SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION DOCKET NO. A-2526- 21 STATE OF NEW JERSEY, Plaintiff-Respondent,

v. MICHAEL A. SEWARD, a/k/a MICHAEL A. SEWARD, JR., Defendant-Appellant.

________ ____________________

Submitted May 14, 2024

– Decided May 21, 2024 Before Judges Gooden Brown and Haas. On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment Nos. 17

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- 0512 and 16

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- 0505. Jennifer Nicole Sellitti, Public Defender, attorney for appellant (Suzannah Brown, Designated Counsel, on the brief). Raymond S. Santiago, Monmouth County Prosecutor, attorney for respondent (Monica do Outeiro, Assista nt 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 PER CURIAM NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court.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 the 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- 2526

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Defendant Michael A. Seward appeals from the Law D ivision's order denying his petition for post-conviction relief fol lowing an evidentiary hearing. We affirm. Defendant entered an "open plea" 1 of guilty to two counts of first-degree attempted murder and other charges. The trial court sentenced defendant to an aggregate fifteen-year term in prison subject to th e No Early Release Act, N.J.S.A. 2C:43-7.2. Defendant appealed his sentenc e. We heard the appeal on our Excessive Sentence Oral Argument calendar pursu ant to Rule 2:9 -11, and affirmed defendant's sentence. State v. Seward, No . A- 3177 -18 (Jan. 8, 2020), certif. denied, 244 N.J. 177 (2020). Defendant filed a timely petition for PCR. Defendant asserted that his trial attorney provided him with ineffective assist ance during the plea proceedings because he "failed to investigate, conf er, and provide accurate advice to defendant and otherwise take necessary st eps to make an informed decision to forego a favorable plea before plea off er cut-off and instead chose

1 "An 'open plea' [is] one that d[oes] not include a recommendation from the State, nor a prior indication from the court, regar ding sentence." State v. Ashley , 443 N.J. Super. 10, 22 (App. Div. 2015) (alteration s in original) (emphasis omitted) (quoting State v. Kates, 426 N.J. Super. 3 2, 42 n.4 (App. Div. 2012) aff’d , 216 N.J. 393 (2014)).3 A- 2526

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to sign a trial memorandum." Defendant also allege d that his attorney "incorrectly advised [him] about the willingness of the victim to testify at trial." Following oral argument, the trial court denied def endant's petition without an evidentiary hearing. Defendant appealed this decision and filed a motio n for a temporary remand. He asserted that the trial court rendered its decision on his petition without fully addressing the two issues noted above. We gr anted defendant's motion and remand ed the matter for further consideration by the court. We retained jurisdiction. On remand, the trial court decided to conduct an e videntiary heari ng. 2
Defendant testified on his own behalf. As to his c laim that his attorney did not properly investigate his case or provide him with a ccurate advice, defendant alleged the attorney failed to give him access to a surveillance video of the shooting of the two victims. However, he admitted several times during his testimony that the attorney showed him this video. Initially, the attorney told defendant that his face was not recognizable on the video and the State therefore "couldn't prove it was me." The attorney also advised him that one of the victi ms

2 The court's scheduling order specifically advised d efendant that he could "present witnesses at this hearing including [himse lf] and plea counsel."4 A- 2526

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"would never come to court to testify" against him. Defendant asserted the State had put a plea offer of ten years "on the table," b ut he rejected it based on his attorney's representations. As the trial date approached, the State provided d efense counsel with an enhanced version of the surveillance video that sho wed defendant's face. Defendant alleged that his attorney then told him t hat if defendant agreed to plead guilty, he would still receive a ten-year sen tence. At the same time, however, defendant was unclear as to whether a ten- year plea agreement was ever offered by the State. He stated, "I assumed t hat is what he said." Defendant was also not sure whether the State had actually of fered a fourteen-year sentence, and admitted that his attorney's representatio ns that the victims would not cooperate were proven correct. The State called defendant's attorney as a witness at the evidentiary hearing. The attorney maintained that he provided defend ant with a copy of the video and watched it with him at the jail. Defenda nt's face was not clearly visible in the video. He advised defendant that, a s a result, the jury would determine whether defendant was the shooter if the State played the video at trial. Defense counsel informed defendant that the State could not call a police officer to identify him in the video and would like ly have to rely upon the5 A- 2526

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testimony of the victims to do so. However, the at torney spoke to the victims' attorneys and learned that they would not be cooper ating with the prosecution. Defense counsel also told defendant that the State could nevertheless subpoena the victims to testify at trial. Defendant's attorney testified that the State neve r offered a ten-year sentence as part of a plea agreement. Instead, the offer was for a fourteen-year

term. Having had the opportunity to see and hear the two witnesses as they testified, the trial court found that defendant's t estimony was not credible and provided "no support to any of the claims" he made concerning his attorney's representation of him. On the other hand, and base d on defense counsel's credible testimony, the court concluded that defens e counsel "did extensive work on this case and provided defendant with sound legal advice throughout his representation." Contrary to defendant's contentions, the court foun d that he was given access to the video and was never offered a ten-yea r plea agreement. The court determined that defendant's attorney accurately adv ised defendant that the victims would not willingly testify if there was a trial, but could be subpoenaed by the State. The court further found that6 A- 2526

- 21 [a]fter viewing the unenhanced video, [the attorney ] gave defendant sound legal advice that he was not readily identifiable as the shooter. When the vide o was enhanced and it became apparent defendant was clear ly recognizable, [the attorney] negotiated an open-end ed [plea] on the date the case was set for trial. Def endant's sentence of fifteen years was only one year longer than the prior fourteen-year plea agreement that had bee n offered. As a result, the trial court ruled that defendant did not satisfy the twoprong test of Strickland v. Washington, 466 U.S. 66 8, 687 (1984), which requires a showing that trial counsel's performance was deficient and that, but for the deficient performance, the result would have been different. This appeal followed. On appeal, defendant raises the same arguments he unsuccessfully raised to the Law Division. Defendant asserts:

POINT I THE PCR COURT ERRED IN DENYING [DEFENDANT'S] CLAIM THAT PLEA COUNSEL MISLED HIM REGARDING THE PENAL CONSEQUENCES OF HIS GUILTY PLEA. POINT II THE PCR COURT ERRED IN DENYING [DEFENDANT'S] CLAIM THAT PLEA COUNSEL WAS INEFFECTIVE BECAUSE THE INACCURATE ADVICE HE PROVIDED TO HIM CAUSED HIM TO7 A- 2526

- 21 FOREGO A FAVORABLE PLEA OFFER BEFORE PLEA CUT-OFF. When petitioning for PCR, the defendant must estab lish, by a preponderance of the credible evidence, that he is entitled to the requested relief. State v. Nash, 212 N.J. 518, 541 (2013); State v. P reciose, 129 N.J. 451, 459 (1992). To sustain that burden, the defendant must allege and articulate specific facts that "provide the court with an adequate basi s on which to rest its decision." State v. Mitchell, 126 N.J. 565, 579 (1992). To establish a prima facie claim of ineffective as sistance of counsel, the defendant is obligated to show not only the particu lar manner in which counsel's performance was deficient, but also that the defici ency prejudiced his right to a fair trial. Strickland, 466 U.S. at 687; State v. Fritz, 105 N.J. 42, 58 (1987). Under the first prong of this test, the defendant m ust demonstrate that "counsel made errors so serious that counsel was not functio ning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland, 466 U.S. at 687. Under the second prong, the defendant must sh ow "that counsel's errors were so serious as to deprive the defendant of a fa ir trial, a trial whose result is reliable." Ibid. That is, "there is a reasonable probability that, b ut for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694.8 A- 2526

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There is a strong presumption that counsel "render ed adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Id. at 690. Because prejudice is not pr esumed, Fritz, 105 N.J. at 52, a defendant must demonstrate with "reasonable proba bility" that the result would have been different had he received proper advice from his trial attorney. Strickland, 466 U.S. at 694. Moreover, the acts or omissions of counsel of which a defendant complains must amount to more than mere tactical st rategy. Id. at 689. As the Supreme Court observed in Strickland ,

[a] fair assessment of attorney performance require s that every effort be made to eliminate the distorti ng effects of hindsight, to reconstruct the circumstan ces of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumpti on that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy." [Ibid. (quoting Michel v. Louisiana, 350 U.S. 91, 1 01 (1955)).] Where, as here, the trial court conducts an evident iary hearing, we must uphold the court's factual findings, "so long as th ose findings are supported by9 A- 2526

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sufficient credible evidence in the record." State v. Rockford, 213 N.J. 424, 440 (2013) (quoting State v. Robinson, 200 N.J. 1, 15 ( 2009)). Additionally, we defer to a trial court's findings that are "substan tially influenced by [its] opportunity to hear and see the witnesses and to ha ve the 'feel' of the case, which a reviewing court cannot enjoy." Ibid. (quoting Ro binson, 200 N.J. at 15). Having considered defendant's present contentions i n light of the record and these well-established principles, we discern n o basis for disturbing the trial court's well-reasoned determination that defendant failed to satisfy the Strickland test with regard to any of his contentio ns. Accordingly, we affirm the court's denial of defendant's PCR petition subs tantially for the reasons detailed at length in its comprehensive written opinion. Affirmed.