Opinion
DOCKET NO. A-3403-14T1
04-21-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JOHN C. BLANN, a/k/a JOHN C. BLAND, Defendant-Appellant.
Robert Carter Pierce, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Pierce, on the brief). John J. Santoliquido, Assistant Prosecutor, argued the cause for respondent (James P. McClain, Atlantic County Prosecutor, attorney; Elliott J. Almanza, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Accurso and Suter. On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 10-09-2128. Robert Carter Pierce, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Pierce, on the brief). John J. Santoliquido, Assistant Prosecutor, argued the cause for respondent (James P. McClain, Atlantic County Prosecutor, attorney; Elliott J. Almanza, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Following a bench trial, defendant John C. Blann was convicted of two counts of first-degree robbery, N.J.S.A. 2C:15-1 and one count of second-degree robbery, N.J.S.A. 2C:15-1. The trial judge denied the State's motion for an extended term, and following appropriate mergers, sentenced defendant to eighteen years in State prison, subject to the periods of parole ineligibility and supervision required by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
We reversed defendant's conviction on direct appeal based on the lack of an effective jury waiver, State v. Blann, 429 N.J. Super. 220, 233 (App. Div. 2013), with one member of the panel dissenting. Our dissenting colleague expressed the view that the trial record was inadequate to support defendant's claim he was deprived of his constitutional right to trial by jury, and that the appropriate remedy was affirmance without prejudice to defendant's right to seek further review in a proceeding for post-conviction relief (PCR). Id. at 245-46 (Lisa, J.A.D., retired and temporarily assigned on recall, dissenting). The Supreme Court reversed on the basis of the dissent, reinstating defendant's conviction and allowing him to pursue his jury-waiver argument in a PCR proceeding. State v. Blann, 217 N.J. 517, 518 (2014).
Defendant now appeals from the denial of his PCR petition alleging ineffective assistance of trial and appellate counsel, raising the following issues:
POINT I
THE TRIAL COURT ERRED BY DENYING MR. BLANN AN EVIDENTIARY HEARING BECAUSE MR. BLANN ESTABLISHED A PRIMA FACIE CASE THAT DEFENSE COUNSEL WAS INEFFECTIVE FOR HIS FAILURE TO INVESTIGATE MR. BLANN'S DEFENSE; PRESENT DEFENSE WITNESS []; PROPERLY ADVISE MR. BLANN OF THE EVIDENCE AGAINST HIM AT THE PLEA BARGAINING STATE; PROPERLY OBJECT TO INADMISSIBLE HEARSAY TESTIMONY; AND PROPERLY ADVISE MR. BLANN OF HIS RIGHT TO A JURY TRIAL.
POINT II
MR. BLANN WAS DEPRIVED OF EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL DUE TO COUNSEL'S FAILURE TO RAISE THE ISSUE THAT THE TRIAL COURT ERRED BY ALLOWING THE HEARSAY TESTIMONY OF OFFICER LOSASSO AS TO WHAT THE VICTIM TOLD HIM OCCURRED. THIS DEPRIVED MR. BLANN OF HIS SIXTH AMENDMENT RIGHT TO CONFRONT WITNESSES.
Because we conclude that defendant presented a prima facie case of ineffective assistance of counsel on two of the issues he raised, warranting an evidentiary hearing, we affirm in part, reverse in part, and remand for such a hearing. State v. Preciose, 129 N.J. 451, 462-64 (1992).
The facts are set out at length in our opinion on defendant's direct appeal and need not be repeated here. See Blann, supra, 429 N.J. Super. at 224-25. Suffice it to say that Blann approached a man in a car asking him for money. The man claimed Blann appeared to have a gun and threatened to shoot him with it if the man did not give him some money. Blann contended he did not have a gun, never made out as if he did and did not threaten the man. Blann admitted he asked the man for money and cursed at him when he refused. He claimed, however, he was doing nothing more than engaging in some aggressive panhandling.
The sole witness to the encounter between the two men told a defense investigator that he knew Blann to be a "panhandler." He claimed to have seen Blann talking loudly to the man in the car but did not hear Blann threaten him or gesture as if he had a weapon.
Defendant called the witness in his case, eliciting only the information that Blann regularly panhandled in the area and was in the area at the time the victim claimed Blann accosted him. Defense counsel did not attempt to elicit the information the witness provided the investigator about not seeing Blann threaten the victim or gesture as if he had a gun. On cross-examination by the prosecutor, the witness admitted seeing the man in the car, but denied seeing Blann talking or interacting with him in any fashion.
After hearing argument on the PCR petition, the judge, who had also presided over the bench trial, found defendant had failed to make out a prima facie case of ineffective assistance. The judge noted that at the time defendant first expressed his intention to waive a jury, he had already rejected the State's offer of a three-year NERA term. The judge surmised that when defendant rejected the plea, defense counsel understood that, because defendant was extended-term eligible, a defense that only avoided defendant's conviction for first-degree robbery would not reduce his exposure to a lengthy prison term.
The only real hope of limiting defendant's exposure would be if defendant were convicted of violating an Atlantic City ordinance prohibiting "Aggressive Begging," instead of robbery. The judge found because "no jury was going to hear about panhandling" or be instructed to consider the ordinance violation as a lesser-included offense, the case had to be tried to the bench in order to preserve that option for defendant.
The judge deemed defense counsel's strategy "brilliant." It also explained why defense counsel was content to elicit from the witness only that defendant was a panhandler who regularly worked the area, and did not try to elicit the information the witness earlier provided to the investigator about Blann not threatening the victim or gesturing as if he had a gun, particularly after the witness testified he had not witnessed the two interact at all. The judge stated he was "satisfied" defense counsel, a very experienced certified criminal trial lawyer, discussed the strategy with defendant and reviewed with him the pros and cons of waiving a jury before embarking on that course.
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 must prove that the error is so serious as to undermine the court's confidence in the 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, we agree that defendant has not established that he received ineffective assistance as a result of his trial counsel's failure to investigate defenses, advise him of the evidence against him at the plea bargaining stage or properly object to the inadmissible hearsay testimony of the police officers regarding the victim's statements to them. Defendant's trial counsel had obviously investigated the facts of Blann's encounter with the man in the car, sending out an investigator to interview the only witness and reviewing that witness's subsequent sworn statement to the prosecutor's office. Defense counsel's cross-examination of the victim, and the police officers to whom the victim went for help, amply demonstrated his knowledge of those facts. Defendant's claims of inadequate investigation are without support in the record. See State v. Arthur, 184 N.J. 307, 325 (2005).
The record similarly does not support defendant's charge that counsel failed to object to inadmissible hearsay testimony by the police officers. The transcript reveals defense counsel objected repeatedly to the police officers testifying to what the victim told them. The record also shows that the judge, although initially sustaining those objections, ultimately allowed the testimony for the limited purpose of showing what the police did in response to the victim's report and why they did it.
Given the substantial deference due a trial court's evidentiary rulings, see State v. Morton, 155 N.J. 383, 453 (1998), we cannot find appellate counsel was ineffective for failing to raise the issue on appeal. See State v. Taimanglo, 403 N.J. Super. 112, 124 (App. Div. 2008) ("Suffice it to say, as there is no basis for reversing the conviction on the grounds asserted, there is no basis for finding that defendant was denied effective assistance of counsel."), certif. denied, 197 N.J. 477 (2009).
Defendant's argument that he would have accepted the State's offer and pleaded guilty to second-degree robbery had he known his counsel did not intend to elicit testimony from the witness about defendant not threatening the victim or gesturing as if he had a gun, is barred by State v. Taccetta, 200 N.J. 183, 185-86 (2009) (holding "a PCR court, engaging in a hindsight review, cannot hold that a plea would have been acceptable had a defendant lied under oath" because a defendant may not plead guilty to an offense while maintaining his innocence).
Our only issue with the PCR court's findings has to do with the jury-trial waiver and its place in defense counsel's trial strategy. In reversing our decision on direct appeal, the Supreme Court adopted Judge Lisa's view that the trial record did not establish defendant's contention he lacked sufficient understanding of his right to a trial by jury to effectively waive it. See Blann, supra, 42 9 N.J. Super. at 245, rev'd on dissent, 217 N.J. at 518. Because the facts necessary to support defendant's assertion lay outside the trial record, both Judge Lisa and the Supreme Court deemed a PCR proceeding the appropriate forum for consideration of defendant's jury-waiver claim. Ibid.
In support of his petition, defendant submitted a detailed certification claiming his trial counsel never advised him that: (1) a jury is composed of twelve members of the community; (2) he could participate in the selection of jurors; (3) all twelve jurors must vote unanimously to convict in order for the State to secure a conviction; and (4) if he waived a jury trial, the judge alone would decide his guilt or innocence. Defendant also certified defense counsel never discussed with him the advantages and disadvantages of a jury trial.
Trial counsel submitted a certification claiming he discussed defendant's right to a jury trial with him on several occasions prior to the start of trial, and on each occasion "Mr. Blann was adamant that he did not want a jury trial." Counsel claimed he advised Blann that he did not generally recommend that a defendant waive his right to a jury trial. He stated he explained that a guilty verdict had to be unanimous and that if even one juror had a reasonable doubt, the judge would have to declare a mistrial. Counsel further certified that he explained in accord with his standard practice
that if there was a mistrial due to a hung jury, the Prosecutor would have the option of seeking another trial, or offering a better plea agreement, or even in rare circumstances dismissing a case. I contrasted that with a bench trial, in which there is no possibility of a hung jury, as only one person — the judge — decides between a verdict of guilty vs. not guilty. Mr. Blann continued to insist on a bench trial.
The Supreme Court has held on numerous occasions that when a PCR petition "involves material issues of disputed facts that cannot be resolved by reference to the trial record, an evidentiary hearing must be held." State v. Porter, 216 N.J. 343, 347 (2013); see also State v. Jones, 219 N.J. 298, 312 (2014). The conflicting certifications of defendant and his counsel in this case as to whether counsel provided defendant with the information necessary to make an informed decision to waive a jury presented a material issue of disputed fact requiring resolution at an evidentiary hearing. The judge was not free to resolve the dispute based on the conflicting affidavits, see State v. Pyatt, 316 N.J. Super. 46, 50-51 (App. Div. 1998), certif. denied, 158 N.J. 72 (1999), notwithstanding that he was the judge who presided over the bench trial at which defendant was convicted. See State v. Russo, 333 N.J. Super. 119, 140 (App. Div. 2000).
Although defense counsel's decisions as to trial strategy are "virtually unchallengeable" if made following reasonable investigation, State v. Savage, 120 N.J. 594, 617 (1990) (quoting Strickland, supra, 466 U.S. at 690-91, 104 S. Ct. at 2065-66, 80 L. Ed. 2d at 695), and defendant has provided us no basis upon which to question counsel's investigation, we nevertheless likewise remand the issue of counsel's failure to elicit from the witness at trial the information he earlier provided to the investigator about Blann not threatening the victim or gesturing as if he had a gun for an evidentiary hearing.
The trial judge found counsel's handling of the witness was not ineffective based on counsel's strategy to have the judge consider the lesser-included ordinance violation, which could only be accomplished at a bench trial. Although that certainly may have been true, counsel did not address it in his certification, and there is nothing else in the record from which we could conclude that this was counsel's chosen strategy. Accordingly, because counsel's approach to the witness appeared to the trial judge very bound up with counsel's strategic choice to advise defendant to waive a jury, we remand this issue for an evidentiary hearing as well.
Finally, we do not suggest by our discussion that defendant has proved he was prejudiced by the representation he received. Defendant's counsel may well have been pursuing a consciously chosen strategy that could have resulted in defendant being convicted of only an ordinance violation of aggressive begging on the facts presented at trial. Defendant has only established the right to explore at an evidentiary hearing whether that was indeed the case and to have a court consider the merits of his claims that he lacked a sufficient understanding of his right to trial by jury to effectively waive it and that counsel's failure to elicit the testimony from the witness constituted ineffective assistance of counsel.
We reject defendant's remaining arguments as without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed in part, reversed in part, and remanded for further proceedings not inconsistent 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
See N.J.S.A. 2C:1-8d, e; State v. N.A., 355 N.J. Super. 143, 152 (App. Div. 2002) (holding the trial court is not obligated to charge a fourth-degree violation of N.J.S.A. 9:6-3 when the State has elected to prosecute a defendant under the more stringent parallel terms of N.J.S.A. 2C:24-4a), certif. denied, 175 N.J. 434 (2003). See also cf. State v. Muniz, 118 N.J. 319, 332-34 (1990) (holding a jury should not be instructed to consider a lesser offense which is a motor vehicle violation as such offenses are to be decided by the judge and not the jury).