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                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-5141-15T1


STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

SCOTT WAYNE HARRIS,

     Defendant-Appellant.
_____________________________

                    Argued November 9, 2018 – Decided January 18, 2019

                    Before Judges Simonelli, Whipple and DeAlmeida.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Burlington County, Indictment No. 92-02-
                    0158.

                    Louis H. Miron, Designated Counsel, argued the cause
                    for appellant (Joseph E. Krakora, Public Defender,
                    attorney; Louis H. Miron, on the brief).

                    Andre R. Araujo, Assistant Prosecutor, argued the
                    cause for respondent (Jennifer Webb-McRae,
                    Cumberland County Prosecutor, attorney; Andre R.
                    Araujo, of counsel and on the brief).
            Appellant filed a pro se supplemental brief.

PER CURIAM

      Defendant, Scott Wayne Harris, appeals from a May 12, 2016 denial of

his third petition for post-conviction relief (PCR). Defendant alleged his second

trial counsel was constitutionally ineffective because she failed to communicate

a plea offer. The court granted defendant an evidentiary hearing but concluded

his ineffective assistance claim was meritless and denied relief. We agree and

affirm for the following reasons.

      This is the fourth time this Court has reviewed defendant's case, either on

direct appeal or PCR.      The facts surrounding the charged offenses are

summarized in the direct appeal, State v. Harris, A-5202-92 (App. Div. Nov. 17,

1995), and we need not repeat them here. We focus our attention on defendant's

allegations in his PCR petition concerning the conduct of his trial counsel in

1992 and the revival of a tainted jury claim he first brought in a 1996 PCR

petition.

      On February 6, 1992, defendant was charged with: first-degree attempted

murder, N.J.S.A. 2C:5-1, 2C:11-3(a)(1); second-degree aggravated assault,

N.J.S.A. 2C:12-1(b)(1); third-degree aggravated assault, N.J.S.A. 2C:12-

1(b)(2); first-degree sexual aggravated assault, N.J.S.A. 2C:14-2(a); third-


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                                       2
degree terroristic threats, N.J.S.A. 2C:12-3(a); third-degree possession of a

weapon for unlawful purpose, N.J.S.A. 2C:39-4(d); first-degree kidnapping,

N.J.S.A. 2C:13-1(b); second-degree witness tampering, N.J.S.A. 2C:28-5(a);

and fourth-degree tampering with evidence, N.J.S.A. 2C:28-6(1).         A jury

convicted defendant of all counts except attempted murder. After we modified

the sentence imposed by the trial judge, defendant was sentenced to a fifty-year

term with a twenty-five-year parole disqualifier.

       In 1996, defendant filed his first PCR petition. He alleged someone

named "Fletcher Shay Skerl" contacted juror T.S. and informed her of

defendant's criminal history and expressed doubts about defendant's innocence.

The first PCR judge conducted an evidentiary hearing but denied relief because

he did "not believe [defendant's] testimony" and found defendant's claim "to be

incredible." We affirmed.

       In 1997, defendant filed his second PCR petition alleging the police

violated his Miranda1 rights, the trial judge gave incorrect instructions

concerning the requirement for a unanimous verdict and defendant's trial counsel

rendered ineffective assistance. The PCR judge denied defendant an evidentiary




1
    Miranda v. Arizona, 384 U.S. 436 (1966).
                                                                        A-5141-15T1
                                       3
hearing, we affirmed, and our Supreme Court denied certification. Defendant's

petition for a writ of habeas corpus was unsuccessful.

      On September 30, 2013, defendant filed another PCR petition. Defendant

alleged his trial counsel was constitutionally ineffective because she did not

communicate a plea offer extended by the State. As proof, defendant submitted

a newspaper clipping, allegedly discovered in 2013, reporting the State extended

a plea offer to defendant of forty years imprisonment with twenty-year parole

ineligibility for the first-degree kidnapping and second-degree aggravated

assault charges. On May 14, 2014, defendant filed a supplemental brief reviving

his tainted jury claim.

      On July 29, 2014, the court appointed counsel to represent defendant on

the ineffective assistance claim but denied assignment of counsel to the jury

tampering issue. We denied defendant's motion for leave to appeal the court's

order. While an appeal to the Supreme Court was pending, another judge

ordered counsel to be appointed to all issues raised in defendant's third PCR

petition and granted defendant's motion to change venue.

      The judge, who then considered defendant's third PCR petition, authored

a written opinion finding defendant stated a prima facie case of ineffective

assistance of counsel and ordered an evidentiary hearing. The judge concluded


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                                       4
defendant's ineffective assistance claim was timely and not barred by Rule 3:22-

12(a)(2) because defendant claimed he first learned of the uncommunicated plea

deal in 2013 and filed a third PCR petition the same year. However, the judge

held Rule 3:22-5 barred defendant's jury tampering charge because it was

previously adjudicated on the merits upon defendant's first PCR petition.

      We discern the facts relevant to defendant's ineffective assistance claim

from the hearing record. In February 1992, Linda Lawhun was appointed to

represent defendant. She described defendant as the most "engaged" client she

ever had and characterized their working relationship as "very good." The

prosecutor had a similar memory of defendant and recalled him as "the most

involved of any of the defendants I've ever prosecuted." Defendant constantly

wrote letters to Lawhun to discuss his case, including several prior to trial that

are at the heart of this PCR petition.

      Prior to trial, defendant wrote a letter to his first trial counsel, insisting he

wanted a plea of twenty-to-twenty-five years flat so he would be released from

jail by age sixty-five. Lawhun testified defendant wanted a plea of twenty years

to avoid maximum sentencing exposure. Instead, the prosecutor only offered

defendant a plea of first-degree kidnapping and second-degree aggravated

assault with no sentencing recommendation, meaning defendant's maximum


                                                                               A-5141-15T1
                                          5
sentencing exposure under the plea would be a forty-year term with parole

ineligibility of twenty years (40/20 plea offer). The prosecutor testified Lawhun

asked whether the State would accept a twenty-year flat sentence, but the

prosecutor declined the request. On April 30, 1992, defendant signed a trial

memorandum refusing the State's offer to plead guilty to the assault and

kidnapping charges "with no rec." On May 28, 1992, the trial judge asked

Lawhun in open court, "Will your client be able to reach a conclusion with

respect to the plea bargain by next Friday with the four, five and six indictments

still outstanding?" To which she responded, "I won't know that until I've had a

chance to speak with him." On June 9, 1992, the trial judge warned defendant

the following day was his last to accept the State's plea offer. The prosecutor

testified the trial judge discussed the plea with defendant and Lawhun testified

that the trial judge always reviewed pleas with defendants.

      Defendant asserts Lawhun never communicated the 40/20 plea to him and

therefore she was constitutionally ineffective. As proof, defendant points to an

exchange of letters between he and Lawhun from 1992. On March 25, 1992,

defendant wrote to Lawhun requesting she secure "a plea offer of whatever

amount of time you deem appropriate and reasonable considering the

[indiscernible] of my case." Lawhun responded on April 2, 1992, and explained:


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                                        6
            I have received your numerous letters concerning a plea
            bargain in your case.        At the present time the
            prosecutor's offer remains the same. That is to say that
            she is willing to let you plead guilty to the kidnapping
            count and the aggravated assault count but will not
            recommend a specific sentence to the court.

                  In effect, you are being offered nothing, because
            the maximum time that you would be sentenced to if
            you were to go to trial is similar to that which you could
            receive if you pled guilty to these two counts.

Defendant wrote Lawhun back, saying:

            Frankly, I'm confused because when you last spoke
            with me over the telephone, during our 15 minute
            conversation, you told me that I have a "No Rec Plea
            Offer" that is at the discretion of the court. Now, you
            are saying, according to your April 2, 1992 letter to me,
            it is your opinion that my case will end up being placed
            on the trial list. . . . Well, just do your best to get me a
            plea offer.

The record does not contain Lawhun's responsive letter, if one was written.

      Lawhun acknowledged she described the State's plea offer as equivalent

to "being offered nothing" because the sentencing exposure on the assault and

kidnapping charges was the same under the State's offer as if he went to trial.

When asked whether her letter was referring to defendant's full sentencing

exposure if found guilty at trial of all crimes, Lawhun disagreed and explained

her letter referred only to the sentencing exposure of assault and kidnapping

under the State's plea offer compared to defendant's exposure if found guilty of

                                                                           A-5141-15T1
                                         7
the same two crimes. The prosecutor agreed with this characterization because

the State offered defendant a plea to two of the several charges with no

sentencing recommendation, meaning defendant ran the risk of facing full

sentencing exposure on all crimes charged if found guilty at trial.

      Several letters and pre-trial hearing transcripts from when the plea deal

was discussed are not included in the record. At some point after the evidentiary

hearing was granted but before the hearing, the State learned defendant had

written to Lawhun saying, "Unlike me, the State does not have the plea offer

hearing transcripts in my criminal case" and "Lucky for me, I saved your letters

to me. I will see you at my evidentiary hearing. Also, I kept my transcripts

too." The State filed an ex parte application with the PCR judge requesting

seizure and in-camera review of the documents defendant had in his jail cell.

The judge granted the application but prohibited defendant's PCR counsel from

informing defendant for fear he may destroy the documents. Defendant's cell

was searched, but neither the transcripts nor letters were found.

      Following the evidentiary hearing, on May 12, 2016, the judge denied

defendant's PCR petition.     The judge concluded the newspaper clipping,

Lawhun's April 2, 1992 letter, and the trial memorandum all demonstrated

defendant knew of and rejected the 40/20 plea offer. The judge found it "curious


                                                                         A-5141-15T1
                                        8
defendant retained and presented only this one letter from Ms. Lawhun, which

he attempts to argue to his advantage, when Ms. Lawhun wrote defendant

approximately 12 other letters." Moreover, the judge found it "inexplicable"

that defendant, "who terms himself a meticulous saver of documents," did not

have the April 30, 1992 pretrial transcript where the trial court presumably

reviewed the plea offer with defendant. The judge also found the newspaper

article was evidence demonstrating the 40/20 plea offer was made in open court

and refused to allow defendant to simultaneously argue the newspaper article

proves the offer was never communicated to him, while also showing the offer

was in fact made. Thus, the judge concluded "[t]here is simply no evidence that

the article could reflect anything other than what had occurred in open court on

that same date." Based on these findings, the judge concluded defendant could

not prove Strickland's2 prejudice prong, and, even if he could, there was credible

evidence indicating he would never have accepted the 40/20 plea offer in the

first instance.

       The judge also ruled on December 28, 2015, that defendant's jury

tampering claim was procedurally barred. The judge found this claim to be




2
    Strickland v. Washington, 466 U.S. 668 (1984).
                                                                          A-5141-15T1
                                        9
sufficiently identical to the claim defendant brought in his first PCR petition.

The appeal of both orders followed.

      Defendant, through counsel, raises the following issues on appeal:

            I.     THE PCR COURT ERRED IN RULING THAT
                   HARRIS RECEIVED THE EFFECTIVE
                   ASSISTANCE OF COMPETENT COUNSEL IN
                   CONNECTION WITH THE STATE'S PLEA
                   OFFER TO HARRIS.

                   A.   The Strickland-Cronic-Fritz Standard

                   B.   Harris Received Ineffective Assistance of
                        Counsel in Connection with his Plea
                        Bargaining

                   C.   Trial     Counsel's     Assistance     was
                        Constitutionally Defective as It relates to
                        the State's 40/20 Plea Offer

            II.    THE PCR COURT ERRED IN FINDING THAT
                   HARRIS RECEIVED THE EFFECTIVE
                   ASSISTANCE OF TRIAL COUNSEL IN
                   CONNECTION WITH THE 40/20 PLEA
                   OFFER     FROM    THE  STATE   AND,
                   THEREFORE, THIS CASE SHOULD BE
                   REMANDED WITH DIRECTION TO HAVE
                   THE STATE REOFFER THE 40/20 PLEA
                   OFFER TO HARRIS AND HAVE THE TRIAL
                   COURT VACATE HARRIS' CONVICTION
                   AND RESENTENCE HARRIS PURSUANT TO
                   THE 40/20 PLEA OFFER.

            III.   THE  PCR  COURT   SHOULD    HAVE
                   CONDUCTED AN EVIDENTIARY HEARING


                                                                        A-5141-15T1
                                      10
                  TO ADDRESS THE TAINTED JURY CLAIM
                  RAISED BY DEFENDANT.

            IV.   THIS CASE SHOULD BE REMANDED TO
                  THE PCR COURT WITH DIRECTION TO
                  VACATE HARRIS' CONVICTION OR TO
                  CONDUCT AN EVIDENTIARY HEARING
                  BEFORE A DIFFERENT JUDGE BECAUSE
                  THE PCR JUDGE WAS NOT IMPARTIAL
                  AND THUS, HARRIS DID NOT RECEIVE A
                  FAIR PCR HEARING (NOT RAISED BELOW).

      Defendant, through a pro se brief, raises the following issues on appeal:

            I.    THE PCR COURT ERRED IN DENYING
                  DEFENDANT'S PETITION FOR POST-
                  CONVICTION    RELIEF   WHERE   THE
                  RECORD    BELOW      UNEQUIVOCALLY
                  DEMONSTRATED THAT HE RECEIVED
                  INEFFECTIVE ASSISTANCE OF COUNSEL,
                  AND COUNSEL'S FAILURE TO PROPERLY
                  AND    ACCURATELY     INFORM   AND
                  COUNSEL HIM, WITH RESPECT TO THE
                  STATE'S PLEA OFFER, RESULTED IN A
                  REJECTION OF THAT OFFER, WHICH HE
                  SUBSEQUENTLY RECEIVED A SENTENCE
                  SIGNIFICANTLY GREATER THAN THAT
                  EMBODIED IN THE STATE'S PROPOSED
                  PLEA ORDER.

      Generally, "[o]ur standard of review is necessarily deferential to a PCR

court's factual findings based on its review of live witness testimony." State v.

Nash, 212 N.J. 518, 540 (2013). A PCR court's findings will be upheld if they

are supported by sufficient credible evidence in the record. Ibid. All legal


                                                                         A-5141-15T1
                                      11
conclusions are reviewed de novo. State v. Harris, 181 N.J. 391, 419 (2004).

We address defendant's arguments concerning the plea offer, the tainted juror

and the judge's bias. We reject all three.

      To prevail under Strickland/Fritz, defendant must show: (1) his lawyer's

performance was deficient and (2) the deficient performance prejudiced him.

Strickland, 466 U.S. at 687; State v. Fritz, 105 N.J. 42, 52 (1987). The Sixth

Amendment has long guaranteed the right to effective plea counsel. See, e.g.,

Hill v. Lockhart, 474 U.S. 52, 56 (1985); State v. DiFrisco, 137 N.J. 434, 456

(1994).

      More recently, the Supreme Court extended this right to contexts where,

as a result of attorney ineffectiveness, a defendant rejects a plea offer. Missouri

v. Frye, 566 U.S. 134, 138 (2012); Lafler v. Cooper, 566 U.S. 156, 162 (2012).

Generally, plea counsel "has the duty to communicate formal offers from the

prosecution to accept a plea on terms and conditions that may be favorable to

the accused." Frye, 566 U.S. at 145; see State v. Powell, 294 N.J. Super. 557,

564 (App. Div. 1996) ("an attorney's conduct is incompetent when a plea offer

is never communicated by the attorney to the client"). In Frye, defense counsel's

performance was deficient because he allowed a plea offer to expire without

communicating it to his client. Frye, 566 U.S. at 145. In Lafler, the parties


                                                                           A-5141-15T1
                                       12
agreed counsel's performance was deficient because he erroneously told his

client he could not be convicted at trial. Lafler, 566 U.S. at 163.

      To prove prejudice in the context of a plea rejection, defendant must show

that but for counsel's failure to communicate, there was a "reasonable

probability" he would have accepted its terms. Id. at 164. "Defendants must

also demonstrate a reasonable probability the plea would have been ente red

without the prosecution canceling it or the trial court refusing to accept it . . . ."

Frye, 566 U.S. at 147. "To establish prejudice in this instance, it is necessary to

show a reasonable probability that the end result of the criminal process would

have been more favorable by reason of a plea to a lesser charge or a sentence of

less prison time." Ibid.; see also Lafler, 566 U.S. at 168.

      Here, the judge found defendant's lawyer communicated the 40/20 plea

offer to defendant. The judge's review of the April 2, 1992 letter, the newspaper

article, and the pretrial memorandum all indicated there was only one plea offer

on the table and defendant was aware of it. Even though counsel's letter did not

say "40/20" specifically, she described the State's offer as "similar" to what

defendant would face at trial on the kidnapping and aggravated assault charges.

It is evident counsel had the maximum exposure of forty years for kidnapping

and assault in mind when she wrote the letter. The pretrial memorandum and


                                                                              A-5141-15T1
                                         13
counsel's recollection at the evidentiary hearing as well as the newspaper article

support this conclusion.

      Even if defendant was confused after counsel's explanation, the trial court

reviewed the plea with him on at least one occasion prior to trial when defendant

signed the pretrial memorandum. Despite the missing transcript, the trial judge

must have reviewed the 40/20 plea offer because the State only made one plea

offer to defendant.

      Moreover, the PCR court found he would not have accepted the offer to

begin with.    The record supports this conclusion.         Both counsel and the

prosecutor testified defendant would only accept an offer of twenty-to-twenty-

five years flat. Defendant admitted as much in his letter to his first trial counsel.

Lawhun's testimony that she continued to ask the prosecutor to alter her offer to

no avail demonstrates defendant was never satisfied with the State's offer.

Although defendant received a greater sentence by going to trial than if he

accepted the State's offer, this is not a case like Lafler where the defendant

rejected a plea after receiving erroneous advice. Rather, defendant rejected the

State's offer when it did not conform to his expectations and went to trial aware

of the consequences. Accordingly, defendant did not meet either prong under

the Strickland/Fritz test regarding his plea.


                                                                             A-5141-15T1
                                        14
      Defendant also appeals the court's December 28, 2015 ruling that his jury

tampering claim was procedurally barred. In his pro se supplemental brief,

defendant revived his tainted jury claim, but this time defendant alleges the juror

in question was a dietician in the prison where he is housed, the two had a

conversation, and the juror discussed a phone call she received about defendant

prior to his trial.   Notably, the only evidence defendant presented of this

conversation was defendant's certification and an appointment sheet stating he

met with the dietician. The judge found this claim sufficiently identical to the

claim defendant brought in his first PCR petition. The first PCR judge found

defendant "to be incredible" and he did "not believe his testimony," and we

affirmed the denial of defendant's claim.        The PCR judge herein found

defendant's current jury taint claim both substantially similar to and equally

incredible as the claim in his first PCR petition because both claims involved

the same juror and the same alleged phone call. Therefore, his claim was

procedurally barred by Rule 3:22-5 because it was previously adjudicated upon

the merits.

      Nevertheless, the judge addressed the jury tampering claim on the merits

and rejected it explaining juror interviews are not warranted when a defendant

fails to corroborate an allegation of juror misconduct. Here, defendant's self -


                                                                           A-5141-15T1
                                       15
serving certification was the only evidence presented of his conversation with

the juror. We discern no error in the judge's determination.

      Finally, we reject defendant's argument the court was biased against him.

Defendant cites to the Code of Judicial Conduct to make his claim. However, it

is unclear whether defendant is arguing the judge was biased because she

presided over an ex parte hearing or because the search may have violated

defendant's due process rights. In any event, if the court's actions were in error,

they were not plain error.

      Per Rule 2:10-2, if an error has not been brought to the trial court's

attention, we will not reverse based on such error unless the appellant shows

plain error. Plain error is error "clearly capable of producing an unjust result."

R. 2:10-2. In PCR, the question is whether the error denied a fair decision on

the merits. State v. Macon, 57 N.J. 325, 338 (1971).

      The judge considered seizure of defendant's documents necessary to

preserve the integrity of the upcoming evidentiary hearing. After the evidentiary

hearing, the PCR judge amplified her reasoning, described the ways in which

she protected defendant's due process rights, and concluded she found probable

cause to sign a search warrant. The court considered this step necessary because




                                                                           A-5141-15T1
                                       16
defendant "was attempting to obstruct justice in his trial." We do not endorse

the conclusion this was the only course of action.

      However, ultimately, the only piece of evidence seized and then presented

at the evidentiary hearing was defendant's 1991 letter to his trial counsel (stating

he wanted a twenty-year plea), which defendant argued was in his favor. After

reviewing the evidentiary hearing transcript and the judge's PCR decision, we

discern no evident bias against defendant. We note, however, the better practice

would have been to direct the state to file a discovery motion rather than

authorizing the state to search an inmate's legal file. See State v. Marshall, 148

N.J. 89, 269 (1997) (noting even though the Court Rules governing PCR

petitions do not contain discovery provisions, "our cases have recognized that,

even in the absence of authorization in the form of a Court Rule or constitution al

mandate, New Jersey courts have 'the inherent power to order discovery when

justice so requires.'" (quoting State ex rel. W.C., 85 N.J. 218, 221 (1981))).

      We have carefully reviewed defendant's remaining arguments and have

determined they are without sufficient merit to warrant discussion in a written

opinion. R. 2:11-3(e)(1)(E).

      Affirmed.




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                                        17
