RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5141-15T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SCOTT WAYNE HARRIS,

Defendant-Appellant.

_____________________________

Argued November 9, 2018 – Decided

Before Judges Simonelli, Whipple and DeAlmeida.

On appeal from Superior Court of New Jersey, Law 

Division, Burlington County, Indictment No. 92-02-

0158.

Louis H. Miron, Designated Counsel, argued the cause 

for appellant (Joseph E. Krakora, Public Defender, 

attorney; Louis H. Miron, on the brief).

Andre R. Araujo, Assistant Prosecutor, argued the 

cause for respondent (Jennifer Webb-McRae, 

Cumberland County Prosecutor, attorney; Andre R. 

Araujo, of counsel and on the brief).

NOT FOR PUBLICATION WITHOUT THE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.

January 18, 2019
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Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant, Scott Wayne Harris, appeals from a May 12, 2016 denial of 

his third petition for post-conviction relief (PCR). Defendant alleged his second

trial counsel was constitutionally ineffective because she failed to communicate 

a plea offer. The court granted defendant an evidentiary hearing but concluded 

his ineffective assistance claim was meritless and denied relief. We agree and 

affirm for the following reasons.

This is the fourth time this Court has reviewed defendant's case, either on 

direct appeal or PCR. The facts surrounding the charged offenses are 

summarized in the direct appeal, State v. Harris, A-5202-92 (App. Div. Nov. 17, 

1995), and we need not repeat them here. We focus our attention on defendant's 

allegations in his PCR petition concerning the conduct of his trial counsel in 

1992 and the revival of a tainted jury claim he first brought in a 1996 PCR 

petition.

On February 6, 1992, defendant was charged with: first-degree attempted 

murder, N.J.S.A. 2C:5-1, 2C:11-3(a)(1); second-degree aggravated assault, 

N.J.S.A. 2C:12-1(b)(1); third-degree aggravated assault, N.J.S.A. 2C:12-

1(b)(2); first-degree sexual aggravated assault, N.J.S.A. 2C:14-2(a); third-
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degree terroristic threats, N.J.S.A. 2C:12-3(a); third-degree possession of a 

weapon for unlawful purpose, N.J.S.A. 2C:39-4(d); first-degree kidnapping,

N.J.S.A. 2C:13-1(b); second-degree witness tampering, N.J.S.A. 2C:28-5(a);

and fourth-degree tampering with evidence, N.J.S.A. 2C:28-6(1). A jury 

convicted defendant of all counts except attempted murder. After we modified 

the sentence imposed by the trial judge, defendant was sentenced to a fifty-year 

term with a twenty-five-year parole disqualifier.

In 1996, defendant filed his first PCR petition. He alleged someone 

named "Fletcher Shay Skerl" contacted juror T.S. and informed her of 

defendant's criminal history and expressed doubts about defendant's innocence. 

The first PCR judge conducted an evidentiary hearing but denied relief because 

he did "not believe [defendant's] testimony" and found defendant's claim "to be 

incredible." We affirmed.

In 1997, defendant filed his second PCR petition alleging the police 

violated his Miranda1rights, the trial judge gave incorrect instructions 

concerning the requirement for a unanimous verdict and defendant's trial counsel 

rendered ineffective assistance. The PCR judge denied defendant an evidentiary 

 

1 Miranda v. Arizona, 384 U.S. 436 (1966).
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hearing, we affirmed, and our Supreme Court denied certification. Defendant's 

petition for a writ of habeas corpus was unsuccessful.

On September 30, 2013, defendant filed another PCR petition. Defendant 

alleged his trial counsel was constitutionally ineffective because she did not

communicate a plea offer extended by the State. As proof, defendant submitted

a newspaper clipping, allegedly discovered in 2013, reporting the State extended 

a plea offer to defendant of forty years imprisonment with twenty-year parole 

ineligibility for the first-degree kidnapping and second-degree aggravated 

assault charges. On May 14, 2014, defendant filed a supplemental brief reviving 

his tainted jury claim.

On July 29, 2014, the court appointed counsel to represent defendant on

the ineffective assistance claim but denied assignment of counsel to the jury 

tampering issue. We denied defendant's motion for leave to appeal the court's

order. While an appeal to the Supreme Court was pending, another judge

ordered counsel to be appointed to all issues raised in defendant's third PCR

petition and granted defendant's motion to change venue.

The judge, who then considered defendant's third PCR petition, authored 

a written opinion finding defendant stated a prima facie case of ineffective 

assistance of counsel and ordered an evidentiary hearing. The judge concluded 
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defendant's ineffective assistance claim was timely and not barred by Rule 3:22-

12(a)(2) because defendant claimed he first learned of the uncommunicated plea 

deal in 2013 and filed a third PCR petition the same year. However, the judge

held Rule 3:22-5 barred defendant's jury tampering charge because it was 

previously adjudicated on the merits upon defendant's first PCR petition.

We discern the facts relevant to defendant's ineffective assistance claim 

from the hearing record. In February 1992, Linda Lawhun was appointed to 

represent defendant. She described defendant as the most "engaged" client she 

ever had and characterized their working relationship as "very good." The 

prosecutor had a similar memory of defendant and recalled him as "the most 

involved of any of the defendants I've ever prosecuted." Defendant constantly 

wrote letters to Lawhun to discuss his case, including several prior to trial that 

are at the heart of this PCR petition.

Prior to trial, defendant wrote a letter to his first trial counsel, insisting he 

wanted a plea of twenty-to-twenty-five years flat so he would be released from 

jail by age sixty-five. Lawhun testified defendant wanted a plea of twenty years 

to avoid maximum sentencing exposure. Instead, the prosecutor only offered 

defendant a plea of first-degree kidnapping and second-degree aggravated 

assault with no sentencing recommendation, meaning defendant's maximum 
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sentencing exposure under the plea would be a forty-year term with parole 

ineligibility of twenty years (40/20 plea offer). The prosecutor testified Lawhun

asked whether the State would accept a twenty-year flat sentence, but the 

prosecutor declined the request. On April 30, 1992, defendant signed a trial 

memorandum refusing the State's offer to plead guilty to the assault and 

kidnapping charges "with no rec." On May 28, 1992, the trial judge asked 

Lawhun in open court, "Will your client be able to reach a conclusion with 

respect to the plea bargain by next Friday with the four, five and six indictments 

still outstanding?" To which she responded, "I won't know that until I've had a 

chance to speak with him." On June 9, 1992, the trial judge warned defendant 

the following day was his last to accept the State's plea offer. The prosecutor

testified the trial judge discussed the plea with defendant and Lawhun testified 

that the trial judge always reviewed pleas with defendants.

Defendant asserts Lawhun never communicated the 40/20 plea to him and 

therefore she was constitutionally ineffective. As proof, defendant points to an 

exchange of letters between he and Lawhun from 1992. On March 25, 1992, 

defendant wrote to Lawhun requesting she secure "a plea offer of whatever 

amount of time you deem appropriate and reasonable considering the 

[indiscernible] of my case." Lawhun responded on April 2, 1992, and explained:
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I have received your numerous letters concerning a plea 

bargain in your case. At the present time the 

prosecutor's offer remains the same. That is to say that 

she is willing to let you plead guilty to the kidnapping 

count and the aggravated assault count but will not 

recommend a specific sentence to the court.

In effect, you are being offered nothing, because 

the maximum time that you would be sentenced to if 

you were to go to trial is similar to that which you could 

receive if you pled guilty to these two counts.

Defendant wrote Lawhun back, saying:

Frankly, I'm confused because when you last spoke 

with me over the telephone, during our 15 minute 

conversation, you told me that I have a "No Rec Plea 

Offer" that is at the discretion of the court. Now, you 

are saying, according to your April 2, 1992 letter to me, 

it is your opinion that my case will end up being placed 

on the trial list. . . . Well, just do your best to get me a 

plea offer.

The record does not contain Lawhun's responsive letter, if one was written.

Lawhun acknowledged she described the State's plea offer as equivalent 

to "being offered nothing" because the sentencing exposure on the assault and 

kidnapping charges was the same under the State's offer as if he went to trial. 

When asked whether her letter was referring to defendant's full sentencing 

exposure if found guilty at trial of all crimes, Lawhun disagreed and explained 

her letter referred only to the sentencing exposure of assault and kidnapping 

under the State's plea offer compared to defendant's exposure if found guilty of 
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the same two crimes. The prosecutor agreed with this characterization because 

the State offered defendant a plea to two of the several charges with no 

sentencing recommendation, meaning defendant ran the risk of facing full 

sentencing exposure on all crimes charged if found guilty at trial.

Several letters and pre-trial hearing transcripts from when the plea deal 

was discussed are not included in the record. At some point after the evidentiary 

hearing was granted but before the hearing, the State learned defendant had 

written to Lawhun saying, "Unlike me, the State does not have the plea offer 

hearing transcripts in my criminal case" and "Lucky for me, I saved your letters 

to me. I will see you at my evidentiary hearing. Also, I kept my transcripts 

too." The State filed an ex parte application with the PCR judge requesting 

seizure and in-camera review of the documents defendant had in his jail cell. 

The judge granted the application but prohibited defendant's PCR counsel from 

informing defendant for fear he may destroy the documents. Defendant's cell 

was searched, but neither the transcripts nor letters were found.

Following the evidentiary hearing, on May 12, 2016, the judge denied 

defendant's PCR petition. The judge concluded the newspaper clipping, 

Lawhun's April 2, 1992 letter, and the trial memorandum all demonstrated

defendant knew of and rejected the 40/20 plea offer. The judge found it "curious 
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defendant retained and presented only this one letter from Ms. Lawhun, which 

he attempts to argue to his advantage, when Ms. Lawhun wrote defendant 

approximately 12 other letters." Moreover, the judge found it "inexplicable" 

that defendant, "who terms himself a meticulous saver of documents," did not 

have the April 30, 1992 pretrial transcript where the trial court presumably 

reviewed the plea offer with defendant. The judge also found the newspaper 

article was evidence demonstrating the 40/20 plea offer was made in open court

and refused to allow defendant to simultaneously argue the newspaper article 

proves the offer was never communicated to him, while also showing the offer 

was in fact made. Thus, the judge concluded "[t]here is simply no evidence that 

the article could reflect anything other than what had occurred in open court on 

that same date." Based on these findings, the judge concluded defendant could 

not prove Strickland's2 prejudice prong, and, even if he could, there was credible 

evidence indicating he would never have accepted the 40/20 plea offer in the 

first instance.

The judge also ruled on December 28, 2015, that defendant's jury 

tampering claim was procedurally barred. The judge found this claim to be 

 

2 Strickland v. Washington, 466 U.S. 668 (1984).
10 A-5141-15T1

sufficiently identical to the claim defendant brought in his first PCR petition. 

The appeal of both orders followed.

Defendant, through counsel, raises the following issues on appeal:

I. THE PCR COURT ERRED IN RULING THAT 

HARRIS RECEIVED THE EFFECTIVE 

ASSISTANCE OF COMPETENT COUNSEL IN 

CONNECTION WITH THE STATE'S PLEA 

OFFER TO HARRIS.

A. The Strickland-Cronic-Fritz Standard

B. Harris Received Ineffective Assistance of 

Counsel in Connection with his Plea 

Bargaining

C. Trial Counsel's Assistance was 

Constitutionally Defective as It relates to 

the State's 40/20 Plea Offer

II. THE PCR COURT ERRED IN FINDING THAT 

HARRIS RECEIVED THE EFFECTIVE 

ASSISTANCE OF TRIAL COUNSEL IN 

CONNECTION WITH THE 40/20 PLEA 

OFFER FROM THE STATE AND,

THEREFORE, THIS CASE SHOULD BE 

REMANDED WITH DIRECTION TO HAVE 

THE STATE REOFFER THE 40/20 PLEA 

OFFER TO HARRIS AND HAVE THE TRIAL 

COURT VACATE HARRIS' CONVICTION 

AND RESENTENCE HARRIS PURSUANT TO 

THE 40/20 PLEA OFFER.

III. THE PCR COURT SHOULD HAVE 

CONDUCTED AN EVIDENTIARY HEARING 
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TO ADDRESS THE TAINTED JURY CLAIM 

RAISED BY DEFENDANT.

IV. THIS CASE SHOULD BE REMANDED TO 

THE PCR COURT WITH DIRECTION TO 

VACATE HARRIS' CONVICTION OR TO 

CONDUCT AN EVIDENTIARY HEARING 

BEFORE A DIFFERENT JUDGE BECAUSE

THE PCR JUDGE WAS NOT IMPARTIAL 

AND THUS, HARRIS DID NOT RECEIVE A 

FAIR PCR HEARING (NOT RAISED BELOW).

Defendant, through a pro se brief, raises the following issues on appeal:

I. THE PCR COURT ERRED IN DENYING 

DEFENDANT'S PETITION FOR POSTCONVICTION RELIEF WHERE THE 

RECORD BELOW UNEQUIVOCALLY 

DEMONSTRATED THAT HE RECEIVED 

INEFFECTIVE ASSISTANCE OF COUNSEL, 

AND COUNSEL'S FAILURE TO PROPERLY 

AND ACCURATELY INFORM AND 

COUNSEL HIM, WITH RESPECT TO THE 

STATE'S PLEA OFFER, RESULTED IN A 

REJECTION OF THAT OFFER, WHICH HE 

SUBSEQUENTLY RECEIVED A SENTENCE 

SIGNIFICANTLY GREATER THAN THAT 

EMBODIED IN THE STATE'S PROPOSED 

PLEA ORDER.

Generally, "[o]ur standard of review is necessarily deferential to a PCR 

court's factual findings based on its review of live witness testimony." State v. 

Nash, 212 N.J. 518, 540 (2013). A PCR court's findings will be upheld if they 

are supported by sufficient credible evidence in the record. Ibid. All legal 
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conclusions are reviewed de novo. State v. Harris, 181 N.J. 391, 419 (2004).

We address defendant's arguments concerning the plea offer, the tainted juror 

and the judge's bias. We reject all three.

To prevail under Strickland/Fritz, defendant must show: (1) his lawyer's 

performance was deficient and (2) the deficient performance prejudiced him. 

Strickland, 466 U.S. at 687; State v. Fritz, 105 N.J. 42, 52 (1987). The Sixth 

Amendment has long guaranteed the right to effective plea counsel. See, e.g., 

Hill v. Lockhart, 474 U.S. 52, 56 (1985); State v. DiFrisco, 137 N.J. 434, 456 

(1994).

More recently, the Supreme Court extended this right to contexts where, 

as a result of attorney ineffectiveness, a defendant rejects a plea offer. Missouri 

v. Frye, 566 U.S. 134, 138 (2012); Lafler v. Cooper, 566 U.S. 156, 162 (2012). 

Generally, plea counsel "has the duty to communicate formal offers from the 

prosecution to accept a plea on terms and conditions that may be favorable to 

the accused." Frye, 566 U.S. at 145; see State v. Powell, 294 N.J. Super. 557, 

564 (App. Div. 1996) ("an attorney's conduct is incompetent when a plea offer 

is never communicated by the attorney to the client"). In Frye, defense counsel's 

performance was deficient because he allowed a plea offer to expire without 

communicating it to his client. Frye, 566 U.S. at 145. In Lafler, the parties 
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agreed counsel's performance was deficient because he erroneously told his 

client he could not be convicted at trial. Lafler, 566 U.S. at 163.

To prove prejudice in the context of a plea rejection, defendant must show 

that but for counsel's failure to communicate, there was a "reasonable 

probability" he would have accepted its terms. Id. at 164. "Defendants must 

also demonstrate a reasonable probability the plea would have been entered 

without the prosecution canceling it or the trial court refusing to accept it . . . ." 

Frye, 566 U.S. at 147. "To establish prejudice in this instance, it is necessary to 

show a reasonable probability that the end result of the criminal process would

have been more favorable by reason of a plea to a lesser charge or a sentence of 

less prison time." Ibid.; see also Lafler, 566 U.S. at 168.

Here, the judge found defendant's lawyer communicated the 40/20 plea 

offer to defendant. The judge's review of the April 2, 1992 letter, the newspaper 

article, and the pretrial memorandum all indicated there was only one plea offer 

on the table and defendant was aware of it. Even though counsel's letter did not 

say "40/20" specifically, she described the State's offer as "similar" to what 

defendant would face at trial on the kidnapping and aggravated assault charges. 

It is evident counsel had the maximum exposure of forty years for kidnapping 

and assault in mind when she wrote the letter. The pretrial memorandum and 
14 A-5141-15T1

counsel's recollection at the evidentiary hearing as well as the newspaper article 

support this conclusion.

Even if defendant was confused after counsel's explanation, the trial court 

reviewed the plea with him on at least one occasion prior to trial when defendant 

signed the pretrial memorandum. Despite the missing transcript, the trial judge

must have reviewed the 40/20 plea offer because the State only made one plea 

offer to defendant.

Moreover, the PCR court found he would not have accepted the offer to 

begin with. The record supports this conclusion. Both counsel and the 

prosecutor testified defendant would only accept an offer of twenty-to-twentyfive years flat. Defendant admitted as much in his letter to his first trial counsel. 

Lawhun's testimony that she continued to ask the prosecutor to alter her offer to 

no avail demonstrates defendant was never satisfied with the State's offer. 

Although defendant received a greater sentence by going to trial than if he 

accepted the State's offer, this is not a case like Lafler where the defendant 

rejected a plea after receiving erroneous advice. Rather, defendant rejected the 

State's offer when it did not conform to his expectations and went to trial aware 

of the consequences. Accordingly, defendant did not meet either prong under 

the Strickland/Fritz test regarding his plea.
15 A-5141-15T1

Defendant also appeals the court's December 28, 2015 ruling that his jury 

tampering claim was procedurally barred. In his pro se supplemental brief, 

defendant revived his tainted jury claim, but this time defendant alleges the juror 

in question was a dietician in the prison where he is housed, the two had a 

conversation, and the juror discussed a phone call she received about defendant 

prior to his trial. Notably, the only evidence defendant presented of this 

conversation was defendant's certification and an appointment sheet stating he 

met with the dietician. The judge found this claim sufficiently identical to the 

claim defendant brought in his first PCR petition. The first PCR judge found 

defendant "to be incredible" and he did "not believe his testimony," and we

affirmed the denial of defendant's claim. The PCR judge herein found 

defendant's current jury taint claim both substantially similar to and equally 

incredible as the claim in his first PCR petition because both claims involved 

the same juror and the same alleged phone call. Therefore, his claim was 

procedurally barred by Rule 3:22-5 because it was previously adjudicated upon 

the merits. 

Nevertheless, the judge addressed the jury tampering claim on the merits

and rejected it explaining juror interviews are not warranted when a defendant 

fails to corroborate an allegation of juror misconduct. Here, defendant's self-
16 A-5141-15T1

serving certification was the only evidence presented of his conversation with 

the juror. We discern no error in the judge's determination.

Finally, we reject defendant's argument the court was biased against him. 

Defendant cites to the Code of Judicial Conduct to make his claim. However, it 

is unclear whether defendant is arguing the judge was biased because she 

presided over an ex parte hearing or because the search may have violated 

defendant's due process rights. In any event, if the court's actions were in error, 

they were not plain error.

Per Rule 2:10-2, if an error has not been brought to the trial court's 

attention, we will not reverse based on such error unless the appellant shows 

plain error. Plain error is error "clearly capable of producing an unjust result." 

R. 2:10-2. In PCR, the question is whether the error denied a fair decision on 

the merits. State v. Macon, 57 N.J. 325, 338 (1971).

The judge considered seizure of defendant's documents necessary to 

preserve the integrity of the upcoming evidentiary hearing. After the evidentiary 

hearing, the PCR judge amplified her reasoning, described the ways in which 

she protected defendant's due process rights, and concluded she found probable 

cause to sign a search warrant. The court considered this step necessary because 
17 A-5141-15T1

defendant "was attempting to obstruct justice in his trial." We do not endorse 

the conclusion this was the only course of action.

However, ultimately, the only piece of evidence seized and then presented 

at the evidentiary hearing was defendant's 1991 letter to his trial counsel (stating 

he wanted a twenty-year plea), which defendant argued was in his favor. After 

reviewing the evidentiary hearing transcript and the judge's PCR decision, we 

discern no evident bias against defendant. We note, however, the better practice 

would have been to direct the state to file a discovery motion rather than 

authorizing the state to search an inmate's legal file. See State v. Marshall, 148 

N.J. 89, 269 (1997) (noting even though the Court Rules governing PCR 

petitions do not contain discovery provisions, "our cases have recognized that, 

even in the absence of authorization in the form of a Court Rule or constitutional 

mandate, New Jersey courts have 'the inherent power to order discovery when 

justice so requires.'" (quoting State ex rel. W.C., 85 N.J. 218, 221 (1981))).

We have carefully reviewed defendant's remaining arguments and have 

determined they are without sufficient merit to warrant discussion in a written 

opinion. R. 2:11-3(e)(1)(E).

Affirmed.