Opinion
DOCKET NO. A-5820-12T1
04-20-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. KEVIN L. ROBINSON, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Philip Lago, Designated Counsel, on the brief). Geoffrey D. Soriano, Somerset County Prosecutor, attorney for respondent (James L. McConnell, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Messano and Sumners. On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 07-10-0731. Joseph E. Krakora, Public Defender, attorney for appellant (Philip Lago, Designated Counsel, on the brief). Geoffrey D. Soriano, Somerset County Prosecutor, attorney for respondent (James L. McConnell, Assistant Prosecutor, of counsel and on the brief). Appellant filed a pro se supplemental brief. PER CURIAM
Defendant Kevin Robinson appeals from the denial of his petition for post-conviction relief (PCR) without an evidentiary hearing. Tried by a jury, defendant was found guilty of first-degree murder, N.J.S.A. 2C:11-3(a)(1), and the related charge of third-degree possession of a knife for an unlawful purpose N.J.S.A. 2C:39-4(d). See State v. Kevin Robinson, A-3586-08 (App. Div. Apr. 26, 2011) (slip op. at 1). We affirmed defendant's conviction and sentence on appeal, remanding the matter to the trial judge solely to conduct a restitution hearing. Id. at 4. Defendant's petition for certification was denied. 208 N.J. 370 (2011).
Although citing an unpublished opinion is generally forbidden, we do so here to provide a full understanding of the issues presented and pursuant to the exception in Rule 1:36-3 that permits citation "to the extent required by res judicata, collateral estoppel, the single controversy doctrine or any other similar principle of law." See Badiali v. N.J. Mfrs. Ins. Grp., 429 N.J. Super. 121, 126 n.4 (App. Div. 2012), aff'd, ___ N.J. ___, ___ (2015) (slip op. at 27-28).
On November 22, 2011, defendant filed a pro se PCR petition and brief in which he alleged counsel provided ineffective assistance during jury selection and the trial itself. Defendant also claimed his sentence under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, was "improper," and he raised several arguments alleging ineffective assistance of appellate counsel. Lastly, defendant argued that none of his PCR claims were procedurally-barred.
Counsel was appointed to represent defendant, and in his subsequent certification, defendant stated that he asked to be part of the sidebar conferences during jury selection, but trial counsel "advised it would be best if he handled it." Defendant claimed that he was not provided with any "electronic listening device" during jury selection, and counsel used only four peremptory challenges. Defendant claimed that having now reviewed transcripts of the sidebar conferences, he would have insisted that trial counsel use challenges to excuse additional jurors.
Defendant filed a pro se supplemental certification in which he reiterated his claims regarding jury selection, and named five specific deliberating jurors that he would have insisted trial counsel excuse. Defendant also asserted that trial counsel "failed to utilize and familiarize himself with specific scientific evidence" related to the testimony of the State's medical examiner. Defendant claimed that trial counsel refused to ask for "an evidentiary hearing" regarding the testimony of the State's critical eyewitness, and refused to call a DNA expert who would have testified that defendant's DNA was not on a golf club, which several State's witnesses testified was used to retaliate against defendant for stabbing the victim. Robinson, supra, slip op. at 5-6.
Defendant alleged that trial counsel provided ineffective assistance by agreeing to omit portions of the testimony in response to the jury's request for a read back, and appellate counsel was ineffective for not raising that issue on appeal. Defendant stated that trial counsel was ineffective for failing to object to the prosecutor's summation comments, and "failed to correct the flaws in the jury instruction and [] verdict sheet," including asking for lesser-included offenses of murder, such as "passion-provocation" manslaughter, which defendant claimed was supported by the evidence at trial.
The PCR judge, who was not the trial judge, considered oral argument on defendant's petition. In a written decision that addressed the various points raised, the judge denied defendant's application and entered a conforming order. This appeal followed.
Before us, defendant argues that he presented a prima facie case that warranted an evidentiary hearing on the petition, and, the PCR judge erred by concluding some of the claims were procedurally-barred by Rule 3:22-4 or Rule 3:22-5. In a pro se supplemental brief, defendant argues the judge erred and PCR counsel was ineffective because they failed to "allow [defendant] to present additional claims at . . . oral argument," and the claims of ineffective assistance were not procedurally-barred. Defendant reiterates the substance of the claims made in his PCR certifications.
We have considered these arguments in light of the record and applicable legal standards. We affirm.
We set some well-known guideposts for our review. "Because post-conviction relief is not a substitute for direct appeal and because of the public policy 'to promote finality in judicial proceedings,' our rules provide various procedural bars." State v. Echols, 199 N.J. 344, 357 (2009) (quoting State v. McQuaid, 147 N.J. 464, 483 (1997)). "[A] petitioner may be barred from relief if the petitioner could have raised the issue on direct appeal but failed to do so, Rule 3:22-4[, or] the issue was previously decided on direct appeal, Rule 3:22-5[.]" Ibid.
Moreover, a defendant is entitled to an evidentiary hearing "only upon the establishment of a prima facie case in support of post-conviction relief," and "[t]o establish a prima facie case, [a] defendant must demonstrate 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." R. 3:22-10(b). It follows that a "defendant must allege specific facts and evidence supporting his allegations[,]" State v. Porter, 216 N.J. 343, 355 (2013), and "do more than make bald assertions that he was denied the effective assistance of counsel." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).
To establish a claim of ineffective assistance of counsel (IAC), 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, a 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). "In determining whether defense counsel's representation was deficient, '[j]udicial scrutiny . . . must be highly deferential, and must avoid viewing the performance under the distorting effects of hindsight.'" State v. Arthur, 184 N.J. 307, 318-319 (2005) (quoting State v. Norman, 151 N.J. 5, 37 (1997)) (internal quotation marks omitted).
Second, a defendant must prove that he suffered prejudice due to counsel's deficient performance. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Defendant must show by a "reasonable probability" that the deficient performance affected the outcome. Fritz, supra, 105 N.J. at 60. Thus, "[t]he failure to raise unsuccessful legal arguments does not constitute ineffective assistance of counsel." State v. Worlock, 117 N.J. 596, 625 (1990); see also Echols, supra, 199 N.J. at 361 (rejecting ineffective assistance claim, noting "there being no reversible error in the prosecutor's comments, the failure of trial counsel to object . . . could not lead to the conclusion that there is a reasonable probability that, but for the errors of trial and appellate counsel, the outcome would have been different"). "If [a] defendant establishes one prong of the Strickland-Fritz standard, but not the other, his claim will be unsuccessful." State v. Parker, 212 N.J. 269, 280 (2012).
The PCR judge concluded that several IAC claims were procedurally-barred, including the alleged inadequacy of evidence at trial, the trial judge's failure to instruct the jury regarding defendant's out-of-court statements, the read back of certain testimony, the prosecutor's summation comments and the excessiveness of defendant's sentence. The judge reasoned consideration of these issues was barred by Rule 3:22-5 because they were adjudicated on direct appeal.
The effect of Rule 3:22-5 is that "PCR will be precluded only if the issue is identical or substantially equivalent to the issue already adjudicated on the merits." State v. Afanador, 151 N.J. 41, 51 (1997) (citations and quotation marks omitted). We agree with defendant that there is a qualitative difference between our consideration of an issue on direct appeal and the subsequent assertion of a related issue in the context of an IAC claim. See, e.g., State v. Allen, 398 N.J. Super. 247, 257 n.8 (App. Div. 2008) (explaining that issues "as framed on the direct appeal and as presented now in the context of ineffective assistance of counsel are substantively different").
In any event, defendant's IAC claims relying on these points cannot succeed for another reason. As to each claim cited by the PCR judge, we considered the merits of defendant's arguments on direct appeal and concluded none of them required reversal. In other words, even if trial counsel's performance was deficient, defendant cannot satisfy the second prong of the Strickland/Fritz test because the legal arguments themselves, if raised at trial, would have been unsuccessful. See, e.g., Echols, supra, 199 N.J. at 361-62; Worlock, supra, 117 N.J. at 625.
The only exception would be defendant's claim regarding the read back of certain testimony. On direct appeal, we concluded that trial counsel had consented to those portions of the evidence to be read back in response to a jury question, so any claim of error was invited and barred from review on appeal. Robinson, supra, slip op. at 13. We have carefully reviewed those portions of the trial transcript that defendant now claims should have been included in the read back. These alleged omissions added nothing significant to the testimony actually read back, or else were not responsive to the jury's question.
It is also recognized that "[a] petitioner is generally barred from presenting a claim on PCR that could have been raised at trial or on direct appeal." State v. Nash, 212 N.J. 518, 546 (2013) (citing R. 3:22-4(a)). In this case, the PCR judge determined two of defendant's claims were so barred — the illegality of his NERA sentence and his claim of error in the jury instructions and verdict sheet.
We agree with the PCR judge, but also note that we considered the excessiveness of defendant's sentence on direct appeal and affirmed in all respects, save the imposition of restitution. Robinson, supra, slip op. at 16-19. Any claim that NERA did not apply is unavailing. Additionally, we have carefully read the trial transcript regarding the jury charge and reviewed the verdict sheet. Defendant's claims of error lack any merit. R. 2:11-3(e)(2).
The PCR judge also concluded that defendant's IAC claim regarding his lack of participation during jury selection was unavailing because defendant "waived his right to [] participate in voir dire sidebars." The judge reached this conclusion based upon the lack of any request by defendant or defense counsel seeking participation. See State v. W.A., 184 N.J. 45, 63-64 (2005) ("[A] defendant who does not affirmatively request the right to participate in voir dire sidebars should be considered to have waived the right[.]").
Of course, defendant's PCR claim was that he did ask to participate, but trial counsel refused his request. However, there is nothing to support defendant's assertion except for his self-serving certification, which lacks any detail as to when and how this request was made and is uncorroborated by anything else in the record. In short, it is nothing but a quintessential bald assertion of deficient advice. Cummings, supra, 321 N.J. Super. at 170.
The judge also denied defendant's IAC claim regarding jury selection, concluding the issue was already decided on direct appeal and barred by Rule 3:22-5. However, at another point in his decision, the judge seemingly concluded that defendant's waiver of his right to participate in sidebars defeated this argument.
We did determine on direct appeal that the trial judge did not commit error by failing to sua sponte dismiss the five jurors for cause. Robinson, supra, slip op. at 14-15. Defendant's IAC claim is different, in that he argues counsel had sixteen remaining peremptory challenges and should have excused the jurors.
Certainly, to meet the first prong of the Strickland/Fritz test, defendant bears the burden of proving trial counsel's performance, i.e., not using peremptory challenges to excuse the five jurors, was constitutionally deficient and not a sound strategic decision. State v. Castagna, 187 N.J. 293, 314 (2006). "As a general rule, strategic miscalculations or trial mistakes are insufficient to warrant reversal except in those rare instances where they are of such magnitude as to thwart the fundamental guarantee of [a] fair trial." Id. at 314-15 (alteration in original) (internal quotation marks and citation omitted).
Little else during the course of a trial is more subtle or imprecise than the exercise of challenges during the selection of a jury. It is near impossible to second-guess an attorney's decision not to exercise a challenge, absent a juror's clearly disqualifying trait. In this case, as we noted on direct appeal, all of the disputed jurors "indicated they would be impartial and fair." Robinson, supra, slip op. at 15. Defendant did not present a prima facie case of IAC on this issue.
The PCR judge concluded the balance of defendant's IAC claims lacked merit, and, to the extent they are reiterated on appeal, we agree. R. 2:11-3(e)(2). We also conclude defendant's claims, asserted for the first time in his pro se supplemental brief, that the PCR judge erred and PCR counsel provided ineffective assistance because they denied him the opportunity to raise additional claims at oral argument lacks sufficient merit to warrant discussion. Ibid.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION