Opinion
DOCKET NO. A-3002-13T1
06-24-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. CLYDE ANTHONY HEATH, a/k/a HEATH BOWEN and CLYDE BOWENS, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief). Esther Suarez, Hudson County Prosecutor, attorney for respondent (Ryan M. Galler, Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Reisner and Whipple. On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 08-07-1237. Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief). Esther Suarez, Hudson County Prosecutor, attorney for respondent (Ryan M. Galler, Assistant Prosecutor, on the brief). PER CURIAM
Defendant appeals an October 24, 2013 order dismissing his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.
Defendant was arrested in Jersey City on February 6, 2008, in a building alleged by the police to be a "crack house." The arrest occurred after police observed defendant and a co-defendant on surveillance video from a gas station, shortly after a home invasion robbery occurred nearby. The two men had broken into a private residence in the middle of the night and began searching for valuables to steal. After robbing the homeowner, the two men used the homeowner's credit card at a nearby gas station and convenience store. Those transactions led police to defendant's accomplice, who confessed and implicated defendant. Defendant also confessed after the police read him his Miranda rights, and he read the rights aloud and signed a waiver form indicating that he understood his Miranda rights and waived them. During the interrogation, defendant admitted to entering a home, hitting one of the home's occupants, taking a purse, and leaving the residence with his co-defendant. Defendant stated that he took the cash and a credit card from the purse and used the money to purchase crack cocaine. Police later testified that, during defendant's questioning, they did not conclude that defendant showed signs of being under the influence of narcotics.
See generally Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Defendant's co-defendant, however, had shown signs of severe drug withdrawal during his police interrogation and had to be taken to the hospital. When he returned from the hospital, he confessed and the trial judge later suppressed his statement as involuntary because of his debilitated physical and medical condition.
Defendant was subsequently indicted. Defendant was charged with conspiracy to commit robbery, contrary to N.J.S.A. 2C:5-2 and 2C:15-1; conspiracy to commit burglary, contrary to N.J.S.A. 2C:5-2 and 2C:18-2; robbery, contrary to N.J.S.A. 2C:15-1; and burglary, contrary to N.J.S.A. 2C:18-2.
Prior to trial, the court held an N.J.R.E. 104 hearing at which defendant contested the admissibility of his confession pursuant to Miranda, arguing that the State could not prove the voluntariness of his statements made after being arrested at a "crack house." Defendant did not testify as a witness at the hearing. After hearing testimony from several witnesses, including the police officers who interrogated defendant, the court concluded that defendant's confession was admissible.
A trial was conducted from December 9 to 17, 2009 and a jury convicted defendant of third-degree conspiracy to commit theft, N.J.S.A. 2C:5-2; conspiracy to commit third-degree burglary, N.J.S.A. 2C:5-2; second-degree robbery, N.J.S.A. 2C:15-1; and second-degree burglary, N.J.S.A. 2C:18-2. Defendant was sentenced to an aggregate term of twenty years in prison with an eighty-five percent parole disqualifier pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. Defendant appealed the judgment, which we affirmed. State v. Robinson and Heath, No. A-5394-09 (App. Div. May 1, 2012), certif. denied, 212 N.J. 461 (2012).
Defendant filed his petition for PCR on February 12, 2013, and filed a supporting certification on October 10, 2013. In his petition, defendant asserted that his trial counsel was ineffective, and that he should be provided relief pursuant to the Sixth Amendment and Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). Specifically, defendant asserted that his counsel was ineffective for failing to inform him of his ability to testify at his Miranda hearing; for failing to request a Wade hearing to challenge both out-of-court and in-court identifications; and for cumulative errors depriving defendant of a fair trial.
See generally, United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967).
On direct appeal, we specifically declined to address defendant's argument regarding a Wade hearing without prejudice to his right to file a petition for PCR. Robinson, supra, slip op. at 2-3. --------
In an October 24, 2013 opinion, the PCR court denied defendant's petition for PCR without an evidentiary hearing. The court specifically concluded that defendant did not provide support for his allegation that his counsel failed to advise him of his right to testify at the Miranda hearing, and that this allegation accordingly did not establish a prima facie case of ineffective assistance. The trial court also concluded that the waiver of defendant's Miranda rights was voluntary, and he thus failed to show that the lack of advice would have prejudiced his case. Second, the trial court concluded that defendant's Wade allegations did not provide the basis for an ineffective assistance claim because no witness ever made an out-of-court identification of defendant; only co-defendant Robinson was identified from the surveillance video, and no other evidence of improper identification was alleged in defendant's petition. This appeal followed the PCR judge's ruling.
Defendant asserts the following point for our consideration on appeal:
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 HAD FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION FROM TRIAL COUNSEL AS A RESULT OF COUNSEL'S FAILURE TO PRESENT THE DEFENDANT AS A WITNESS AT THE MIRANDA
HEARING, AS A RESULT OF WHICH THE STATE WAS ABLE TO REFERENCE THE DEFENDANT'S VIDEOTAPED STATEMENT TO LAW ENFORCEMENT WHICH HAD NOT BEEN FREELY, VOLUNTARILY, AND KNOWINGLY MADE.
We affirm substantially for the reasons discussed in Judge Joseph Isabella's thorough, cogent opinion. We add the following comments.
Defendant asserts that the trial court erred in denying his motion for oral argument on his petition. We disagree. We initially note that although "[t]here is no court rule that specifically permits oral argument on a petition for post-conviction relief," State v. Mayron, 344 N.J. Super. 382, 385-87 (App. Div. 2001), there is a presumption in favor of oral argument; the trial court, however, is vested with the discretion to disallow it. State v. Parker, 212 N.J. 269, 281 (2012). In determining whether to grant argument, the court should consider "the apparent merits and complexity of the issues . . ., whether argument of counsel [would] add to the written positions . . ., and in general, whether the goals and purposes of the post-conviction procedure are furthered by oral argument." Id. at 282 (quoting Mayron, supra, 344 N.J. Super. at 387). The PCR judge considered all of the Parker factors in his opinion, and provided a statement of reasons for denying oral argument. Id. at 282-83.
We also cannot agree with defendant's argument that he was entitled to an evidentiary hearing. We agree with the trial judge that defendant failed to present a prima facie case for PCR. See State v. Preciose, 129 N.J 451, 462-63 (1992) (establishing that petitioners must demonstrate a prima facie case of ineffective assistance to obtain an evidentiary hearing on a PCR petition). The trial judge specifically described why defendant's Miranda argument does not satisfy the second requirement of the Strickland test, otherwise known as the "prejudice prong" of the inquiry. See Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; State v. Fritz, 105 N.J. 42, 58 (1987). Additionally, we note that defendant's certification supporting his argument lacks sufficient factual detail and evidence to establish a prima facie case for ineffective assistance. For example, defendant does not assert that he did not understand his Miranda rights, or that he was going through narcotic withdrawal at the time of his confession. Defendant merely asserts that his confession was involuntary without any other credible detail establishing why the confession was involuntary.
We also agree with Judge Isabella's analysis of defendant's Wade argument. Defendant was not identified by any of the victims of the burglary; indeed, the judge was unaware of any in-court or out-of-court identification of defendant. The only out-of-court identification procedure that the police utilized in this case was the identification of co-defendant Robinson, by one of the occupants of the burglarized home. We accordingly reject defendant's arguments.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office. CLERK OF THE APPELLATE DIVISION