Opinion
DOCKET NO. A-5557-11T4
04-20-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. NICHOLAS CAPERS, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Monique Moyse, Designated Counsel, on the brief). Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Christopher W. Hsieh, Chief Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Haas and Manahan. On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 09-05-0667. Joseph E. Krakora, Public Defender, attorney for appellant (Monique Moyse, Designated Counsel, on the brief). Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Christopher W. Hsieh, Chief Assistant Prosecutor, of counsel and on the brief). PER CURIAM
This case returns to us following a remand. Defendant Nicholas Capers originally appealed from the Law Division's order of April 26, 2012 denying his petition for post-conviction relief (PCR). He now challenges the trial court's June 30, 2015 order denying his motion for reconsideration of the April 26, 2012 order, as well as his request for an evidentiary hearing. We reverse and remand for a hearing.
A Passaic County grand jury charged defendant in a seven-count indictment with first-degree attempted murder, N.J.S.A. 2C:11-3 and N.J.S.A. 2C:5-1 (count one); first-degree robbery, N.J.S.A. 2C:15-1 (count two); fourth-degree aggravated assault with a firearm, N.J.S.A. 2C:12-1(b)(4) (count three); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count four); second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count five); third-degree endangering an injured victim, N.J.S.A. 2C:12-1.2(a) (count six); and second-degree certain persons not to possess weapons, N.J.S.A. 2C:39-7 (count seven).
Pursuant to a plea agreement, defendant pled guilty to count two, first-degree robbery. In return, the State agreed to recommend that defendant be sentenced as if this were a second-degree offense, and to dismiss all of the other charges. In accordance with the plea agreement, the judge sentenced defendant to nine years in prison, subject to the 85% parole ineligibility provisions of the No Early Release Act, N.J.S.A. 2C:43-7.2. The judge also ordered defendant to serve a five-year term of parole supervision upon his release and imposed appropriate fines and penalties. Defendant did not file a direct appeal of his conviction and sentence.
On April 1, 2011, defendant filed a petition for PCR, alleging that his attorney was ineffective because, among other things, he failed to file a Wade motion to suppress an out-of-court identification of him by an eyewitness (the witness). Defendant asserted that, sometime after the witness spoke to the police, the witness prepared a sworn statement retracting his prior identification. Based on that retraction, defendant argued that his attorney should have sought to suppress the identification. Defendant did not attach the witness' statement to his petition.
Defendant has abandoned the other issues he raised in his petition and, therefore, we do not address them further here.
United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967).
On November 4, 2011, the trial court considered defendant's petition, but did not conduct an evidentiary hearing. During colloquy with the judge, defendant produced the witness' statement. The statement was dated June 4, 2009, which was after defendant was indicted, but well before he pled guilty. In the statement, the witness asserted that he reviewed photographs at the police station for two hours, but he "left police headquarters without picking out [a] photo." The witness also said that he was "under the influence of alcohol while at police headquarters."
It is not clear from the record whether the trial judge reviewed the witness' statement during the colloquy. --------
The witness stated that the police later came to his house with additional photographs, but he "did not pick out any picture[.]" Defendant's PCR attorney argued that, without the witness' testimony, there was no evidence to place defendant at the scene of the crime and, therefore, defendant's plea attorney should have sought to suppress the identification.
On April 26, 2012, the judge denied defendant's petition. In a written decision, the judge found that defendant knew about the witness' statement prior to his plea. Therefore, the judge concluded that defendant "had ample opportunity to raise his concerns on the record, during both the plea allocution and the sentencing hearing." Because defendant failed to do so, the judge ruled that defendant did not demonstrate that his attorney was ineffective.
Defendant filed an appeal from this determination, and filed a motion to supplement the record with the witness' statement. On January 11, 2013, we issued an order remanding the matter to the Law Division to enable defendant to file a motion for reconsideration based on the witness' statement.
On remand, the judge did not conduct an evidentiary hearing. At oral argument, however, the assistant prosecutor told the judge that he was assigned to represent the State at the time of defendant's plea agreement. The prosecutor stated that defendant's attorney was aware of the witness' written statement at the time of the plea negotiations. The prosecutor stated that defendant's attorney also had a copy of the witness' "videotape[d] identification" of defendant, "and the State was confident that that statement would have been admissible, and the jury would have had that police video statement of the identification in the trial of this matter if it got that far." Nevertheless, the prosecutor asserted that, following the plea negotiations, defendant "received the benefit . . . of an extremely favorable plea agreement."
In a very brief oral decision, the judge denied defendant's motion for reconsideration. The judge stated that defendant's attorney was "well known to the court as an extremely effective criminal defense attorney" and that this was demonstrated by the fact that the attorney was able to obtain the witness' retraction letter. Based upon the prosecutor's representations, the judge found that defendant's attorney "obviously leveraged" the letter "toward getting a much better plea deal for [defendant] than he would have gotten[.]" The judge also remarked that there was "no doubt in the [co]urt's mind that [the witness' statement] figured prominently in plea negotiations and a very, very favorable plea resolution, and I don't [think] that constitutes a prima facie showing of ineffective assistance of counsel whatsoever."
This matter returned to us following the trial court's entry of the June 30, 2015 order. Defendant contends that he "is entitled to an evidentiary hearing on his claim that his attorney rendered ineffective assistance of counsel for failing to file a Wade motion." We agree.
When petitioning for PCR, the defendant must establish by a preponderance of the credible evidence that he or she is entitled to the requested relief. State v. Nash, 212 N.J. 518, 541 (2013); State v. Preciose, 129 N.J. 451, 459 (1992). To establish a prima facie claim of ineffective assistance of counsel, the defendant 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 v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 58 (1987).
The mere raising of a claim for PCR does not entitle the defendant to an evidentiary hearing, and the defendant "must do more than make bald assertions that he was denied the effective assistance of counsel." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). However, an evidentiary hearing should be conducted where the defendant has established a prima facie showing in support of the requested relief. Preciose, supra, 129 N.J. at 462.
When determining whether to grant an evidentiary hearing, the trial judge must consider the facts in the light most favorable to the defendant. Id. at 462-63. "If there are disputed issues as to material facts regarding entitlement to post-conviction relief, a hearing should be conducted." State v. Russo, 333 N.J. Super. 119, 138 (App. Div. 2000). We review a trial judge's decision to grant or deny a defendant's request for a hearing under an abuse of discretion standard. Id. at 140.
Applying these principles, we conclude that the trial judge mistakenly exercised his discretion by denying defendant's request for an evidentiary hearing. Contrary to the judge's conclusion, defendant presented a prima facie case of ineffective assistance of counsel. He asserted that the only witness placing him at the scene later recanted. The witness authored a written statement asserting that he never identified defendant and that he had been drinking before going to the police station for the interview.
Our Supreme Court has observed that "[i]t is not ineffective assistance of counsel for defense counsel not to file a meritless motion[.]" State v. O'Neal, 190 N.J. 601, 619 (2007). Thus, where a defendant complains that his or her attorney should have filed a suppression motion, "the defendant not only must satisfy both parts of the Strickland test but also must prove that his [or her suppression] claim is meritorious." State v. Fisher, 156 N.J. 494, 501 (1998).
Here, defendant asserted that the charges against him were based upon the witness' identification. If, as the witness asserts in his statement, he never identified defendant and had been drinking before speaking to the police, we cannot say on this record that a Wade motion would have lacked merit. Thus, the judge should have conducted an evidentiary hearing on defendant's claim that his attorney was ineffective for not pursuing this matter.
The trial judge ruled that defendant failed to meet the second Strickland prong because his attorney was able to negotiate a "very favorable plea" for him, even without filing a Wade motion to suppress the witness' identification. However, if the witness' identification was the only evidence linking defendant to the crime, a fact which is not clear from the existing record, the suppression of that identification may have led to a dismissal of the charges, rather than a reduced prison term. Thus, the judge should have conducted a hearing to flesh out the facts concerning defendant's attorney's decision not to file the motion.
Finally, the judge relied in his decision upon the representations of the assistant prosecutor concerning defendant's attorney's knowledge of the witness' statement, and the attorney's use of that statement during plea negotiations. The judge also relied upon his own knowledge of defendant's attorney's reputation as a skilled trial counsel. In fairness, the judge should have granted defendant an evidentiary hearing to address these representations through testimony. In reversing and remanding this matter for a hearing, we express no view as to the merits of defendant's petition for PCR.
Reversed and remanded. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION