STATE OF NEW JERSEY v. MORRELL HOYLE (2014)

Defendant appeals from a March 8, 2011 order denying his petition for post-conviction relief (PCR).  Defendant argues primarily that his trial counsel was ineffective by failing to raise the issue of selective prosecution.   We affirm.

Defendant was charged with third-degree possession with intent to distribute cocaine, N.J.S.A. 2C:35–5a(1) and N.J.S.A. 2C:35–5b(3) (count one);  third-degree possession with intent to distribute cocaine within 1000 feet of a school, N.J.S.A. 2C:35–7 and N.J.S.A. 2C:35–5a(1) (count two);  second-degree possession with intent to distribute cocaine within 500 feet of public property, N.J.S.A. 2C:35–7.1 and N.J.S.A. 2C:35–5a(1) (count three);  second-degree hindering, N.J.S.A. 2C:29–3b(1) (count four);  third-degree attempted hindering, N.J.S.A. 2C:5–1 and N.J.S.A. 2C:29–3b(1) (count five);  fourth-degree obstruction of justice, N.J.S.A. 2C:29–1 (count six);  fourth-degree possession with intent to distribute marijuana, N.J.S.A. 2C:35–5a(1) (count seven);  third-degree possession with intent to distribute marijuana within 1000 feet of a school, N.J.S.A. 2C:35–7 and N.J.S.A. 2C:35–5a(1) (count eight);  and second-degree possession with intent to distribute marijuana within 500 feet of public property, N.J.S.A. 2C:35–7.1 and N.J.S.A. 2C:35–5a(1) (count nine).

In March 2006, a jury found defendant guilty of seven counts.¹  After the appropriate mergers, the judge sentenced defendant to an aggregate term of fifteen years in prison with a seven and one-half year period of parole ineligibility.   We affirmed, State v. Hoyle, No. A–3498–06 (App.Div. Mar. 27, 2009), and the Supreme Court denied certification, State v. Hoyle, 199 N.J. 543 (2009).

In July 2009, defendant filed his petition for PCR. Judge Raymond A. Batten stated in part that

[A]n error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no [e]ffect on the judgment․

To prevail on a claim of selective enforcement[,] a defendant must provide clear evidence to overcome the presumption that a prosecutor has acted in accordance with state law, [see State v. Ballard, 331 N.J.Super. 529, 539 (App.Div.2000) ].

․

Here, the [d]efendant's [PCR] application must be denied․  [T]he defense asserts that the failure of the State to prosecute any of the five other occupants of the house is evidence of selective prosecution, targeting the [d]efendant as the only African American in the residence.

․

․ Defendant was a convicted drug trafficker who distributed crack cocaine and marijuana to three confidential informants on various occasions․

Further, the [d]efendant had been selling cocaine and marijuana to numerous other individuals for several months.   This information [was] apparently known to law enforcement through various transactions of which law enforcement became aware through the cooperation of a confidential informant.

Additionally, the [d]efendant was the only person found to be in possession of drugs when the Wildwood Police executed their search warrant.   Indeed, the [d]efendant was the only individual in the restroom attempting to flush packets of [controlled dangerous substances] down a ․ toilet․

․ [T]he [d]efendant did not cooperate with police as other occupants of the apartment had.   As a result, despite the fact that there were other individuals in the apartment at the time of the execution on the search warrant, the prosecution as against this [d]efendant ․ was a function of his culpability as opposed to racial standards.

Furthermore, and finally, there apparently was not prosecuted a person of color ․ who was not interviewed, arrested or prosecuted, but allegedly sold crack cocaine to [a] confidential informant․

․ [T]his [c]ourt must conclude that there has not been demonstrated a prima facie showing [of selective prosecution] as required by the indicated case law and for those reasons the application for [PCR] must be denied.

The judge concluded that, having failed to make out a prima facie case of selective prosecution, defendant had not demonstrated ineffective assistance of trial counsel under the standard set forth in Strickland ² :

And so the record is clear, the [c]ourt does not find that ․ [trial counsel]'s performance ․ representing the [d]efendant satisfies, even prima facially, the two[-]prong criteria of Strickland[-]Fritz.³

On appeal, defendant raises the following point:

POINT I

THE LOWER COURT ERRED IN NOT GRANTING DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING.   THE LOWER COURT ORDER MUST THEREFORE BE REVERSED AND THIS MATTER MUST REMANDED FOR AN EVIDENTIARY HEARING.

Defendant's arguments lack sufficient merit to warrant discussion in a written opinion.   R. 2:11–3(e)(2).   We thus affirm substantially for the oral reasons expressed by Judge Batten.   We add only the following brief comments.   In order for defendant to obtain relief based on ineffective assistance grounds, he is obliged to show not only the particular manner in which counsel's performance was deficient, but also that the deficiency prejudiced his right to a fair trial.  Strickland, supra, 466 U.S. at 687, l04 S.Ct. at 2064, 80 L. Ed.2d at 693;  Fritz, supra, 105 N.J. at 58.   We are persuaded that the alleged deficiencies here clearly fail to meet either the performance or prejudice prong of the Strickland test.

Affirmed.

FOOTNOTES

FN1. The jury found defendant guilty of counts one through six, and on count seven, guilty of the lesser-included crime of possession of marijuana, N.J.S.A. 2C:35–10a(4)..  FN1. The jury found defendant guilty of counts one through six, and on count seven, guilty of the lesser-included crime of possession of marijuana, N.J.S.A. 2C:35–10a(4).

FN2. Strickland v. Washington, 466 U.S. 668, l04 S.Ct. 2052, 80 L. Ed.2d 674 (1984)..  FN2. Strickland v. Washington, 466 U.S. 668, l04 S.Ct. 2052, 80 L. Ed.2d 674 (1984).

FN3. State v. Fritz, 105 N.J. 42, 66 (1987)..  FN3. State v. Fritz, 105 N.J. 42, 66 (1987).

PER CURIAM