Opinion
DOCKET NO. A-2374-12T3
05-13-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. DANIEL BROWN, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Philip Lago, Designated Counsel, on the brief). John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Annmarie Cozzi, Senior 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Ashrafi and O'Connor. On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 05-04-0858. Joseph E. Krakora, Public Defender, attorney for appellant (Philip Lago, Designated Counsel, on the brief). John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Annmarie Cozzi, Senior Assistant Prosecutor, of counsel and on the brief). Appellant filed a pro se supplemental brief. PER CURIAM
Defendant appeals from the denial of his petition for post-conviction relief (PCR) following an evidentiary hearing. For the reasons that follow, we affirm.
I
On June 9, 2006, a jury convicted defendant of six counts of first-degree armed robbery, N.J.S.A. 2C:15-1; three counts of third-degree theft, N.J.S.A. 2C:20-3; nine counts of second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); six counts of third-degree unlawful possession of a rifle, N.J.S.A. 2C:39-5(c)(2); three counts of third-degree possession of a handgun without a permit, N.J.S.A. 2C:39-5(b); one count of second-degree armed burglary, N.J.S.A. 2C:18-2; one count of third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(2); one count of second-degree eluding, N.J.S.A. 2C:29-2(b); two counts of fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a); and two counts of second-degree possession of a weapon by a convicted felon, N.J.S.A. 2C:39-7(b).
Between December 28, 2004 and January 1, 2005, defendant and other assailants committed these crimes at various locations, which included four gas stations, a convenience store, and a catering truck in a parking lot. Defendant also stole three vehicles. Following his arrest, defendant confessed to all of the crimes, with the exception of the robbery of the catering truck. Further details about the evidence are set forth in the opinion we issued following defendant's direct appeal, see State v. Brown, No. A-2851-06 (App. Div. August 7, 2009) (slip op. at 6-30), and need not be repeated here.
On September 26, 2006, the court granted the State's motions for a discretionary extended term and to impose consecutive sentences for some of the offenses. On this date defendant was sentenced, in the aggregate, to life imprisonment, with ninety-three years, eight months and 106 days of parole ineligibility.
Defendant filed a direct appeal. On August 7, 2009, we reversed the convictions related to the unlawful possession of a rifle, but affirmed all other convictions. Id. at 5. We also vacated the sentence imposed on two convictions for second-degree robbery, because the length of these sentences was greater than the range permitted under N.J.S.A. 2C:43-6(a)(2), and the sentencing judge failed to make sufficient findings in support of the aggravating, mitigating and Yarbough factors. Id. at 5-6.
The Supreme Court granted defendant's petition for certification. State v. Brown, 201 N.J. 155 (2010). The Court affirmed and modified the judgment we entered, and remanded the matter to the trial court for resentencing consistent with our opinion. State v. Brown, 205 N.J. 133, 150 (2011). On September 9, 2011, the trial court re-sentenced defendant to the same aggregate term.
On March 18, 2011, defendant filed a pro se PCR petition. Counsel was thereafter appointed, who filed briefs on defendant's behalf. After an evidentiary hearing, the trial court entered an order on August 30, 2012 denying defendant's petition.
Defendant presents the following issues for our consideration in his appeal.
POINT I - THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
A. Trial Counsel Erred In His Direct Examination of Lt. Novak And Opened The Door To Inadmissible Evidence.
B. Trial Counsel Failed To Adequately Inform Defendant Concerning Plea Negotiations.
C. Trial Counsel Failed To Fully Investigate The Case.
D. Trial Counsel Was Ineffective During The Motion To Suppress.
POINT II - THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL.
POINT III - THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT'S SENTENCE IS CRUEL AND UNUSUAL PUNISHMENT IN VIOLATION OF THE EIGHTH AMENDMENT OF THE UNITED STATES CONSTITUTION.
POINT IV - THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT'S CLAIMS ARE NOT PROCEDURALLY BARRED UNDER R. 3:22-4.
Plaintiff filed a supplemental pro se brief in which he set forth the following arguments:
POINT I - THE PCR COURT ERRED IN RULING THAT DEFENDANT RECEIVED EFFECTIVE ASSISTANCE OF TRIAL COUNSELWe are not persuaded by any of these arguments and affirm.
POINT II - THE PCR COURT ERRED IN RULING THAT DEFENDANT RECEIVED EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL
II
The standard for determining whether counsel's performance was ineffective for purposes of the Sixth Amendment was formulated in 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 (1987). In order to prevail on a claim of ineffective assistance of counsel, a defendant must meet the two-prong test of establishing both that: (1) counsel's performance was deficient and he or she made errors that were so egregious that counsel was not functioning effectively as guaranteed by the Sixth Amendment to the United States Constitution; and (2) the defect in performance prejudiced defendant's rights to a fair trial such that there exists a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 687, 694, 104 S. Ct. at 2064, 2068, 80 L. Ed. 2d at 693, 698. "These standards apply to claims of ineffective assistance at both the trial level and on appeal." State v. Guzman, 313 N.J. Super. 363 (App. Div.) (citing State v. Morrison, 215 N.J. Super. 540, 545-46 (App. Div.), certif. denied, 107 N.J. 642 (1987)), certif. denied, 156 N.J. 424 (1998).
In reviewing such claims, there is a strong presumption that counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. "The quality of counsel's performance cannot be fairly assessed by focusing on a handful of issues while ignoring the totality of counsel's performance in the context of the State's evidence of defendant's guilt." State v. Castagna, 187 N.J. 293, 314 (2006) (citing State v. Marshall, 123 N.J. 1, 165 (1991), cert. denied, 507 U.S. 929, 113 S. Ct. 1306, 122 L. Ed. 2d 694 (1993)). "As a general rule, strategic miscalculations or trial mistakes are insufficient to warrant reversal 'except in those rare instances where they are of such magnitude as to thwart the fundamental guarantee of [a] fair trial.'" Id. at 314-15 (alteration in original) (quoting State v. Buonadonna, 122 N.J. 22, 42 (1991)).
Accordingly, we are to engage in a "highly deferential" scrutiny of counsel with an eye to "avoid viewing the performance under the distorting effects of hindsight." State v. Arthur, 184 N.J. 307, 318-19 (2005) (citations omitted) (internal quotation marks omitted). "'[A]n otherwise valid conviction will not be overturned merely because the defendant is dissatisfied with his or her counsel's exercise of judgment during the trial.'" State v. Allegro, 193 N.J. 352, 367 (2008) (quoting Castagna, supra, 187 N.J. at 314).
A
Defendant contends trial counsel was ineffective because counsel's direct examination of his only witness, the police officer who issued the complaint against him for the robbery of the catering truck, opened the door for the State to elicit damaging testimony on cross-examination. The posture of the case when counsel examined the officer was as follows.
When the officer testified, the jury was aware defendant had confessed to committing the armed robberies at the convenience store and the four gas stations, and to stealing the three cars. Defendant had not confessed to the armed robbery of the catering truck, however. In an attempt to disparage the police investigation, the defense attorney endeavored to show that the officer did not have a basis for issuing a complaint against defendant. In response to the defense attorney's questions, the officer conceded that the victim did not identify defendant as a perpetrator and that defendant did not confess to the crime.
When counsel concluded his direct examination, the prosecutor argued defense counsel had opened the door to allowing the State to ask the officer why he believed defendant had robbed the catering truck. The defense attorney argued to the contrary but the court found in favor of the State. On cross-examination, the officer testified that, after interviewing the two other perpetrators involved in the robbery of the catering truck, he charged defendant with robbing the truck. The obvious implication was that the other perpetrators told the officer defendant was involved in this robbery.
Following the officer's testimony, defendant moved for a mistrial but the court denied the application. Thereafter, the jury convicted defendant on all counts, including that which alleged he had robbed the catering truck. On this count defendant was sentenced to sixteen years, with an eighty-five percent period of parole ineligibility, that runs concurrently with other various counts.
During the evidentiary hearing before the PCR court, the defense attorney explained that the purpose of his direct examination of the officer was to convey to the jury that the police made mistakes, which
would allow me to argue that — you know, eventually, my argument had to be about Mr. Brown's confession. I had to get to that point in the trial. And one of the ways was just to show the manner in which the police handled the case . . . .
In our view, given the jury's awareness defendant had confessed to the other crimes, the defense attorney had no alternative but to challenge the thoroughness of the police's investigation and attempt to discredit any evidence produced by the police, which included defendant's confessions. Clearly, counsel's direct examination was part of a strategy designed to minimize the damaging impact of defendant's confessions. If the defense attorney had not made this effort then defendant had no chance of being acquitted of the crimes to which he had confessed. The risk counsel took was reasonable, especially in light of the fact that defendant's sentence on the robbery of the catering truck is running concurrently to other terms. The strategy the defense attorney employed was hardly one that "'thwart[ed] the fundamental guarantee of [a] fair trial[,]'" Castagna, supra, 187 N.J. at 314-15 (first alteration in original) (quoting State v. Buonadonna, 122 N.J. 22, 42 (1991)), and, thus, does not warrant a reversal.
B
Defendant next argues defense counsel failed to advise him that the court could not impose an extended term if he pled guilty. He contends that, had he known an extended term would not have been imposed, he would have pled guilty. At the PCR hearing, counsel testified that defendant knew that if he pled guilty, the court would not impose more time than what the State recommended. The attorney testified that
defendant understood that he wouldn't get more time than the recommendation of the State. I don't know if it was even couched in terms of an extended term. The time was fixed . . . but whatever the [term of years was], it wasn't going to be any higher than that number. There was no circumstance under which the judge could exceed that number. . . . Yeah, I mean, we had very, very specific discussions about the amount of time that he was facing and the amount of time that was being offered in the plea bargains. I mean, there were very specific discussions about that.
The attorney also emphasized that defendant did not want to plead to any of the offers made by the State. The State initially offered a term of approximately twenty years, subject to the No Early Release Act (N.E.R.A.), N.J.S.A. 2C:43-7.2, but later offered a thirteen or fourteen-year term, also subject to N.E.R.A. Defendant, however, rejected all offers. The defense attorney noted:
I remember very clearly having the discussion with Mr. Brown about what a 13 or 14 years term would mean. And considering it was N.E.R.A., I remember speaking to Mr. Brown and saying that if he received 14 years, he'd be eligible for parole, I guess, in around say, 12 years. By that point, Mr. Brown had a year, maybe more than a year of jail credit. And I told Mr. Brown that based on the jail credit and his parole eligibility that he would be getting out of jail, under that term, if he was paroled, in about ten or 11 years. Mr. Brown rejected that plea offer. Mr. Brown's attitude was that a ten or 11-year sentence to him, in his mind, or the way he felt about it that it was the same as a longer sentence or a life sentence. And he rejected the plea offer. . . . There wasn't a single plea that I ever had the impression that he was considering.
In its written opinion, the PCR court found counsel's testimony "highly credible." We are constrained to "give deference to those findings of the trial judge which are substantially influenced by his opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." State v. Johnson, 42 N.J. 146, 161 (1964). We must also "uphold the factual findings underlying the trial court's decision so long as those findings are supported by sufficient credible evidence in the record." State v. Elders, 192 N.J. 224, 243 (2007) (citations omitted) (internal quotations marks omitted). Because the PCR court's findings are supported by the testimony of a witness it had the opportunity to see and hear, we reject defendant's contention that he was unaware the court would not impose an extended term if he pled guilty.
C
After carefully considering the record and the briefs, we find defendant's remaining arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We conclude defendant failed to meet both prongs of the Strickland test with respect to trial and appellate counsel. See Strickland, supra, 466 U.S. at 687, 694, 104 S. Ct. at 2064, 2068, 80 L. Ed. 2d at 693, 698.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION
State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986).