NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-4965-13T1 STATE OF NEW JERSEY,

Plaintiff-Respondent, APPROVED FOR PUBLICATION

v. July 6, 2016

APPELLATE DIVISION EDWARD PEOPLES, a/k/a RASHAWN WHITE, EDWARD D. WHITE,

Defendant-Appellant. __________________________

Submitted September 21, 2015 – Decided July 6, 2016

Before Judges Messano, Simonelli and Carroll.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 06-08-2643.

Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief).

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Sara A. Friedman, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the briefs).

Appellant filed a pro se supplemental brief.

The opinion of the Court was delivered by

SIMONELLI, J.A.D. Defendant Edward Peoples appeals from the April 9, 2014 Law

Division order, which denied his petition for post-conviction

relief (PCR) without an evidentiary hearing. For the following

reasons, we affirm.

I.

In August 2006, a grand jury indicted defendant for

conspiracy to commit murder, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:11-

3(a)(1) (count one); first-degree murder, N.J.S.A. 2C:11-3(a)(1)

and (2) (count two); first-degree attempted murder, N.J.S.A.

2C:11-3 (count three); second-degree aggravated assault,

N.J.S.A. 2C:12-1(b)(1) (count four); third-degree unlawful

possession of a weapon, N.J.S.A. 2C:39-5(b) (count five); and

second-degree possession of a weapon for an unlawful purpose,

N.J.S.A. 2C:39-4(a) (count six). The charges stemmed from the

shooting death of Rahman Jenkins in the parking lot of the

Baxter Terrace apartment complex in Newark. Defendant was

represented by Paul W. Bergrin, who, after defendant's

conviction and sentence, was suspended from the practice of law

in this State, convicted of federal criminal offenses, and

incarcerated in a federal prison for life.

Marquis Grimsley, defendant's girlfriend, Anyea Williams,

and co-defendant Joseph Richardson had given statements to the

police inculpating defendant in Jenkins's murder and were

2 A-4965-13T1 witnesses for the State. In August 2007, the Essex County

Prosecutor's Office (ECPO) began an investigation of alleged

witness tampering in defendant's case. During the

investigation, defendant's prison cellmate reported to the ECPO

that defendant asked him to assist in preparing affidavits to

send to witnesses saying that they lied, and provided

information on witness intimidation tactics defendant was using.

The cellmate also indicated that another inmate, Brandon Stokes,

had agreed to be a defense witness in exchange for Bergrin

representing him on his criminal appeal at a discounted fee even

though Stokes was not present at the shooting and had no

knowledge of Baxter Terrace.

Stokes was listed as a defense witness who defendant

proffered would testify that defendant was not in possession of

the gun and did not shoot Jenkins; however, Stokes told the ECPO

that he was not present at and did not witness the shooting.

Defendant concedes in his pro se supplemental merits brief that

Stokes did not implicate Bergrin in any unethical or criminal

conduct.

Another inmate, Gregory Smith, told the ECPO that defendant

was coaching him to be a defense witness. Smith also gave the

ECPO a map/diagram and prepared script that defendant gave him

3 A-4965-13T1 to tailor his testimony. Smith did not implicate Bergrin in any

unethical or criminal conduct.

Grimsley told the ECPO that defendant threatened him to

change his testimony and sent him an affidavit that said he lied

to the police. The ECPO also received a letter written by

defendant that contained threats to Richardson. Neither

Grimsley nor the letter implicated Bergrin in any unethical or

criminal conduct.

Williams was under subpoena and expected to testify for the

State that she saw defendant obtain a handgun just prior to the

shooting and walk towards the parking lot area where Jenkins was

killed and heard shots fired, following which defendant told her

that he shot Jenkins. On September 25, 2007, she told the ECPO

that defendant, his mother and his sister threatened her and

told her not to appear in court. She later provided a letter

she received from defendant, dated September 2, 2007, which

stated as follows:

I'm really about to come home I talked to Paul today everything lookin[g] alright, he said to make sure you come to court the first day of my trial but just don't come after that because if you don't come the first day they just [going to] try to post- pone my trial[] but if you come they [are going to] think they got you and they [are going to] start trial and once they start they can[']t stop.

4 A-4965-13T1 Relying solely on this letter, the State filed a motion to

disqualify Bergrin based on a conflict of interest. The State

argued that defendant advised Williams to evade the State's

subpoena and not appear at trial at Bergrin's instruction, and

thus, both defendant and Bergrin attempted to tamper with

witnesses in violation of N.J.S.A. 2C:28-5(a)(2) and (4), and

Bergrin violated Rule of Professional Conduct 1.2(d). The State

submitted a certification from Williams in support of the

motion, which confirmed her receipt of the letter from defendant

and also stated that defendant threatened her with physical harm

if she testified against him. Williams did not say she had any

contact with Bergrin or that Bergrin had any direct or indirect

involvement with the letter or threats.

Defendant was assigned special counsel to represent him on

the motion. Bergrin filed opposition, but the record does not

reveal that defendant filed opposition. However, the record

reveals that defendant advised the court he wanted Bergrin to

continue representing him. The judge denied the motion, finding

there was no evidence of an organized plan that directly

connected Bergrin to instructing defendant to tamper with

Williams, and defendant wanted Bergrin to continue representing

him. The judge determined that defendant knowingly attempted to

induce Williams not to testify by instructing her not to appear,

5 A-4965-13T1 thus denying the State evidence. Accordingly, the judge ruled

the letter would be admissible at trial as evidence of

defendant's guilt.

The evidence of defendant's guilt was overwhelming. In

addition to Williams, at the trial, three eyewitnesses

identified defendant as the shooter. On April 15, 2008, a jury

found defendant guilty of murder (count two), attempted murder

(count three), unlawful possession of a weapon (count five), and

possession of a weapon for an unlawful purpose (count six), and

not guilty of conspiracy to commit murder (count one). The

State voluntarily dismissed count four charging defendant with

aggravated assault.

At sentencing on August 5, 2008, the trial judge merged

count six with count two and sentenced defendant to a sixty-

five-year term of imprisonment with an eighty-five-percent

period of parole ineligibility pursuant to the No Early Release

Act, N.J.S.A. 2C:43-7.2. The judge also sentenced defendant to

a concurrent twenty-year term of imprisonment with seventeen

years of parole ineligibility on count three, a concurrent five-

year term of imprisonment on count five, and imposed the

appropriate assessments and penalties.

Nearly a year after defendant's conviction, on June 16,

2009, Bergrin was suspended from the practice of law in New

6 A-4965-13T1 Jersey. See In re Bergrin,

(2009). On November

10, 2009, a federal grand jury returned a superseding indictment

charging Bergrin and several co-defendants with numerous

offenses relating, in part, to the murder of an informant and

witness tampering in a drug-trafficking case. See United States

v. Bergrin,

(3d Cir. 2011).

Defendant appealed his conviction and sentence. We

affirmed, but remanded for a hearing on potential juror taint.

State v. Peoples, No. A-5793-08 (App. Div. May 23, 2012) (slip

op. at 16-17), certif. denied,

(2012). In our

opinion, we noted that defendant had tampered with Williams and

other witnesses. Id. at 8-11. We declined to address

defendant's ineffective assistance of counsel (IAC) argument

that Bergrin had a conflict of interest because of the federal

indictment. Id. at 14. Over two years after defendant's

sentencing, Bergrin was convicted in federal court and sentenced

to life imprisonment. See United States v. Bergrin,

(3d Cir. 2014), cert. denied, ___ U.S. ___,

,

(2015).

Following a remand hearing in this matter, the trial judge

found no juror taint had occurred. Defendant did not appeal.

Instead, he filed a PCR petition, arguing that Bergrin rendered

IAC by failing to investigate and prepare a defense and instead,

7 A-4965-13T1 engaged in witness tampering. Defendant admitted there was

overwhelming evidence of his involvement in Jenkins's murder and

ample evidence he was involved with attempting to tamper with

the State's witnesses, but argued that the tampering was

conducted under Bergrin's guidance.1

In a pro se supplemental brief, defendant added that the

judge erred by allowing the jury unfettered access to videotaped

statements during deliberations; Bergrin was ineffective for

failing to object to this procedure; and Bergrin gave him

illegal and unethical advice to tamper with witnesses and

recruit false alibi witnesses. Lastly, defendant argued that

appellate counsel was ineffective during the remand hearing for

failing to raise specific questions regarding alleged juror

taint. In another supplemental brief, defendant added that

Bergrin failed to challenge both the State's selective

prosecution of defendant and the police coercion of Richardson.

Defendant did not raise any conflict of interest argument.

In an April 9, 2014 written opinion, the judge denied the

petition without an evidentiary hearing. The judge first found

1 Defendant also argued that he declined a plea offer of twenty years as the result of Bergrin's assurances that "after all the witnesses disappeared, or refused to cooperate, or witnesses were manufactured as alibi witnesses, the State would be unable to convict" defendant. However, there was no evidence that the State made any plea offer.

8 A-4965-13T1 that defendant's claim of trial court error was procedurally

barred by Rule 3:22-4(a). Addressing the merits, the judge

found there was no evidence that the jury had unfettered access

to the videotaped statements; the law in effect at the time did

not preclude such access; and defendant failed to show how the

outcome would have been different.

The judge next determined there was no evidence implicating

Bergrin in witness tampering or that Bergrin gave defendant

illegal advice to tamper with witnesses. The judge found that

none of the witnesses with whom defendant tampered said that

Bergrin directly communicated with them or indirectly

communicated with them through defendant. The judge also found

that even if Bergrin's performance was deficient, defendant

failed to show that the outcome would have been different;

rather, defendant conceded there was overwhelming evidence of

his involvement in Jenkins's murder. Lastly, the judge found

there was no evidence supporting defendant's remaining IAC

claims against Bergrin and no merit to or evidence supporting

defendant's IAC claims against appellate counsel. This appeal

followed.

On appeal, defendant raises the following contentions in

assigned counsel's brief:

POINT I: THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR

9 A-4965-13T1 [PCR] WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION THAT HE FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION AT THE TRIAL LEVEL.

A. THE PREVAILING LEGAL PRINCIPLES REGARDING CLAIMS OF [IAC], EVIDENTIARY HEARINGS AND PETITIONS FOR [PCR].

B. TRIAL COUNSEL DID NOT PROVIDE ADEQUATE LEGAL REPRESENTATION TO THE DEFENDANT AS A RESULT OF COUNSEL'S FAILURE TO OBJECT TO THE MANNER IN WHICH THE JURY WAS GIVEN UNFETTERED ACCESS TO TWO VIDEOTAPED STATEMENTS IN THE JURY ROOM DURING DELIBERATIONS.

C. THE DEFENDANT DID NOT RECEIVE ADEQUATE LEGAL REPRESENTATION FROM TRIAL COUNSEL AS A RESULT OF COUNSEL'S FAILURE TO CONDUCT ANY REASONABLE PRE[-]TRIAL PREPARATION OR INVESTIGATION, INSTEAD CONVINCING THE DEFENDANT TO ASSIST HIM IN ENGAGING IN CRIMINAL CONDUCT DESIGNED TO TAMPER WITH WITNESSES AND FABRICATE TRIAL TESTIMONY.

D. THE DEFENDANT FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION FROM TRIAL COUNSEL SINCE, AS A RESULT OF COUNSEL'S CONDUCT ASSURING THE DEFENDANT HE WOULD NOT BE CONVICTED AT TRIAL AS LONG AS HE FOLLOWED HIS INSTRUCTIONS AND ADVICE, HE REJECTED THE STATE'S PLEA RECOMMENDATION AND INSTEAD PROCEEDED TO TRIAL, SUBSEQUENTLY RECEIVING A [SIXTY-FIVE] YEAR TERM WITH AN [EIGHTY-FIVE]

10 A-4965-13T1 PERCENT PAROLE DISQUALIFIER AT SENTENCING, MORE THAN THREE TIMES GREATER THAN THE STATE'S PLEA OFFER.

In a pro se supplemental brief, defendant raises the

following contentions:

POINT I: [IAC] DUE TO TRIAL COUNSEL'S ILLEGAL ADVICE, CRIMINAL CONDUCT, AND LACK OF PREPARATION.

POINT II: [IAC] DUE TO TRIAL COUNSEL'S MULTIPLE CONFLICTS.

POINT III: COUNSEL ASSIGNED TO THE APPELLATE REMAND HEARING CONDUCTED ON SEPTEMBER 28, 2012 WAS INEFFECTIVE FOR FAILURE TO RAISE SPECIFIC QUESTIONS FOR THE COURT TO ASK THE ALLEGED TAINTED JUROR THAT WERE PERTINENT TO THE ISSUE AT HAND.

POINT IV: INEFFECTIVE ASSISTANCE OF DIRECT APPEAL APPELLATE COUNSEL.

POINT V: THE CUMULATIVE EFFECT OF THE ERRORS COMPLAINED OF RENDERED THE TRIAL UNFAIR.

To establish an IAC claim, a defendant must satisfy the

two-pronged test formulated in Strickland v. Washington,

,

,

(1984), and adopted by our Supreme Court in State v. Fritz,

(1987). First, a defendant must show "that counsel

made errors so serious that counsel was not functioning as the

counsel guaranteed . . . by the Sixth Amendment."

11 A-4965-13T1

(quoting

,

,

).

Second, a defendant must prove that he suffered prejudice

due to counsel's deficient performance.

,

,

. A

defendant must show by a "reasonable probability" that the

deficient performance affected the outcome.

. "If [a] defendant establishes one prong of the

Strickland-Fritz standard, but not the other, his claim will be

unsuccessful." State v. Parker,

(2012).

The mere raising of a claim of IAC does not entitle the

defendant to an evidentiary hearing. State v. Cummings,

(App. Div.), certif. denied,

(1999). "A defendant shall be entitled to an evidentiary

hearing only upon the establishment of a prima facie case in

support of post-conviction relief . . . ." R. 3:22-10(b). A

"prima facie case" requires that a defendant "demonstrate a

reasonable likelihood that his or her claim, viewing the facts

alleged in the light most favorable to the defendant, will

ultimately succeed on the merits[,]" ibid., and must be

supported by "specific facts and evidence supporting his

allegations." State v. Porter,

(2013); see

also

(holding that "a

12 A-4965-13T1 petitioner must do more than make bald assertions that he was

denied the effective assistance of counsel"). "Because post-

conviction relief is not a substitute for direct appeal and

because of the public policy 'to promote finality in judicial

proceedings,' our rules provide various procedural bars." State

v. Echols,

(2009) (citations omitted) (quoting

State v. McQuaid,

(1997)).

"[A] petitioner may be barred from relief if the petitioner

could have raised the issue on direct appeal but failed to do

so, Rule 3:22-4[, or] the issue was previously decided on direct

appeal, Rule 3:22-5[.]"

The effect of Rule 3:22-4 is

that PCR will be precluded if any ground for relief could have

been raised at trial or on appeal. State v. Afanador,

(1997). We review a judge's decision to deny a PCR

petition without an evidentiary hearing for abuse of discretion.

State v. Preciose,

(1992).

We have considered defendant's contentions in Point I.B. of

assigned counsel's brief and in Points III, IV and V of

defendant's pro se supplemental brief in light of the record and

applicable legal principles and conclude they are without

sufficient merit to warrant discussion in a written opinion. R.

2:11-3(e)(2). We affirm substantially for the reasons expressed

by the judge in his written opinion.

13 A-4965-13T1 We reject defendant's contention in Point I.D. of assigned

counsel's brief regarding defendant's alleged rejection of a

plea offer. We reiterate there is no evidence the State made

any plea offer to defendant.

We also reject defendant's contention in Point II of his

pro se supplemental brief, raised for the first time on appeal,

that Bergrin had a conflict of interest because the ECPO was

actively investigating him for witness tampering. We decline to

consider questions or issues not presented to the trial court

when an opportunity for such a presentation was available unless

the matter involves the trial court's jurisdiction or is of

public importance. State v. Robinson,

(2009).

No exception applies here. In any event, for the following

reasons, the argument lacks merit.

Our Supreme Court has "adhered to a two-tiered approach in

analyzing whether a conflict of interest has deprived a

defendant of his state constitutional right to the effective

assistance of counsel." State v. Cottle,

(2008). "In those cases in which [the Court has] found a per se

conflict, prejudice is presumed in the absence of a valid

waiver, and the reversal of a conviction is mandated."

However, the Court has limited findings of a conflict to cases

in which an attorney is "contemporaneously under indictment in

14 A-4965-13T1 the same county as his client, and being prosecuted by the same

prosecutor's office . . . absent a valid waiver by the client."

.

Defendant waived any conflict of interest when he advised

the court that he wanted Bergrin to continue representing him.

In addition, the ECPO investigation report reveals that

defendant was the focus of witness tampering, not Bergrin, and

none of the witnesses the ECPO interviewed implicated Bergrin in

defendant's witness tampering scheme. Moreover, the State did

not rely on the ECPO investigation to disqualify Bergrin, and

there never was any determination that Bergrin was involved in

defendant's witness tampering.

Insofar as defendant argues, as he did on direct appeal,

that Bergrin's conflict of interest stemmed from his federal

indictment, we reject that argument as well. A federal grand

jury returned an indictment in November 2009, two years after

defendant's conviction. There was no evidence as to when

federal authorities were investigating Bergrin and no evidence

that the ECPO participated in that investigation. Unlike in

where the defense attorney "was under indictment

and subject to prosecution during the entire period of his

representation,"

, there was no evidence that

Bergrin was contemporaneously under indictment at the same time

15 A-4965-13T1 as defendant, and Bergrin was not being prosecuted by the same

prosecutor's office. Accordingly, there was no conflict of

interest mandating reversal of defendant's conviction.

II.

We next address defendant's contention in Point I.C. of

assigned counsel's brief and Point I of defendant's pro se

supplemental brief that he is entitled to IAC relief based on

Bergrin's illegal and unethical advice to tamper with witnesses.

There is no doubt that defendant tampered with witnesses,

but there is no competent evidence that Bergrin was directly or

indirectly involved. Even if Bergrin was involved, defendant is

not entitled to IAC relief when he participated in the illegal

conduct or acquiesced in that conduct.

The notion that a defendant could successfully raise an IAC

claim when he engaged in illegal conduct in collusion with his

attorney or acquiesced in the attorney's illegal conduct has not

been squarely addressed by our courts. By way of analogy, our

Supreme Court has denied IAC relief to a defendant who claimed

that but for trial counsel's deficient advice concerning

sentencing consequences, and even though he was not guilty, he

would have pled guilty rather than go to trial. State v.

Taccetta,

(2009). The Court noted that "an

attorney would be engaged in professional misconduct if he or

16 A-4965-13T1 she knowingly assisted a client to perpetrate a fraud on the

court by assisting or encouraging a client to lie under oath."

. In denying IAC relief, the Court concluded as

follows:

If a trial court cannot accept a guilty plea that is known to be false, then it would be strange indeed for a PCR court to vacate a jury verdict following a fair trial on the ground that [the] defendant would have taken an advantageous plea offer with a limited sentence exposure if only he had been given the opportunity to lie under oath. A court cannot give its imprimatur to perjury or in any way suggest that the requirement of a truthful factual basis at a plea colloquy is an empty formality.

[Id. at 197.]

As the Court further noted, "[j]ust because we are powerless to

control or eliminate every negative practice in our criminal

justice system does not mean that we must condone those

practices."

.

Other jurisdictions have addressed the issue of a defendant

engaging or acquiescing in illegal conduct and afforded the

defendant no IAC relief. For example, in Arnett v. State,

(Alaska Ct. App. 1997), the defendant claimed that

trial counsel rendered ineffective assistance by illegally

advising him to abscond from trial and assisting him in

absconding.

. The Court of Appeals of Alaska held

17 A-4965-13T1 the defendant was not entitled to IAC relief, reasoning as

follows:

We have no doubt that a lawyer who counsels a client to commit a crime for tactical gain acts incompetently. But by the same token, this form of advice falls so far beyond the pale of anything that could conceivably be considered legitimate legal assistance that a defendant's voluntary reliance on it is tantamount to a willing abandonment of competent representation. A defendant who voluntarily commits a crime on advice of counsel ought not to be allowed to impute blame to the attorney or to claim prejudice stemming from the attorney's incompetence; for in almost all such cases, the defendant's own voluntary acts will be a superseding cause of any resulting misfortune.

[Id. at 1083.]

The court concluded that, even assuming there was attorney-

client collusion, "[t]o grant relief in this case would permit

[the defendant] to reap a windfall new trial on account of his

own [crime]. We cannot allow this tempting gambit for counsel

and client. In the circumstances alleged by [the defendant],

[the defendant] must remain responsible for his own misconduct."

(third alteration in original) (citations omitted).

In DeHaven v. State,

(Fla. Dist. Ct. App.

1993), the defendant claimed that he presented differing

versions of the victim's shooting to trial counsel and counsel

said he preferred to use the version more favorable to the

18 A-4965-13T1 defendant.

. The Florida District Court of Appeals

stated that whether or not the defendant's IAC claim was true,

[t]his motion does not present the picture of a hapless defendant whose lawyer knowingly or negligently ignored available evidence in favor of a less viable defense, nor of an unsophisticated individual deceived by an overzealous or unscrupulous advocate. It is an admission of having knowingly perpetrated a fraud upon the court. Even if it were true that counsel joined in or encouraged such misconduct - and we have only [the defendant's] allegation this occurred - this might be a matter for the Florida Bar, but would not require vacation of [the defendant's] conviction.

[Id. at 339-340.]

In Commonwealth v. McNeil,

(Pa. 1985),

the defendant claimed that trial counsel advised him to render

perjured testimony. Id. at 616-17. Finding the defendant

freely and deliberately chose to offer false testimony, the

Supreme Court of Pennsylvania held that IAC relief is not

available to a defendant who "attempts to reap a windfall new

trial on account of his own perjury". Id. at 618. The court

reasoned as follows:

[t]he criminal justice system cannot and will not tolerate such an obvious and flagrant affront to the integrity of the truth determining process thinly disguised under the rubric of ineffective assistance. . . . [T]o hold otherwise would create a situation wherein a defendant, by design, could build into his case ineffective

19 A-4965-13T1 assistance of counsel claims, thus guaranteeing himself a basis for a new trial if the verdict were adverse to him.

[Id. at 618-19 (citation omitted).]

In Kelley v. State,

(Tex. Ct. App.

1982), defense counsel attempted to dispose of evidence.

Though describing counsel's action as "reprehensible," the Court

of Appeals of Texas denied IAC relief to the defendant, finding

that he acquiesced in the tactic.

.

Guided by the above principles, we hold that a defendant

who participates in illegal conduct in collusion with his

attorney or acquiesces in the attorney's illegal or unethical

conduct is not entitled IAC relief. We will not tolerate what

amounts to a fraud on the court, and will not permit a defendant

who participates or acquiesces in his attorney's illegal or

unethical conduct to reap any benefit of IAC relief. To hold

otherwise would impermissibly permit a defendant to build an IAC

claim into his case, thus guaranteeing him a basis for reversal

of an adverse verdict.

Affirmed.

20 A-4965-13T1