Opinion
DOCKET NO. A-3807-16T1
05-17-2018
STATE OF NEW JERSEY, Plaintiff-Respondent, v. WALTER M. GERALD, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Frank M. Gennaro, Designated Counsel, on the brief). Damon G. Tyner, Atlantic County Prosecutor, attorney for respondent (Nicole L. Campellone, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3. Before Judges Hoffman and Mayer. On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 82-12-0722. Joseph E. Krakora, Public Defender, attorney for appellant (Frank M. Gennaro, Designated Counsel, on the brief). Damon G. Tyner, Atlantic County Prosecutor, attorney for respondent (Nicole L. Campellone, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Walter M. Gerald appeals from a January 11, 2017 order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. After reviewing the record in light of the contentions advanced on appeal, we affirm.
I
We need not repeat the facts of this case, which are set forth in our Supreme Court's earlier opinion, State v. Gerald, 113 N.J. 40 (1988). Instead, we focus on the matter's protracted procedural history, which is significant to defendant's claims.
On December 16, 1982, a grand jury returned an indictment charging defendant with: (1) third-degree conspiracy to commit burglary (count one); (2) third-degree burglary (count two); (3) second-degree conspiracy to commit robbery (count three); (4) three counts of second-degree robbery with bodily injury upon three separate victims (counts four, five, and six); (5) three counts of second-degree aggravated assault upon three separate victims (counts seven, eight, and nine); (6) first-degree felony murder (count eleven); (7) and first-degree knowing and purposeful murder (count thirteen). The remaining counts charged only co-defendant.
A jury found defendant guilty on all counts, except count seven, one of the aggravating assault counts, and on May 19, 1984 the court sentenced him to capital punishment on count thirteen, the murder count. On June 22, 1984, the trial judge sentenced defendant on the remaining counts of the indictment. The judge merged counts one, three, five, eight, nine, and eleven with counts two, four, and six. The judge also sentenced defendant to prison terms of ten years with a five-year parole disqualifier on count four, a consecutive ten years with a five-year parole disqualifier on count six, and a concurrent term of five years on count two. Further, the judge noted on the judgment of conviction (JOC) that, if the death sentence imposed on count thirteen "changes to imprisonment," then the sentence on counts two, four, and six "shall [run] consecutive" to any term of imprisonment.
As a capital defendant, defendant appealed to our Supreme Court. Gerald, 113 N.J. at 47 (1988). On October 25, 1988, the Court reversed defendant's conviction on count thirteen, but affirmed all other counts of his conviction and sentence. Id. at 133.
On October 5, 1989, the sentencing judge re-sentenced defendant on count eleven, first-degree felony murder, to life in prison with thirty years of parole ineligibility. In following the trial judge's notation on defendant's JOC, the sentencing judge ordered defendant's sentence on counts two, four, and six to remain the same; however, the sentencing judge specified that on count four, the sentence would run consecutive to count eleven.
In 2012, defendant filed a motion for a change of sentencing, alleging his sentence was "not per se illegal, but . . . unorthodox" because the sentencing judge imposed it in his absence. On March 1, 2013, the motion judge heard oral argument, and denied defendant's motion. Defendant appealed the denial to this court, and on January 14, 2014, an Excessive Sentence Oral Argument (ESOA) panel of this court vacated defendant's felony murder (count eleven) sentence, and remanded the matter for re-sentencing.
On September 17, 2014, the court re-sentenced defendant, imposing a thirty-year prison term with a thirty-year parole disqualifier. Further, the sentencing judge found our remand "vacate[d] only the sentence on count [eleven] and remand[ed] only count [eleven] for sentencing . . . ." Therefore, the judge found the sentencing on counts four and six "must stand."
Defendant appealed his new sentence, arguing the court should have provided him the opportunity to address the entire sentence on remand. On June 1, 2015, we affirmed.
On January 29, 2016, defendant filed the PCR petition under review. Defendant claimed ineffective assistance of counsel, arguing counsel failed to argue counts four and six, charging robberies, should have merged into count eleven, felony murder.
On January 11, 2017, the PCR judge heard oral argument, and denied defendant's petition without an evidentiary hearing, finding "defendant's appellate counsel did, in fact, argue [at the ESOA hearing] that both counts of robbery [be] merged into the count of felony murder." Defendant appealed, arguing the following point:
DEFENDANT WAS ENTITLED TO POST-CONVICTION RELIEF BASED UPON APPELLATE COUNSEL'S FAILURE TO ADDRESS THE MERGER OF THE ROBBERY COUNTS INTO THE FELONY MURDER CONVICTION, OR IN THE ALTERNATIVE, TO AN EVIDENTIARY HEARING ON THIS CLAIM[.]
II
"In determining whether any deficiencies in trial or appellate counsel's representation have undermined a defendant's constitutional right to counsel, we have generally relied on the standards enunciated in Strickland v. Washington, 466 U.S. 668 (1984)." State v. Loftin, 191 N.J. 172, 197 (2007). A defendant who alleges he received ineffective assistance of counsel must establish that "counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland, 466 U.S. at 686. Our Supreme Court adopted this standard in State v. Fritz, 105 N.J. 42, 58 (1987).
Defendant must establish two elements to prove ineffective assistance of counsel. First, he must demonstrate that counsel's performance was deficient. Strickland, 466 U.S. at 687. Performance is deficient when "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Ibid. Under the New Jersey Constitution, a criminal defendant is entitled to "reasonably competent counsel." Fritz, 105 N.J. at 58.
Second, a defendant must establish that counsel's deficiency prejudiced the defense by demonstrating "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Ibid. There is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance . . . ." Id. at 689. In order to rebut this presumption, a defendant must prove that counsel's actions did not amount to "sound trial strategy." Ibid.
We are satisfied these principles dispose of defendant's challenge regarding his appellate counsel's alleged failure to argue for merging the robbery and felony murder charges. Defendant's argument overlooks the fact that his appellate counsel did urge the ESOA panel either to make the sentence on the robbery counts consistent with the felony murder count, or to remand the matter for re-sentencing on all counts.
We rejected defendant's request, instead ordering resentencing solely on count eleven; however, as the PCR judge noted, "The fact that [this court] did not rule in favor of . . . defendant does not make [his appellate counsel's] representation ineffective . . . ."
Accordingly, because defendant failed to establish a prima facie case for ineffective assistance of counsel, the PCR judge did not err in denying defendant an evidentiary hearing. See State v. Preciose, 129 N.J. 451, 462 (1992) (holding a trial court should hold an evidentiary hearing when the defendant establishes a prima facie claim of ineffective assistance of counsel); see also State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999) (holding that merely raising a PCR claim does not entitle a defendant to 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