Opinion
DOCKET NO. A-4605-11T4
05-15-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. DANIEL CORNELIUS, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief). James P. McClain, Acting Atlantic County Prosecutor, attorney for respondent (James F. Smith, Special Deputy Attorney General/ Acting Assistant Prosecutor, on the brief). Appellant filed a pro se supplemental brief.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad and Haas.
On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 01-12-2508.
Joseph E. Krakora, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief).
James P. McClain, Acting Atlantic County Prosecutor, attorney for respondent (James F. Smith, Special Deputy Attorney General/ Acting Assistant Prosecutor, on the brief).
Appellant filed a pro se supplemental brief. PER CURIAM
Defendant Daniel Cornelius appeals from a February 8, 2012 order denying his petition for post-conviction relief (PCR). We affirm.
Defendant was convicted by a jury of felony murder, N.J.S.A. 2C:11-3a(3) (count two); first-degree robbery, N.J.S.A. 2C:15-1 (count three); second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4a (count four); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b (count five); fourth-degree aggravated assault, N.J.S.A. 2C:12-1b(4) (count six); third-degree hindering prosecution, N.J.S.A. 2C:29-3b(1) (count seven); fourth-degree tampering with physical evidence, N.J.S.A. 2C:28-6(1) (count eight); and second-degree possession of a weapon by a convicted person, N.J.S.A. 2C:39-7 (count nine).
The jury did not return a verdict on count one, murder, N.J.S.A. 2C:11-3a(1) and N.J.S.A. 2C:11-3a(2).
The trial court sentenced defendant to a life term on count two, with a sixty-three and three-quarter year period of parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2b. The court also sentenced defendant to a consecutive ten-year extended term, with a three-year period of parole ineligibility for count seven and a concurrent five-year term for count five. Count nine was dismissed and the remaining convictions were merged.
Defendant filed a direct appeal and raised the following arguments:
POINT I
DEFENDANT'S ROBBERY AND FELONY MURDER CONVICTIONS MUST BE REVERSED BECAUSE INADEQUATE JURY INSTRUCTIONS ON ROBBERY ON A THEORY OF ATTEMPTED THEFT DEPRIVED DEFENDANT OF THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMEND. XIV; N.J. CONST. (1947) ART. 1, PARS. 1, 9, 10.
POINT II
THE STATE'S PRESENTATION OF HEARSAY, TO THE EXTENT THAT DEFENDANT'S PHOTOGRAPH WAS INCLUDED IN THE ARRAYS SHOWN TO EYEWITNESSES BECAUSE HE HAD BEEN IMPLICATED IN THE SHOOTING BY A NON-TESTIFYING WITNESS (VAUGHN BLAKELY), VIOLATED DEFENDANT'S RIGHT TO CONFRONT WITNESSES AND HIS RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMENDS. VI, XIV; N.J. CONST. (1947) ART. 1, PARS. 1, 9, 10.
POINT III
IMPROPER SUMMATION COMMENTS DEPRIVED DEFENDANT OF THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL; U.S. CONST. AMEND. XIV; N.J. CONST. (1947) ART. 1, PARS. 1, 9, 10.
POINT IV
THE IMPOSITION OF MAXIMUM AND CONSECUTIVE TERMS FOR THE RELATED OFFENSES OF FELONY MURDER AND HINDERING APPREHENSION WAS MANIFESTLY EXCESSIVE.
[State v. Cornelius, No. A-0038-04 (June 13, 2007)(slip op. at 2-3).]
We affirmed defendant's conviction and sentence in an unpublished opinion. Id. at 3. The Supreme Court denied defendant's petition for certification. State v. Cornelius, 192 N.J. 479 (2007).
The essential background facts were set forth in our earlier opinion. On September 22, 2001, seventeen-year old Robert Williams agreed to walk Yakita Foreman and her two-year old son to her home in Atlantic City. Cornelius, supra, slip op. at 3. On the way, they stopped at a playground for a few minutes to allow Foreman's son to play. Id. at 4. As the group was passing by a community center, a man later identified as defendant, approached and asked Williams to "come over." Ibid. Defendant pulled a gun and directed Williams to get down on the ground, but Williams refused. Ibid. Defendant then turned Williams around and forced him to the doors of the community center, where he directed him to empty his pockets. Ibid. Defendant then hit Williams in the head with his gun. Ibid. Williams struck back and knocked defendant to the ground. Ibid. Defendant then shot Williams and ran away. Ibid.
At the trial, four witnesses identified defendant as the shooter. Id. at 6. Two other witnesses, who had previously identified defendant as the shooter, recanted their prior identifications on the witness stand. Ibid.
On February 5, 2008, defendant filed a petition for PCR, and his attorney subsequently filed a supplemental brief on his behalf. Defendant asserted his trial counsel was ineffective because he failed to request a Wade hearing prior to his trial and failed to adequately argue the issue of identification to the jury. Defendant also argued his attorney failed to attempt to enforce the terms of a plea agreement he purportedly entered into with the State, under which he would have received a twenty-year sentence on the felony murder charge.
United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967).
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After conducting oral argument, Judge Kyran Connor denied defendant's petition for PCR. The judge found that defendant's trial counsel specifically asked for a Wade hearing, but it was denied by the trial judge. The judge also reviewed the trial transcript and found numerous examples of defense counsel strenuously arguing the issue of identification to the jury. Finally, the judge found defendant had presented no concrete evidence to support his assertion that he had entered into a binding plea agreement with the State. Defendant could not produce an agreement signed by both parties and, even though he asserted he had appeared in court and provided a factual basis to support his plea on the record, he could not produce a transcript or any other information about that proceeding. This appeal followed.
On appeal, defendant raises the following argument:
POINTDefendant filed a supplemental brief on his own behalf and has raised the following contentions:
THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE DEFENDANT ESTABLISHED A PRIMA FACIE CASE OF COUNSEL'S INEFFECTIVENESS.
A. Trial And Appellate Counsel Failed To Enforce The Plea Agreement.
B. Appellate Counsel Failed To Raise The Denial of A Wade Hearing and PCR Counsel Failed To Raise Ineffectiveness Of Appellate Counsel For Not Doing So.
POINT IOur review of the record convinces us that Judge Connor acted properly in denying defendant's petition for PCR. Defendant's arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add the following comments.
THE POST-CONVICTION RELIEF COURT ERRED IN DENYING DEFENDANT'S PETITION FOR PCR ON THE GROUNDS OF INEFFECTIVE ASSISTANCE OF COUNSEL DURING A CRITICAL PHASE OF PRETRIAL PROCEEDINGS IN VIOLATION OF THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, PAR. 10 OF THE NEW JERSEY CONSTITUTION.
POINT II
DEFENDANT WAS SUBJECTED TO THE CONSTRUCTIVE DENIAL OF PCR COUNSEL WHICH DEPRIVED HIM OF THE SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AND PREVENTED A FAIR PRESENTATION OF VIABLE CONSTITUTIONAL CLAIMS THEREFORE THE ORDER DENYING THE PCR SHOULD BE REVERSED AND THE MATTER REMANDED FOR A NEW PCR HEARING ON THOSE CLAIMS.
A. FAILURE OF TRIAL COUNSEL TO OBJECT TO TWO STATE[']S WITNESS APPEAR[]ING IN PRISON GARB AND SHACKLES TESTIFYING FOR THE STATE AND APPELLATE COUNSEL FAILED TO RAISE SAID ISSUE.
B. PROSECUTOR MISCONDUCT BY PROMISING IN OPENING ARGUMENT THAT THE JURY WOULD HEAR FROM A STATE'S WITNES[S] VAUGHN BLAKELY WHO WOULD TESTIFY AND IMPLICATE DEFENDANT IN THE MURDER WHO THE STATE NEVER CALLED TO TESTIFY BUT HAD CALLED ANOTHER STATE'S WITNESS DETECTIVE GRAHAM TO TESTIFY TO BLAKELY'S INCRIMINATING OUT-OF-COURT HEARSAY STATEMENT IN VIOLATION OF THE SIXTH AMENDMENT RIGHT TO A FAIR TRIAL THEREFORE THE CONVICTION SHOULD BE REVERSED AND THE MATTER REMANDED FOR A NEW TRIAL.
C. PROSECUTOR MISCONDUCT BY CALLING AN UNCOOPERATIVE STATE[']S WITNESS BEFORE THE JURY WHO THE PROSECUTOR KNEW WAS LIKELY TO INVOKE HIS FIFTH AMENDMENT PRIVILEGE IN FRONT OF THE JURY THER[E]BY DEPRIVING TH[E] DEFENDANT OF HIS RIGHT [TO] A FAIR TRIAL THEREFORE THE CONVICTION SHOULD BE REVERSED AND THE MATTER REMANDED FOR A NEW TRIAL.
To establish a deprivation of the Sixth Amendment right to the effective assistance of counsel, a defendant must demonstrate that: (1) counsel's performance "fell below an objective standard of reasonableness," such that he or she "was not functioning as the 'counsel' guaranteed . . . by the Sixth Amendment," and (2) "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." State v. Hess, 207 N.J. 123, 146 (2011) (citing Strickland v. Washington, 466 U.S. 668, 687-88, 694, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984)).
Courts, in reviewing such claims, apply a highly deferential standard by adopting the strong presumption that defense counsel exercised "reasonable professional judgment" and sound strategy in fulfilling his or her responsibilities. Hess, supra, 207 N.J. at 147 (citing Strickland, supra, 466 U.S. at 689-90, 104 S. Ct. at 2065-66, 80 L. Ed. 2d at 694-95). "[I]n order to establish a prima facie claim, a [defendant] must do more than make bald assertions that he was denied the effective assistance of counsel. He must allege facts sufficient to demonstrate counsel's alleged substandard performance." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).
Defendant argues his trial counsel was ineffective because he failed "to enforce" the terms of a plea agreement he claims to have entered into with the prosecutor. However, defendant presented no factual basis in support of this assertion. He could not produce a signed plea agreement or a transcript of the proceeding where he alleges he gave a factual basis for his guilty plea. Under these circumstances, the judge properly rejected defendant's "bald assertions." Ibid.
The judge also properly rejected defendant's argument that his trial counsel failed to request a Wade hearing and pointed to the specific points in the trial transcript where counsel made, and thoroughly argued, this issue. On appeal, defendant now argues for the first time that his appellate counsel was ineffective because he did not raise the trial judge's denial of his motion for a Wade hearing on his direct appeal. He also asserts, also for the first time, that his PCR counsel was ineffective for failing to raise the ineffectiveness of his appellate counsel.
Because these arguments were not raised in the PCR proceeding, we need not consider them here. State v. Robinson, 200 N.J. 1, 18-19 (2009). In addition, defendant again does nothing more than make a "bald assertion" his appellate counsel was ineffective for not challenging the trial judge's denial of his motion for a Wade hearing. He points to no argument counsel could have presented in support of such a challenge and fails to explain the basis for his contention that the identifications made at trial were not reliable. Cummings, supra, 321 N.J. Super. at 170. Therefore, this argument lacks merit.
The arguments raised in defendant's supplemental brief largely parrot the points raised by his current appellate counsel. A number of his contentions were also either raised on his direct appeal or could have been. R. 3:22-4 and R. 3:22-5. Defendant's supplemental contentions are clearly without merit and do not warrant further discussion. R. 2:11-3(e)(2).
Finally, defendant argues that Judge Connor erred by denying his request for an evidentiary hearing on his petition. Because defendant failed to present a prima facie case of ineffective assistance of counsel, an evidentiary hearing was not required. State v. Preciose, 129 N.J. 451, 462 (1992).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION