Opinion
DOCKET NO. A-2379-12T3
07-15-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. GARY SAYERS, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief). James P. McClain, Acting Atlantic County Prosecutor, attorney for respondent (Courtney M. Cittadini, Special Deputy Attorney General/ Acting 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NOT FOR PUBLICATION WITHOUT THE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 Yannotti and Ashrafi.
On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 06-08-1865.
Joseph E. Krakora, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief).
James P. McClain, Acting Atlantic County Prosecutor, attorney for respondent (Courtney M. Cittadini, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).
Appellant filed a pro se supplemental brief. PER CURIAM
Defendant Gary Sayers appeals from an order of the Law Division dated October 10, 2012, denying his petition for post- conviction relief (PCR). We reverse and remand for further proceedings.
I.
Defendant was charged under Atlantic County Indictment 0608-1865, with first-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and 2C:15-1 (count one); first-degree robbery, N.J.S.A. 2C:15-1 (counts two, three, four, five, six); second-degree burglary, N.J.S.A. 2C:18-2 (counts seven, eight); third-degree criminal restraint, N.J.S.A. 2C:13-2 (counts nine, ten, eleven, twelve, thirteen); fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(4) (counts fourteen, fifteen, sixteen, seventeen, eighteen); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (counts nineteen, twenty, twenty-one); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (counts twenty-two, twenty-three, twenty-four); first-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and 2C:15-1 (count twenty-five); first-degree robbery, N.J.S.A. 2C:15-1 (counts twenty-six, twenty-seven); third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(2) (count twenty-eight); fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(4) (counts twenty-nine, thirty); second-degree burglary, N.J.S.A. 2C:18-2 (count thirty-one, thirty-two); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39- 4(a) (count thirty-three); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count thirty-four); and second-degree possession of a weapon by a convicted person, N.J.S.A. 2C:39-7 (counts thirty-seven, thirty-eight).
Defendant was tried before a jury. At the trial, the State presented evidence which established that at around 11:00 p.m., on June 22, 2006, the TGI Fridays in Somers Point closed, but five employees remained in the restaurant. About twenty minutes later, one of the workers went outside to throw out the trash and he was confronted by a masked man, who pointed a gun at him. A second masked, armed man stood nearby.
The first man ordered the worker to tell him how many people were in the restaurant and where they were located. At gunpoint, the worker was taken inside and directed to a dry goods storage area. On the way, they came upon two other workers, who were also taken to the storage area, where they were joined by a third masked gunman.
Two other workers were at the bar. One was taken to the storage area. A gunman emptied the cash drawer, and ordered the other bar worker to take him to the safe. The worker opened the safe and handed defendant the money, but he was not able to access the bottom portion of the safe.
The gunman directed this worker to the storage area, where two of the intruders were watching the other employees. Cell phones and money were taken from several workers. One gunman told one of the workers to bind the other workers' hands with duct tape. At gunpoint, the employees were placed into the beer cooler. They heard the padlock being placed on the door. However, the door was faulty and one of the workers was able to open it. He noticed that the intruders had departed, and called the police.
Steven McGuire, who was one of the gunmen, eventually turned himself in to the Somers Point police. He identified defendant and Derrick Johnson as the other persons who committed the robberies. Based on that information, the police obtained arrest warrants for defendant and Johnson and they were taken into custody. Defendant signed a consent-to-search form, authorizing a search of his car. In the car, the police found a white bag containing McGuire's identification, a folding knife, a black hoodie, two woolen masks, and nine gloves.
The co-defendants were taken to the county jail. There, at Johnson's behest, McGuire signed affidavits retracting his previous statement concerning the robbery. He claimed he was under the influence of narcotics when he gave his statement to the police. He also claimed that the police coerced him into giving the statement.
Defendant's former girlfriend testified that she had been living periodically with defendant in New Hampshire. She said he owned a silver revolver that matched the description of the gun used by one of the gunmen. She stated that, shortly before the robberies, she and defendant broke off their relationship. Defendant took the gun with him when he left for New Jersey. She also said she overheard a telephone conversation between defendant and Johnson before defendant left, during which defendant told Johnson that he had a gun. Defendant said that they were "going to roll" once he returned to Atlantic City.
The jury found defendant guilty of first-degree conspiracy to commit robbery, five counts of first-degree robbery, one count of second-degree robbery, five counts of third-degree criminal restraint, five counts of fourth-degree aggravated assault with a firearm, three counts of second-degree possession of a firearm for an unlawful purpose, three counts of third-degree unlawful possession of a handgun. In addition, the trial court convicted defendant of second-degree possession of a weapon by a convicted person.
Thereafter, the trial court granted the State's motion for imposition of an extended term, and imposed concurrent terms aggregating fifty years, with the 85% period of parole ineligibility as prescribed by the No Early Release Act (NERA), N.J.S.A. 2C:4 3-7.2. The court ordered the sentences to be served consecutively to two additional consecutive, ten-year sentences, one with a NERA parole disqualifier.
Defendant appealed from the judgment of conviction and raised the following arguments:
I. THE PROSECUTOR'S SUMMATION EXCEEDED THE BOUNDS OF PROPRIETY (Not Raised Below).
II. THE DEFENDANT WAS DENIED HIS RIGHT TO A FAIR TRIAL AS A RESULT OF THE PROSECUTOR'S CONDUCT NOT MERELY OBJECTING TO A PORTION OF DEFENSE COUNSEL'S SUMMATION, BUT BY IMPROPERLY PROVIDING INFORMATION TO THE JURY, WHICH WAS NOT PART OF THE TRIAL RECORD AS PART OF HIS OBJECTION (Raised Below In Part).
III. THE TRIAL COURT ERRED IN DETERMINING THE DEFENDANT'S PRIOR CONVICTIONS, ALL OCCURRING MORE THAN TEN YEARS PRIOR TO TRIAL, WERE ADMISSIBLE TO ATTACK CREDIBILITY.
IV. THE TRIAL COURT ERRED BY FAILING TO MERGE COUNT VII CHARGING SECOND DEGREE BURGLARY BASED UPON THE EXISTENCE OF A DEADLY WEAPON INTO COUNTS II THROUGH VI CHARGING FIRST DEGREE ROBBERY BASED UPON THE EXISTENCE OF A DEADLY WEAPON (Not Raised Below).
V. THE TRIAL COURT ERRED BY FAILING TO MERGE COUNT I CHARGING CONSPIRACY TO COMMIT ROBBERY INTO COUNTS II THROUGH VI CHARGING ROBBERY (Not Raised Below).
VI. THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.
We affirmed defendant's convictions and sentences, with the exception of the sentence imposed on count one, charging conspiracy to commit robbery, on which a ten-year, concurrent sentence had been imposed. State v. Sayers, No. A-2074-08 (Aug. 24, 2010). The Supreme Court denied defendant's petition for certification. State v. Sayers, 205 N.J. 81 (2011).
II.
On May 13, 2011, defendant filed a pro se petition for PCR, arguing he had been denied the effective assistance of trial counsel. He also asserted a claim of prosecutorial misconduct, alleging that the prosecutor had improperly withheld a videotaped statement of the State's chief witness. Defendant claimed that the statement might have contained exculpatory evidence. The trial court appointed PCR counsel to represent defendant, and counsel filed a brief in support of the petition.
On October 9, 2012, the court heard oral argument on the petition. Before the PCR court, defendant alleged that trial counsel's performance was deficient because: (1) counsel had little or no contact with him before trial, (2) counsel did not convey the State's plea offer until the day of trial, (3) counsel did not provide defendant with discovery, and (4) counsel did not undertake an adequate pretrial investigation and call additional witnesses. Defendant had raised these allegations during his allocution at sentencing, except for the claim regarding the plea offer. In addition, defendant alleged that the State had withheld evidence material to his defense.
The PCR court found that the claim that trial counsel never communicated the plea offer to defendant was belied by a pretrial memo that defendant signed on March 18, 2008, approximately six months before trial, which set forth the terms of the plea offer. The court further found that defendant's allegation that counsel never provided defendant with discovery was refuted by remarks that defense counsel made on the record at a pre-trial hearing.
The court also stated that the remaining allegations were nothing more than "bald assertions." The court said that, while defendant claimed his attorney failed to investigate the case, he had not alleged facts that such an investigation would have revealed. Defendant failed to support his claim with affidavits or certifications by persons with personal knowledge of any facts.
Defendant also failed to provide support for his allegation that his attorney had not consulted with him sufficiently prior to trial. The PCR court determined that, because defendant's allegations were either false or unsupported, an evidentiary hearing was not required.
The court entered an order dated October 10, 2010, denying PCR. This appeal followed. Defendant raises the following arguments for our consideration:
POINT I - THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE DEFENDANT ESTABLISHED A PRIMA FACIE CASE OF COUNSEL'S INEFFECTIVENESS, IN THAT TRIAL COUNSEL FAILED TO PROVIDE HIM WITH FULL DISCOVERY, FAILED TO CONDUCT AN INVESTIGATION AND FAILED TO ADEQUATELY CONSULT WITH HIM.In addition, defendant has filed a supplemental pro se brief, in which he raises the following argument:
POINT II - THIS MATTER MUST BE REMANDED FOR A NEW PCR HEARING BECAUSE PCR COUNSEL FAILED TO ADVANCE ALL OF THE ISSUES DEFENDANT RAISED IN HIS PETITION (Not Raised Below).
PCR COUNSEL VIOLATED Rule 3:22-6(d) DURING HIS REPRESENTATION OF PETITIONER.
III.
Defendant argues that the PCR court erred by failing to conduct an evidentiary hearing on his petition. He claims that such a hearing was required because he established a prima facie case of ineffective assistance of trial counsel.
A defendant who alleges that he was denied the effective assistance of counsel must meet the two-pronged test established by 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). The defendant first must show that his attorney's handling of the matter "fell below an objective standard of reasonableness." Strickland, supra, 466 U.S. at 688, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. In doing so, he must rebut the "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694.
A defendant also must show that there exists a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. Counsel's error "'must be so serious as to undermine the court's confidence in the jury's verdict or the result reached.'" State v. Allegro, 193 N.J. 352, 367 (2008) (quoting State v. Castagna, 187 N.J. 293, 315 (2006)).
Furthermore, under Rule 3:22-10(b), an evidentiary hearing on a PCR petition is required only if a defendant presents a prima facie case in support of PCR, the court finds that there are material issues of fact in dispute that cannot be resolved by reference to the existing record, and the court determines that a hearing is necessary to resolve the claims for relief. See also State v. Porter, 216 N.J. 343, 354 (2013); State v. Preciose, 129 N.J. 451, 462 (1992).
We are convinced that the trial court correctly determined that the existing record was sufficient to resolve defendant's claim that his trial attorney failed to provide him with the State's plea offer until the day before the trial. As the record reflects, defendant signed a pretrial memo on March 18, 2008, approximately six months before the trial, which set forth the terms of the plea offer. Thus, defendant's claim of ineffective assistance of counsel regarding the plea offer was not supported by the record.
We are convinced, however, that the record before the court was not sufficient to resolve defendant's claim that he had not been provided with discovery, and the court should have conducted an evidentiary hearing to resolve that issue. Here, the PCR court noted that defense counsel had informed the trial court at a pre-trial conference that he needed an adjournment so that he could provide defendant with discovery that had not yet been provided. Defense counsel also told the court that he had all the discovery he required, and some discovery had been provided to defendant.
Defense counsel's statements on the record of the pre-trial conference were not sufficient to refute defendant's claim that he was not, in fact, provided with all discovery. Since the record does not disclose what information, if any, was not provided to defendant, the court could not resolve the defendant's claim regarding discovery.
Defendant also claimed that defense counsel failed to adequately investigate his case and obtain additional witnesses, who he said were material to his defense. The record before the court was not sufficient to resolve this claim.
Here, defendant named two witnesses in New Hampshire and said he told the investigators for the Public Defender's Office to contact them. He claimed he was told that the male witness had refused to help because he believed defendant slept with his wife.
Defendant also asserted that the masks found in his car after the robbery were the same type of masks that he wore when he was working in New Hampshire. He said someone from his "job" should have been subpoenaed to testify about the masks. He claimed that this evidence was material to his defense.
As we stated previously, the PCR court found that defendant's claims regarding the failure to investigate and secure additional witnesses for the defense were nothing but bald assertions. We are convinced, however, that defendant presented sufficient evidence and the court should have conducted a hearing to determine what actions counsel took to investigate the witnesses and whether their testimony would have been as defendant claims, material to his defense.
Furthermore, defendant alleged in his pro se PCR petition that the State had withheld a copy of the videotaped statement of its chief witness, presumably McGuire. Defendant asserted that the statement could have contained exculpatory evidence. In ruling on this claim, the PCR court noted that defendant had previously filed a motion, which indicated that the State had withheld statements by three persons. One of those persons was McGuire.
The PCR court correctly noted that, in order to receive a new trial based on the State's failure to disclose evidence, defendant had to show that the evidence was favorable to the defense and material. See Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196, 10 L. Ed. 2d 215, 218 (1963); State v. Marshall, 148 N.J. 89, 158, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). The court recognized that to show materiality, defendant had to demonstrate there was a reasonable probability that had the evidence been disclosed, the result would have been different. See Marshall, supra, 148 N.J. at 156 (citing United States v. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375, 3383, 87 L. Ed. 2d 481, 494 (1985) (plurality opinion)).
The PCR court determined that defendant had not presented sufficient evidence to resolve this claim. The court said that it was not clear what statements defendant was referring to, and he had not shown that the statements actually existed. We note, however, that defendant identified at least one of the persons whose statement he claimed had been withheld.
We are therefore convinced that the order denying PCR must be reversed and the matter remanded to the trial court for an evidentiary hearing on defendant's claim that his attorney failed to provide him with all of the discovery materials and his claim that counsel failed to conduct an adequate investigation of the case and subpoena witnesses material to the defense.
In addition, the court should reconsider defendant's claim that the State failed to provide defendant with evidence material to his defense. On remand, PCR counsel should be afforded an opportunity to supplement his earlier submissions with additional factual material, including affidavits or certifications from defendant and others.
In this regard, we note that in his pro se supplemental appellate brief, defendant contends that PCR counsel erroneously failed to advance certain of his claims in the PCR court. Specifically, these were defendant's claim that his arrest was illegal, and the claim that the complaint was not signed under oath or in the presence of a deputy clerk. The PCR court should also consider these claims.
Reversed and remanded for further proceedings in conformity with this opinion. We do not retain jurisdiction.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION