Opinion
DOCKET NO. A-6153-08T4
11-18-2011
STATE OF NEW JERSEY, Plaintiff-Respondent, v. DAJUAN CALLOWAY, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Michael Confusione, Designated Counsel, on the brief). Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Jason Magid, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad and Sapp-Peterson.
On appeal from the Superior Court of New
Jersey, Law Division, Camden County,
Indictment No. 03-08-2776.
Joseph E. Krakora, Public Defender, attorney
for appellant (Michael Confusione,
Designated Counsel, on the brief).
Warren W. Faulk, Camden County Prosecutor,
attorney for respondent (Jason Magid,
Assistant Prosecutor, of counsel and on the
brief).
PER CURIAM
Defendant Dajuan Calloway appeals from the Law Division's February 27, 2009 order denying his petition for post-conviction relief (PCR) alleging ineffective assistance of trial counsel, and request for an evidentiary hearing. We affirm.
The record reflects that defendant was charged pursuant to Camden County Indictment Number 03-08-2776 with four counts of second-degree aggravated assault, N.J.S.A. 2C:12-1b(1) (counts one through four); third-degree receiving stolen property, N.J.S.A. 2C:20-7 (count five); third-degree possession of a sawed-off shotgun, N.J.S.A. 2C:39-3b (count six); and third-degree unlawful possession of a rifle or shotgun, N.J.S.A. 2C:39-5c(1) (count seven).
On March 2, 2004, defendant and the State entered into a negotiated plea agreement whereby defendant agreed to plead guilty to one count of second-degree aggravated assault and third-degree possession of a sawed-off shotgun in exchange for dismissal of the other charges and the prosecutor's recommendation of an aggregate eight-year custodial sentence subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant signed and initialed the appropriate plea forms. He acknowledged on the record before Judge Thomas A. Brown, Jr. that his attorney explained the forms to him and he understood all of the terms and ramifications of his plea. Defendant further acknowledged that he was waiving certain constitutional rights and was knowingly and voluntarily choosing to plead guilty.
Defendant then provided a factual basis, testifying that he bought a sawed-off shotgun and on the evening in question, fired it randomly into the air at least three times, and the pellets struck Roberto Rosario, causing him to be hospitalized with serious injuries. The judge was satisfied the plea was entered voluntarily and defendant had provided an adequate factual basis for the charges to which he pled.
On April 30, 2004, Judge Brown sentenced defendant in accordance with the terms of the negotiated plea agreement to an eight-year custodial term subject to NERA on count four, concurrent to a five-year term on count six, with the balance of the counts dismissed. The court found aggravating factors three and nine, N.J.S.A. 2C:44-1a(3), (9), and no mitigating factors, N.J.S.A. 2C:44-1b. No direct appeal was filed.
In February 2008, defendant moved for PCR relief asserting in a pro se petition and through counsel ineffective assistance of trial counsel in: (1) not filing a motion to suppress the initial arrest warrant; (2) failing to check his state of mind; (3) failing to consolidate all of his cases into one sentence; and (4) failing to investigate and raise mitigating factors at sentencing.
Following oral argument on February 27, 2009, Judge Brown denied defendant's petition, finding it was procedurally barred as it was essentially an excessive sentencing challenge that should have been raised on direct appeal. R. 3:22-3. Nevertheless, the court was satisfied defendant's claims had no substantive merit and that defendant failed to set forth a prima facie case establishing ineffective assistance of counsel warranting an evidentiary hearing. See Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984) (holding that 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 insufficient and he or she made errors so serious 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"). See also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland test in New Jersey); State v. Preciose, 129 N.J. 451, 462-63 (1992) (holding that to establish a prima facie claim of ineffectiveness of counsel within the Strickland/Fritz test warranting an evidentiary hearing, a defendant must demonstrate a reasonable likelihood that his or her claim will ultimately succeed on the merits).
Specifically, the court found defendant failed to make a prima facie case that counsel provided insufficient representation in failing to argue mitigating factors two, four, six, eight, nine and eleven, as he provided no affidavits or certifications to support either substandard representation or prejudice. See State v. Cummings, 321 N.J. Super. 154, 168 (App. Div.) (holding that a defendant "must offer something more than a bare allegation" to support a PCR application), certif. denied, 162 N.J. 199 (1999). The court also did not find persuasive defendant's argument that his intoxication would have warranted a finding of mitigating factors two, four and eight. Judge Brown noted that he already considered defendant's intoxication as it was included in the pre-sentence report but, nonetheless, intoxication may not mitigate an offense. State v. Setzer, 268 N.J. Super. 553, 567 (App. Div. 1993), certif. denied, 135 N.J. 468 (1994). In addition, defendant's subsequent substance abuse counseling could not have been considered a mitigating factor at the time of sentencing.
With regard to mitigating factor eleven, Judge Brown noted that although imprisonment is a hardship on any individual, defendant had failed to show that his imprisonment constituted an excessive hardship on his two daughters as he was not their primary caregiver. Moreover, although defendant presented a certification from his mother, it was vague and did not disclose anything that was not considered by the court from the pre-sentence investigation report. Thus the court found defendant failed to present a prima facie case of substandard representation or prejudice by trial counsel's failure to present the testimony of defendant's mother at his sentencing hearing.
All in all, Judge Brown was satisfied the evidence against defendant was substantial as he was observed and positively identified by the Camden fire chief. Moreover, defendant was arrested moments after the shooting. Finally, defendant gave a full confession completely implicating himself in the shootings. Based on this evidence, the judge found defense counsel had "little choice but to negotiate as lenient a sentence as possible" for defendant. Based on his personal knowledge of the plea colloquy, sentencing, and PCR petition, Judge Brown concluded that defendant "failed to prove either substandard representation tantamount to 'gross error' or prejudice" and thus defendant's ineffective assistance of counsel claim was substantively meritless. Following entry of the February 27, 2009 order, defendant appealed.
On appeal, defendant presents the following arguments for consideration:
THE COURT SHOULD REVERSE THE DENIAL OF DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF AND REMAND THIS MATTER FOR AN EVIDENTIARY HEARING ON DEFENDANT'S CLAIMS.
1. DEFENDANT'S PETITION IS NOT BARRED.
2. DEFENDANT ESTABLISHED A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF COUNSEL THAT AT LEAST WARRANTED AN EVIDENTIARY HEARING.
A. FAILURE TO ENSURE A SUFFICIENT FACTUAL BASIS FOR THE SECOND-DEGREE AGGRAVATED ASSAULT CONVICTION.
B. FAILURE TO CONSULT AN EXPERT WITNESS AND PURSUE A VOLUNTARY INTOXICATION DEFENSE.
C. PRESSURING DEFENDANT TO ACCEPT A GUILTY PLEA WITHOUT SUFFICIENT INVESTIGATION OF THE VOLUNTARY INTOXICATION ISSUE NOTED BY THE TRIAL COURT.
D. FAILURE TO PURSUE MOTION TO SUPPRESS.
E. COUNSEL WAS INEFFECTIVE AT SENTENCING.
According to defendant, because appellate review was not "pending" at the time defendant's PCR petition was being considered by Judge Brown, Rule 3:22-3 did not bar the petition from being heard. We note, however, that at the time defendant's petition was filed and denied by Judge Brown, Rule 3:22-3 stated, in pertinent part, that a petition for PCR is not a "substitute for appeal from conviction . . . in the trial court, and may not be filed while such appellate review or motion is available." (emphasis added). Subsequent to its September 1, 2009 amendment, the Rule substituted the word "pending" for "available." Thus, Judge Brown properly determined in accordance with the pre-amendment language of Rule 3:22-3 that pursuant to State v. Altman, 181 N.J. Super. 539 (App. Div. 1981), defendant still could have exercised his right to appeal even though he was procedurally out of time. Thus, defendant's PCR petition was procedurally barred.
The PCR judge also properly concluded that defendant's claims were nothing more than claims of excessive sentence, which should be raised on direct appeal and not by PCR petition. See, e.g.. State v. Clark, 65 N.J. 426, 436-37 (1974) (holding that mere excessiveness of sentence otherwise within authorized limits, as distinct from illegality, is not an appropriate ground for PCR relief and can only be raised on direct appeal from the conviction).
We turn now to defendant's substantive claims raised in Point 2 A and D that trial counsel was ineffective in failing to ensure a sufficient factual basis for the second-degree aggravated assault conviction and failing to pursue a motion to suppress. Defendant raised neither of these arguments in his PCR petition. We discern no basis to deviate from our general rule that we do not entertain issues raised for the first time on appeal. See State v. Robinson, 200 N.J. 1, 20 (2009); Nieder v. Royal Indem. Insur. Co., 62 N.J. 229, 234 (1973).
Defendant's allegations of ineffective assistance of trial counsel regarding the investigation and pursuit of a voluntary intoxication defense are without merit. It is apparent from a review of the plea colloquy that the issue of a potential intoxication defense was discussed. After being confronted with his potential exposure if convicted of the charges contained in the indictment and having spoken with his mother during the twenty minute recess afforded by the court, defendant knowingly and voluntarily waived a trial, the presentation of defenses, and accepted the negotiated plea. We further note that defendant's plea allocution demonstrated he "recklessly" discharged the shotgun under the third mens rea of N.J.S.A. 2C:12-1b(1), and did not do so "purposely or knowingly." Accordingly, pursuant to N.J.S.A. 2C:2-8b, the intoxication defense is inapplicable.
Defendant renews the arguments made to the PCR judge that trial counsel was ineffective at sentencing in failing to sufficiently investigate and raise mitigating factors on defendant's behalf that might have resulted in a lesser sentence. According to defendant, chief among counsel's deficiencies was failure to raise intoxication in mitigation. Other factors were that defendant's relationship with his two young daughters was affected by his lengthy incarceration and that defendant's mother affirmed positive attributes of defendant that trial counsel did not bring to the sentencing court's attention. We are not persuaded by any of the arguments made by defendant in support of this claim. We affirm substantially for the reasons articulated by Judge Brown in his oral decision in which he found that defendant failed to prove either a prima facie case of deficient representation or prejudice on this issue warranting an evidentiary hearing.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION