Opinion
DOCKET NO. A-0530-14T4
09-02-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. OSCAR PORTER, Defendant-Appellant.
Joseph K. Krakora, Public Defender, attorney for appellant (Thomas G. Hand, Designated Counsel, on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Sara A. Friedman, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fuentes, Kennedy, and Gilson. On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 04-12-3785. Joseph K. Krakora, Public Defender, attorney for appellant (Thomas G. Hand, Designated Counsel, on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Sara A. Friedman, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant, Oscar Porter, appeals the June 10, 2014, order denying his petition for post-conviction relief (PCR). For the reasons set forth herein, we affirm.
I.
We shall briefly recount the procedural history and the facts of this case to the extent necessary to provide some context for our conclusions. A fuller statement of facts is set forth in our prior opinions, see State v. Porter, No. A-4869-05 (App. Div. Aug. 30, 2007) and No. A-2676-09 (App. Div. Aug. 26, 2011), and in the Supreme Court's opinions at 210 N.J. 119 (2012) and 216 N.J. 343 (2013), and consequently need not be repeated here.
Defendant had been charged in a nine-count indictment with attempted murder, two counts of first-degree robbery, and other crimes. After a trial, the jury acquitted defendant of one of the robbery charges and convicted him of attempted murder, a crime of the first degree, N.J.S.A. 2C:5-1, -4, and N.J.S.A. 2C:11-3; as well as the other first-degree robbery, N.J.S.A. 2C:15-1; second-degree conspiracy, N.J.S.A. 2C:5-2, -4, and N.J.S.A. 2C:15-1; and second-degree aggravated assault, N.J.S.A. 2C:12-1b(1). The trial court declared a mistrial on the remaining counts of the indictment.
The charges against defendant arose from an armed robbery committed by three men, which resulted in the death of Rayfield Ashford and the wounding of David Veal. The jury did not convict defendant of any offenses against Ashford. Veal testified that he was using a pay telephone outside his apartment building in Newark when three men approached him, each with a handgun, and one of them said, "don't move," and struck him in the face with a handgun. Veal subsequently identified that man as defendant. The other two individuals carried him around the corner into an alleyway on the side of his apartment building. Defendant told him to get on his knees and to put his hands behind his head. Veal gave them money.
The other two assailants left for about five minutes and returned with another man, later determined by investigators to be Ashford. According to Veal, neither he nor Ashford knew any of the assailants. The men told Ashford to kneel next to Veal. Defendant was holding a gun to Veal's head, while another assailant held one to Ashford's. The third assailant left briefly and returned with a vehicle. The man standing over Ashford shot him in the head, killing him. At the same time, defendant fired a shot at the back of Veal's head. The bullet grazed his skull and he fell to the ground, where he remained still, pretending to be dead, until he heard the three assailants leave. He then ran into his apartment building.
We affirmed the convictions and the consecutive sentences aggregating forty years, without parole eligibility for eighty-five percent of the term. In so holding, we ordered a modification of the sentence to reflect a merger of convictions that did not affect the length of the aggregate term. Porter, supra, No. A-4869-05 (slip op. at 15). On December 6, 2007, the Supreme Court denied defendant's petition for certification. State v. Porter, 193 N.J. 276 (2007).
Defendant, pro se, filed a PCR petition dated January 18, 2008, in which he asserted deprivation of his Sixth Amendment right to effective assistance of counsel both at trial and on appeal. Counsel's brief on defendant's behalf was filed on December 10, 2008.
Defendant argued that several instances of ineffective representation by trial counsel had occurred, and in a second pro se brief, further argued, based on Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), that the matter should be remanded for resentencing because "a sentence beyond the presumptive term based on aggravating factors [had] not [been] presented to a jury."
The trial court held a non-evidentiary hearing on the PCR petition and later denied relief. Defendant appealed, and in an unpublished opinion, we affirmed. Porter, supra, No. A-2676-09 (slip op. at 5-6). Our Supreme Court granted certification limited to the issue of whether defendant was entitled to an evidentiary hearing on his petition for PCR. Porter, supra, 210 N.J. at 119. The Court reversed our decision and remanded to the Law Division for an evidentiary hearing regarding the failure to investigate the alibi defense, and explained:
In sum, with respect to the claim of ineffective assistance of trial counsel based on failure to investigate an alibi defense, we conclude that defendant made out a prima facie showing and raised material facts in dispute. Therefore, defendant was entitled to an evidentiary hearing to fully present this ineffective assistance of counsel claim. We hold that defendant is entitled to a new hearing on that issue.
With respect to Lundy's proffered testimony, we note that defendant was not convicted of any charges concerning Ashford, and that defendant has not made out a prima facie showing of entitlement to a hearing. Nonetheless, the remand judge may consider whether or not trial counsel's failure to investigate Lundy's statement in her certification that Ashford and defendant were good friends, constitutes ineffective assistance of counsel.
[Porter, supra, 216 N.J. 357.]
On remand, a different Law Division judge, Michael Ravin, conducted an evidentiary hearing, at which defendant's trial counsel and the purported alibi witness testified. The judge also considered an affidavit by Rashana Lundy that Ashford and defendant were associates, and that Ashford never had anything bad to say about defendant. We note the jury acquitted defendant of the murder of Ashford and could not reach a verdict with respect to any of the charges relating to him.
After making extensive credibility findings concerning the two witnesses at the evidentiary hearing, Judge Ravin concluded in a cogent and comprehensive written opinion, that the record did not support defendant's ineffective assistance claim based on trial counsel's failure to use the alibi witness. He also determined an evidentiary hearing was not warranted regarding Lundy's proffered testimony because defendant did not meet his burden of establishing a prima facie case in support of his PCR petition. Judge Ravin concluded that trial counsel's decision "not to proffer Lundy's testimony that [defendant] and Mr. Ashford were friends was likely sound trial strategy that would not have changed the outcome of the proceedings had it been proffered." This appeal ensued.
On appeal, defendant presents the following issues for our consideration:
POINT I: THE PCR COURT ERRED IN DENYING PETITIONER AN EVIDENTIARY HEARING ON RASHAN LUNDY'S PROFFERED TESTIMONY.As we noted previously, we have considered these arguments, and we now reject them.
POINT II: THE PCR COURT ERRED IN DENYING PORTER'S PETITION.
II.
We review a judge's decision to deny a PCR petition without an evidentiary hearing for abuse of discretion. State v. Preciose, 129 N.J. 451, 462 (1992). An evidentiary hearing is required only when (1) a defendant establishes a prima facie case in support of PCR, (2) the court determines that there are disputed issues of material fact that cannot be resolved by review of the existing record, and (3) the court determines that an evidentiary hearing is required to resolve the claims asserted. Porter, supra, 216 N.J. at 354 (quoting R. 3:22-10(b)).
"A prima facie case is established when a defendant demonstrates a reasonable likelihood that his or her claim, viewing the facts alleged in the light most favorable to the defendant, will ultimately succeed on the merits." Id. at 355 (quoting R. 3:22-10(b)). Mere bald assertions are not enough. Ibid. (quoting State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999)).
To prevail on a claim of ineffective assistance of counsel, a defendant must satisfy the two-part test established by the Supreme Court 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, 58 (1987). Therefore, a defendant must show that his attorney's performance was deficient, and that the deficient performance prejudiced his defense. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. There is a "strong presumption" that defense counsel exercised "reasonable professional judgment" and "sound trial strategy" in fulfilling his or her responsibilities. State v. Hess, 207 N.J. 123, 147 (2011) (citing Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694-95).
We review the legal conclusions of a PCR court and mixed questions of fact and law under the de novo standard of review. State v. Harris, 181 N.J. 391, 420 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). Where an evidentiary hearing has been held, we accord deference "[i]n reviewing a PCR court's factual findings based on live testimony" and should not disturb "the PCR court's findings that are supported by sufficient credible evidence in the record." State v. Pierre, 223 N.J. 560, 576 (2015) (quoting State v. Nash, 212 N.J. 518, 540 (2013)).
We have considered defendant's contentions in light of the record and applicable legal principles and conclude that they are without sufficient merit to warrant extensive discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by Judge Ravin in his well-reasoned written opinion. We add only the following limited comments.
As noted, our standard of review requires deference to the PCR judge's fact findings based on witness testimony. Nash, supra, 212 N.J. at 540. "In such circumstances we will uphold the PCR court's findings that are supported by sufficient credible evidence in the record." Ibid. Here, defendant has not shown that the judge's credibility findings were "so wide of the mark as to result in a manifest injustice." State v. J.D., 211 N.J. 344, 354 (2012) (quoting State v. Brown, 170 N.J. 138, 147 (2001)). Based on his credibility findings, Judge Ravin properly determined that trial counsel's decision not to have the alibi witness testify "was based on sound trial strategy and that this decision did not fall below the standard of reasonableness." Further, the judge found the alibi witness to be incredible and not to be believed that she was with defendant at the time of the murder.
As to the denial of an evidentiary hearing with regard to Lundy's proffered testimony, Judge Ravin found an evidentiary hearing would not be helpful, and counsel's decision "was likely sound trial strategy that would not have changed the outcome of the proceeding had it been proffered." We concur and are satisfied that Judge Ravin did not abuse his discretion in denying defendant's petition without 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