Opinion
DOCKET NO. A-3686-11T4
07-18-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. TAMEKA NELSON, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief). Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Monalisa Tawfik, Special Deputy Attorney General/ Acting Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Graves and Espinosa.
On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 06-08-1379.
Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief).
Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Monalisa Tawfik, Special Deputy Attorney General/ Acting Assistant Prosecutor, on the brief). PER CURIAM
Defendant appeals from the denial of her petition for post-conviction relief (PCR) without an evidentiary hearing. For the reasons that follow, we affirm.
Defendant was convicted by a jury of vehicular homicide, N.J.S.A. 2C:11-5(a), and leaving the scene of an accident, N.J.S.A. 2C:11-5.1. She was acquitted of aggravated manslaughter, N.J.S.A. 2C:11-4(a). The trial court sentenced defendant to eight years imprisonment subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on the homicide charge, and to a consecutive term of four years for leaving the scene of an accident.
Defendant filed a notice of appeal and raised the following arguments:
POINT I
THE TRIAL COURT SHOULD HAVE GRANTED A DIRECTED VERDICT AT THE CLOSE OF THE STATE'S CASE ON THE CHARGE OF VEHICULAR HOMICIDE DUE TO INSUFFICIENT EVIDENCE THAT DEFENDANT ACTED RECKLESSLY BY CONSCIOUSLY DISREGARDING A SUBSTANTIAL RISK. (PARTIALLY RAISED BELOW).
POINT II
THE VERDICT OF THE JURY SHOULD HAVE BEEN SET ASIDE BY THE TRIAL COURT AS AGAINST THE WEIGHT OF THE EVIDENCE AS THERE WAS INSUFFICIENT FACTUAL BASIS FOR FINDING THAT DEFENDANT ACTED RECKLESSLY BY CONSCIOUSLY DISREGARDING A KNOWN RISK.
POINT III
DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1 PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY CONFUSING AND PREJUDICIAL JURY
INSTRUCTIONS WHICH REPEATEDLY INFORMED THE JURY THAT THE CASE DID NOT INVOLVE AN ACCIDENT. (NOT RAISED BELOW).
POINT IV
DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1 PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S FAILURE TO GIVE A TAILORED INSTRUCTION ON RECKLESSNESS. (NOT RAISED BELOW).
POINT V
DEFENDANT'S RIGHT TO A FAIR TRIAL WAS VIOLATED AS THE TRIAL COURT ERRONEOUSLY ALLOWED THE STATE TO ADMIT IRRELEVANT AND PREJUDICIAL HEARSAY EVIDENCE REGARDING THE STATUS OF DEFENDANT'S DRIVER'S LICENSE. (NOT RAISED BELOW).
POINT VI
DEFENDANT'S RIGHT TO A FAIR TRIAL WAS VIOLATED BY IMPROPER AND INFLAMMATORY COMMENTS OF THE PROSECUTOR IN HIS CLOSING STATEMENT. (NOT RAISED BELOW).
POINT VII
DEFENDANT'S RIGHT TO A FAIR TRIAL WAS VIOLATED AS A RESULT OF THE CUMULATIVE EFFECT OF ERRORS COMMITTED BY THE TRIAL COURT. (NOT RAISED BELOW).
POINT VIII
THE SENTENCE IMPOSED BY THE TRIAL COURT WAS EXCESSIVE.
A. DEFENDANT'S SENTENCE WAS SIGNIFICANTLY MORE SEVERE THAN SENTENCES IMPOSED IN SIMILAR CASES.
B. THE SENTENCING COURT FAILED TO TAKE INTO ACCOUNT APPROPRIATE MITIGATING FACTORS.
We affirmed defendant's convictions and sentence in an unpublished opinion. State v. Nelson, No. A-0545-08 (App. Div. Aug. 26, 2010). The Supreme Court denied her petition for certification, 205 N.J. 81 (2011).
The facts underlying defendant's convictions are set forth in our opinion and need not be repeated here.
Defendant filed a PCR petition on March 7, 2011, in which she argued that her trial counsel was ineffective because he "failed to counsel [her] to accept the State's plea bargain offer of seven (7) years in State prison (subject to the NERA statute) despite the strong evidence against" her. She also argued that her counsel failed to cross-examine a prosecution witness about her inability to identify defendant as the driver of the vehicle involved in the fatal accident.
Counsel was assigned and a brief was submitted on behalf of defendant in which the following additional issues were presented:
POINT I
PETITIONER WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL CONSTITUTIONALLY GUARANTEED TO [HER] DUE TO TRIAL COUNSEL'S FAILURE TO CALL A MEDICAL EXPERT TO TESTIFY IN SUPPORT [OF] A DIMINISHED CAPACITY
DEFENSE. U.S. CONST., AMENDS. VI, XIV; N.J. CONST. ART. 1, PAR. 10.
POINT II
TRIAL COUNSEL FAILED TO ARTICULATE A SOUND TRIAL STRATEGY WHICH PREJUDICED DEFENDANT'S CASE AND INEVITABLY LED TO HER CONVICTION.
POINT III
TRIAL COUNSEL WAS INEFFECTIVE BY IMPROPERLY ADVISING DEFENDANT NOT TO TAKE THE STAND IN HER OWN DEFENSE.
POINT IV
TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO RAISE AND ADVOCATE AT SENTENCING FOR MITIGATING FACTORS 11 AND 2.
POINT V
DEFENDANT IS ENTITLED TO AN EVIDENTIARY HEARING.
Following oral argument, the PCR court denied defendant's petition by order dated December 13, 2011 and set forth its reasons in an extensive written decision. Defendant presents the following issues for our consideration in her appeal.
POINT I
THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING HER AN EVIDENTIARY HEARING TO FULLY ADDRESS HER CONTENTION THAT SHE FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION AT THE TRIAL LEVEL.
A. THE PREVAILING LEGAL PRINCIPLES REGARDING CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL,
EVIDENTIARY HEARINGS AND PETITIONS FOR POST CONVICTION RELIEF.
B. TRIAL COUNSEL FAILED TO ADEQUATELY REPRESENT HIS CLIENT BY ADVISING HER NOT TO TAKE THE STAND IN HER OWN DEFENSE.
C. TRIAL COUNSEL FAILED TO ADEQUATELY REPRESENT THE DEFENDANT'S INTERESTS AT SENTENCING BY FAILING TO DEMONSTRATE THE APPLICABILITY OF VARIOUS MITIGATING FACTORS AND BY FAILING TO ADDRESS THE INAPPLICABILITY OF CERTAIN OF THE AGGRAVATING FACTORS FOUND BY THE TRIAL COURT TO EXIST.
D. SINCE THE DEFENDANT PRESENTED A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF COUNSEL, SHE WAS ENTITLED TO AN EVIDENTIARY HEARING TO FULLY ADDRESS HER CONTENTIONS.
We are not persuaded by any of these arguments and affirm. The standard for determining whether counsel's performance was ineffective for purposes of the Sixth Amendment was formulated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42 (1987). In order to prevail on a claim of ineffective assistance of counsel, defendant must meet the two-prong test of establishing both that: (1) counsel's performance was deficient and he or she made errors that were so egregious that counsel was not functioning effectively as guaranteed by the Sixth Amendment to the United States Constitution; and (2) the defect in performance prejudiced defendant's rights to a fair trial such that there exists a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 687, 694, 104 S. Ct. at 2064, 2068, 80 L. Ed. 2d at 693, 698.
Defendant contends that her trial counsel was ineffective in advising her not to testify at her trial. The trial judge asked both defendant and her attorney about the voluntariness of defendant's decision not to testify. The record shows that the trial judge questioned her regarding her decision not to testify, explained the consequences of that decision, and also explained that her prior convictions would have been admitted into evidence for the jury's use in assessing her credibility if she did testify. Defendant had prior convictions for unlawful possession of a handgun, N.J.S.A. 2C:39-5(b), and possession of a controlled dangerous substance, N.J.S.A. 2C:35-10. She contends that any impeachment based upon her criminal record would have been outweighed by the value of her testimony.
As defendant describes it, she would have testified that she suffered an overwhelming panic, followed by a temporary loss of being in touch with reality. Testimony that defendant suffered such panic would not have negated any element of the offenses for which she was convicted. Therefore, the record shows both that the decision not to testify was knowingly and voluntarily made by defendant and that the testimony she would have given cannot reasonably be considered evidence that would have made a difference in the result.
Before the PCR court, counsel argued that defendant's testimony should have been coupled with expert testimony to establish the defense of diminished capacity. That argument, which lacked any merit, has not been presented on appeal.
Defendant also argues that her counsel was ineffective in failing to argue that the aggravating factors advanced by the prosecution were inapplicable. The trial court found aggravating factors (3), (6), and (9), N.J.S.A. 2C:44-1(a)(3), (6), and (9). The court noted that defendant had two prior convictions and that she posed a risk of re-offending because she had not been deterred from criminal activity by her probationary sentences. The court also found the need for deterrence as a third aggravating factor. As a mitigating factor, the court found that defendant had remorse. The court further found that the aggravating factors substantially outweighed the one mitigating factor. On direct appeal, defendant challenged her sentence and argued that the trial court failed to consider appropriate mitigating factors. We found no error in her sentence and find no deficiency in the performance of her counsel in representing her at sentencing.
We are satisfied from our review of the record that defendant failed to make a prima facie showing of ineffectiveness of trial counsel under the Strickland/Fritz test. See State v. Preciose, 129 N.J. 452, 462-63 (1992). Accordingly, the PCR court correctly concluded that an evidentiary hearing was not warranted.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION