State v. Morrison

• Decision Date: 09 March 1987
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Neil MORRISON, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 540

215 N.J.Super. 540

522 A.2d 473

STATE of New Jersey, Plaintiff-Respondent, v. Neil MORRISON, Defendant-Appellant.

Superior Court of New Jersey,

Appellate Division.

Argued Dec. 16, 1986.

Decided March 9, 1987.

William P. Welaj, Designated Counsel, Somerville, for defendant-appellant (Alfred A. Slocum, Public Defender of New Jersey, attorney; William P. Welaj, of counsel and on the brief).

Michael H. Weinstein, Deputy Atty. Gen., for plaintiff-respondent (W. Cary Edwards, Atty. Gen., attorney; Michael H. Weinstein, of counsel and on the brief).

Before Judges MICHELS, O'BRIEN and SKILLMAN.

The opinion of the court was delivered by

O'BRIEN, J.A.D.

Defendant appeals from the denial of his petition for post-conviction relief. We affirm.

On April 24, 1980, defendant was convicted on Indictment # 222-78 of carnally abusing M.D., a 15 year old child, in violation of N.J.S.A. 2A:138-1, upon which he was sentenced on July 3, 1980 to a minimum of eight and a maximum of 10 years in the New Jersey State Prison. We affirmed that conviction on February 4, 1982. Defendant withdrew a pro se petition for post-conviction relief which he had filed on August 10, 1981. Thereafter the present petition for post-conviction relief was filed on April 19, 1982. After a hearing, it was denied by the trial judge, and this appeal is from that denial. We affirm.

The offense which is the subject matter of this conviction was committed on December 22, 1977. It occurred in a small back room of a seafood store operated by defendant and Mack Ross (Ross). The victim told the police she had left a pair of brown pantyhose at the crime scene. Thereafter a police officer went to the store, explained the purpose of his visit to Ross and, allegedly with Ross' consent, ¹ searched the back room where he found and seized the pantyhose.

In a separate indictment # 369-78, defendant was charged with carnally abusing M.J., also a child 15 years of age, on October 13, 1977. ² After a bench trial on March 20, 1979, defendant was convicted on that indictment and sentenced on June 7, 1979.

Defendant retained private counsel to represent him on both indictments. Defendant was arraigned on Indictment # 222-78 on March 16, 1978, but his motion to suppress the pantyhose was not filed until May 8, 1979. ³ As was the practice in Passaic County, the motion was not heard until April 14, 1980, when the trial on Indictment # 222-78 was about to commence. By this time defendant was represented by the public defender. The State objected to the timeliness of the motion under R. 3:5-7.

In an effort to demonstrate good cause to enlarge the time to move to suppress beyond the required 30 days after the initial plea, pursuant to R. 3:5-7, the public defender asked Robert Goodman (Goodman), defendant's original private counsel, to explain to the court the reasons for his delay in filing the motion. Goodman testified that he was representing defendant on Indictment # 369-78, when Indictment # 222-78 was returned. According to Goodman, the defendant continually assured him that the charge in Indictment # 222-78 was not serious and he could explain it away. The State moved to consolidate the two cases for trial in January 1978, at which time, according to Goodman, he obtained discovery for the first time. Through this discovery, he learned that the pantyhose had been taken from the back room of the business establishment and that defendant's business partner Ross had allegedly consented to the search. ⁴ Although Goodman had reservations about the potential success of a motion to suppress in view of Ross' alleged consent, he nevertheless filed the motion. ⁵

Relying upon State v. Allaband, 134 N.J.Super. 353, 341 A.2d 340 (App.Div.1975), the trial judge concluded that the neglect of an attorney in filing a motion to suppress does not constitute good cause to extend the time. He therefore denied the motion to suppress on April 16, 1980 as untimely. Trial commenced immediately thereafter and defendant was convicted. After denial of his motion for a new trial, defendant was sentenced on July 3, 1980. On his original appeal to this court, defendant did not seek review of the denial of his motion to suppress.

Initially, defendant's petition for post-conviction relief was denied by the trial judge by letter opinion of June 1, 1982. The judge found that petitioner's first two grounds, i.e., refusal to hear his motion to suppress as untimely and inadequacy of trial counsel, had not been raised on direct appeal and thus could not be raised in a petition for post-conviction relief. R. 3:22-4. However, the judge recognized that defendant's third ground, i.e., ineffective assistance of appellate counsel, obviously could not have been raised in the appeal and he therefore addressed it. The judge reviewed his findings of fact when he concluded that the motion to suppress was untimely, and good cause for enlargement had not been shown. The trial judge then decided that appellate counsel's decision not to raise denial of the motion to suppress on appeal did not mandate a finding of ineffectiveness or incompetence.

Following a letter from defendant, the trial judge agreed that counsel should have been appointed to represent defendant in the presentation of his petition for post-conviction relief. Outside counsel was appointed by the public defender and a hearing was held. The trial judge again concluded that his original determination that good cause was not shown to enlarge the time for filing the motion to suppress was correct. He further concluded that failure to raise on appeal the denial of the suppression motion, as well as the ineffectiveness of Goodman in failing to file a timely motion, were fatal to the petition for post-conviction relief under R. 3:22-4. However, the trial judge left open "for whatever action the defendant wishes to take with respect to the third application as to the ineffectiveness of appellate counsel." Essentially, the trial judge concluded that he did not have sufficient evidence to pass on that particular issue. The judge then ruled:

I want an order to the effect that the application for post-conviction relief based on failure of the court to allow the suppression hearing and failure of the defendant to have effective counsel during the--prior to and during trial are denied. The court takes no action with respect to the third application based on ineffective assistance of appellate counsel in view of the defendant's failure to provide adequate information and documentation relative to the same.

It does not appear that this issue was pursued further by defendant before the trial judge, and thus it is not, strictly speaking, before us on this appeal. Nonetheless, the State argues that we should accept the initial conclusion of the trial judge that appellate counsel could make a reasonable professional judgment not to urge denial of the motion to suppress on appeal without ineffectively representing his client. We therefore choose to address that issue.

The State recognizes that in Evitts v. Lucey, 469 U.S. 387, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985), the Supreme Court held that due process guarantees a criminal defendant effective assistance of counsel on a first appeal as of right. However the Court did not set forth a standard to assess claims of ineffective appellate counsel. In the absence of other guidelines, we will apply the standard for assessing ineffective assistance of trial counsel claims established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and adopted by the Supreme Court of New Jersey in State v. Fritz, 105 N.J. 42, 519 A.2d 336 (1987). This was the standard used by the District Court in assessing a claim of ineffective assistance of appellate counsel in United States ex rel. Bradley v. Hartigan, 612 F.Supp. 795, 814n. 4 (D.Ill.1985), and the standard defendant urges us to use in his brief. We conclude that in applying the Strickland standard to assess a claim of ineffective assistance of appellate counsel, defendant must show not only that his attorney's representation fell below an objective standard, but also that he was prejudiced, i.e., but for counsel's unprofessional errors, the result would have been different. See Tsirizotakis v. LeFevre, 736 F.2d 57, 65 (2d Cir.1984), cert. den. 469 U.S. 869, 105 S.Ct. 216, 83 L.Ed.2d 146 (1984).

As noted, Goodman also represented defendant through his trial on Indictment # 369-78 upon which defendant was convicted. On appeal, defendant retained new counsel and alleged ineffective assistance of Goodman and error in the trial court's refusal to entertain a motion to suppress raised for the first time during trial. In an unreported opinion, we announced summarily that both claims had no merit and affirmed his conviction. The Supreme Court of New Jersey denied his petition for certification. State v. Morrison, 87 N.J. 368, 434 A.2d 1056 (1981). Defendant's application for post-conviction relief raising the same issues was denied, from which he did not appeal.

Defendant then made application for a writ of habeas corpus to the United States District Court for the District of New Jersey, pursuant to 28 U.S.C. § 2254 as to his conviction on Indictment # 369-78. See Morrison v. Kimmelman, 579 F.Supp. 796 (D.N.J.1984). The United States District Court found defendant's ineffective assistance claim to be meritorious, but since defendant did not allege that the State had denied him an opportunity to litigate his fourth amendment claim fully and fairly, direct consideration of this claim on federal habeas review was barred by Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976). Yet, because defendant had been prejudiced by his counsel's ineffectiveness, the District Court issued a conditional writ of habeas corpus ordering Morrison's release unless New Jersey began a retrial within 90 days.

The Court of Appeals for the Third...