SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION DOCKET NO. A-1552- 21 STATE OF NEW JERSEY, Plaintiff-Respondent,

v. RASAUN THOMPSON, a/k/a RASUAN TAYLOR , and RASUAN WILLIAMS, Defendant-Appellant.

_________________________

Submitted February 5, 2024

– Decided March 7, 2024 Before Judges Gilson and DeAlmeida. On appeal from the Superior Court of New Jersey, Law Division , Hudson County, Indictment No. 17- 07

- 0443. Jennifer Nicole Sellitti, Public Defender, attorney for appellant (Howard Woodley Bailey, Designated Counsel, on the brief). Esther Suarez, Hudson County Prosecutor, attorney f or respondent (Meagan E. Free, Assistant Prosecutor, o n 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PER CURIAM NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court.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- 1552

- 21

Defendant Rasuan Thompson appeals from the Septemb er 13, 2021 order of the Law Division denying his petition for post-c onviction relief (PCR) after an evidentiary hearing. We affirm.
I. In 2017, a grand jury indicted defendant on sixtee n counts alleging he possessed, and possessed with intent to distribute, controlled dangerous substances (CDS) , conspired to distribute CDS, possessed drug paraphe rnalia with intent to distribute, and possessed a handgun while committing a CDS offe nse and while a convicted felon. The charges arose fr om evidence obtained during a traffic stop and the subsequent search of the vehicle defendant was driving. Defendant, who was represented by private counsel, filed a motion to suppress the evidence. Af ter a two-day hearing, the trial court denied the m otion in an oral opinion. The court found that two police officers had probab le cause to stop the vehicle because it had tinted windows. In addition, the court found that during the stop, the officers observed open al cohol containers, two glass vials of suspected cocaine, and a pouch containing 1 94 bags of suspected heroin and an additional twenty-five vials of suspected co caine in plain view, justifying defendant's arrest. A subsequent search of the impounded vehicle pursuant to a3 A- 1552

- 21

search warrant revealed a hidden compartment contai ning a handgun, ammunition, and a bag holding 100 vials of cocaine. Defendant thereafter terminated his relationship with his counsel and re tained another attorney. In 2018, defendant pleaded guilty to two counts of third-degree possession of CDS with intent to distribute within 1,000 feet of a school, N.J.S.A. 2C: 35

- 7(a), and one count of second-degree possession of a firearm by a convicted felon, N.J.S.A. 2C :39 -7(b)(1). Pursuant to a plea agreement, the trial court sentenced defendant to an aggregate seven-year term of imprisonment, with a five-year period of parole ineligibility. The cour t dismissed the remaining counts of the indictment. Defendant did not appeal his conviction or sentence. In 2019, defendant filed a petition for PCR. He alleged ineffective assistance of counsel based on his trial attorneys' failure to: (1) provide him with copies of all discovery; (2) file a motion to dismi ss the indictment based on the contention that false information was presented to the grand jury; (3) obtain a copy of police dispatch report defendant believed w as necessary to his defense; ( 4) submit a brief in support of the suppression motio n; (5) investigate police misconduct; (6) properly cross-examine a detective at the hearing on the suppression motion; (7) subpoena defendant's parole officer, a police sergeant , a police officer, and two others to be witness es at th e hearing; (8) permit4 A- 1552

- 21

defendant to testify at the hearing ; (9) obtain personnel records of a police officer ; (10) move to adjourn the trial, which caused defend ant to enter a guilty plea because his counsel was not prepared for trial ; and ( 11 ) assist defendant in filing an appeal of his conviction and sentence. 1 Defendant alleged that he wanted this trial counsel to pur sue the theory at the suppression hearing that: (1) officers issued a ticket for tinted windows to a family member who was driving the vehicle two weeks earlier; (2) he was participating in a parole program when, at some poi nt prior to the stop, police received reports that the vehicle was being used to sell CDS; and (3) the pouch found in the vehicle was sealed and officers opened it without a warrant. The trial court held a two-day evidentiary hearing on defendant's petition. Four witnesses testified: the attorney who represen ted defendant at the suppression hearing, the attorney who represented d efendant at the plea allocution and sentencing, defendant's girlfriend, and defendant. On September 13, 2021, Judge Mitzy Galis-Menendez issued a comprehensive, twenty- one -page written opinion denying the petition. The judge concluded that defendant "failed to make a sh owing trial counsel's acts or

1 Defendant also alleged he was improperly denied jai l credits. He did not appeal the trial court's resolution of that issue.5 A- 1552

- 21

omissions at the suppression hearing amounted to in effective assistance of counsel as measured by any objective standard." The judge found that defendant's counsel submitted a brief in support of the suppression motion , contrary to defendant's allegation. In addition, t he judge found credible counsel's explanation that it was a reasonable professional trial strategy to not call witnesses at the suppression hearing because d oing so would permit the State to cross-examine those witnesses and allow th em to retell their accounts of why the stop and search of the vehicle were cons titutional. The judge also credited the trial attorney's testimony that defend ant did not express an interest in testifying at the suppression hearing and that i f he had, the attorney would have advised against it. No ting defendant's criminal history, which would have been the subject of cross-examination , the judge concluded that such advice would have been a reasonable professional trial str ategy. The judge also found that defendant failed to esta blish his second counsel's failure to prepare for trial, if true, ha d a material bearing on the outcome of the case. Relying on the transcript of the plea allocution, t he court found that defendant stated under oath that he was satisfied with the advice he received from his counsel. He did not express any reluctance to enter the plea6 A- 1552

- 21

or any claim that he felt pressured to plead guilty because his attorney was not prepared for trial. With respect to filing an appeal, the judge found that defendant failed to prove that he established an attorney-client relati onship with his trial counsel for the purpose of filing an appeal. Although defendant testified that he directed his counsel to file an appeal and paid him $1,000 f or that purpose, the judge found the record contained no corroborating evidenc e supporting that testimony. The retainer agreement entered into evidence states that defendant's counsel was retained for pretrial services and does not state c ounsel would represent defendant after sentencing. The judge noted that defendant's girlfriend testified that trial counsel informed her that his office was too busy with an ongoing trial to file an appeal. The judge also found that trial counsel had no obligation to inform defendant that he could seek representation from the Office of the Public Defender to file an appeal. Because counsel was no t retained to file an appeal, he was not, the judge found, ineffective for not filing an appeal. The judge also rejected defendant's remaining claims. A September 13, 2021 order memorializes the court' s decision. This appeal follow ed . Defendant raises the following arguments.7 A- 1552

- 21 POINT ONE DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL WHEN COUNSEL FAILED TO ASSIST HIM IN FILING A DIRECT APPEAL IN VIOLATION OF U.S. CONST. AMENDS. VI, XIV; N.J. CONST. (1947) ART. I, PAR. 10. POINT TWO
THE INITIAL STOP OF DEFENDANT'S VEHICLE WAS UNLAWFUL BECAUSE IT WAS NOT BASED ON ANY REASONABLE AND ARTICULABLE SUSPICION THAT THERE HAD BEEN ANY VIOLATION OF A MOTOR VEHICLE OFFENSE.
POINT THREE DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL DURING THE MOTION TO SUPPRESS IN VIOLATION OF U.S. CONST. AMENDS. VI, XIV; N.J. CONST. (1947) ART. I, PAR. 10.
II. Under Rule 3:22 -2(a), a defendant is entitled to P CR if there was a "[s]ubstantial denial in the conviction proceedings of defendant's rights under the Constitution of the United States or the Consti tution or laws of the State of New Jersey . . . ." "A petitioner must establish the right to such reli ef by a preponderance of the credible evidence." State v. Preciose, 129 N.J. 451, 459 (1992). "To sustain that burden, specific facts" w hich " would provide the court8 A- 1552

- 21

with an adequate basis on which to rest its decisio n" must be articulated. State v. Mitchell, 126 N.J. 565, 579 (1992). The Sixth Amendment to the United States Constituti on and Article I, Paragraph 10 of the New Jersey Constitution guarant ee criminal defendants the right to the effective assistance of counsel. Stat e v. O'Neil, 219 N.J. 598, 61 0 (2014)(citing Strickland v. Washington, 466 U.S. 66 8, 686 (1984); State v. Fritz , 105 N.J. 42, 58 (1987)). To succeed on a claim of ineffective assistance of counsel, the defendant must meet the two-part test established by Strickland and adopted by our Supreme Court in Fritz. 466 U.S. at 687; 105 N.J. at 58. Under Strickland, a defendant first must show that his or her attorney made errors "so serious that counsel was not functioning as the 'co unsel' guaranteed the defendant by the Sixth Amendment." 466 U.S. at 687 . Counsel's performance is deficient if it "[falls] below an objective stan dard of reasonableness." Id. at 688. A defendant also must show that counsel's "deficien t performance prejudiced the defense[,]" i d. at 687, because "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." I d. at 694. "A reasonable probability is a probabilit y sufficient to undermine confidence in the outcome" of the trial. Ibid. "[A] court9 A- 1552

- 21

need not determine whether counsel's performance wa s deficient before examining the prejudice suffered by the defendant a s a result of the alleged deficiencies." Id. at 697 ; State v. Marshall, 148 N.J. 89, 261 (1997). "If it is easier to dispose of an ineffectiveness claim on th e ground of lack of sufficient prejudice, which we expect will often be so, that c ourse should be followed." Strickland, 466 U.S. at 697. The right to the effective assistance of counsel ex tends to legal assistance related to the entry of a guilty plea. State v. Ga itan, 209 N.J. 339, 350-51 (2012). To set aside a guilty plea based on ineffective ass istance of counsel, the defendant must "show that (i) counsel's assistance was not 'within the range of competence demanded of attorneys in criminal cases' ; and (ii) 'that there is a reasonable probability that, but for counsel's erro rs, [the defendant] would not have pled guilty and would have insisted on going t o trial.'" State v. NunezValdez, 200 N.J. 129, 139 (2009) (quoting State v. DiFrisco, 137 N.J. 434, 457 (1994) (citations omitted) (alteration in original) ). We "defer to [the] trial court's factual findings m ade after an evidentiary hearing on a petition for PCR." State v. Blake, 44 4 N.J. Super. 285, 294 (App. Div. 2016). "An appellate court 'should give defer ence to those findings of the trial judge which are substantially influenced by [ their] opportunity to hear and10 A- 1552

- 21

see the witnesses and to have the 'feel' of the cas e, which a reviewing court cannot enjoy.'" State v. Elders, 192 N.J. 224, 244 (2007) (quoting State v. Johnson , 42 N.J. 146, 161 (1964)). Having carefully reviewed defendant's arguments in light of the record and applicable legal principles, we affirm the Sept ember 13, 2021 order for the reasons stated by Judge Galis-Menendez in her thoro ugh and well-reasoned written opinion. As the judge found, defendant fai led to establish that his counsel was ineffective during the suppression hear ing. Defendant's counsel made a reasonable strategic decision not to call th e police officers and others as witnesses at the hearing. The attorney also repres ented defendant at a hearing to revoke his parole based on his arrest in this ma tter. The officers who stopped defendant's vehicle and arrested him testified at t he parole hearing. Counsel was able to evaluate their testimony and determined tha t any benefit from calling th e officers at the suppression hearing would be outwei ghed by the State's opportunity to elicit favorable testimony from thos e witnesses during crossexamination. The same is true with respect to counsel's decision not to call defendant, whose criminal history could have been u sed by the State on crossexamination to undermine his credibility.11 A- 1552

- 21

In addition, defendant did not establish that he re tained his second counsel to file an appeal. While defendant and his girlfriend may have told counsel that defendant wanted to file an appeal, he informed the m that his office was too busy with an ongoing trial to file an appeal. The retention agreement with counsel is limited to providing services through th e sentencing. It does not state that the attorney would represent defendant on appe al. An attorney cannot be found ineffective for failing to file an appeal for which he was not retained. Compare Roe v. Flores-Ortega, 528 U.S. 470, 477 (20 00) ("a lawyer who disregards specific instructions from a criminal de fendant to file a notice of appeal acts in a manner that is professionally unre asonable."). The notice of appeal rights form, which defendant's counsel reviewed with him, stated that private counsel will direct a defe ndant who "cannot afford" to retain private counsel to file an appeal to the Cri minal Division Manager's Office for assistance in obtaining representation from the Office of the Public Defender. There is, however, no evidence in the re cord that defendant could not afford to file an appeal. To the contrary, he and his girlfriend admit that they sought to retain private counsel to file an appeal. They both claim to have given defendant's attorney $1,000 for that purpose. We are, therefore, not persuaded12 A- 1552

- 21

by defendant's arguments that his counsel had a dut y to inform him of the availability of a State-funded attorney to file his appeal.
Fi nally, defendant seeks review of the substantive me rits of the trial court's denial of his suppression motion. A PCR pe tition, "is not, however, a substitute for appeal from conviction or for motion incident to th e proceedings in the trial court . . . ." R. 3:22

- 3. Any ground for relief which could have been, but was not, raised in a direct appeal is barred fr om consideration through a PCR petition, absent circumstances not present here. R. 3:22 -4(a)(1) to (3). After an evidentiary hearing, the trial court found defendan t did not retain an attorney to file an appeal and the record contains no evidence that def endant took any steps in the year-and-a-half between his sentencing and t he filing of his PCR petition to file an appeal challenging the denial of his mot ion to suppress. An appeal from the denial of defendant's PCR petition is not the appropriate vehicle for substantive review of the trial court's decision de nying his motion to suppress. Affirmed.