Opinion
DOCKET NO. A-1014-13T4
03-05-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JAMES GUNNING, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief). Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney for respondent (Dorothy Hersh, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Reisner and Higbee. On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 01-11-1613. Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief). Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney for respondent (Dorothy Hersh, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant James Gunning appeals from a March 26, 2013 order denying his petition for post-conviction relief (PCR). We affirm, substantially for the reasons state by Judge Thomas Sumners, Jr. in his written opinion issued with the order.
The essential facts were set forth in Judge Sumners' opinion and in our previous opinion affirming defendant's conviction on his direct appeal. State v. Gunning, No. A-0669-03 (App. Div. Mar. 11, 2005). To summarize, in connection with an attack on a prostitute known as A.M., defendant was convicted of second-degree aggravated sexual assault, N.J.S.A. 2C:12-1(b)(1); second-degree attempted aggravated sexual assault, N.J.S.A. 2C:14-2(a)(4) and N.J.S.A. 2C:5-1, and related offenses. The attack occurred in Hamilton Township, Mercer County.
The victim died before the case came to trial, but the State was able to present a significant amount of incriminating evidence. When the police stopped defendant's car on the night in question, A.M. jumped out of the vehicle and exclaimed that defendant was trying to kill her. She had strangulation marks on her neck. Defendant's pants and underwear were down around his ankles and he was in possession of condoms. He admitted having sex with A.M. and admitted putting a rope around her neck.
After a N.J.R.E. 104 hearing, the trial court also allowed the State to present the testimony of two other prostitutes, concerning defendant's brutal attacks on them in Camden. Those attacks bore similar hallmarks to the attack on A.M., including strangulation of the victim with a rope. In affirming the conviction on direct appeal, we found that the trial court did not abuse its discretion in allowing the two other victims to testify. State v. Gunning, supra, No. A-0669-03 (slip op. at 12-13).
On his direct appeal, defendant raised the following issues:
I. The admission of extensive evidence regarding two prior sexual assaults perpetrated against different victims violated N.J.R.E. 404(B) and deprived defendant of his right to a fair trial.
II. Defendant's convictions must be reversed because the trial court's limiting instruction failed to explain the permissible uses of the 404(B) evidence within the context of this case. (Partially raised below).
III. The trial court abused its discretion in imposing an aggregate sentence of fifteen years because a qualitative weighting of the aggravating and mitigating factors does not support such a sentence.
IV. The five-year consecutive term imposed on defendant's possession of a weapon for an unlawful purpose conviction must be vacated because this conviction merges with defendant's conviction for aggravated assault. Moreover, even if these convictions did not merge, the imposition of consecutive sentences is contrary to the principles of State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986). (Not raised below).
In his PCR petition, defendant claimed that his former trial counsel should have: raised certain arguments in his motion to dismiss the indictment; objected to the admission of two statements A.M. made to the police; contested the admissibility of the two witnesses' out-of-court identification of defendant; and raised assorted additional trial objections.
After hearing the testimony of defendant's former trial attorney at an evidentiary hearing, Judge Sumners rejected all of those arguments. Notably, Judge Sumners agreed with trial counsel's testimony that there was nothing unduly suggestive in the identification procedures used. The judge also found nothing unreasonable in the attorney's trial strategy in deciding not to object to certain evidence, either because an objection was not warranted or because the evidence had the capacity to help the defense. He also found that the trial court had considered and rejected the arguments defendant claimed should have been raised in the motion to dismiss the indictment.
On this appeal from the denial of his PCR petition, defendant presents the following points for our consideration:
POINT I -THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED BECAUSE TRIAL COUNSEL'S FAILURE TO OBJECT TO THE ADMISSION OF A.M.'S STATEMENTS, AND TRIAL COUNSEL'S FAILURE TO CONTEST THE ADMISSIBILITY OF THE OUT-OF-COURT IDENTIFICATIONS OF DEFENDANT, SATISFIED THE FIRST PART OF THE STRICKLAND TEST, AND DEFENDANT WAS PREJUDICED UNDER THE SECOND PART OF THE TEST.
POINT II -THE PCR COURT ERRED IN DENYING POST-CONVICTION RELIEF BECAUSE OF THE CUMULATIVE EFFECT OF INSTANCES OF INEFFECTIVE ASSISTANCE OF COUNSEL.
(A)
TRIAL COUNSEL WAS INEFFECTIVE IN FAILING TO OBJECT TO DR. PIERCE'S REFERENCES TO "RAPE" AND "RAPE VICTIMS."
(B)
TRIAL COUNSEL WAS INEFFECTIVE IN FAILING TO OBJECT TO THE PROSECUTOR'S SUMMATION.
(C)
TRIAL COUNSEL WAS INEFFECTIVE IN FAILING TO MOVE TO DISMISS THE INDICTMENT.
After reviewing the record presented to us, we find those arguments were properly and completely addressed in Judge Sumners' opinion and are without sufficient merit to warrant additional discussion here. R. 2:11-3(e)(2). We add these comments.
Defendant provided us with the PCR transcripts. He did not provide us with the trial transcripts; however, given the issues raised, we are able to decide the appeal without them.
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We agree that the trial attorney did not render ineffective assistance. The issues defendant now claims the attorney should have raised were either raised and rejected, or would have been unsuccessful if they had been raised. Like Judge Sumners, we find the former trial attorney's explanation of his trial strategy to be reasonable, even if the strategy was not successful. Therefore, we agree that defendant did not satisfy either prong of the Strickland test, by showing that his trial counsel rendered ineffective legal assistance and that counsel's alleged unprofessional errors prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 685, 104 S. Ct. 2052, 2063, 80 L. Ed. 2d 674, 692 (1984); State v. Fritz, 105 N.J. 42, 58 (1987).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION