Opinion
DOCKET NO. A-2688-12T4
04-07-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. CHARLES THOMAS, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Philip Lago, Designated Counsel, on the brief). Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Sara B. Liebman, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Alvarez and Carroll. On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 02-01-0161. Joseph E. Krakora, Public Defender, attorney for appellant (Philip Lago, Designated Counsel, on the brief). Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Sara B. Liebman, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Charles Thomas appeals the August 27, 2012 Law Division order denying post-conviction relief (PCR). For the reasons stated by Judge Robert J. Mega in his thorough and cogent August 27, 2012 written decision, we affirm.
I
The matter has a "protracted" appellate history of direct appeals related to defendant's sentence. State v. Thomas, No. A-1744-08 (App. Div. March 26, 2010) (slip op. at 3). This includes two decisions by the Supreme Court, State v. Thomas, 187 N.J. 119 (2006) (Thomas I), and State v. Thomas, 195 N.J. 431 (2008) (Thomas II). Among other things, defendant unsuccessfully argued on direct appeal that hindering apprehension, N.J.S.A. 2C:29-3, should have been charged as a lesser-included offense of robbery. Thomas I, supra, 187 N.J. at 135-36. The Court denied certification of defendant's third appeal. State v. Thomas, 202 N.J. 348 (2010). On April 12, 2010, defendant reinstated his PCR petition, which had been earlier dismissed without prejudice pending defendant's direct appeals.
After a trial by jury, defendant was convicted of second-degree robbery, N.J.S.A. 2C:15-1, second-degree eluding, N.J.S.A. 2C:29-2(b), third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d), fourth-degree criminal mischief, N.J.S.A. 2C:17-3(a), and fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a). Defendant's sentence on the merged offenses was ultimately reduced to an aggregate term of sixteen years subject to the No Early Release Act's (NERA's) eighty-five percent parole ineligibility. N.J.S.A. 2C:43-7.2(a).
The charges stemmed from the robbery of a seventy-five-year-old woman. Thomas I, supra, 187 N.J. at 124. The assailant jumped into the passenger seat of a waiting stolen station wagon driven by defendant, and a high-speed chase ensued, during the course of which defendant struck several vehicles, including police cars. Id. at 124-25. After the station wagon became disabled, defendant and his accomplice fled on foot. Id. at 125. Only defendant was ever located. Ibid.
The victim identified defendant at a show-up on the night of the incident as the person who had twisted her arm, knocked her to the ground, and stolen her pocketbook. She later realized defendant was the driver of the get-away vehicle, not the assailant. At trial, she explained that he was the driver and that her first identification was mistaken.
When interviewed by police, after waiving his Miranda rights, defendant admitted to driving the vehicle. The trial judge conducted a Miranda hearing out of the jury's presence, but after the trial had begun.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
On appeal, defendant raises the following point for our consideration:
POINT I - THE LOWER COURT ERRED IN FINDING THAT DEFENDANT'S CLAIMS DID NOT WARRANT AN EVIDENTIARY HEARING. THE LOWER COURT MUST THEREFORE BE REVERSED AND THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING.
Defendant asserts on appeal that he is entitled to an evidentiary hearing relying on the same seven points which were argued to Judge Mega. He adds a new eighth argument, that cumulative errors warrant reversal. The issues defendant raised at PCR and on appeal are: (a) that counsel did not adequately consult with him in preparation for trial; (b) that counsel did not request a Miranda hearing or a Wade hearing pre-trial; (c) that the prosecutor's comments during summation constituted misconduct and were prejudicial; (d) that his attorney failed to object to an investigating detective's failure to preserve his original case notes, (e) that his attorney failed to request a hindering apprehension instruction as a lesser-included offense of robbery; and (f) that appellate counsel was ineffective because he failed to raise unspecified issues on appeal.
United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967).
--------
II
Generally, PCR is a "safeguard that ensures that a defendant was not unjustly convicted." State v. Nash, 212 N.J. 518, 540 (2013) (internal quotation marks and citation omitted). A petition for PCR essentially acts as a defendant's final opportunity to contest the "fairness and reliability of a criminal verdict in our state system." Ibid. (internal quotation marks and citation omitted). Ultimately, if a mistake created an injustice in the preceding trial or sentencing, a PCR hearing provides a defendant with his or her last chance to redress such an error. State v. Hess, 207 N.J. 123, 144-45 (2011).
In order to obtain relief for the ineffective assistance of trial or appellate counsel, a defendant must allege facts sufficient to establish a prima facie case for relief under the "familiar two-prong test outlined in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), and adopted by [the New Jersey Supreme] Court in State v. Fritz, 105 N.J. 42, 58 (1987)." State v. Pierre-Louis, 216 N.J. 577, 579 (2014). A defendant "must show both (1) that counsel's performance was deficient, and (2) that the deficient performance prejudiced the outcome." Ibid.
To satisfy the first factor, a defendant is required to show "that counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment." Fritz, supra, 105 N.J. at 52 (internal quotation marks and citation omitted). The critical inquiry is "whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." State v. Perry, 124 N.J. 128, 147 (1991) (internal quotation marks and citation omitted). A defendant "must do more than make bald assertions that he was denied the effective assistance of counsel. He must allege facts sufficient to demonstrate counsel's alleged substandard performance." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).
Regarding the second Strickland/Fritz factor, a defendant must demonstrate that there was a reasonable probability that the proceeding's outcome would have been different but for his counsel's conduct. Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Ibid. In this context, it is insufficient for a defendant to merely demonstrate that his counsel's errors "had some conceivable effect on the outcome of the proceeding [since] [v]irtually every act or omission of counsel would meet that test." Id. at 693, 104 S. Ct. at 2067, 80 L. Ed. 2d at 697.
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. Nuñez-Valdéz, 200 N.J. 129, 141 (2009). In reviewing PCR denials, we engage in "highly deferential" scrutiny to "avoid viewing [counsel's] performance under the distorting effects of hindsight." State v. Arthur, 184 N.J. 307, 318-19 (2005) (internal quotations and citation 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, 220-21 (2002). To the contrary, trial counsel's informed strategic decisions demand our heightened deference, and "are virtually unchallengeable." Fritz, supra, 105 N.J. at 52; Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695.
Judge Mega's factual findings were based on substantial credible evidence. He appropriately reviewed counsel's performance and found absolutely no fact or law which established any of defendant's claims of ineffective assistance of counsel. We agree with his conclusions. We comment briefly on three of the points that defendant reiterates on appeal.
Contrary to defendant's PCR claim, the trial judge conducted a Miranda hearing. Defendant now acknowledges this fact and complains the hearing was too truncated to have been a fair exploration of the issues, and therefore was the functional equivalent of no hearing at all. This argument merely expresses his disagreement with the outcome and unfairly characterizes the proceedings. Defendant does not identify any error committed by the judge during the Miranda hearing, either factual or legal. As Judge Mega noted, given the overwhelming proofs in the case, even if defendant had prevailed on the Miranda motion, he would have been convicted.
With regard to Wade, we agree with the PCR judge that counsel's decision not to exclude or attempt to exclude the victim's mistaken identification on the night of the incident was a matter of sound trial strategy. The misidentification provided the attorney with fodder for cross-examination and a basis to attack the credibility of the witness's identification.
Ordinarily, we do not consider legal arguments not raised before the trial court. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) (explaining that issues not raised in the trial court will not be considered "unless the questions so raised on appeal go to the jurisdiction of the trial court or concern matters of great public interest"). Here, the cumulative errors argument was not made to Judge Mega. Since none of the alleged instances of ineffective assistance of counsel even approach conduct that falls outside the range of competent representation, the argument, in any event, entirely lacks merit. See 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