State v. Swarnes

• Court: New Jersey Superior Court — Appellate Division
• Writing for the Court: PER CURIAM
• Docket Number: A-0874-21
• Decision Date: 21 June 2023
• Parties: STATE OF NEW JERSEY, Plaintiff-Respondent, v. LONNIE E. SWARNES, a/k/a SILVERBACK, Defendant-Appellant.

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STATE OF NEW JERSEY, Plaintiff-Respondent, v. LONNIE E. SWARNES, a/k/a SILVERBACK, Defendant-Appellant.

No. A-0874-21

Superior Court of New Jersey, Appellate Division

June 21, 2023

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.

Submitted April 26, 2023

On appeal from the Superior Court of New Jersey, Law Division Sussex County, Indictment No. 11-08-0298.

Joseph E. Krakora, Public Defender, attorney for appellant (Monique Moyse, Designated Counsel, on the brief).

Annmarie Taggart, Acting Sussex County Prosecutor, attorney for respondent (Shaina Brenner, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

Before Judges Vernoia and Firko.

PER CURIAM

Defendant Lonnie E. Swarnes appeals from an order denying his postconviction relief (PCR) petition without an evidentiary hearing. Having considered the record and the parties' arguments, we are convinced the court correctly determined defendant failed to sustain his burden of establishing any prima facie claims of ineffective assistance of counsel and therefore properly denied the petition without an evidentiary hearing. Accordingly, we affirm.

I.

A grand jury returned an indictment charging defendant with sixteen offenses, including conspiracy to commit murder, conspiracy to commit kidnapping, kidnapping, conspiracy to commit robbery, robbery, attempted theft by extortion, theft by extortion, various possessory weapons offenses, and other offenses. The charges are founded on defendant's participation in a plan to kidnap a designated individual in New Jersey for the purpose of gaining access to the individual's financial accounts for members of the "Hells Angels Club" in Missouri.

While armed with a firearm, defendant traveled with his co-defendants from Missouri to New Jersey; assaulted an individual who had the same name as the plan's intended target; forced that individual into a vehicle against his will; and transported him to Missouri. When defendant and his co-defendants learned they kidnapped the wrong individual, they released him and were then arrested.

Defendant's trial counsel moved to compel the production of records and information from the Missouri Highway Patrol (MHP) and other Missouri law enforcement agencies. The motion was based on defendant's claim he had served as a confidential informant for the MHP and the records and information would show he participated in the charged offenses in his role, or as a result of his role, as a confidential informant who had infiltrated the Hells Angels Club and was providing information concerning its alleged criminal activities. The court granted defendant's motion and ordered various Missouri law enforcement agencies, including the MHP, to turn over specified records and information concerning defendant to the court, the State, and defendant.

Three months later, on October 6, 2015, defendant pleaded guilty to first-degree kidnapping and second-degree attempted theft by extortion pursuant to a plea agreement with the State. The State agreed to dismiss the remaining charges and recommend a sentence not to exceed twenty-five years subject to the requirements of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The plea agreement included a provision stating, "[t]he court has indicated it will consider and take into account evidence defendant seeks to present regarding his cooperation with law enforcement as may be presented at sentencing, including any statement of . . . defendant[,] in fashioning an appropriate sentence."

On January 6, 2016, at the conclusion of a sentencing proceeding that took place on three separate days, the court imposed a fifteen-year sentence subject to NERA on the first-degree kidnapping charge and a consecutive ten-year sentence on the second-degree attempted theft by extortion charge. The court entered defendant's judgment of conviction that day.

Defendant subsequently requested his assigned counsel "appeal [his] entire case[,] including the sentence received." We heard defendant's appeal on a sentencing calendar pursuant to Rule 2:9-11 and affirmed defendant's sentence. State v. Swarnes, No. A-2187-15 (App. Div. May 4, 2016). We found the sentence was not "manifestly excessive or unduly punitive and [did] not constitute an abuse of [the court's] discretion." Ibid.

In a verified PCR petition dated December 3, 2017, defendant claimed he was denied due process during the criminal proceeding because, following the court's order directing the production of information and records from various Missouri law enforcement agencies concerning his service as a confidential informant, the Missouri Attorney General "covered up" evidence defendant claimed is exculpatory in his case.^[1] Following the assignment of counsel on the PCR petition, defendant submitted two supplemental certifications supporting his claims.

In his first certification, defendant asserted trial counsel was ineffective because the Missouri law enforcement agencies "kept" "a lot of exculpatory evidence . . . from" counsel and the prosecution. More particularly, defendant asserted that in 2020, five years after entry of his 2015 plea, he was transferred from custody in New Jersey to custody in Missouri. He claimed that in 2020 he discovered the Missouri Attorney General had not turned over to trial counsel and the State computer and phone records defendant claimed were "exculpatory" as required by the trial court's order compelling production of such information.

Defendant further claimed trial counsel knew the records had been "covered up and he made no objections and just went along with the flow of things."^[2] Defendant also asserted the Missouri Attorney General did not turn over the records because he previously represented one of defendant's co- defendants and wanted to obtain a dismissal of charges in Missouri against the co-defendant.

In his certification, defendant also claimed trial counsel did not object to the State's reliance at sentencing on statements that "had been suppressed."^[3]Defendant further averred trial counsel did not adequately argue at sentencing in support of mitigating factor four, N.J.S.A. 2C:44-1(b)(4) - "[t]here were substantial grounds tending to excuse or justify [his] conduct "- because counsel failed to demonstrate defendant was acting as a confidential informant for MHP at the time he committed the offenses to which he pleaded.

Defendant also claimed appellate counsel provided ineffective assistance by not "look[ing] into any of [defendant's] issues" and by failing to have contact with defendant "to make use of [his] knowledge of the matter."

In his second certification, defendant disputed factual assertions in the State's brief in opposition to the PCR petition and challenged the State's version of some of the facts concerning the actions of individuals in Missouri. Defendant also claimed "the state [of Missouri]" suppressed the purported exculpatory evidence on certain computers by failing to maintain the computers' hard drives.

Following argument on the petition, the court rendered a decision from the bench. The court rejected defendant's claim trial counsel was ineffective by failing to obtain the allegedly exculpatory evidence from Missouri concerning his involvement as a confidential informant because his assertion the evidence is exculpatory was supported only by conclusory assertions. The court noted defendant argued the purported exculpatory evidence he claims was wrongfully withheld by the Missouri Attorney General would establish he had served as a confidential informant for the MHP. The court found this argument unpersuasive because other evidence provided by Missouri law enforcement agencies in response to the trial court's discovery order established defendant served as a confidential informant for the MHP.

The court further found the evidence showed defendant's involvement as a confidential informant ended prior to his commission of the crimes in this State. The court found defendant's commission of the crimes in New Jersey was outside the scope of his duties as confidential informant because it violated his agreement with the MHP. The court noted defendant's agreement with the MHP prohibited him from engaging in any criminal activity while serving in his role as a confidential informant, and defendant admitted to kidnapping and extorting money from the victim in New Jersey. The court concluded defendant's admitted actions breached his agreement with the MHP and therefore trial counsel's purported failure to obtain other information establishing his status as a confidential informant did not result in any prejudice to his defense.

The court concluded defendant failed to present evidence establishing trial counsel's performance was deficient by failing to obtain the purportedly exculpatory evidence or that defendant suffered any prejudice from the alleged failure. The court therefore found defendant was not entitled to an evidentiary hearing on his claim trial counsel was ineffective. The court did not address defendant's claim appellate counsel was ineffective by limiting the arguments on appeal to those related to sentencing.

The court entered an order denying defendant's PCR petition without an evidentiary hearing. In an annexed written statement of reasons, the court amplified its findings expressly rejecting defendant's claims trial counsel was ineffective by failing to obtain exculpatory evidence establishing defendant's association with the MHP. The court noted the State did not dispute that association. The court also...