Opinion
DOCKET NO. A-3330-10T1
05-08-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. REGINALD O. ANDERSON, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Brian D. Driscoll, Designated Counsel, on the brief). Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Patrick D. Isbill, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Grall and Accurso.
On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 04-03-1273.
Joseph E. Krakora, Public Defender, attorney for appellant (Brian D. Driscoll, Designated Counsel, on the brief).
Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Patrick D. Isbill, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
A jury found defendant guilty of second-degree burglary, N.J.S.A. 2C:18-2, and third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a(1). The jury found defendant not guilty of third-degree criminal restraint but convicted him of the lesser-included disorderly persons offense of harassment, N.J.S.A. 2C:33-4(a) and (c). After merging the disorderly persons conviction, the judge sentenced defendant to an extended term of twelve years on the burglary subject to periods of parole ineligibility and supervision required by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The judge sentenced defendant to a consecutive four-year term on the CDS charge. We affirmed defendant's convictions for burglary and harassment but reversed the CDS conviction, State v. Anderson, No. A-4271-04 (App. Div. Jan. 29, 2007), which charge the State subsequently dismissed. Defendant's petition for certification was granted limited to the sentencing issue raised, and the case was remanded to the trial court for resentencing in light of State v. Pierce, 188 N.J. 155 (2006). State v. Anderson, 190 N.J. 389 (2007). The trial judge re-imposed the same sentence from which no appeal was taken.
Defendant's appeal is from the denial of his petition for post-conviction relief (PCR) alleging ineffective assistance of counsel. Because the judge's decision denying the petition is supported by the record and in accord with controlling law, we affirm.
At about one o'clock in the morning, Wanda Padilla was at home with her three children in Camden. Her close friend, Adaira Sanders, was visiting when they heard someone yell, "Sanders, come out. I know you're in there." Both women recognized defendant's voice. Defendant and Sanders were in an on-again-off-again relationship and had two children together. Defendant had come to Padilla's house before looking for Sanders and knew he was not welcome.
This time, Sanders decided to leave in order to avoid problems for Padilla. When Sanders unlocked the door, defendant grabbed and shook the front gate, opened it and shouted, "I got you now, bitches." Defendant stormed up the steps and pushed Sanders back into the apartment, knocking her to the ground. Padilla testified that she was behind the front door trying to close the door and push defendant out, but did not succeed. She testified that once Sanders got up, defendant had his hand on her throat and was hitting her in the face.
Padilla's brother-in-law, Joseph Lopes, a corrections officer, lived next door. Hearing the commotion, he retrieved a handgun and ran over. He saw a black male, whom he identified at trial as defendant, attempting to get inside despite Sanders telling him he was not allowed on the property. Lopes observed defendant inside the doorway, holding Sanders by the throat with one hand, and striking her in the face with the other. Sanders had grabbed an umbrella to defend herself, but defendant told her that he would hit her if she hit him. Padilla was trying to pull defendant off Sanders when Lopes went into Padilla's house. Lopes pointed his gun in defendant's direction and yelled, "[s]tep out of the house. This is the police." Defendant stepped out of the house and put his hands in the air. Lopes's wife had called the Camden Police who were immediately on the scene and arrested defendant. As neither Sanders nor Padilla wanted to press charges, the arresting officer signed the complaint against defendant.
Sanders testified for defendant at trial. Padilla, Lopes, and the arresting officer testified for the State. Defendant did not testify because the trial judge had ruled at a Sands hearing that defendant's past convictions, sanitized in accord with State v. Brunson, 132 N.J. 377 (1993), could be used to impeach his credibility should he elect to testify. Defendant's theme to the jury was that he and Sanders were simply having an argument, nothing more. Consistent with that theme, Sanders testified that she had argued with defendant and had tried to hit him with an umbrella but that defendant had not hit her. Defense counsel's task was thus to bolster Sanders' credibility and convince the jury that Padilla and Lopes had misunderstood the situation and overreacted to a verbal argument between defendant and Sanders.
State v. Sands, 76 N.J. 127 (1978).
In the PCR proceeding, defendant claimed that his trial counsel was ineffective because he failed to argue against the State's use of defendant's prior convictions at the Sands hearing; failed to address the State's arguments as to the elements of burglary during opening statement and summation; failed to perform an effective direct examination of Sanders at trial or effectively cross-examine the State's witnesses; failed to object to an improper jury charge; that his conviction for second-degree burglary was invalid because the State failed to prove he was armed with a deadly weapon; and that cumulative errors denied him of a fair trial. Following argument, the judge denied the petition in its entirety.
On appeal, defendant has limited his arguments to his trial counsel's performance at the Sands hearing and in examining the witnesses at trial. Defendant also claims that he received ineffective assistance of PCR counsel.
Defendant also argues that the court erred in determining that his PCR claims were procedurally barred because they could have been raised on direct appeal. We agree with defendant that his claims for ineffective assistance could not have been reasonably raised on direct appeal and are thus not procedurally barred. See State v. Preciose, 129 N.J. 451, 459-60 (1992) ("Under New Jersey case law, petitioners are rarely barred from raising ineffective-assistance-of-counsel claims on post-conviction review."). We are, nevertheless, satisfied that the judge addressed fully defendant's claims on the merits, making it unnecessary to comment further on this point.
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To succeed on a claim of ineffective assistance, defendant must establish, first, that "counsel's representation fell below an objective standard of reasonableness" and, second, that "there is 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, 687-88, 694, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984). A defendant must do more than demonstrate that an alleged error might have "had some conceivable effect on the outcome of the trial," instead, he or she must prove that the error is "so serious as to undermine our confidence in the jury's verdict." State v. Sheika, 337 N.J. Super. 228, 242 (App. Div.) (citing State v. Fritz, 105 N.J. 42, 60 (1987)), certif. denied, 169 N.J. 609 (2001). Measured by that standard, defendant has not established that he received ineffective assistance of counsel on this record. We agree with the trial judge that no evidentiary hearing was required. State v. Preciose, 129 N.J. 451, 462 (1992).
As we noted on defendant's direct appeal, his criminal record was extensive. Between 1988 and 1997, defendant had been convicted of unlawful possession of a handgun, receiving stolen property, terroristic threats, aggravated assault with a deadly weapon, and three charges of possession of CDS. Defendant was convicted in 1988 and 1990, paroled in April of 1994, rearrested several months later leading to his conviction in 1995, and culminating in a violation of probation in 1997. Defendant had only been paroled three years when he committed the offenses for which he was tried in this matter.
Defendant contended that his counsel should have argued that the convictions were too remote in time to be used to impeach his credibility. As the judge noted, however, the State at the Sands hearing was seeking to use only those prior convictions for which it had certified judgments of conviction. The State apparently did not possess a certified judgment of conviction for defendant's 2001 arrest for theft by unlawful taking for which he was convicted and sentenced to four years' probation in May 2002. We agree with the judge hearing the PCR petition that trial counsel could not have argued remoteness without disclosing to the trial court that his client was on probation when arrested for the offense for which he was being tried. The judge correctly concluded that defendant could not establish that his counsel's silence constituted deficient performance under those circumstances and that our affirmance of the trial court's decision to admit defendant's prior convictions precluded a finding of prejudice. See Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.
We also see no error in the judge's conclusion that trial counsel provided defendant reasonably competent representation in conducting the direct examination of Sanders and the cross-examinations of the State's eyewitnesses. As we noted on defendant's direct appeal, the evidence of his guilt was overwhelming. Although Sanders did not press charges against defendant, and testified on his behalf at trial, she had given a recorded statement to the police in which she stated that defendant had placed two hands on her chest and pushed her to the floor. Consistent with the defense theme that defendant and Sanders were simply engaged in a verbal altercation, defense counsel obviously limited his direct examination of Sanders to favorable points consistent with that statement, the argument, and that she had not been injured. When Sanders tried to back away from that statement on cross-examination, the prosecutor played it for the jury and got Sanders to concede that not only had defendant pushed her to the floor, but that he had put his hands around her neck, scratching her with his nails, and pushed her against a wall.
Given Sanders' prior statement, we agree with the trial court that defense counsel had no choice but to tread cautiously and that defendant's criticisms of his counsel's performance enjoy the greatly enhanced perspective of hindsight. We conclude that whether defense counsel could have elicited a statement from Sanders that defendant had not hit her is immaterial in light of her recorded statement to that effect. Further, it could not have made a difference to the outcome given Sanders statements that defendant pushed her to the floor and after she regained her feet, pushed her against the wall with his hand around her throat resulting in scratches to her neck.
Defendant's criticisms of his counsel's cross-examination of the State's witnesses are similarly flawed. Defendant claims that his counsel should have used Padilla's statement to the police that she had been trying to close the door on defendant, and thus lacked a clear view of the altercation, to impeach her trial testimony that she saw defendant hit Sanders on the porch. Unlike Sanders, however, Padilla was not favorably inclined to defendant. Her statement to the police made clear that she saw defendant push Sanders down and then pin her against a wall and that he continued to struggle with Sanders until Lopes appeared with a gun. Having reviewed Padilla's statement and her trial testimony, we agree with the judge that the answers to defendant's proposed questions may well have undermined defendant's case, or worse, reinforced the State's case, but in no event would have altered the verdict.
Finally, defendant contends that he received ineffective assistance from PCR counsel because his counsel failed to have him execute a certification in support of the new issues raised in counsel's brief. Although counsel is correct that the judge hearing defendant's PCR claims could have determined not to consider them because they were not included in defendant's petition, State v. Brewster, 429 N.J. Super. 387, 395-96 (App. Div. 2013), the judge did not take that course. Instead, each of defendant's claims was thoroughly examined by the court. As the failure to file an amended petition has in no way prejudiced the review of defendant's claims, we reject this argument as meritless.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION