SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2948-18T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DONALD PETERSON, 

Defendant-Appellant.

_______________________

Submitted October 26, 2020 – Decided

Before Judges Fasciale and Susswein.

On appeal from the Superior Court of New Jersey, Law 

Division, Somerset County, Indictment No. 12-07-

0564. 

Joseph E. Krakora, Public Defender, attorney for 

appellant (John V. Molitor, Designated Counsel, on the 

brief). 

Michael H. Robertson, Prosecutor, attorney for 

respondent (Amanda Frankel, 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NOT FOR PUBLICATION WITHOUT THE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 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 05, 2021
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A-2948-18T2

Defendant appeals from a December 7, 2018 order denying his petition 

for post-conviction relief (PCR) without an evidentiary hearing. Defendant 

contends that his trial and appellate counsel provided ineffective assistance. 

Judge Anthony F. Picheca, Jr., entered the order and rendered a comprehensive 

and well-reasoned fourteen-page opinion. We affirm. 

In July 2012, defendant was indicted for second-degree possession of a 

firearm by a previously convicted person, N.J.S.A. 2C:39-7(b), and fourthdegree possession of a non-firearm weapon (a machete) by a previously 

convicted person, N.J.S.A. 2C:39-7(a).1 Defendant was the subject of an 

investigation into the unexplained death of a sixteen-year old boy, J.M.2 

Pursuant to the investigation, police obtained warrants to search defendant's 

apartment and trucks for microscopic and other evidence that connected 

defendant and J.M. The police subsequently found a rifle in defendant's 

apartment and a machete in one of his vehicles. Defendant moved to suppress 

the evidence, claiming police exceeded the scope of the warrant and that the 

1 Defendant was previously convicted of aggravated assault, precluding him 

from thereafter possessing a firearm and other specified weapons.

2

 An autopsy of J.M. revealed that he died of acute alcohol poisoning. 

Defendant was not charged in connection with the death.
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warrant application failed to particularly describe the weapons that were seized. 

In December 2013, the motion court suppressed the rifle and machete. The 

motion court rejected the State's argument that this evidence was lawfully seized 

under the plain view doctrine, reasoning that police were aware the firearm 

would be present based on a statement defendant gave to police before the 

warrant was executed.3 We granted the State's interlocutory motion for leave 

to appeal and reversed the suppression order, holding that the weapons were 

admissible under the inevitable discovery exception to the exclusion rule. State 

v. Peterson, No. A-2161-13T2 (App. Div. Dec. 12, 2014). 

In April 2015, defendant pled guilty to both weapons charges pursuant to 

a negotiated plea agreement. Defendant appealed his convictions, claiming once 

again that the evidence should have been suppressed. We dismissed defendant's 

appeal, ruling that we had already decided that issue in the interlocutory appeal. 

State v. Peterson, No. A-0356-15 (App. Div. Apr. 13, 2016). The Supreme Court 

denied defendant's petition for certification. State v. Peterson, 228 N.J. 240 

(2016). Thereafter, the PCR judge entered the order under review.

3

 We note that in State v. Gonzales, the New Jersey Supreme Court 

prospectively eliminated the "inadvertence" element of the plain view exception 

to the warrant requirement. 227 N.J. 77, 99 (2016). That decision applies only 

to searches conducted after November 15, 2016. 
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A-2948-18T2

On appeal, defendant argues:

POINT I

THIS COURT SHOULD REVERSE THE [PCR] 

COURT'S DECISION TO DENY DEFENDANT'S 

PETITION FOR POST-CONVICTION RELIEF 

BECAUSE DEFENDANT'S ATTORNEYS WERE 

INEFFECTIVE WHEN THEY DID NOT ARGUE 

THERE WAS NO PROBABLE CAUSE TO SUPPORT 

THE ISSUANCE OF A WARRANT TO SEARCH 

DEFENDANT'S APARTMENT 

POINT II

THIS COURT SHOULD REVERSE THE [PCR] 

COURT'S DECISION TO DENY DEFENDANT'S 

PETITION FOR POST-CONVICTION RELIEF 

BECAUSE DEFENDANT'S ATTORNEYS WERE 

INEFFECTIVE WHEN THEY DID NOT REQUEST A 

HEARING CHALLENGING THE VERACITY OF 

THE WARRANT APPLICATION

POINT III

THIS COURT SHOULD REVERSE THE [PCR] 

COURT'S DECISION TO DENY DEFENDANT'S 

PETITION FOR POST-CONVICTION RELIEF 

BECAUSE DEFENDANT'S ATTORNEYS NEVER 

OFFERED A COUNTER-ARGUMENT TO THE 

APPELLATE DIVISION'S HOLDING THAT THE 

INEVITABLE DISCOVERY EXCEPTION TO THE 

EXCLUSIONARY RULE APPLIED

POINT IV

DEFENDANT'S FIRST ATTORNEY WAS 

INEFFECTIVE FOR ABANDONING HIS 

CHALLENGE TO THE ADMISSION OF 

DEFENDANT'S ALLEGED CONFESSION 
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POINT V

DEFENDANT'S FIRST ATTORNEY WAS 

INEFFECTIVE FOR REFUSING TO ALLOW 

DEFENDANT TO TESTIFY BECAUSE 

DEFENDANT WAS THE ONLY PERSON WHO 

COULD HAVE REFUTED SCHUTTA'S 

TESTIMONY REGARDING THE 

CIRCUMSTANCES SURROUNDING 

DEFENDANT'S FOUR STATEMENTS 

FPOINT VI

THIS COURT SHOULD REVERSE THE PCR 

JUDGE'S DECISION TO DENY DEFENDANT'S 

CLAIM THAT HIS FIRST ATTORNEY PROVIDED 

INACCURATE ADVICE ON THE MAXIMUM 

SENTENCE DEFENDANT COULD RECEIVE 

We disagree and affirm substantially for the reasons given by Judge Picheca. 

We add the following remarks. 

Post-conviction relief serves the same function as a federal writ of habeas 

corpus. State v. Preciose, 129 N.J. 451, 459 (1992). It is not a substitute for 

direct appeal. State v. Mitchell, 126 N.J. 565, 583 (1992). To establish a 

violation of the right to the effective assistance of counsel, a defendant must 

meet the two-part test articulated in Strickland v. Washington, 466 U.S. 668 

(1984), and adopted in State v. Fritz, 195 N.J. 42 (1987). "First, the defendant 

must show that counsel's performance was deficient. . . . Second, the defendant 
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must show that the deficient performance prejudiced the defense." Strickland, 

466 U.S. at 687. 

To meet the first prong of the Strickland/Fritz test, a defendant must show 

"that counsel made errors so serious that counsel was not functioning as the 

'counsel' guaranteed by the Sixth Amendment." Ibid. Reviewing courts indulge 

in a "strong presumption that counsel's conduct falls within the wide range of 

reasonable professional assistance." Id. at 689. The second prong of the 

Strickland/Fritz test requires the defendant to show that counsel's errors created 

a "reasonable probability" that the outcome of the proceedings would have been 

different than if counsel had not made the errors. Strickland, 466 U.S. at 694.

The Strickland/Fritz two-pronged standard also applies to claims of 

ineffective assistance of appellate counsel. State v. Morrison, 215 N.J. Super. 

540, 547 (App. Div. 1987). The hallmark of effective appellate advocacy is the 

ability to "winnow[] out weaker arguments on appeal and focus[] on one central 

issue if possible, or at most, on a few key issues." Jones v. Barnes, 463 U.S. 

745, 751–52 (1983). Importantly for purposes of this appeal, it is well-settled 

that failure to pursue a meritless claim does not constitute ineffective assistance. 

State v. Webster, 187 N.J. 254, 256 (2006). Appellate counsel has no obligation 

to raise spurious issues on appeal. Ibid.
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Short of obtaining immediate relief, a defendant may prove that an 

evidentiary hearing is warranted to develop the factual record in connection with 

an ineffective assistance claim. Preciose, 129 N.J. at 462–63. The PCR court 

should grant an evidentiary hearing only when a defendant is able to prove a 

prima facie case of ineffective assistance of counsel, there are material issues of 

disputed fact that must be resolved with evidence outside of the record, and the 

hearing is necessary to resolve the claims for relief. R. 3:22-10(b); Preciose, 

129 N.J. at 462. To meet the burden of proving a prima facie case, a defendant 

must show a reasonable likelihood of success under the Strickland/Fritz test. 

Preciose, 129 N.J. at 463. 

After carefully reviewing the record in light of these legal principles, we 

conclude that defendant is unable to meet the Strickland/Fritz prongs as to any 

of his contentions. Nor has he established a prima facie case warranting an 

evidentiary hearing. 

We begin by considering defendant's argument—made for the first time 

on this appeal—that both his trial and appellate counsel rendered ineffective 

assistance in failing to challenge the validity of the search warrants. Defendant 

now claims there was no probable cause to search for microscopic and other 

evidence relating to J.M.'s death. We disagree. The record contains defendant's 
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A-2948-18T2

statements to police confirming his interactions with J.M. Furthermore, 

distinctive post-mortem lividity and skin compression marks on J.M.'s body 

matched the pattern of the ridges on the bed liner of defendant's F250 truck, 

suggesting the youth had been transported after his death. These circumstances, 

and especially the apparent link between J.M.'s corpse and defendant's truck, 

established ample probable cause to support the issuance of the search warrants. 

Neither trial nor appellate counsel rendered ineffective assistance by failing to 

pursue a baseless suppression argument. Nor was defendant prejudiced by their 

failure to raise an argument that ultimately would have proved unsuccessful. 

Strickland, 466 U.S. at 687. 

We likewise reject defendant's argument, also raised for the first time on 

this appeal, that his trial and appellate counsel were ineffective for failing to 

challenge the veracity of the affidavit in support of the search warrants under 

Franks v. Delaware, 438 U.S. 154 (1978), and State v. Howery, 80 N.J. 563 

(1979). Those cases require a hearing only when a defendant makes a 

substantial preliminary showing that the search warrant affiant presented a 

deliberate falsehood or demonstrated a reckless disregard for the truth. Franks, 

438 U.S. at 171; Howery, 80 N.J. at 567. Furthermore, a defendant must show 
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A-2948-18T2

that the warrant would not be supported by probable cause without the false 

information. Franks, 438 U.S. at 172; Howery, 80 N.J. at 568. 

Defendant now argues that the search warrant affiant did not inform the 

warrant judge that an initial cursory consent search of defendant's residence 

found nothing of evidential value. This argument lacks sufficient merit to 

warrant extensive discussion. R. 2:11-3(e)(2). Defendant acknowledges in his 

appeal brief that, "[a]dmittedly, Franks does not prohibit the police from 

omitting crucial facts. Nevertheless, to the extent the doctrine first announced 

in Franks does not address the precise scenario herein, the doctrine should be 

expanded." We agree with defendant only insofar that Franks and Howery do 

not require that search warrant applications include every fact and circumstance 

known to the affiant. In these circumstances, however, the fact that police failed 

to find microscopic evidence during the initial consent search was not 

exculpatory and had no bearing on whether there was probable cause to believe 

a more thorough search would reveal evidence relating to J.M.'s demise. Many 

of the items described in the search warrant, see note 3, supra, could not have 

been detected or properly collected in the truncated consent search. In any 

event, we decline defendant's invitation to extend the Franks/Howery doctrine 

to situations that lack deliberate falsehoods or a reckless disregard for the truth. 
10 A-2948-18T2

We next turn to defendant's argument that his appellate counsel did not 

address the inevitable discovery doctrine that we relied on to reverse the trial 

court's order suppressing the rifle and machete. In resolving search and seizure 

issues, we are not bound by the legal theory relied on by a trial court. See, e.g., 

State v. Esteves, 93 N.J. 498 (1983) (sustaining search based on a theory not 

relied on at the trial court level where the record contained facts from which the 

Court could decide the applicability of another warrant exception). See also

State v. Guerra, 93 N.J. 146 (1983) (sustaining search even though the 

telephonic warrant application was defective because the record on appeal 

contained an objective basis for the Court to conclude that no warrant was 

required to search the car). 

Defendant nonetheless contends that because we addressed the inevitable 

discovery exception sua sponte, he was deprived of the opportunity to argue 

against its application. Defendant suffered no prejudice, however, from our 

resolution of the inevitable discovery issue in the interlocutory appeal. We have 

carefully reviewed defendant's current arguments and find no basis upon which 

to reach a different conclusion than the one we previously reached. All of the 

elements of the inevitable discovery exception were established, clearly and 
11 A-2948-18T2

convincingly, based on the record that was before us when we heard the 

interlocutory appeal. See State v. Sugar (II), 100 N.J. 214 (1985).4 

We add that appellate counsel petitioned for certification from our 

subsequent order dismissing defendant's appeal. That circumstance belies 

defendant's current contention that his initial appellate counsel failed to pursue 

the inevitable discovery issue. Defendant has thus failed to establish that the 

result would probably have been different had his initial appellate counsel 

argued against invocation of the inevitable discovery exception to the 

exclusionary rule. Strickland, 466 U.S. at 694. 

We next address defendant's contention that his counsel was ineffective 

for withdrawing a motion to suppress statements defendant gave to police during 

4 To invoke the inevitable discovery doctrine, a court must find there is clear 

and convincing evidence that

(1) proper, normal and specific investigatory 

procedures would have been pursued in order to 

complete the investigation of the case; (2) under all of 

the surrounding relevant circumstances the pursuit of 

those procedures would have inevitably resulted in the 

discovery of the evidence; and (3) the discovery of the 

evidence through the use of such procedures would 

have occurred wholly independently of the discovery of 

such evidence by unlawful means.

Sugar, 100 N.J. at 238.
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a custodial interrogation. On two occasions during the interrogation, defendant 

invoked his right to counsel. Each time he did so, the detectives immediately 

ceased posing questions. After each invocation, defendant on his own initiative 

informed the detectives that he had changed his mind and wanted to continue 

the interview. 

Trial counsel intended initially to argue that police did not scrupulously 

honor defendant's invocation of the right to consult with an attorney. Counsel 

withdrew the motion to suppress defendant's statements, however, when he 

reviewed the transcript of the interrogation and realized that defendant twice reinitiated the conversation and was provided each time with fresh Miranda

warnings.5 See State v. Mallon, 288 N.J. Super. 139, 147 (App. Div. 1996) ("[I]f 

a defendant initiates further police conversations after invoking his right to 

remain silent, the resumption of police questioning will not constitute a failure 

to scrupulously honor that right."). See also Oregon v. Bradshaw, 462 U.S. 

1039, 1044 (1983) (addressing when reinitiation of interrogation by the accused 

after invoking the right to counsel indicates a waiver of the Fifth Amendment 

right to have counsel present during the interrogation). Importantly, as we have 

noted, in both instances, the detectives re-administered Miranda warnings before 

5 Miranda v. Arizona, 384 U.S. 436 (1966).
13 A-2948-18T2

resuming the interrogation, thereby establishing that defendant was knowingly 

and voluntarily waiving his right to have counsel present notwithstanding his 

prior invocations of that right. 

Counsel explained to the trial court the reason for withdrawing the 

Miranda suppression motion, acknowledging,

I can't in good faith claim a Miranda issue at this point 

in time. I don't have one. I raised it because I felt there 

might have been an issue depending on what Detective 

Schutta said, but he has satisfied me, and the transcripts 

corroborate what he said, that the defendant was 

Mirandized.

 

We agree with Judge Picheca that counsel's decision to withdraw the 

Miranda motion and focus instead on the motion to suppress physical evidence 

was a reasonable strategy that "falls within the wide range of reasonable 

professional assistance." Stickland, 466 U.S. at 689. As we have noted, an 

attorney is not required to pursue a meritless argument. Defendant cannot meet 

the second prong of the Strickland test, moreover, because any such motion 

would not have resulted in the suppression of defendant's statements. 

We also reject defendant's related contention that counsel rendered 

ineffective assistance by advising him not to testify to refute Detective Schutta's 

testimony at the suppression hearing. As Judge Picheca aptly noted in his 

written opinion: 
14 A-2948-18T2

[T]here are strategic reasons for a defense attorney to 

refrain from calling the defendant to testify at the 

pretrial hearing on a motion to suppress evidence. For 

instance, providing such testimony may prematurely 

reveal trial strategy and hinder one's defense, or such 

testimony may later be used against a defendant if he 

also chooses to testify at trial. There are likely many 

other reasons to refrain from calling a defendant at such 

a hearing. 

In State v. Arthur, the Court remarked that, "a defense attorney's decision 

concerning which witness to call to the stand is 'an art,' and a court's review of 

such a decision should be 'highly deferential[.]'" 184 N.J. 307, 321 (2005) 

(quoting Strickland, 466 U.S. at 693). Applying that deferential standard, we 

conclude counsel's decision to prevent his client from testifying—and being 

subjected to cross examination—was a sound strategic decision reflecting 

reasonable professional assistance. We add that defendant has not shown that 

had he testified the outcome would have been different. 

Finally, we consider defendant's contention that his counsel misinformed 

him regarding the maximum sentence that could be imposed. This contention 

lacks sufficient merit to warrant all but brief discussion. R. 2:11-3(e)(2). 

Counsel correctly informed defendant that by virtue of his criminal history, he 

would be subject to an extended term as a repeat offender if he rejected the plea 

offer and was convicted at trial. The plea form that defendant initialed explained 
15 A-2948-18T2

that by pleading guilty, he could be sentenced to a seven-year prison term with 

a five-year period of parole ineligibility. In accordance with the plea agreement, 

the State did not seek an extended term and defendant ultimately received the 

sentence contemplated in the agreement. 

Affirmed.