Opinion
DOCKET NO. A-1354-13T3
03-19-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. FUQUAN ALEXANDER, Defendant-Appellant.
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 (Jane Deaterly Plaisted, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Yannotti and Hoffman. On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 08-11-03398. 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 (Jane Deaterly Plaisted, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Fuquan Alexander appeals from an order entered by the Law Division on August 15, 2013, denying his petition for post-conviction relief ("PCR"). We affirm.
I.
Defendant and co-defendant Jabar Jones ("Jones") were charged by an Essex County grand jury with: second-degree conspiracy to commit kidnapping, carjacking and robbery, N.J.S.A. 2C:5-2; N.J.S.A. 2C:15-2; N.J.S.A. 2C:13-1(b); N.J.S.A. 2C:15-1; first-degree carjacking, N.J.S.A. 2C:15-2; first-degree kidnapping, N.J.S.A. 2C:13-1(b); first-degree robbery, N.J.S.A. 2C:15-1; second-degree burglary, N.J.S.A. 2C:18-2(b)(1); third-degree making terroristic threats, N.J.S.A. 2C:12-3(a); fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b); first-degree employing a juvenile in the commission of a criminal offense, N.J.S.A. 2C:24-9; second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-5(b); and unlawful possession of a weapon, N.J.S.A. 2C:39-4(a). Defendant and Jones were tried separately.
At the trial, the State presented evidence which established that during the early morning hours of February 22, 2008, defendant was driving in a car with his girlfriend Jasmine Gray ("Gray"), Jones, and two young women. Jones had a gun. It was snowing heavily, and the car broke down with two flat tires. A short time later, T.J. drove by and saw Gray and the two girls by the side of the road waving for help. He stopped to offer them assistance. T.J. noticed defendant and Jones for the first time. He agreed to give them a ride, and all five got into T.J.'s car.
We refer to the victim by his initials to protect his identity.
T.J. drove to a donut shop, where defendant and the girls got out of the car. Jones remained in T.J.'s car and he was seated in the back seat. T.J. suggested that they call a taxi, and Jones asked him for money. When defendant and the girls returned to the car, defendant and Jones whispered to each other. Jones pointed a gun at T.J.'s head. He demanded money and threatened to kill him. Defendant asked Jones for the gun and he gave it to him. He told T.J. that he should do what they say if he wanted to live.
Defendant and Jones also threatened to kill T.J.'s family. T.J. did not have any money in his pockets, so defendant told him to drive to a bank. T.J. complied and drove to a bank in Newark. There, T.J. and two of the girls attempted to make a withdrawal from an ATM, but they were unable to do so because there was no money in T.J.'s account.
They got back into the car and told T.J. to drive to Irvington. Jones again pointed the gun at T.J.'s head. He and defendant continued to threaten to kill T.J. and his family. The two girls got out of the car. T.J. drove to his house in West Orange. The three men got out and went inside. Gray remained in the car.
T.J. took them to the basement. T.J.'s family was upstairs in the house. T.J. did not have money. Defendant and Jones struck T.J. and kicked him. As defendant and Jones were leading T.J. up the stairs, T.J. seized the gun. He called for help as defendant and Jones tried to grab the gun. Defendant and Jones gave up and ran from the house. They stole the car T.J. had been driving, his wallet, his phone, and a small amount of cash. The police responded to T.J.'s home.
T.J. was taken to the hospital, where he was treated for the injuries to his face. Defendant, Jones and Gray were driving away when they were stopped by the police. Defendant and Jones got out of the car. They ran but the police caught up with them. The police took all three into custody. T.J. left the hospital and went to the police station, where he identified defendant, Jones and Gray through a two-way mirror. T.J. said he was "really sure" of his identifications.
The jury found defendant guilty of all charges. The judge denied the State's motion for an extended term and, after merging certain offenses, sentenced defendant to: thirty years of imprisonment for the carjacking, with a period of parole ineligibility as prescribed by the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2; a concurrent twenty-year term for the kidnapping, with a NERA period of parole ineligibility; a consecutive ten-year term for the burglary, with a NERA period of parole ineligibility; and a concurrent twenty-year term for employing a juvenile in the commission of an offense, with a seventeen-year period of parole ineligibility.
Defendant appealed and we affirmed the convictions and sentences imposed. State v. Alexander, No. A-1162-10 (App. Div. Jan. 6, 2012). Thereafter, defendant filed a petition for certification with our Supreme Court. The Court denied the petition. State v. Alexander, 210 N.J. 479 (2012).
Defendant filed a pro se petition for PCR, in which he alleged that he had been denied the effective assistance of trial and appellate counsel and should be afforded an evidentiary hearing on the petition. More specifically, defendant claimed that his trial counsel was ineffective because counsel: (1) did not seek a Wade hearing to challenge T.J.'s identification; (2) failed to adequately investigate the case; (3) failed to advise him of the penal consequences of the matter prior to trial; (4) failed to request complete jury charges on accomplice liability and second-degree robbery; and (5) failed to request an instruction that Gray's guilty plea could not be used as substantive evidence of his guilt. In addition, defendant claimed that appellate counsel was ineffective because counsel did not raise these issues in the direct appeal. He also said he had presented a prima facie case in support of his petition and the court should grant him an evidentiary hearing.
United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967).
The PCR court appointed counsel to represent defendant, and counsel filed a memorandum of law in support of the petition. Counsel argued that: (1) defendant's claims were not procedurally barred; (2) defendant had been denied the effective assistance of trial counsel because counsel did not seek a Wade hearing, failed to request adequate jury instructions, and did not advise defendant of the penal consequences of a plea offer; (3) appellate counsel was ineffective because counsel failed to raise certain issues on direct appeal; and (4) defendant should be afforded an evidentiary hearing on his petition. Counsel also incorporated by reference the claims that defendant raised in his pro se petition.
The PCR court considered the matter on August 15, 2013, and placed its decision on the record. The court determined that defendant had not established a prima facie case in support of PCR and an evidentiary hearing was not required. Accordingly, the court entered an order dated August 15, 2013, denying PCR.
On appeal, defendant raised the following arguments:
POINT I
THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF 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 INEFFECTIVE ASSISTANCE OF COUNSEL, EVIDENTIARY HEARINGS AND PETITIONS FOR POST CONVICTION RELIEF.
B. THE DEFENDANT FAILED TO RECEIVE ADEQUATE LEGAL REPRESENATION FROM TRIAL COUNSEL SINCE, AS A RESULT OF COUNSEL'S FAILURE TO DISCUSS WITH HIM THE STATE'S PLEA OFFER, HE PROCEEDED TO TRIAL, SUBSEQUENTLY RECEIVING A SENTENCE SIGNIFICANTLY GREATER THAN THAT EMBODIED IN THE PLEA OFFER.
C. THE DEFENDANT DID NOT RECEIVE ADEQUATE LEGAL REPRESENTATION FROM TRIAL COUNSEL AS A RESULT OF COUNSEL'S FAILURE TO REQUEST A WADE HEARING PRIOR TO TRIAL.
POINT II
THE PRIOR OPINION OF THE APPELLATE DIVISON ON DIRECT APPEAL CONCLUDING THE TRIAL COURT DID NOT ERR IN ADMITTING THE IDENTIFICATION TESTIMONY INTO EVIDENCE DID NOT PRECLUDE THE POST CONVICTION RELIEF COURT FROM DETERMINING TRIAL COUNSEL HAD NOT ADEQUATELY REPRESENTED THE DEFENDANT AS A RESULT OF HIS FAILURE TO REQUEST A WADE HEARING.
II.
We note initially that in order to prevail on a claim of ineffective assistance of counsel, defendant must satisfy the two-part test established in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). A defendant first must establish that his attorney's handling of the matter "fell below an objective standard of reasonableness." Strickland, supra, 466 U.S. at 688, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. A defendant also must establish that there exists a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.
A. Plea Offer
Defendant alleges that his attorney failed to advise him of a plea offer by the State. He also alleges that his attorney failed to advise him that consecutive terms could be imposed if he was convicted. He alleges that, if his attorney had provided him with this information, he would not have taken the case to trial.
At the hearing on defendant's PCR petition, the assistant prosecutor, who had tried the case, advised the court that the State's plea offer had been given to defense counsel prior to trial, and defense counsel informed her that the offer had been declined because defendant wanted a "single digit number" like the offer that had been extended to his co-defendant. The judge determined that defendant's assertion that counsel had not informed defendant of the State's plea offer was not credible.
The State argues that the assistant prosecutor's representations are supported by documents in the trial court's file. The State cites its written plea offer, dated January 2, 2009, which required defendant to plead guilty to second-degree conspiracy, first-degree carjacking, second-degree robbery, second-degree unlawful possession of a handgun, and second-degree possession of a weapon for an unlawful purpose. The offer stated that the remaining counts would be dismissed, and the State would agree to recommend a custodial sentence not to exceed twelve years in State prison, with a NERA period of parole ineligibility.
In addition, the State cites the pre-trial memorandum, dated November 6, 2009, which was signed by the trial judge, the assistant prosecutor, defense counsel and defendant. The memorandum states that defendant could be subject to a maximum sentence of between twenty-five and one-half years to sixty-three and one-half years, with a NERA period of parole ineligibility.
The memorandum also indicated that the State had offered a plea with a sentence of twelve years, subject to NERA, and defendant had made a counteroffer calling for a sentence of seven years, subject to NERA. The memorandum includes a question asking whether defendant understood that if he rejected the plea offer, the court could impose a more severe sentence than recommended in the plea offer, up to the maximum sentence permitted. The responses to this question were "Yes" or "No," and "Yes" was circled. Defendant's initials also appear on this page of the memorandum.
Thus, the plea offer and the pre-trial memorandum corroborate the assistant prosecutor's representations and support the PCR court's determination that defendant's claim regarding the State's plea offer was not credible. The record shows that defendant was properly informed of the maximum sentence that could be imposed if he rejected the State's offer and proceeded to trial on the charges.
B. Failure to Request Hearing to Challenge Identification
Defendant next argues that he was denied the effective assistance of counsel because his trial attorney failed to seek a Wade hearing to contest T.J.'s identification of him as one of the perpetrators of the charged offenses. We are convinced, however, that even if counsel erred by failing to seek the Wade hearing, defendant has not shown that his defense was prejudiced by the error.
Admissibility of an out-of-court identification is governed by the two-step analysis established by the United States Supreme Court. State v. Herrera, 187 N.J. 493, 502-04 (2006) (citing Manson v. Brathwaite, 432 U.S. 98, 99, 97 S. Ct. 2243, 2245, 53 L. Ed. 2d 140, 144 (1977); Neil v. Biggers, 409 U.S. 188, 194, 93 S. Ct. 375, 380, 34 L. Ed. 2d 401, 408 (1972)). The court first must determine "whether the identification procedure was impermissibly suggestive, and, if so, whether the impermissibly suggestive procedure was nevertheless reliable. The totality of the circumstances must be considered in weighing the suggestive nature of the identification against the reliability of the identification." Id. at 503-04.
We note that our Supreme Court modified the standard for admission of out-of-court identifications in State v. Henderson, 208 N.J. 208 (2011). Because defendant was tried before Henderson was decided, the modified standard does not apply to him. Id. at 300-02.
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In our opinion on defendant's direct appeal, we assumed for purposes of our decision that the procedure employed by the police was impermissibly suggestive, but concluded, based on the totality of circumstances, that T.J.'s identification was reliable and was properly admitted at trial. Alexander, supra, No. A-1162-10 (slip op. at 9). We stated:
[T.J.'s] trial testimony indicates that he had ample time in which to view the
perpetrators, since the crimes were committed over a period of several hours. Moreover, [T.J.] was able to observe defendant because he was seated close to him in the car while they drove around. [T.J.] was also able to observe defendant when they exited the car and went into his home.
In addition, [T.J.] identified defendant a short time after the crimes were committed. Defendant was apprehended near the location where the crimes were committed, and he was found in the car that [T.J.] was driving when he agreed to give defendant and the others a ride. Moreover, [T.J.] identified defendant at the police station shortly after defendant was taken into custody. [T.J.] stated that he was sure of his identifications.
[Id. at 9-10.]
We are therefore convinced that the PCR court correctly determined that defendant was not denied the effective assistance of counsel because his attorney failed to seek a Wade hearing to challenge T.J.'s identification. The court correctly found that T.J.'s identification would have been admissible even if counsel had requested the hearing.
In view of our decision, we need not address defendant's contention that Rule 3:22-5 did not bar his claim that his attorney's failure to seek a Wade hearing constituted the ineffective assistance of counsel.
C. Evidentiary Hearing
Defendant also argues that the PCR court erred by failing to conduct an evidentiary hearing on his petition. We do not agree. A hearing is required
only upon the establishment of a prima facie case in support of post-conviction relief, a determination by the court that there are material issues of disputed fact that cannot be resolved by reference to the existing record, and a determination that an evidentiary hearing is necessary to resolve the claims for relief. To establish a prima facie case, defendant must 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.See also State v. Porter, 216 N.J. 343, 354 (2013) (noting that evidentiary hearing ordinarily required to resolve a claim of ineffective assistance of counsel if defendant presents a prima facie case); State v. Preciose, 129 N.J. 451, 462 (1992) (stating that evidentiary hearing is required when trial record is not sufficient to resolve claims of ineffective assistance of counsel).
[R. 3:22-10(b).]
We are convinced that the existing record was sufficient to resolve defendant's claims. Moreover, as we have explained, defendant failed to present a prima facie case of ineffective assistance of counsel. Therefore, the PCR court correctly determined that an evidentiary hearing was not required defendant's petition.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION