Opinion
DOCKET NO. A-3150-13T3
02-22-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. SAMUEL ALEXANDER, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Maria I. Guerrero, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Reisner and Hoffman. On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 07-08-2873. Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Maria I. Guerrero, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Following convictions for aggravated manslaughter and unlawful possession of a weapon, defendant Samuel Alexander was sentenced to twenty-two years in prison. He now appeals from an October 7, 2013 order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.
We outlined the relevant facts, and the appellate issues defendant raised, in our prior opinion, State v. Alexander, No. A-0805-09 (App. Div. March 5, 2012) (slip op. at 3-5), certif. denied, 211 N.J. 608 (2012), and need not repeat them here. On direct appeal, we affirmed defendant's convictions and the sentence he received for aggravated manslaughter; however, we vacated the sentence imposed for unlawful possession of a weapon, and remanded to the trial court for merger of this conviction with the aggravated manslaughter conviction. Id. at 20.
Defendant filed a pro se petition for PCR on October 8, 2012, asserting the following claims:
I WAS DENIED EFFECTIVE ASSISTANCE OF [TRIAL] COUNSEL BECAUSE;
1. He failed to give me a copy of my discovery and grand jury transcript so that I could help assist in my defense.
2. The State's witness had a criminal record and counsel failed to cross-exam[ine] the witness concerning his past criminal record.
3. He made decisions on my [case] prior [to] and during trial . . . without discussing them with me first.
Designated counsel for defendant filed a supplemental brief on or around June 27, 2013. Following oral argument, Judge Patricia K. Costello entered the order denying defendant's petition without an evidentiary hearing.
Defendant then filed his appeal, raising the following arguments:
POINT I
THE PCR COURT'S FINDINGS SUMMARILY DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND [THE] MATTER REMANDED FOR AN EVIDENTIARY HEARING BECAUSE TRIAL COUNSEL'S FAILURE TO PROVIDE DEFENDANT WITH DISCOVERY WHICH CAUSED DEFENDANT TO BE UNABLE TO PROPERLY ASSESS THE STRENGTH OF THE STATE'S CASE AND THE PROPRIETY OF ACCEPTING THE STATE'S PLEA RECOMMENDATION SATISFIED R. 3:22 PRIMA FACIE INEFFECTIVE ASSISTANCE OF COUNSEL STANDARDS.
POINT II
THE COURT'S RULING DENYING POST-CONVICTION RELIEF VIOLATED DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.
Having reviewed the record, we find these arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons stated in the cogent written opinion issued by Judge Costello on October 7, 2013. We add these comments.
To establish a prima facie case of ineffective assistance of counsel, defendant must show: (1) counsel's performance was objectively deficient; and (2) counsel's deficient performance prejudiced defendant to the extent that he was deprived of his right to a fair trial. State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the United States Supreme Court's two-prong test from Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984)).
To establish the first prong of his prima facie case, defendant relies upon his supporting certification, wherein he claims that his trial counsel was deficient in two respects: (1) failing to provide defendant with discovery documents so that he could make a fully-informed decision about whether he should accept the State's plea offer; and (2) failing to adequately communicate with him during trial. These allegations, even if true, are insufficient to satisfy either prong of the Strickland test.
Citing two recent United States Supreme Court decisions — Missouri v. Frye, ___ U.S. ___, 132 S. Ct. 1399, 182 L. Ed. 2d 379 (2012), and Lafler v. Cooper, ___ U.S. ___, 132 S. Ct. 1376, 182 L. Ed. 2d 398 (2012) — defendant argues that the first prong of the Strickland test was violated when he was "unable to assess the propriety of accepting the State's plea bargain because trial counsel failed to provide him with complete pretrial discovery."
Both of these cases, however, are distinguishable from the case at hand. In Frye, the Court concluded that attorneys provide constitutionally-defective assistance of counsel when they fail to notify their client of a plea bargain offered by the State. Frye, supra, ___ U.S. at ___, 132 S. Ct. at 1404, 182 L. Ed. 2d at 386. Defendant makes no such claim here. Furthermore, in Lafler, the Court did not address the first prong of the Strickland test. The parties had stipulated at oral argument that the first prong was satisfied, thus moving the Court's discussion immediately to the second prong. Lafler, supra, ___ U.S. ___, 132 S. Ct. at 1383, 182 L. Ed. 2d at 405. Neither case addresses whether an attorney's failure to provide a client with discovery documents constitutes objectively deficient assistance of counsel.
Certainly, affirmative and deliberate misinformation is not required to satisfy the first prong of the test; an inadvertent failure to advise a client regarding the legal consequences of a guilty plea can constitute deficient performance. See Padilla v. Kentucky, 559 U.S. 356, 371, 130 S. Ct. 1473, 1484-85, 176 L. Ed. 2d 284, 297 (2010). However, the error alleged by defendant in this case is far less significant. Rather than failing to inform defendant of the legal consequences of accepting the State's plea offer, the only alleged error here is that defendant's trial counsel did not provide defendant with copies of the evidence collected against him. Notably, defendant does not deny that his counsel discussed with him the strength of the State's case, regardless of whether he physically received copies of the discovery.
Even if this purported error satisfied the first prong of the test, defendant has not demonstrated prejudice. Defendant essentially argues that, had he understood the weight of evidence the State had against him, he never would have proceeded to trial. The record provides no support for this claim. As Judge Costello noted in her written opinion,
[e]ven assuming defendant did not receive a copy of the discovery, there is no claim set forth here that he was prejudiced in any way. He does not state he was surprised by any testimony at the trial; indeed, much of the evidence came from his confession and the testimony of his brothers, who responded to the scene after he called one of them. He does not say he was surprised by or disagreed with any of the strategies employed by trial counsel. Without any showing whatsoever of prejudice, he fails the second prong of Strickland/Fritz.
Additionally, defendant offers no credible argument that his trial counsel's demeanor towards him during the trial constituted ineffective assistance. A reasonable trial strategy, even if ultimately unsuccessful, will not constitute objectively deficient performance in the Strickland context. State v. DiFrisco, 174 N.J. 195, 220-21 (2002). Judge Costello correctly concluded that, even assuming that defendant's trial counsel would quiet him when he tried to speak to him during the trial, such conduct is not objectively deficient. As she noted in her written opinion,
[t]here may have been strategic reasons for not continuously interrupting the trial in front of jurors to have it proceed at a slower pace. The cross-examination of the State's witnesses was overall very lengthy, very repetitive and extremely thorough . . . . In short, the pace was already slow. In the complete absence of any supporting facts, it is impossible to assess whether trial counsel's failure to interrupt testimony to answer defendant's questions, or to slow the pace even more so even more[,] so he would more easily absorb the facts[,] caused any prejudice to the defendant's case . . . .
Defendant has presented no evidence that, but for the alleged deficiencies in his trial counsel's performance, he would have rejected the plea and insisted on going to trial. See State v. DiFrisco, 137 N.J. 434, 457 (1994), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996). Bald assertions, of course, are insufficient to entitle a defendant to an evidentiary hearing on a PCR petition. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION