonstrate how "counsel's representation fell below an objective

standard of reasonableness." Strickland, supra, 466 U.S. at 688,

104 S. Ct. at 2064, 80 L. Ed. 2d at 693. We conclude, "there is

no basis for finding that defendant was denied the effective

assistance of counsel." State v. Taimanglo, 403 N.J. Super. 112,

124 (App. Div. 2008), certif. denied, 197 N.J. 477 (2009). We

reject claims concluding it was error barred by Rule 3:22-5,

because they were reviewed on appeal, or otherwise found to be

meritless, R. 2:11-3(e)(2).

In our review, we also find no basis to reverse the denial

of PCR regarding the attacks on appellate counsel's assistance.

"The right to effective assistance includes the right to the

effective assistance of appellate counsel on direct appeal." State

v. O'Neil, 219 N.J. 598, 610-11 (2014) (citing Evitts v. Lucey,

469 U.S. 387, 396, 105 S. Ct. 830, 836, 83 L. Ed. 2d 821, 830

(1985) ("A first appeal as of right . . . is not adjudicated in

accord with due process of law if the appellant does not have the

effective assistance of an attorney.")); State v. Guzman, 313 N.J.







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Super. 363, 374 (App. Div.) (holding that Strickland test applies

to claims of ineffective assistance at trial level and on appeal),

certif. denied, 156 N.J. 424 (1998).

The trial judge's denial of trial counsel's motion for a Wade

hearing was not presented on direct appeal.2 In his consideration

of the Wade issue, the PCR judge found no evidence of taint offered

to rebut the trial judge's similar finding. See State v. Herrera,

187 N.J. 493, 503-04 (2006) (examining suggestiveness of out-of

court identification procedures). The PCR judge's consideration

of the evidence showed the photographic array was properly

conducted by an officer not involved in the investigation and the

victim chose defendant's picture, identifying defendant as the

unmasked robber who held the sawed off shotgun to his head. At

trial, intense cross-examination of the witness's testimony

challenged his recollection of the specifics of his out-of-court

identification such as showing the witness could not state whether

the perpetrator had a mustache. These facts may challenge the

credibility of the witness's recollection; however, they do not

taint the identification. We conclude the PCR judge fully

considered this issue and properly applied the law. We reject the

notion appellate counsel was ineffective for not raising an issue

for which appellate relief was not warranted.