Opinion
DOCKET NO. A-5280-13T2
02-23-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. DAVID JORDAN, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief). Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Brian D. Gillet, Deputy First Assistant Prosecutor, of counsel and on the brief). Appellant filed a pro se supplemental brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Lihotz and Fasciale. On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 08-08-1444. Joseph E. Krakora, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief). Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Brian D. Gillet, Deputy First Assistant Prosecutor, of counsel and on the brief). Appellant filed a pro se supplemental brief. PER CURIAM
Defendant appeals from an April 25, 2014 order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.
Following a seven-day jury trial, defendant was convicted of first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a) (Count One); first-degree felony murder, N.J.S.A. 2C:11-3(a)(3) (Count Two); first-degree armed robbery, N.J.S.A. 2C:15-1 (Count Three); second-degree burglary, N.J.S.A. 2C:18-2 (Count Four); first-degree conspiracy, N.J.S.A. 2C:5-2 (Count Five); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (Count Six); second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (Count Seven); and two counts of third-degree hindering apprehension or prosecution by giving false information to law enforcement, N.J.S.A. 2C:29-3(b)(4) (Counts Nine and Ten).
Defendant received an aggregate sentence of life in prison. We affirmed the convictions. State v. Jordan, No. A-3315-09 (App. Div. Sept. 4, 2012), certif. denied, 213 N.J. 388 (2013).
The court sentenced defendant on Count One to a ten-year term of imprisonment, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2; after merging Counts Three, Four, Five and Six with Count Two, the judge imposed a life sentence without parole on Count Two, concurrent to Count One; on Count Seven, defendant received a ten-year sentence, concurrent to Count Two; and on Counts Nine and Ten, he received two five-year prison terms, concurrent to Count Two.
In May 2013, defendant filed a pro se petition for PCR. Defendant maintained primarily that his counsel was ineffective by acknowledging to the jury that defendant was involved in the crime as a non-shooter. Defendant contended this acknowledgment, which he described as a "high-risk defense tactic[,]" coupled with a reference to jail by a testifying police officer, deprived him of a fair trial. Defendant also asserted his counsel was ineffective by advising him to reject a plea offer and try the case. In denying the PCR petition, the judge stated:
In light of the overwhelming evidence mounted against [defendant], it was virtually impossible for defense counsel to argue that [defendant] was innocent of all charges. Specifically, [defendant's] blood was found throughout the victim's apartment, thus placing [defendant] at the scene of the crime. Additionally, [defendant] admitted to being in the apartment . . . but denied that the gun was his or that he shot the victim. Lastly, uncontested evidence was presented that [defendant] gave several varying accounts to the [police], and that he lied. In fact, after defense counsel conceded that [defendant] lied to the police (a fact which witness testimony confirmed), he went on to explain that the reason his client lied was because "[h]e didn't want to be charged for a murder that he didn't commit and that's why he lied to the police."
. . . .
Based upon a full reading of the record, and leaving aside the limiting instruction given to the jury that they will "find the facts from the evidence that's presented, not from statements of [c]ounsel" and "[w]hat [counsel] say[s] during the course of openings is not evidentiary[,]" . . . nothing . . . indicates that [defendant's]
counsel was ineffective. With regard to the testimony of [the officer] and his "jail" comment, an[] objection was sustained and the jury was immediately instructed to "disregard that comment."
. . . .
As to defendant's argument that trial counsel was ineffective by advising him to reject the plea offer, the PCR judge noted defendant omitted to provide what the plea offer was and relevant transcripts. Thus, the judge rejected the contention, explaining that defendant must do more than make bald assertions.
As case law instructs, "[t]rial strategy cannot ordinarily be considered ineffective assistance of counsel following an adverse verdict" since it is "all too easy["] to second-guess counsel's decisions after they have proved to be unsuccessful.
[(Ninth, eleventh, twelfth, and seventeenth alterations in original) (emphasis omitted) (citation omitted).]
The PCR judge correctly noted that we rejected defendant's argument on his direct appeal that the trial judge erred by denying a mistrial after the "jail" comment was made. Jordan, supra, slip op. at 25-26. --------
On appeal, defendant raises the following points:
POINT I
DEFENDANT'S FELONY MURDER CONVICTION MUST BE REVERSED BECAUSE TRIAL COUNSEL WAS INEFFECTIVE FOR ADMITTING THAT DEFENDANT COMMITTED PREDICATE CRIMES AND/OR LIED TO THE POLICE; IN THE ALTERNATIVE, THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING
BECAUSE DEFENDANT ESTABLISHED A PRIMA FACIE CLAIM OF TRIAL COUNSEL'S INEFFECTIVENESS.
POINT II
THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE DEFENDANT ESTABLISHED A PRIMA FACIE CLAIM OF TRIAL COUNSEL'S INEFFECTIVENESS FOR ADVISING DEFENDANT TO GO TO TRIAL INSTEAD OF ACCEPTING THE STATE'S PLEA OFFER.
POINT III
DEFENDANT'S CONCURRENT TEN-YEAR SENTENCE FOR AGGRAVATED MANSLAUGHTER MUST BE VACATED BECAUSE HE WAS SENTENCED TO LIFE IMPRISONMENT FOR THE FELONY MURDER OF THE SAME VICTIM, THEREBY CONSTITUTING DOUBLE JEOPARDY; IN THE ALTERNATIVE THIS MATTER MUST BE REMANDED FOR FINDINGS OF FACT AND CONCLUSIONS OF LAW BY THE PCR COURT. (Partially Raised Below).
POINT IV
THIS MATTER MUST BE REMANDED FOR FINDINGS OF FACT AND CONCLUSIONS OF LAW REGARDING DEFENDANT'S CLAIM THAT HIS FEDERAL CONSTITUTIONAL RIGHT TO DUE PROCESS WAS VIOLATED BY THE STATE'S USE OF INVOLUNTARY STATEMENTS. (Not Raised Below).
Defendant raises the following point in a pro se supplemental brief:
[DEFENDANT] WAS DENIED EFFECTIVE ASSISTANCE FROM COUNSEL, BOTH AT TRIAL AND ON APPEAL, IN VIOLATION OF HIS RIGHTS GUARANTEED UNDER THE STATE AND FEDERAL CONSTITUTIONS.
We have considered defendant's contentions in light of the record and applicable legal principles and conclude they are "without sufficient merit to warrant discussion in a written opinion." R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by Judge Bradley J. Ferencz in his comprehensive written decision. We add the following comments.
For defendant to obtain relief based on ineffective assistance grounds, he 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, l04 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); accord State v. Fritz, 105 N.J. 42, 58 (1987). We are persuaded that the alleged deficiencies here clearly fail to meet either the performance or prejudice prongs of the Strickland test.
Trial strategy most often cannot be regarded as ineffective assistance of counsel following an adverse verdict. Strickland, supra, 466 U.S. at 689-90, 104 S. Ct. at 2065-66, 80 L. Ed. 2d at 694-95. Trial strategy is clearly within the discretion of competent trial counsel. State v. Coruzzi, 189 N.J. Super. 273, 321 (App. Div.), certif. denied, 94 N.J. 531 (1983). A reviewing court must grant substantial deference to the discretion of counsel in determining how to conduct trial. See State v. Arthur, 184 N.J. 307, 321 (2005). This heightened deference given to strategic decisions is only overcome when the defendant shows that the decision was based upon a lack of preparation for trial. Id. at 322-23. Here, defense counsel's trial strategy is entitled to substantial deference and defendant has failed to make a sufficient showing that his counsel was unprepared for trial. Defense counsel's strategy conceded defendant was involved in the crimes, given the overwhelming evidence against him, but emphasized that defendant did not conspire to murder the victim, have a weapon, or plan to kill the victim. The strategy was intended to avoid the more severe charges against defendant involving the death of the victim. There is no basis to conclude that defense counsel's reasonable trial strategy rendered him ineffective.
Defendant's contention that his trial counsel was ineffective for advising him to reject a plea offer amounts to a mere "bald assertion[]" of ineffective assistance. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). A defendant "must allege facts sufficient to demonstrate counsel's alleged substandard performance[,]" and the court must view the facts alleged in the light most favorable to the defendant. Ibid. PCR petitions must be "accompanied by an affidavit or certification by defendant, or by others, setting forth with particularity the facts that he wished to present." State v. Jones, 219 N.J. 298, 312 (2014). Defendant has failed to provide sufficient detail as to the terms of the plea agreement or his interaction with defense counsel prior to rejecting the plea. Left with nothing more than defendant's conclusory assertion, we cannot conclude that his counsel was ineffective.
Defendant's sentencing challenges raised in Point III of his brief are also without merit. The sentence on Count Two ran concurrently to the sentence imposed on Count One. We reject defendant's contention that he was entitled to an evidentiary hearing. A defendant is entitled to an evidentiary hearing only when he or she "has presented a prima facie [case] in support of [PCR,]" meaning that "the defendant must demonstrate a reasonable likelihood that his or her claim will ultimately succeed on the merits." State v. Marshall, 148 N.J. 89, 158 (first alteration in original) (quoting State v. Preciose, 129 N.J. 451, 463 (1992)), cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). Defendant fails to demonstrate a reasonable likelihood of success on the merits, and thus he is not entitled to an evidentiary hearing.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION