STATE OF NEW JERSEY VS. DWAYNE J. JOHNSON (16-09-2582, ESSEX COUNTY AND STATEWIDE)

S
                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
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                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-4799-18T2

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

DWAYNE J. JOHNSON,
a/k/a FABIAN JOHNSON,
QUADREE RICHARDSON,
KEVIN J. JOHNSON,
JAHAD J. MCKNIGHT, and
JAHID J. MCKNIGHT,

     Defendant-Appellant.
_________________________

                   Submitted December 14, 2020 - Decided December 31, 2020

                   Before Judges Fasciale and Mayer.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Essex County, Indictment No. 16-09-2582.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (David A. Gies, Designated Counsel, on the
                   briefs).

                   Theodore N. Stephens, II, Acting Essex County
                   Prosecutor, attorney for respondent (Stephen A.
             Pogany, Special Deputy Attorney General/Acting
             Assistant Prosecutor, on the brief).

PER CURIAM

      Defendant Dwayne J. Johnson appeals from a March 8, 2019 order

denying his petition for post-conviction relief without an evidentiary hearing.

We affirm.

      The facts are undisputed. In the late evening on July 16, 2016, defendant

was driving through Newark.         Sergeant Farella of the Rutgers Police

Department, on routine patrol that night, heard the sound of a loud muffler. The

sergeant found the source of the noise and ran a check of the vehicle's license

plate. The check revealed the vehicle's registration was suspended, and the car's

registered owner, a female, had a suspended license. The sergeant called for

backup and stopped the car.

      Sergeant Farella noted the driver of the car was male and asked the driver

for his license. The driver responded he had no driver's license. When asked

for any other form of identification, the driver said he lost his identification.

The driver provided the sergeant with a false name and date of birth. Sergeant

Farella then asked for the vehicle's registration and insurance information, and

the driver searched the car for the documents.




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      While the driver was searching for the documentation, Sergeant Farella

had dispatch run a search of the driver's name and date of birth. The dispatch

search returned no results for the driver under the given name and birth date.

      Sergeant Farella again asked the driver for identification and driving

credentials. The driver did not know where the car's owner kept the insurance

and registration documents and repeated that he lacked identification. Farella

asked the driver to step out of the vehicle in order to search the car for insurance

and registration documentation.

      The sergeant looked inside the car's center console and noticed a

suspicious plastic bag. The bag, imprinted with a butterfly emblem, contained

several vials of a white powdery substance. 1 Farella suspected the substance

was cocaine. The sergeant continued searching the car and found the insurance

and registration information. No additional drugs were found.

      The driver was arrested for possession of suspected drugs. Farella also

identified the driver as defendant and learned there were several active warrants

for his arrest.




1
   There was a second plastic bag containing vials in the console immediately
behind the first bag. The two plastic bags contained a total of sixty-seven vials
of cocaine.


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      On September 12, 2016, defendant was charged with third-degree

possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a);

third-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5(a)(1)

and (b)(3); and third-degree possession of CDS with intent to distribute within

one thousand feet of school property, N.J.S.A. 2C:35-7(a).

      Pretrial, defendant filed a motion to suppress the drug evidence seized

from the car, arguing the search was illegal. The State opposed the motion.

However, before the suppression motion was decided, defense counsel withdrew

the motion.

      Subsequently, defendant agreed to plead guilty to possession of CDS with

a recommendation of four-years' probation. In exchange, the State would agree

to dismiss the remaining charges and recommend a sentence of 364 days in the

county jail as a condition of probation.

      During the plea hearing, defendant testified he freely and voluntarily

agreed to enter a plea, understood the plea offer, discussed the plea offer with

his counsel, and had no questions regarding the plea. Additionally, defendant

stated he was not threatened or coerced into pleading guilty. The judge accepted

defendant's plea.




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      At sentencing, the judge imposed the sentence recommended by the State

in the plea agreement. Defendant was sentenced to four-years' probation and

given 244 days of jail credit.

      Defendant did not file a direct appeal challenging his conviction. On

January 22, 2018, defendant filed a petition for PCR. In his petition, defendant

argued he received ineffective assistance of counsel because his trial counsel did

not pursue a motion to suppress evidence and trial counsel forced defendant to

accept the plea.

      On March 8, 2019, the PCR judge heard counsels' argument on the motion

for PCR. The judge found the investigatory stop and subsequent search of the

car were lawful. The judge concluded the police officer had probable cause to

stop the vehicle based on the suspended registration. After the stop, Sergeant

Farella allowed defendant to search for the vehicle's insurance and registration

information. Since defendant was unable to find these documents, the judge

explained the sergeant had the legal right to look in areas within the car typically

used to store such documents, including the center console. Based on the facts,

the judge concluded a motion to suppress was "not meritorious," and defense

counsel was not ineffective in failing to pursue such a motion. In addition, the

judge determined counsel acted reasonably in withdrawing the suppression

motion in exchange for a very favorable plea.

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      The PCR judge also rejected defendant's argument he was coerced into

accepting the plea.   She explained the record was "void of any facts that

satisfy[ied this] claim" and the plea hearing transcript showed defendant "freely

and voluntarily entered into the plea with the State." Moreover, the judge found

defendant "acknowledged . . . under oath that he was satisfied with the advice

of counsel, . . . he was provided with an explanation, [and] that he had the

opportunity to ask the attorney any questions."        She also determined an

evidentiary hearing was unnecessary because a hearing would "not aid the

[c]ourt."

      On appeal, defendant argues the following:

            POINT ONE

            CONTRARY TO THE PCR JUDGE'S CONCLUSION,
            THE SUPPRESSION MOTION HAD MERIT WHERE
            ARGUABLY THE SEARCH WAS NOT LIMITED IN
            PURPOSE OR SCOPE.

            POINT TWO

            THE PCR JUDGE'S FACTUAL FINDINGS BASED
            SOLELY ON THE PLEA COLLOQUY WERE
            ERRONEOUS WHERE AN EVALUATION OF THE
            OUT-OF-COURT DISCUSSIONS BETWEEN THE
            TRIAL ATTORNEY AND DEFENDANT IS
            MATERIAL TO A DETERMINATION OF
            WHETHER DEFENDANT'S GUILTY PLEA WAS
            "FORCED."

            POINT THREE

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            DEFENDANT     WAS   PREJUDICED   WHERE
            REJECTING THE PLEA OFFER WAS A RATIONAL
            DECISION IN THE CONTEXT OF THE MERITS OF
            THE MOTION TO SUPPRESS.

            POINT FOUR

            THE PCR JUDGE ABUSED HER DISCRETION IN
            CONCLUDING    THAT   AN   EVIDENTIARY
            HEARING WAS UNNECCESARY.

      Defendant repeats the same arguments presented to the PCR judge. In

addition, defendant asserts the PCR judge erred in denying his petition without

an evidentiary hearing.

      To establish an ineffective assistance of counsel claim, a defendant must

satisfy the two-pronged test formulated in Strickland v. Washington, 

466 U.S. 668

, 687 (1984), and adopted by our Supreme Court in State v. Fritz, 

105 N.J. 42

, 58 (1987). First, a defendant must demonstrate "counsel made errors so

serious that counsel was not functioning as the 'counsel' guaranteed . . . by the

Sixth Amendment." 

Fritz, 105 N.J. at 52

(quoting 

Strickland, 466 U.S. at 687

).

Second, a defendant must prove he or she suffered prejudice due to counsel's

deficient performance. 

Strickland, 466 U.S. at 687

, 691-92. Defendant must

show by a "reasonable probability" that the deficient performance affected the

outcome. 

Fritz, 105 N.J. at 58

.



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        The Strickland test applies to challenges to guilty pleas based on alleged

ineffective assistance of counsel. Hill v. Lockhart, 

474 U.S. 52

, 58 (1985). A

defendant must also show "there is a reasonable probability that, but for

counsel's errors, he would not have pleaded guilty and would have insisted on

going to trial."

Id. at 59.

        We first consider defendant's argument trial counsel was ineffective as a

result of failing to pursue the motion to suppress evidence. The filing of

meritless motions and "[t]he failure to raise unsuccessful legal arguments does

not constitute ineffective assistance of counsel." State v. Worlock, 

117 N.J. 596

,

625 (1990) (citing 

Strickland, 466 U.S. at 688

).

        The PCR judge concluded such a motion was unlikely to succeed based

on the "driving credentials" exception allowing a warrantless search of a vehicle.

The "driving credentials" exception authorizes a police officer to conduct a

limited search of the areas in a vehicle where registration and insurance

information is normally kept in order to verify a vehicle's credentials for public

safety purposes. State v. Terry, 

232 N.J. 218

, 222 (2018). In Terry, the Court

"reaffirm[ed its] decision in Keaton[2]–and in previous cases–that, when a driver

is unwilling or unable to present proof of ownership, a police officer may


2
    State v. Keaton, 

222 N.J. 438

, 450 (2015).


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conduct a limited search for the registration papers in the areas where they are

likely kept in the vehicle."    

Terry, 232 N.J. at 223

. 3 The search must be

"confined to the glove compartment or other area where a registration might

normally be kept . . . ." State v. Jones, 195 N.J. Super 119, 122-23 (App. Div.

1984). In addition to a search of the glove compartment, it is proper to search a

car's center console because that "is a relatively non-private area in which

documentation 'might normally be kept.'" State v. Hamlett, 

449 N.J. Super. 159

,

174 (App. Div. 2017) (quoting State v. Patino, 

83 N.J. 1

, 12 (1980)).

      Here, Sergeant Farella stopped the car after hearing a loud muffler and ran

a check of the license plate. The results indicated the vehicle had an expired

registration and the owner of the car had a suspended license. The sergeant

requested defendant's driving credentials as part of the motor vehicle stop.

Defendant searched the car for the documentation but was unable to locate the

information. After defendant was unable to produce the requested credentials,

Sergeant Farella, while searching for the documents, found a suspicious bag in

the center console. Based on these facts, the judge properly held Farella had the


3
     Here, we note the limitation on a police officer's ability to conduct a
warrantless search under the "driving credentials" exception was inapplicable
because "defendant was not the registered owner of the car." See 

Terry, 232 N.J. at 223

(holding "when a police officer can readily determine that the driver
. . . is the lawful possessor of the vehicle . . . a warrantless search for proof of
ownership will not be justified.").
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right to a limited search of the car for driving credentials and a motion to

suppress would not have been successful.

      Because a motion to suppress evidence was unlikely to succeed, defendant

cannot establish a prima facie case of ineffective assistance of counsel based on

the failure to pursue such a motion. To the contrary, by withdrawing the motion,

trial counsel negotiated a very favorable plea agreement for defendant, resulting

in probation rather than a potential prison sentence. Thus, defendant is unable

to demonstrate any prejudice as a result of defense counsel's failure to proceed

with the suppression motion. We are satisfied the record fully supports the

conclusion defendant failed to meet both prongs of the Strickland/Fritz test.

       We next consider defendant's claim he was "forced" to plead guilty.

Defendant did not submit any certifications or affidavits explaining how he was

coerced by counsel into accepting the plea or that he would have elected to

proceed to trial. In the absence of supporting certifications or affidavits, it was

proper for the judge to review the plea colloquy to resolve the issue. Based on

the transcript of the plea hearing, the judge concluded defendant's plea was made

freely and voluntarily and he was not threatened or forced into pleading guilty.

Moreover, the judge noted defendant signed the plea forms, evidencing his full

agreement to the plea. In addition, the judge relied on defendant's testimony

that he was voluntarily pleading to the charge because he was guilty. Having

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reviewed the record, we are satisfied the judge correctly determined defendant

was not forced or coerced into accepting the plea and, therefore, cannot establish

a prima facie case to support an ineffective assistance of counsel claim .

      We also reject defendant's argument the PCR judge erred in denying the

petition without an evidentiary hearing. A hearing on a PCR petition is only

required when a defendant establishes "a prima facie case in support of [PCR],"

the judge determines that there are disputed issues of material fact "that cannot

be resolved by reference to the existing record," and the judge "finds that an

evidentiary hearing is necessary to resolve the claims for relief." R. 3:22-10(b);

see also State v. Porter, 

216 N.J. 343

, 354 (2013). We are satisfied the judge

did not abuse her discretion in denying an evidentiary hearing under these

circumstances. State v. Preciose, 

129 N.J. 451

, 462 (1992) (citing State v.

Odom, 113 N.J. Super 186, 273 (App. Div. 1971)) ("Although Rule 3:22-1 does

not require evidentiary hearings to be held on post-conviction relief petitions.

Rule 3:22-10 recognizes judicial discretion to conduct such hearings.").

      To the extent we have not addressed any of defendant's arguments, it is

because we conclude they are without sufficient merit to warrant discussion in a

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

      Affirmed.



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