Opinion
DOCKET NO. A-3688-12T1
01-14-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. KEVIN MCGRATH, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Steven E. Braun, Designated Counsel, on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Brian Pollock, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Lihotz and Maven. On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 05-11-2637. Joseph E. Krakora, Public Defender, attorney for appellant (Steven E. Braun, Designated Counsel, on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Brian Pollock, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief). The opinion of the Court was delivered by MAVEN, J.A.D.
Defendant Kevin McGrath, appeals from the December 7, 2012 order denying his petition for post-conviction relief (PCR). For the reasons that follow, we affirm.
Defendant was charged under a four-count Essex County indictment. Following a jury trial, defendant was convicted on two counts of second-degree vehicular homicide, N.J.S.A. 2C:11-5, and acquitted on two counts of first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a).
We derive the pertinent facts from our unpublished opinion affirming defendant's conviction:
Late in the morning on a clear, sunny Halloween day, defendant was driving a pickup truck at fifty miles per hour on Elizabeth Avenue, as he neared its intersection with Clifton Street, Newark. The speed limit on Elizabeth Avenue is twenty-five miles per hour. Defendant fell asleep at the wheel, and his vehicle "swerved off to the right." The truck struck and killed two pedestrians, then the truck collided into the rear of a minivan, pushing it forward one car-length into another parked car. The mangled, disfigured bodies of the victims, sisters, Vanessa Farias Pereira and Marissa Farias, were found pinned between the pick-up and the minivan. Witnesses described the numerous injuries inflicted to each victim, as "[h]orrific." Vanessa died instantly. Marissa was taken to the hospital but died shortly thereafter.
At the scene, defendant told police he did not know what happened. Later, in a custodial statement, given following recitation of his Miranda rights, defendant
disclosed he had not slept in a day and a half and was taking albuterol, an asthma medication that can cause drowsiness. Defendant also admitted he had fallen asleep "a couple of times," as he drove to Newark from Old Bridge. He stated he "hit the divider" on Routes 1 and 9, but did not stop to rest. He also confessed, "[w]hen I was coherent, I had glanced at the speed monitor" while driving on Elizabeth Street and noted the vehicle speed was "about fifty miles per hour." Defendant did not decelerate because he thought the speed limit was fifty miles per hour. Finally, he stated, the impact "woke him up."
. . . .
The medical examiner, Dr. Junaid R. Shaikh, explained both sisters died from multiple blunt traumatic injuries, which included leg fractures, brain injuries, spinal cord fractures, internal hemorrhaging, and severe lacerations and contusions, both exteriorly and to internal organs. Dr. Shaikh opined the victims' injuries were consistent with a pedestrian being hit by a pick-up truck that was traveling fifty miles per hour, then pinned against another vehicle.
The State also presented an accident reconstruction expert, who testified defendant's vehicle was in perfect running condition at the time of the accident. Defendant elected not to testify or present witnesses on his behalf.
With counsel's consent, the court charged the jury on aggravated manslaughter and vehicular homicide, following the Model Jury Charges. No instruction was given or requested on lesser-included offenses. During summation, defendant argued his conduct was negligent, not reckless.
During deliberations, the jury submitted several inquiries to the court. The first was as follows: "One, to review the definition of recklessly; and two, in his statement, when did [defendant] say that he hit the guardrail on Route 1 & 9?" In response, with counsel's consent, the judge explained defendant's statement did not state when he had hit the median. The judge then repeated the definition of "recklessly" set forth in N.J.S.A. 2C:2-2(b)(3), and provided the context of the term, as used in the charges of aggravated manslaughter and vehicular homicide, noting that in the latter offense, the statute provides: "[p]roof that the defendant fell asleep while driving or was driving after having been without sleep for a period in excess of 24 consecutive hours may give rise to an inference that the defendant was driving recklessly." N.J.S.A. 2C:11-5(a).
[State v. McGrath, No. A-4276-06 (App. Div. Oct. 9, 2009) (slip op. at 3-4, 7-8).]
The trial judge sentenced defendant to two consecutive seven and one-half year terms of imprisonment, subject to the eighty-five percent period of parole ineligibility mandated by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant appealed his conviction raising numerous trial errors. We affirmed the conviction and sentence, McGrath, supra, slip op. at 20, and the Supreme Court denied certification. State v. McGrath, 201 N.J. 156 (2010).
Defendant filed a timely pro se petition for PCR in which he alleged several sentencing errors, and ineffective assistance of his trial and appellate counsel. The designated PCR counsel filed a supplemental brief that argued the consecutive sentences were excessive and illegal, and appellate counsel was ineffective for failing to challenge the sentence on appeal. In addition, counsel argued ineffective assistance of trial counsel for his failure to challenge misconceptions put forth by the police that defendant hit another guardrail that same day prior to the fatal accident, and counsel's failure to clarify inconsistencies concerning the location of defendant's intended destination in Newark.
Judge Alfonse J. Cifelli conducted oral argument and determined an evidentiary hearing was not warranted. The judge concluded the sentencing arguments were not cognizable on PCR, R. 3:22-2, and the substantive issues were barred as they could have been raised on direct appeal. R. 3:22-4. The judge found defendant failed to establish a prima facie case of ineffective assistance of counsel, and denied the petition for PCR in an extensive oral opinion. The judge fully considered defendant's contentions and rejected any suggestion that appellate counsel rendered ineffective assistance of counsel.
On appeal, defendant raises the following claims:
I. [DEFENDANT] HAS PROVIDED PRIMA FACIE PROOF THAT HE SUFFERED FROM INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL AND WAS THUS UNFAIRLY DEPRIVED OF AN EVIDENTIARY HEARING BY THE PCR COURT.
A. Trial counsel did not challenge at trial the portions of [defendant's] statement to the police regarding hitting the guardrail and the location of [D.S.'s] apartment.II. APPELLATE DEFENSE COUNSEL ON THE DIRECT APPEAL WAS INEFFECTIVE BY FAILING TO ARGUE A POINT REGARDING THE SENTENCE WHICH WAS IMPOSED.
B. [Defendant] was denied his right to testify at trial.
III. THE COURT SHOULD CONSIDER ALL OTHER ISSUES RAISED BY [DEFENDANT] IN HIS PRO SE PETITION FOR [PCR] AND BY PCR COUNSEL IN HIS BRIEF.
To establish a claim of ineffective assistance of counsel, a defendant must satisfy the two-prong test formulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). "'First, the defendant must show . . . that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed . . . by the Sixth Amendment.'" Id. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). Second, the defendant must show that he suffered prejudice due to counsel's deficient performance. Ibid. To establish prejudice, the defendant must show by "a reasonable probability" that the deficient performance "materially contributed to defendant's conviction. . . ." Id. at 58.
A defendant is not entitled to an evidentiary hearing on his claims unless he presents a prima facie showing that there is a reasonable likelihood that he will satisfy these criteria; he cannot rely on bald assertions to do so. State v. Preciose, 129 N.J. 451, 462-63 (1992). The defendant "must allege facts sufficient to demonstrate counsel's alleged substandard performance" and the probability that it affected the jury's verdict. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). The determination of whether to hold an evidentiary hearing on an ineffective assistance of counsel claim is left to the sound discretion of the PCR judge. Preciose, supra, 129 N.J. at 462; see also Pressler & Verniero, Current N.J. Court Rules, comment 2 on R. 3:22-10 (2015) ("An evidentiary hearing . . . is required only where the defendant has shown a prima facie case and the facts on which he relies are not already of record.").
Moreover, a defendant is procedurally barred from raising claims in a PCR petition that could have been raised on direct appeal, Rule 3:22-4. Any claims that have been adjudicated in the underlying proceedings or on direct appeal are barred. R. 3:22-5.
On appeal, the standard of review of a denial of a PCR petition is whether the PCR court's findings were supported by sufficient credible evidence. State v. Nunez-Valdez, 200 N.J. 129, 141 (2009). In reviewing PCR denials, "judicial scrutiny . . . must be highly deferential, and must avoid viewing the performance under the distorting effects of hindsight." State v. Arthur, 184 N.J. 307, 318-19 (2005) (internal quotations and citations omitted). Indeed, ineffective assistance of counsel is not proven by merely showing, with the benefit of hindsight, that counsel's strategic decisions did not succeed. State v. DiFrisco, 174 N.J. 195, 220 (2002) (citations omitted). Quite the contrary, trial counsel's informed strategic decisions demand our heightened deference, State v. Savage, 120 N.J. 594, 617-18 (1990); Fritz, supra, 105 N.J. at 52; State v. Petrozelli, 351 N.J. Super. 14, 21-22 (App. Div. 2002), and "are virtually unchallengeable." Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695.
Here, experienced criminal trial counsel made an informed strategic decision to argue the incident was a tragic accident that could have happened to anyone. In summation, counsel acknowledged that defendant fell asleep at the wheel of his pick-up truck prior to hitting the two women at fifty miles an hour. He argued to the jury that defendant's conduct was negligent but not criminal. On that score, by employing that strategy defense counsel chose to deemphasize other evidence presented by the State. Counsel argued:
I'm not here to try to trick you, and I'm not here to tell you that he tried to stop because I think his statement is pretty clear that he didn't try to stop, that he was sleeping and he got woke up [sic] by the impact. But is that proof beyond a reasonable doubt? In order to turn this accident into a crime, we are hearing about things that don't matter.
From our review of the record, we are unable to discern how counsel's failure to clarify when defendant hit the guardrail, or to correct the location where defendant was headed in Newark, was either a defective or outcome-determinative decision. Counsel's decision to argue defendant's conduct was negligent rather than criminal, was a matter of trial tactics. Whether or not defendant hit the guardrail prior to the accident is irrelevant in light of counsel's chosen strategy. Moreover, the defense strategy was largely successful in that the jury acquitted defendant of the two most serious charges against him, charging aggravated manslaughter. Thus, we agree with Judge Cifelli, who found trial counsel's performance, even if deficient, was not so egregious as to satisfy the Strickland test.
Defendant's claims of appellate counsel's ineffectiveness for failing to challenge the consecutive sentences amount to no more than an excessive sentencing argument cloaked in "ineffective assistance of counsel" language. Such excessive sentencing claims, however, are not cognizable on PCR review. State v. Acevedo, 205 N.J. 40, 45-46 (2011); Pressler & Verniero, supra, comment 3 on R. 3:22-2. Here, defendant's PCR assertion is barred as capable of having been raised on appeal pursuant to Rule 3:22-4.
Consequently, failing to satisfy either the performance or prejudice prong of the Strickland/Fritz test, defendant's PCR petition was properly denied. We conclude an evidentiary hearing was not required, in light of the absence of a threshold showing to establish a basis for PCR.
We have considered the remaining arguments raised by defendant in his supplemental pro se brief and conclude that they are without sufficient merit to warrant further comment. R. 2:11-3(e)(2).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION