Opinion
DOCKET NO. A-4016-11T3
07-07-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. GREGORY CLARK, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Philip Lago, Designated Counsel, on the brief). Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Jason Magid, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher, Espinosa and O'Connor.
On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 03-09-3383.
Joseph E. Krakora, Public Defender, attorney for appellant (Philip Lago, Designated Counsel, on the brief).
Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Jason Magid, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant appeals from the denial of his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm, substantially for the reasons set forth in the oral decision by Judge Ronald J. Freeman.
Defendant was acquitted of first-degree murder and convicted of second-degree reckless manslaughter and weapons offenses following a jury trial. In September 2004, he was sentenced to an aggregate sentence of twenty-two years, with eighty-five percent of that to be served before he would be eligible for parole.
On direct appeal, defendant raised plain error arguments regarding the adequacy of a jury instruction, the alleged impropriety of the prosecutor's summation, and the trial court's failure to merge weapons possession counts. He also challenged the trial court's failure to sua sponte enter a judgment of acquittal on the murder charge; his sentence; and, in a pro se brief, the trial judge's failure to suppress his incriminating statements. We affirmed his conviction and remanded for him to be resentenced in conformity with the principles set forth in State v. Pierce, 188 N.J. 155 (2006). State v. Clark, No. A-4193-04 (App. Div. Jan. 7, 2008).
The trial court imposed the same sentence at resentencing, and defendant appealed. We affirmed his sentence in an order dated December 29, 2009, as part of an excessive sentencing calendar.
The facts underlying defendant's conviction are set forth in our opinion on direct appeal and need not be repeated here. The facts are also discussed at length in State v. Henderson, 208 N.J. 208 (2011), the Supreme Court's opinion in the appeal of defendant's co-defendant.
Defendant filed a pro se PCR petition on February 25, 2010. An amended petition was submitted thereafter by counsel.
Defendant's trial counsel submitted a certification in which he stated that, following his review of discovery, he concluded that the evidence supported a theory that the shooting was an accident. He explained:
Mr. Clark's statement said that the victim had the gun, that Mr. Clark wrestled with the gun, and that the victim fired the gun during the struggle. These facts do not indicate that Mr. Clark used justifiable force but supported a theory that the shooting was an accident. Therefore, it was my trial strategy to argue to the jury that the shooting was an accident. Since my theory was not self-defense, I did not ask for that charge.
Defense counsel also certified that defendant "never advised me that the victim intended to rob him." Defendant told counsel during the trial that he wanted to argue self-defense. Counsel advised him it was too late to do so because the assertion of the defense was untimely pursuant to R. 3:12-1. Therefore, counsel continued to argue the shooting was an accident.
In his certification, defense counsel also stated he discussed defendant's statement with him and they decided that the admission of defendant's taped statement would permit the jury to hear his version of events without him testifying, admitting to three prior convictions, and being subjected to cross-examination. Counsel described his decision not to seek the suppression of defendant's statement as "trial strategy," which he pursued after he and defendant agreed upon it.
In his statement, defendant stated the victim had a gun, with the safety on. Defendant tried to grab the victim and, while they were engaged in a struggle with the victim's hand on the trigger, "one shot went off."
Judge Freeman denied defendant's petition and set forth his reasons in an oral decision on November 4, 2011. Defendant raises the following arguments in this appeal:
POINT I
THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
A. Trial counsel was ineffective in failing to request a charge on self-defense.
B. Trial counsel was ineffective in failing to advance any theory or defense on behalf of defendant.
C. Trial counsel was ineffective in failing to argue against the application of N.J.S.A. 2C:39-
7(b), the certain persons statute, to the facts of this case.POINT II
D. Trial counsel was ineffective in failing to move for a severance.
E. Trial counsel was ineffective in failing to challenge the admission of his confession.
F. Trial counsel was so ineffective that actual prejudice need not be shown.
G. Trial counsel failed to object to the prosecutor's comments regarding defendant's silence.
H. Trial counsel failed to object when the prosecutor vouched for the credibility of the State's star witness.
THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL ON THE DIRECT APPEAL.
POINT III
THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE THE PROSECUTOR'S DECISION TO SEEK AN EXTENDED TERM WAS AN ABUSE OF DISCRETION AND SHOULD HAVE BEEN CHALLENGED BY TRIAL AND APPELLATE COUNSEL.
POINT IV
THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE THE TRIAL COURT ERRED BY DENYING DEFENDANT'S MOTION TO SUPPRESS THE EYEWITNESS'S IDENTIFICATION.
POINT V
THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE THE TRIAL COURT ERRED BY DENYING DEFENDANT'S MOTION TO SUPPRESS HIS STATEMENT GIVEN TO POLICE.
POINT VI
THE TRIAL COURT ERRED IN NOT CHARGING THE JURY ON SELF-DEFENSE SUA SPONTE AND THE LOWER COURT ORDER MUST THEREFORE BE REVERSED.
POINT VII
THE LOWER COURT ERRED IN NOT GRANTING DEFENDANT'S REQUEST FOR AN ADJOURNMENT. THUS, THE LOWER COURT ORDER MUST BE REVERSED.
POINT VIII
THE LOWER COURT ORDER MUST BE REVERSED SINCE CUMULATIVE ERRORS DEPRIVED DEFENDANT OF DUE PROCESS.
POINT IX
THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT'S CLAIMS ARE NOT PROCEDURALLY BARRED UNDER R. 3:22-4.
POINT X
THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT'S CLAIMS ARE NOT PROCEDURALLY BARRED UNDER R. 3:22-5.
POINT XI
THE LOWER COURT ERRED IN NOT GRANTING DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING AND THE LOWER COURT ORDER MUST THEREFORE BE REVERSED.
We find none of these arguments persuasive. Judge Freeman addressed each of the arguments raised and found that the issues raised were either raised on appeal and rejected as lacking in merit or could have been raised on appeal because the defendant did not rely on anything outside the record to support his claims. We agree with Judge Freeman's conclusion that these claims were procedurally barred by Rules 3:22-4 and 3:22-5 and conclude that defendant's arguments lack sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(2), beyond the following comments.
At trial, the defense theory was that the victim was shot by accident and that the only witness to the events was not worthy of belief. Although a claim of self-defense would have conflicted with this trial strategy, defendant argues he was denied the effective assistance of counsel because his trial counsel failed to pursue that defense.
To be entitled to an evidentiary hearing on a PCR petition, a defendant must present a prima facie case of ineffective assistance of counsel, State v. Preciose, 129 N.J. 451, 462 (1992), which demonstrates "a reasonable likelihood that his or her claim will ultimately" satisfy the two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984), and adopted by New Jersey in State v. Fritz, 105 N.J. 42, 58 (1987). State v. Marshall, 148 N.J. 89, l58, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997); Preciose, supra, 129 N.J. at 463. That test is as follows:
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.
[Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.]
The defendant bears the burden of establishing his right to relief "by a preponderance of the credible evidence." State v. Nash, 212 N.J. 518, 541 (2013).
In assessing whether counsel's assistance was ineffective under the Strickland-Fritz test, "there is a strong presumption that counsel's performance fell within the wide range of reasonable representation." Pressler & Verniero, Current N.J. Court Rules, comment 1.1 on R. 3:22-2 (2014). Strategic decisions that are objectively reasonable, albeit debatable or unsuccessful, are "'within the wide range of reasonable professional assistance' to which an accused is entitled." State v. Arthur, 184 N.J. 307, 333 (2005) (quoting Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694).
Here, defendant's trial counsel certified that the trial strategy to pursue a defense based on an accidental shooting was agreed upon with defendant after discussing the evidence in the case. Although the defense was unsuccessful, the strategic decision to pursue this, based on the known evidence, fell within the range of reasonable professional assistance. Defendant's claim therefore fails to satisfy the first prong of the Strickland-Fritz test.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION