SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION DOCKET NO. A-2190- 21 STATE OF NEW JERSEY, Plaintiff-Respondent,

v. EMILE G. CONSTABLE, JR., Defendant-Appellant.

__ _______________________

Submitted November 6, 2023

– Decided February 20, 2024 Before Judges DeAlmeida and Berdote Byrne. On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 16

- 08

- 1292. Joseph E. Krakora, Public Defender, attorney for appellant (Andrew Robert Burroughs, Designated Counsel and on the briefs ). Yolanda Ciccone, Middlesex County Prosecutor, attorney for respondent (Joie D. Piderit, Assistant Prosecutor, of counsel and on the brief).
PER CURIAM NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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 t he internet, this opinion is binding only on the parti es in the case and its use in other cases is limite d. R. 1:36- 3.2 A- 2190

- 21

Defendant, Emile Constable, appeals from an October 20, 2021, order denying his petition for post-conviction relief (PC R) without an evidentiar y hearing and denying his motion to withdraw his guilty plea

. Defendant argues the PCR court improperly found he failed to demonst rate a prima facie case of ineffective assistance of counsel on multiple claim s. Discerning no error, we affirm.
I. On February 24, 2016, Edison police arrived at Hillcr est Avenue, where officers found an unresponsive male

— later identified as Aniq Ali (decedent)

— in a vehicle still running. The decedent had no pulse, and ten empty bags marked "Magoo" surround ed hi s body. The bags later tested positive for heroin and fentanyl. Upon searching decedent's phone, officers observed a text conversation between decedent and "Oatmeal" organizing a drug sale for earlier that night

. Officers also found an unsent message from decedent to "Oatmeal, " stating "[y]o, brah, I'm going to keep six, and . . . a thousand percent . . . that shit had barely anything in it, and . . . three bag s were pretty much empty, and . . . it wasn't even dope. That shit was some white epoxy crushed up." Although defendant was known by various aliases, he was positively identified by a former high-school classmate, a con fidential informant/buyer3 A- 2190

- 21

(CI) , and two of his associates as "Oatmeal, " and as the owner of the phone number ascribed to "Oatmeal" in decedent's phone. Additionally, the CI told police she purchased heroin stamped "Magoo" from de fendant on the same day decedent died. One day after decedent's death, the CI arranged for defendant t o sell her drugs at a motel. As police tracked "Oatm eal's" p hone , they found it was moving in the direction of the same motel

. Officers intercepted the vehicle defendant was traveling in and searched him inciden t to his arrest. They found twenty-three bags containing an unknown substance, some stamped "Magoo." One bag later tested positive for fentanyl and hero in. Although the medical examiner did not complete an internal autopsy of decedent because of decedent's family's religious b elie fs , he conducted an external exam and toxicology assessment. Th e decedent's cause of death was determined to be acute combined drug toxicity due t o fentanyl and heroin. Defendant was charged with the following offenses: first-degree strict liability for drug induced death, contrary to N.J.S .A. 2C:35-9 (count one); thirddegree distribution and possession with intent to d istribute a controlled substance, contrary to N.J.S.A. 2C:35-5a(1) and N.J .S.A. 2C:35-5b(13)(coun ts
two and four) ; third-degree possession of controlled substance, co ntrary to N.J.S.A. 2C:35-10a(1)(count three); fourth-degree h indering apprehension ,4 A- 2190

- 21

contrary to N.J.S.A. 2C:29-3b(1)(count five); and t hird-degree hindering apprehension, contrary to N.J.S.A. 2C:29-3b(4)(coun t six ). Approximately one month before defendant's reschedu led trial date , his trial counsel filed a motion to be relieved, statin g there was a "total lack of cooperation" from defendant over the previous four months. As the PCR court noted, trial counsel attempted to schedule multiple meetings and telephone conversations with defendant to no avail , and defendant fail ed to respond to any of trial counsel's requests to meet and prepare. Days before trial was set to commence on the rescheduled trial date, and approxi mately one month after trial counsel's motion to be relieved had been denied, de fendant accepted a plea offer.
Pursuant to the plea agreement, defendant pleaded guilty to first- degree strict liability for drug induced death, and third-degree possession with intent to
distribute a controlled substance. The State agreed to dismiss the remaining four counts and recommend ed an eight-year sentence on c ount o ne , subject to the No Early Release Act (NERA), 1 to run concurrent to a three-year sentence on count
f our . Following extensive questioning, the trial court acc epted the plea, finding the plea was entered "knowingly, freely, and intell igently" and grounded in

1 N.J.S.A. 2C:43-7.25 A- 2190

- 21

sufficient factual basis. The trial court later sentenced defendant in accord ance with the plea agreement to eight years, subject to NERA, with a five-year parole supervision period , a concurrent term of three years on count four, and dismissed the four remaining counts. The trial court found aggravating factors three and nine and no mitigating factors. Defendant challenged his sentence pursuant to Rule 2:9

- 11 on the Sentencing Oral Argument ("SOA") calendar, argu ing the sentencing court failed to find any mitigating factors, although fiv e factors were present. We affirmed the sentence. State v. Constable, No. A- 2189 -21 (App. Div. Jan. 9, 2023) (slip op. at 1 ). In 2019, defendant filed a PCR petition asserting n umerous claims of ineffective assistance of counsel. Additionally, he claim ed he successively asserted a colorable claim of innocence, requiring with drawal of his guilty plea. The trial court appli ed the two-prong test established in Strickland v. Washington , 466 U.S. 668 (1984), and the four factors in State v. Slater, 198 N.J. 145 ( 2009) , and entered an order denying defendant relief. Thi s appeal followed.6 A- 2190

- 21 II. A PCR judge's legal conclusions are reviewed de no vo, and where, as here, the judge declines to hold an evidentiary hearing, we may "conduct a de novo review of both the factual findings and legal concl usions" of the PCR judge. State v. Harris, 181 N.J. 391, 419, 421 (2004).
A. Ineffective assistance of counsel. In a petition for PCR asserting ineffective assist ance of counsel, we are guided by the standards set forth in Strickland, 46 6 U.S. 668 and State v. Fritz , 105 N.J. 42 (1987), which adopted the Strickland st andard in New Jersey. Moreover, the PCR court should grant an evidentiary hearing only whe re defendant has established a prima facie case of ineffect ive assistance of counsel pursuant to Strickland

. See R. 3:22 -10(b).
A defendant will be entitled to PCR for ineffective a ssistance of counsel if he shows, by a preponderance of the evidence, (1 ) "[defendant's] counsel's performance was deficient," and (2) this "deficient performance prejudiced the defense." Fritz, 105 N.J. at 52 (quoting Stricklan d, 466 U.S. at 687); State v. Echols, 199 N.J. 344, 357 (2009). When the matter involves a guilty plea, the second prong requires defendant establish "a reasonab le probability that, but for counsel's errors, [the defendant] would not have pl ed guilty and would have7 A- 2190

- 21

insisted on going to trial." State v. Nuñez-Valdéz , 200 N.J. 129, 139 (2009) (alteration in original) (quoting State v. DiFrisco , 137 N.J. 434, 457 (1994)). Moreover, the defendant must show "that a decision to reject the plea bargain would have been rational under the circumstances." Padilla v. Kentucky, 559 U.S. 356, 372 (2010); State v. Maldon, 422 N.J. Sup er. 475, 486 (App. Div. 2011).
D ef endant claims several errors made by trial counsel prejudiced him, including: 1) failure to consult an independent fo rensic pathologist to determine whether defendant had a causality defense as to dec edent's cause of death; 2) failure to advise defendant about the strengths and weaknesses of the State's case and the probability of success of a lack of causali ty defense; 3) failure to seek a lower sentence and advocate for mitigating factors ; and 4) failure to investigate and file a suppression motion for evidence seized d uring the search incident to defendant's arrest. The trial court detailed the dates and times of tri al counsel's repeated attempts to meet or speak with defendant to establi sh a defense, then ruled:

Based upon this prior history, [defendant] cannot b e heard to complain about the performance of plea counsel since he, himself, abdicated his opportunit y and responsibility to engage with plea counsel in developing a defense. There is no basis upon which [defendant] can now assess the adequacy of plea8 A- 2190

- 21 counsel’s performance since plea counsel, due to [defendant's] absence, was left to his own decision

making regarding choices to be made in preparation for trial, in addition to the development of certain le gal contentions to be advanced on behalf of the defense without input from [defendant]

. Through his willful absence and void of any attempts to meet with plea counsel, it seems clear that [defendant] entrusted all such determinations to the sound discretion of plea counsel, a choice which this [c] ourt will not now second guess as "unreasonable" given the circumstances leading up to the [defendant's] plea. This is in k eeping with the understanding that a reviewing court must not "second guess" what, on its face, were reasonable a nd professional judgments by plea counsel, evaluating the challenged conduct from plea counsel’s perspective at the time. Kimmelman v. Morrison, 477 U.S. 365, 382 (1986); Strickland v. Washington, 466 U.S. 668, 690 (1984); State v. Fritz, 105 N.J. 42, 52 (1987). The court also found trial counsel's performance wa s effective, in light of the evidence and circumstances, and benefitted defe ndant :

[N]one of the decisions made by plea counsel inured to the detriment of [defendant], since the filing of a motion without consulting [defendant] would trigger the State's escalating plea offer policy and preven t [defenda nt] from being able to negotiate a more favorable sentencing recommendation just as he did on the [rescheduled trial date]. This would also include the choice by plea counsel not to retain an expert to contest the State's failure to conduct a full autop sy of the victim. We agree. Defendant cannot voluntarily abstain fro m interac ting with his appointed trial counsel, refuse to participate in t he preparation of any legal9 A- 2190

- 21

strategy or defense, then claim ineffective assista nce of counsel after a carefully negotiated and properly allocuted plea deal is ente red. Additionally, e ven if trial counsel's performance had been deficie nt in some regard, defendant fails to demonstrate there is a reasonable probability he would have rejected the offered plea pursuant to th e second prong of Strickland. See State v. O'Donnell, 435 N.J. Super. 351, 369

- 70 (App. Div. 2014) (quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985)). The tri al court aptly noted trial counsel negotiated a plea agreement which presented defendant with less than half the exposure he would have faced at trial, and the decision to negotiate a favorable plea offer was an informed strategic choi ce based on the evidence presented. S ee Strickland, 466 U.S. at 690- 91

. The record shows, prior to the adjournment of the f irst trial date for unrelated reasons, trial counsel and defendant initially discussed a plea with the State in exchange for cooperation, but those effort s did not result in a plea deal. Ultimately, defendant pleaded guilty to only two co unts of the indictment in exchange for dismissal of the four remaining counts , for a maximum term of eight years subject to NERA, although he was facing an exposure of a possible thirty years. Defendant fails to demonstrate a rational person wo uld have rejected this plea deal.10 A- 2190

- 21

At his plea colloquy, defendant confirmed he review ed all discovery with his trial counsel, was satisfied by the representat ion he received, and did not need additional time to confer with trial counsel. On appeal, defendant makes bald assertions regarding trial counsel's ineffecti ve performance, stating he would not have plead ed guilty to strict liability for drug-induced death if he knew he could have challenged the decedent's cause of death. In doing so, he ignores the weight of the evidence against him, inc luding the text messages to and from decedent on decedent's phone, the CI infor mation and identification, his identification from three other witnesses as "Oatm eal ," and the positive toxicology results for the drugs found in decedent' s body and on defendant's person. A suppression motion, even if successful, would have suppressed the drugs found on defendant's person, relevant only to the plea for possession. Because that sentence ran concurrently with the eig ht-year sentence on count one, it would not have affected the overall length of the sentence. We conclude defendant's failure to demonstrate a prima facie ca se of ineffective assistance of counsel did not war ra nt an evidentiary hearing. See State v. Preciose, 129 N.J. 451, 462-63 (1992); R. 3:22 -10(b).11 A- 2190

- 21

B. Withdrawal of Guilty Plea. The decision to allow the withdrawal of a guilty pl ea lies within the trial court's discretion, Slater, 198 N.J. at 156, and we review for abuse of discretion. State v. Simon, 161 N.J. 416, 444 (1999). A court must consider and balance four factors when evaluating a motion to withdraw a guilty plea: "(1) whether the defend ant has asserted a colorable claim of innocence; (2) the nature and strength of defendant's reasons for withdrawal; (3) the existence of a plea bargain; an d (4) whether withdrawal would result in unfair prejudice to the State or unfa ir advantage to the accused." Slater, 198 N.J. at 157-58. Defendant argues he met the four factors required t o necessitate a plea withdrawal pursuant to Slater, and the court's deni al of his withdrawal motion was in error. Specifically, he contends: (1) "eve n if [ he ] did [what] he admitted to [doing in] his plea hearing, his conduct did not cause [the] decedent's death," proving a colorable claim of innocence; (2) there i s reasonable probability his conduct did not cause the decedent's death; (3) the third factor should "receive [] the least weight in the overall analysis[,] " State v. Munroe, 210 N.J. 429, 443 (2012); and (4) "the passage of time is an insuffic ient reason not to correct an injustice [,] " State v. Ways, 180 N.J. 171, 197 (2004 ).12 A- 2190

- 21

The PCR court disagreed, finding:

[Defendant] does not assert a colorable claim of innocence for several reasons. First, [defendant] provided this [c]ourt with a factual basis for guilt wherein he admitted to meeting with Aniq Ali to sel l him a quantity of heroin Mr. Ali had solicited from h im by way of text message communications. Having sold him the heroin as he had arranged to do, [defendant ] also admitted that he knew that said heroin caused Mr. Ali’s death when Mr. Ali consumed the substance aft er the purchase. [Defendant] also admitted to being i n possession of heroin on the day of his arrest, whic h was found on his person by way of a search incident to his arrest. He clarified that he had the heroin with t he purpose to distribute it to others. He also confir med that he knew the drugs found on his person were tes ted by the laboratory and came back as a combination of heroin and fentanyl. [Defendant] concluded his ple a voir dire by admitting that he sold Mr. Ali, whom h e knew from middle school and high school, heroin tha t was tested by the laboratory with positive results for a mixture of fentanyl and heroin combined. As per photographs a nd text messages that he reviewed, [defendant] concluded that he was aware that Mr. Al i was ingesting those drugs as he was attempting to contact [defendant] about the quality of his purcha se, and as he died as a result of ingesting those drugs

. [Defendant] confirmed that he understood that thoug h he sold what was believed to be heroin to Mr. Ali, because that heroin was also mixed with fentanyl [defendant] was “strictly liable” for causing Mr. Ali’s death. [Defendant], during this voir dire, also admitte d that a review of his cellphone messages on his IPho ne contradicted his attempt to call another individual as an alibi witness because those messages confirmed that he was never with that individual at the time and date proposed in support of said alibi. His final state ment13 A- 2190

- 21 was that he was pleading guilty because he was, in fact, guilty to the charges and that he was entering his plea in lieu of continuing with his trial. In the end, it is clear that [defendant] did commit the crimes to which he [ ple aded] guilty based on his own admissions under oath, admissions which he asserted were made knowingly, intelligently, and voluntarily, and upon the advice of counsel with wh om he was satisfied, and after reviewing all of the St ate’s discovery. His attempt to demonstrate otherwise by alleging in his petition for relief that he did not have the phone utilized to arrange the transaction with Mr. Ali, and that the drugs he possessed at the time of his arrest were not for purposes of distribution, are without merit and belied by his plea voir dire. He fails to identify the requisite specific and credible facts in the record required to support a colorable claim of innocence, thus he is not innocent of the charges and has failed to satisfy the first prong of Slater. We agree with the trial court defendant is unable t o satisfy any of the elements set forth in Slater. Defendant cannot demons trate a colorable claim of innocence on this record. Even if Xanax w as also found in decedent's system , his own after-retained medical expert did not opine Xanax caused decedent's death, only that acute combined drug toxicity, incl uding the fentanyl and heroin , caused his death, which is consistent with the medical exami ner's report. Given the timing of decedent's death, immediately after ingestin g the fentanyl, in a car still running, with an unsent text to defendant on his phone complaining of the14 A- 2190

- 21

drugs defendant sold him , defendant cannot colorably claim the fentanyl was not the cause of decedent's death. In sum, we affirm the denial of PCR, the denial of an evide ntiary hearing, and the denial of defendant's motion to withdraw hi s guilty plea. To the extent we have not addressed plaintiff's remaining argument s, we find they are without sufficient merit to warrant discussion in a written opinion. R. 2:11 -3(e)(1)(E). Affirmed.