Opinion
DOCKET NO. A-3586-11T4
06-12-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. HERMAN L. GAINES, Defendant-Appellant.
Herman L. Gaines, appellant pro se. Geoffrey D. Soriano, Somerset County Prosecutor, attorney for respondent (William A. Guhl, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Nugent and Accurso.
On appeal from Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 00-06-0300.
Herman L. Gaines, appellant pro se.
Geoffrey D. Soriano, Somerset County Prosecutor, attorney for respondent (William A. Guhl, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Herman L. Gaines appeals two orders: the October 13, 2010 Law Division order that limited the testimonial hearing on his petition for post-conviction relief (PCR) to a single issue — whether his trial counsel was ineffective for failing to call eight witnesses; and the February 28, 2012 order that denied his PCR petition following an evidentiary hearing. We affirm.
To provide context for defendant's PCR claims, we recount the lengthy procedural history of this case. The case began in 1998 when fifteen-year-old Kevin Hill was shot and killed in the backyard of a Franklin Township home where he and more than 200 other people were attending a high school graduation party. A Somerset County grand jury subsequently charged defendant in a three-count indictment with first-degree murder, N.J.S.A. 2C:11-3 (count one); possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4 (count two); and unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count three). At trial, based on the testimony of two eyewitnesses who knew defendant and a third witness to whom defendant confessed, as well as evidence linking defendant to the murder weapon, the jury found defendant not guilty of murder, but guilty of the lesser included offense of aggravated manslaughter. The jury also found defendant guilty of both weapons offenses.
At sentencing, the court merged count three and count two, and sentenced defendant to a thirty-year prison term subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on the lesser included aggravated manslaughter offense, and to a concurrent ten-year prison term with five years of parole ineligibility on the remaining weapons offense. The court also imposed assessments and penalties.
On direct appeal, we affirmed defendant's convictions but remanded for resentencing. State v. Gaines, 377 N.J. Super. 612, 627 (App. Div.), certif. denied, 185 N.J. 264 (2005).Defendant subsequently filed his PCR petition. The following month, defendant was resentenced to a twenty-eight year aggregate custodial term.
The full opinion is unpublished. Gaines, supra, 377 N.J. Super. at 620; State v. Gaines, No. A-4428-01 (App. Div. May 26, 2005).
Defendant appealed his sentence and thereafter moved to withdraw his PCR petition, which the court permitted him to do "without prejudice to [defendant's] right to re-file the petition after the conclusion of his direct appeal, as within time and as a first PCR." Defendant then attempted to withdraw his appeal so that he could proceed with the PCR petition. Nearly a year later, defendant's appeal was dismissed. He blames his attorney for the intervening delay. In any event, he refiled his PCR petition and later supplemented it.
In his first supplemental petition, defendant alleged that his trial counsel was ineffective for failing to subpoena witnesses "pertaining to attacking the credibility of [his] accusers, establishing an alibi defense, [and] raising the potential for third-party guilt, etc." In another supplemental petition, defendant added the arguments that trial counsel failed to advise him of what witnesses he would and would not be calling; and that appellate counsel failed to keep him informed about what was happening in the proceedings, failed to inform him that she withdrew his PCR petition, and failed to inform him that she dismissed his appeal.
Judge Robert B. Reed ruled on defendant's petition. In a comprehensive written decision attached to the October 13, 2010 order, he first recounted defendant's arguments, including the following: the trial court erred by not removing his trial counsel due to a conflict of interest; and trial counsel was ineffective for failing to impeach the credibility of many of the State's witnesses, call numerous witnesses on defendant's behalf, properly prepare defendant for cross-examination, and present any defense.
Next, the judge determined that the petition was not time-barred by Rule 3:22-12. Lastly, after thoroughly analyzing each issue presented by defendant, Judge Reed concluded that defendant had established a prima facie case only as to trial counsel's failure to call at least eight witnesses on defendant's behalf at trial. The judge granted defendant an evidentiary hearing concerning trial counsel's failure to call these witnesses but denied defendant an evidentiary hearing on the remaining issues.
The evidentiary hearing was conducted on January 30, 2012, by Judge John H. Pursel, retired and temporarily assigned on recall. In a written decision attached to the February 28, 2012 order, Judge Pursel considered trial counsel's reasons for declining to call the witnesses identified by defendant and denied defendant's PCR petition. The judge further denied defendant's motions to supplement or settle the record, and to amend his PCR petition. Defendant appealed.
Defendant chose to represent himself on appeal from the denial of his PCR petition. We remanded the matter to determine whether he knowingly waived his right to counsel on appeal. State v. Coon, 314 N.J. Super. 426 (App. Div.), certif. denied, 157 N.J. 543 (1998). Following the court's decision that defendant knowingly waived his right to appellate counsel, and the appointment of standby counsel, defendant filed a pro se brief and an amended pro se brief in which he raised the following points for our consideration:
ISSUE I (Partially Raised Below)
Judges are engaging in "judicial vigilantism" to deny defendant fair and
competent application of law, to deny him fair and timely process of his appellate proceedings, and to thwart his attempts to have all evidence of his innocence considered (by blocking it from both the jury and record of review thereby depriving him of his "meaningful opportunity" to be heard before a jury and considered in future appellate proceedings). These acts are violative of defendant's state and federal constitutional rights to Due Process. NJ Const. (1947) Art. I, Par. 1, 9, 10; U.S.C.A. Const. Amend. 5, 6, 14.
ISSUE II (Raised Below)
Defendant's lawyers have deliberately sabotaged his defense and "threw" his trial. They deliberately thwarted the introduction of exculpatory evidence from both the record of review and jury consideration, and have attempted to get his legal proceedings dismissed to prevent him from proving his innocence. Their performance was not only deficient but also materially affected the outcome of trial and subsequent legal proceedings. These acts violated defendant's constitutional rights to [a] fair trial, effective assistance, and Due Process because it deprived him of his 'meaningful opportunity' to have evidence of his innocence considered by a jury. U.S.C.A. Const. Amend. 5, 6, 14.
ISSUE III (Partially Raised Below)
The uniformity exhibited by the various departments and individuals have not only blocked exculpatory evidence from being considered by a jury but have also blocked it from the record of review. This opposition is conspiratorial, illegal, and violative of defendant's due process rights. U.S.C.A. Const. Amend. 5. 6, 4.
We reject the arguments set forth in "Issue II" and affirm the orders denying his PCR petition, substantially for the reasons explained by Judges Reed and Pursel in their thorough decisions disposing of the issues defendant raised before them. The arguments defendant sets forth in "Issue I" and "Issue III" are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION