Opinion
DOCKET NO. A-1432-14T2
06-24-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. LARRY FLEMING, Defendant-Appellant.
Larry Fleming, appellant pro se. Angelo J. Onofri, Acting Mercer County Prosecutor, attorney for respondent (Dorothy Hersh, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Hoffman and Leone. On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 03-02-0286. Larry Fleming, appellant pro se. Angelo J. Onofri, Acting Mercer County Prosecutor, attorney for respondent (Dorothy Hersh, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Larry Fleming appeals the October 29, 2014 order denying his second post-conviction relief (PCR) petition, claiming ineffective assistance of PCR hearing counsel and PCR appellate counsel. We affirm.
I.
We summarize the relevant facts. On May 11, 2002, defendant, a drug dealer, was in Trenton with Curtis Hawkins near a house that had been abandoned by its owner but occupied by other persons. Defendant and Hawkins observed P.J., a drug dealer, "running in and out of" the house. Defendant and Hawkins entered the house and went upstairs where they found Carmen Jones and Edwin Warren. Defendant told Warren that he was a "cross-artist" and Warren had "crossed" him, because he was purchasing drugs from another dealer. Defendant warned that if another $50 was "spent out of here," meaning on drugs from another dealer, Warren would "suffer the consequences." Defendant and Hawkins then exited the house.
Soon thereafter, Hawkins saw defendant with a gasoline can in his hand. Defendant told Hawkins that a "[l]ady across the street wants some gas." Defendant gave Hawkins the can and two or three dollars to purchase gasoline. After Hawkins purchased the gasoline, he gave the can back to defendant. Hawkins then observed defendant turn and enter an alleyway near the rear of the house.
Later that night, Jones saw defendant on the first floor of the house. Jones saw a "light" in defendant's right hand and a red can with a yellow nozzle in defendant's left hand. Thinking defendant was going to put gas in his car, Jones and Joseph McKinney went to their separate rooms on the second floor.
Shortly thereafter, Jones attempted to go downstairs but was "hit in the face" with smoke and heat. Jones told Warren that the house was on fire. Jones, Warren, and McKinney escaped through a window on the second floor. Another occupant of the house, Ellis McNeill, was trapped in the fire and died.
Hawkins was outside when the police and firefighters arrived on the scene. Hawkins told Detective Timothy Thomas that defendant "did this shit." An investigation revealed that the fire was caused by gasoline being poured on the first floor and then being ignited.
A jury convicted defendant of murder, N.J.S.A. 2C:11-3(a) (Count One); felony murder, N.J.S.A. 2C:11-3(a) (Count Two); and aggravated arson, N.J.S.A. 2C:17-1(a)(1) (Count Three). The trial court merged Counts One and Two and imposed seventy-five years in prison on Count One and a consecutive ten-year term on Count Three. Defendant's sentences were subject to 85% parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
On direct appeal, we affirmed defendant's April 2, 2004 judgment of conviction. State v. Fleming, No. A-1217-04 (App. Div. Mar. 14, 2007), certif. denied, 192 N.J. 69 (2007). On October 10, 2007, defendant filed his first PCR petition, claiming his trial counsel was ineffective. A PCR judge denied defendant's petition in a written opinion on May 12, 2011. We affirmed the denial of defendant's first PCR petition. State v. Fleming, No. A-4691-11 (App. Div. Oct. 10, 2013), certif. denied, 217 N.J. 588 (2014).
On August 13, 2014, defendant filed a second PCR petition. A second PCR judge issued a written opinion and order denying defendant's second petition. Defendant appeals, arguing:
THE PCR COURT'S DENIAL OF DEFENDANT'S 2ND PCR PETITION SHOULD BE REVERSED AND REMANDED FOR AN EVIDENTIARY HEARING BECAUSE THE COURT ERRED IN DETERMINING DEFENDANT DID NOT SATISFY THE REQUIREMENTS OF RULE 3:22-4(B)(2) AND RULE 3:22-12(A)(2)(B).
II.
As the PCR court did not hold an evidentiary hearing on the claim defendant now raises on appeal, we "conduct a de novo review." State v. Harris, 181 N.J. 391, 421 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). We must hew to this standard of review.
To show ineffective assistance of counsel, a defendant must satisfy the two-pronged test of Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), adopted in State v. Fritz, 105 N.J. 42 (1987). "The defendant must demonstrate first that counsel's performance was deficient, i.e., that 'counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment.'" State v. Parker, 212 N.J. 269, 279 (2012) (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). The defendant must overcome a "strong presumption that counsel rendered reasonable professional assistance." Ibid. Second, "a defendant must also establish that the ineffectiveness of his attorney prejudiced his defense. 'The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Id. at 279-80 (quoting Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698).
A PCR court need not grant an evidentiary hearing unless "'a defendant has presented a prima facie [case] in support of post-conviction relief.'" State v. Marshall, 148 N.J. 89, 158 (alteration in original) (citation omitted), cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). "To establish such a prima facie case, the defendant must demonstrate a reasonable likelihood that his or her claim will ultimately succeed on the merits." Ibid. The court must view the facts "in the light most favorable to defendant." Ibid.; accord R. 3:22-10(b).
III.
In his verified second PCR petition, defendant certified that during an October 6, 2003 status conference, he was ejected from the courtroom for being argumentative with the trial court. Defendant asserted that because he was ejected from the courtroom, he did not know the prosecutor had offered a plea to his trial counsel, because he did not receive the advice about the final plea offer required by Rule 3:9-1(e) and did not review with trial counsel the pretrial memorandum stating the plea offer. Defendant certified he learned of this plea offer in October 2008, when he received copies of a "Status Conference Order" dated April 28, 2003, and a "Pretrial Memorandum" dated October 6, 2003. The April 28, 2003 order stated: "Murder case, tentatively possible 85% Agg Man plea being considered by prosecutor, but not yet offered." The October 6, 2003 pretrial memorandum stated that the plea offer was for defendant to plead guilty to aggravated manslaughter with a recommended 25-year sentence with 85% minimum parole ineligibility.
Defendant has not supplied us with the transcript of this conference, but suggests PCR hearing counsel was ineffective for not ordering it. For purposes of our decision, we assume that the transcript would show that defendant was ejected from the courtroom.
Defendant subsequently obtained a May 5, 2003 letter from the prosecutor to trial counsel memorializing an identical plea offer. --------
In his petition, defendant claimed PCR hearing counsel was ineffective for not arguing that trial counsel was ineffective for not communicating the plea offer to defendant, and that PCR appellate counsel was ineffective for not raising all of defendant's arguments. The second PCR judge found defendant's claims were "procedurally barred" because defendant learned of the plea offer in October 2008 and failed to raise the claim within one year.
A.
Defendant claims that during his first PCR petition, his PCR hearing counsel should have claimed that trial counsel failed to inform him of the plea offer. Defendant's claim that his first PCR hearing counsel was ineffective is time-barred under Rule 3:22-4(b)(1) and Rule 3:22-12(a)(2). Rule 3:22-4(b)(1) provides that "[a] second or subsequent petition for post-conviction relief shall be dismissed unless: (1) it is timely under R. 3:22-12(a)(2)." Rule 3:22-12(a)(2) provides:
Notwithstanding any other provision in this rule, no second or subsequent petition shall
be filed more than one year after the latest of:
(A) the date on which the constitutional right asserted was initially recognized by the United States Supreme Court or the Supreme Court of New Jersey, if that right has been newly recognized by either of those Courts and made retroactive by either of those Courts to cases on collateral review; or
(B) the date on which the factual predicate for the relief sought was discovered, if that factual predicate could not have been discovered earlier through the exercise of reasonable diligence; or
(C) the date of the denial of the first or subsequent application for post-conviction relief where ineffective assistance of counsel that represented the defendant on the first or subsequent application for post-conviction relief is being alleged.
Here, subsection (A) of Rule 3:22-12(a)(2) does not apply, because defendant claims no newly recognized constitutional right. Subsection (B) does not apply, because defendant certified he discovered the documents from which his ineffectiveness claim arises in October 2008, more than one year before he filed his second PCR petition on August 13, 2014. Subsection (C) does not apply because defendant's second PCR petition, filed August 13, 2014, was filed more than one year after "the date of denial" of defendant's first PCR petition on May 12, 2011. R. 3:22-12(a)(2)(C).
"Neither the parties nor the court may . . . enlarge the time specified by . . . R. 3:22-12." R. 1:3-4(c); see R. 3:22-12(c); see also In re Rosenthal, 118 N.J. 454, 458 (1990). Accordingly, because defendant's claim of PCR hearing counsel's ineffectiveness is untimely under Rule 3:22-12(a)(2), it must be dismissed under Rule 3:22-4(b)(1).
In any event, even if defendant's claim were timely, it is otherwise meritless. Defendant's second PCR petition does not claim that defendant ever told PCR hearing counsel that trial counsel had failed to inform him of a plea offer. Defendant argues that because he attached the Status Conference Order and the Pretrial Memorandum to his December 2, 2008 pro se supplemental brief in his first PCR proceeding, that should have reasonably alerted PCR hearing counsel that trial counsel had not informed him of the plea offer. However, the Status Conference Order and the Pretrial Memorandum do not indicate that the plea offer was not conveyed to defendant. Moreover, defendant's pro se supplemental brief did not raise any claim that a plea offer was not communicated to him. Nor did the first PCR judge believe that defendant's supplemental brief or its attachments raised such a claim; the judge's thorough, thirty-two-page written opinion makes no mention of such a claim.
Thus, defendant cannot satisfy the first prong of the Strickland test. "Counsel cannot be faulted for failing to expend time or resources analyzing events about which they were never alerted." State v. DiFrisco, 174 N.J. 195, 228 (2002). "Counsel's actions are usually based, quite properly . . . on information supplied by the defendant. In particular, what investigation decisions are reasonable depends critically on such information." Strickland, supra, 466 U.S. at 691, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695-96 (1984).
As the PCR record presented no indication that PCR hearing counsel was aware of the defendant's claim that a plea offer had not been communicated to him, we reject defendant's argument that PCR hearing counsel was ineffective for not raising such a claim, or for not investigating by ordering the transcript of the status conference.
Defendant alleges in his brief before us that he told both PCR hearing counsel and PCR appellate counsel that the plea offer had not been communicated to him. However, defendant failed to make such an assertion in his second PCR petition. The rules require that a PCR petition "shall set forth with specificity the facts upon which the claim for relief is based." R. 3:22-8 (emphasis added). We decline to consider factual allegations that were not in record before the judge who heard the second PCR petition. See Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 452 (2007).
B.
We next address defendant's claim that his PCR appellate counsel was ineffective. We affirmed the denial of defendant's first PCR petition on October 10, 2013. Defendant filed his second PCR petition on August 12, 2014, which is less than one year later. Therefore, defendant timely made this claim of ineffectiveness of PCR appellate counsel. Rule 3:22-12(a)(2)(B), (C).
However, defendant's claim of PCR appellate counsel's ineffectiveness lacks merit. Defendant's second PCR petition alleged that PCR appellate counsel was ineffective for raising one argument, when defendant had raised fifteen arguments to the first PCR judge. However, "a defendant does not have a constitutional right to have appellate counsel raise every non-frivolous issue that defendant requests on appeal." State v. Gaither, 396 N.J. Super. 508, 515 (App. Div. 2007), certif. denied, 194 N.J. 444 (2008). "A brief that raises every colorable issue runs the risk of burying good arguments . . . in a verbal mound made up of strong and weak contentions." Jones v. Barnes, 463 U.S. 745, 753, 103 S. Ct. 3308, 3313, 77 L. Ed. 2d 987, 995 (1983). According to defendant, PCR appellate counsel said he would raise what he thought was defendant's most viable issue. Such winnowing "is the hallmark of effective appellate advocacy." Smith v. Murray, 477 U.S. 527, 536, 106 S. Ct. 2661, 2667, 91 L. Ed. 2d 434, 445 (1986) (quoting Jones, supra, 463 U.S. at 751, 103 S. Ct. at 3313, 77 L. Ed. 2d at 994). "For judges to second-guess reasonable professional judgments and impose on appointed counsel a duty to raise every 'colorable' claim suggested by a client would disserve the very goal of vigorous and effective advocacy . . . ." Jones, supra, 463 U.S. at 754, 103 S. Ct. at 3314, 77 L. Ed. 2d at 995.
In this appeal, defendant argues that PCR appellate counsel failed to raise the ineffectiveness of PCR hearing counsel for not raising trial counsel's ineffectiveness in not advising defendant of the plea offer. However, defendant's second PCR petition did not allege that PCR appellate counsel was ineffective for failing to raise that particular claim. Moreover, as set forth above, the record does not show defendant told PCR appellate counsel that trial counsel failed to communicate a plea offer. Indeed, defendant's pro se brief in his PCR appeal did not raise such a claim. As explained above, PCR appellate counsel could not have been ineffective for not claiming that defendant's PCR hearing counsel or trial counsel were ineffective, because defendant failed to show that he told PCR appellate counsel that trial counsel failed to communicate a plea offer.
As defendant failed to present a prima facie case of ineffective assistance of counsel, it was proper to deny his second PCR petition without 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