Opinion
DOCKET NO. A-0068-14T1
04-27-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. LUCIUS WILKERSON, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Richard Sparaco, 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).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Alvarez and Ostrer. On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 08-06-0472. Joseph E. Krakora, Public Defender, attorney for appellant (Richard Sparaco, 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). PER CURIAM
Defendant Lucius Wilkerson appeals from the trial court's June 25, 2014 order denying his petition for post-conviction relief (PCR) without an evidentiary hearing.
Defendant was convicted by a jury in 2009 of second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1), as a lesser included offense of first-degree attempted murder, N.J.S.A. 2C:5-1, 2C:11-3, and third-degree possession of a weapon (a knife) for an unlawful purpose, N.J.S.A. 2C:39-4(d). After merger, the court imposed a ten-year term for the aggravated assault, subject to the No Early Release Act. N.J.S.A. 2C:43-7.2.
We reviewed the facts at length in our opinion affirming the conviction on direct appeal. State v. Wilkerson, No. A-1141-09 (App. Div. August 5, 2011), certif. denied, 209 N.J. 430 (2012). Suffice it to say here that during an altercation, defendant caused grievous injury to his step-daughter's boyfriend, who was the father of two of her children. The incident arose from a dispute about an automobile the step-daughter left on defendant's property. Defendant shouted at his step-daughter, and the victim intervened to tell defendant not to speak to her in that manner. Defendant pulled out a pocket knife and the two men began to fight. Defendant stabbed the victim three times, while the victim punched defendant repeatedly. Defendant pierced the victim's heart. He suffered anoxic brain damage which left him in a vegetative state, incapable of speech, and unable to perform basic bodily functions without assistive medical devices.
We remanded for resentence upon reconsideration of aggravating and mitigating factors. Wilkerson, supra, slip op. at 26-27. Upon reconsideration on remand, the court apparently imposed the same sentence, although the revised judgment of conviction is not included in the record. --------
Defendant filed a pro se PCR petition on May 30, 2013. As the basis for relief, he contended that he tried to avoid the victim; the victim attacked defendant by surprise while defendant was cleaning his yard; and defendant simply fought back. Defendant raised additional points in an amended petition, prepared by appointed counsel, which he certified as true. He also adopted claims of ineffective assistance set forth in counsel's brief. However, defendant has omitted the brief and amended petition from the record on appeal.
In a comprehensive written opinion, Judge Paul W. Armstrong denied defendant's petition. He addressed the following points raised in defendant's amended petition:
POINT I: Petitioner's Assertion of State and Federal Constitutional Issues Are Not Barred by R. 3:22 Et Seq.
A. Petitioner Asserts that His Issues of Ineffective Assistance of Counsel Are Not Barred by R. 3:22 Et Seq. and Are Entitled to an Evidentiary Hearing
B. Petitioner's Ineffective Assistance of Counsel Claims Warrant an Evidentiary Hearing.
POINT II: Petitioner was Denied Effective Assistance of Counsel.
A. Trial Counsel was Ineffective in Coercing Defendant Not to Testify.
B. Trial Counsel was Ineffective in Failing to Object to the Jury Charge Regarding Defendant's Failure to Testify.
C. Trial Counsel Failed to Do Any Investigation Prior to Trial and Consult With Petitioner.
POINT III: Trial Counsel's Cumulative Error Denied Defendant Fair Trial.
POINT IV: Petitioner was Denied the Effective Assistance of Appellate Counsel.
POINT V: PCR Counsel Incorporates by Reference All Issues Raised by Petitioner in His Petition.
Judge Armstrong applied the well-settled two-prong standard for assessing a claim of ineffective assistance of counsel: a petitioner must show that (1) counsel's performance was objectively deficient, falling outside the wide range of reasonable professional assistance, and (2) counsel's performance created a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984); State v. Fritz, 105 N.J. 42, 58 (1987) (adopting Strickland test).
Judge Armstrong held that there was no evidence defendant was coerced by his trial counsel not to testify. Moreover, after the trial judge questioned defendant, he made a knowing, voluntary, intelligent choice to remain silent. Judge Armstrong also concluded that defendant suffered no prejudice by remaining silent. Had he claimed that he was the victim of a surprise attack by his victim, he would have been impeached with his prior Mirandized statement to police, which did not mention a surprise attack.
Furthermore, defendant's trial counsel was not ineffective in failing to object to the jury instruction regarding a defendant's decision to remain silent. The trial judge instructed the jury that a defendant is presumed innocent "even if" he chooses not to testify. The trial judge did not utilize the instruction, as revised a month before trial, which substituted "whether or not" for "even if." Citing State v. Miller, 411 N.J. Super. 521, 532-33 (App. Div. 2010), aff'd, 205 N.J. 109, 126-27 (2011), Judge Armstrong concluded the language difference did not constitute prejudicial error.
The PCR court also rejected defendant's arguments that his trial counsel was ineffective by failing to consult with him and conduct a proper pre-trial investigation. "Petitioner does not show how and what pre-trial investigation could have been done to change the verdict. The claim is vague, conclusory or speculative. Petitioner does not indicate what an investigation would have achieved." In rejecting the ineffective assistance claim, Judge Armstrong also reviewed the level of defense counsel's preparation evident from the trial record, including defense counsel's exploration of a diminished capacity defense; and counsel's effective representation at trial.
On appeal, defendant presents the following points for our consideration:
POINT I - THE DEFENDANT WAS ENTITLED TO AN EVIDENTIARY HEARING WHERE HE MADE A PRIMA FACIE SHOWING THAT TRIAL COUNSEL WAS INEFFECTIVE BY COERCING DEFENDANT NOT TO TESTIFY, AND THE EVIDENCE LAY OUTSIDE THE RECORD.
POINT II - DEFENDANT WAS ENTITLED TO AN EVIDENTIARY HEARING ON THE POTENTIAL REASONS WHY APPELLATE COUNSEL FAILED TO RAISE, ON DIRECT APPEAL, THE COURT'S IMPROPER JURY INSTRUCTION ON DEFENDANT'S RIGHT TO REFRAIN FROM TESTIFYING.
POINT III - DEFENDANT WAS ENTITLED TO AN EVIDENTIARY HEARING WHERE HE ALLEGED THAT TRIAL COUNSEL FAILED TO CONDUCT A PROPER PRE-TRIAL INVESTIGATION OR FAILED TO CONSULT WITH DEFENDANT.
We affirm substantially for the reasons set forth in Judge Armstrong's written opinion. We add the following brief comments.
We may review de novo the factual inferences the PCR court draws from the documentary record, where the court did not conduct an evidentiary hearing. State v. Harris, 181 N.J. 391, 420-21 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). We also review the court's legal conclusions de novo. Id. at 421.
However, we cannot review defendant's factual claims of ineffective assistance in this case because defendant has not provided them to us. Defendant's amended petition and brief obviously contained the claims of ineffective assistance presented to the trial court, and renewed before us. Yet, the record on appeal contains only defendant's pro se petition vaguely alleging a claim of self-defense.
An appendix "shall contain . . . such other parts of the record . . . as are essential to the proper consideration of the issues." R. 2:6-1(a)(1). Failure to supply documents "essential to the proper consideration of the issues hinders our appellate review." Johnson v. Schragger, Nagy & Krasny, 340 N.J. Super. 84, 87 n.3 (App. Div. 2001). We are not "obliged to attempt review of an issue when the relevant portions of the record are not included." Cmty. Hosp. v. Blume Goldfaden, 381 N.J. Super. 119, 127 (App. Div. 2005).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION