Opinion
DOCKET NO. A-3624-14T1 DOCKET NO. A-5675-14T1
02-07-2017
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ISAIAH M. KINNEY, JR., Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant in A-3624-14 (Karen A. Lodeserto, Designated Counsel, on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Lucille M. Rosano, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the briefs). Appellant filed a pro se supplemental brief in A-3624-14. Isiah M. Kinney, Jr., appellant pro se in A-5675-14.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 Fisher and Vernoia. On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 06-06-2017. Joseph E. Krakora, Public Defender, attorney for appellant in A-3624-14 (Karen A. Lodeserto, Designated Counsel, on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Lucille M. Rosano, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the briefs). Appellant filed a pro se supplemental brief in A-3624-14. Isiah M. Kinney, Jr., appellant pro se in A-5675-14. PER CURIAM
In these two appeals, which were scheduled back-to-back and consolidated for purposes of this opinion, defendant Isaiah M. Kinney, Jr. challenges a February 10, 2015 order denying his post-conviction relief (PCR) petition after an evidentiary hearing, and a July 29, 2015 order denying his motion to correct an illegal sentence. Based upon our review of the record under the applicable law, we affirm.
I.
We discussed the underlying facts of the case at length in our opinion affirming defendant's conviction and sentence on direct appeal, State v. Kinney, No. A-3141-07 (App. Div. March 19, 2010), certif. denied, 202 N.J. 347 (2010) (Kinney I), and in our decision reversing the Law Division's order denying defendant's PCR petition without an evidentiary hearing, State v. Kinney, No. A-2780-12 (App. Div. April 10, 2014) (Kinney II). We restate the facts relevant to the pending appeals.
Defendant and his codefendant Gloria Jones were charged in an indictment with: first-degree conspiracy to commit murder, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:11-3; second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1); first-degree attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3; fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d); and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d). Jones pled guilty to second-degree conspiracy to commit aggravated assault and second-degree aggravated assault, and agreed to testify truthfully at defendant's trial.
Defendant proceeded to trial before a jury. In Kinney I we explained that the trial evidence showed:
Jackie Kinney, the former wife of defendant and a former friend of Jones, [was] the girlfriend of Floyd Simmons. Jones, Jackie Kinney and Simmons resided together in Jackie Kinney's home on Prospect Street, East Orange.
On the evening of January 28, 2006, Jones and defendant visited the medical office where Jackie Kinney worked. Jones had also taken her dog with them to the office. Because Jackie Kinney did not allow the dog in the office, defendant and Jones proceeded to Kinney's residence, intending to leave the dog there. Upon their arrival at Kinney's house, Simmons opened the door but refused Jones entry into the house with the dog. The two began to argue, and Simmons pushed Jones. A struggle ensued.
Defendant followed Jones into the house. On observing the altercation between Jones and Simmons, defendant attacked Simmons. The two men fell onto a table in the living room, breaking it. Jones picked up one of the table legs, striking Simmons repeatedly in the head and face with it while defendant pinned him down on the living room floor. During the attack, Simmons lost consciousness.
Defendant and Jones dragged Simmons into the kitchen. The kitchen oven was on with its door left open to heat the house. Jones pulled the hot oven racks out of the oven with a towel to prevent being burned, and placed them on the floor. Defendant and Jones then lifted Simmons up and shoved him head first into the oven, up to his waist.
After the assault, Jones drove defendant in her red Chevrolet Cavalier to a single-family dwelling on Washington Terrace where defendant rented a room on the second floor. At that time, Sergeant Larry Martin of the East Orange Police Department was on patrol in a marked patrol car when he observed the red Chevrolet traveling north on Prospect Street. The Chevrolet entered the intersection of Park Avenue and made an illegal left turn in front of the patrol car. Martin immediately activated his emergency lights and siren, and pursued the car west on Prospect Street. However, Jones did not stop.
Jones pulled over at the intersection of Washington Terrace and Morton Place. As defendant exited the passenger side car door, Martin ordered him to step back into the car. Defendant leaned toward the passenger window, gazed at the sergeant for a minute, and then walked away, saying, "I got to go in the house, I will be back." Defendant climbed the front stairs of the Washington Terrace residence, and Jones pulled away.
Martin decided to follow Jones, believing that he would have been unable to reach the front porch before defendant entered the house. During the pursuit, Jones turned onto Brighton Avenue, lost control of the car, and crashed.
Martin next ordered Jones who had exited the car to the ground. Jones appeared "extremely agitated," "irate" and "upset," and
was sweating profusely. Although Jones's white pants legs were blood-soaked, Martin did not observe any injuries. Based on a statement made by Jones, Martin directed Police Officers Oceola Fair and Lakia Hale to respond to the home on Prospect Street. He also directed other officers to the Washington Terrace residence to detain defendant. A pair of blue and white men's boxer-style underwear with bloodstains was found in Jones's car.
Patrolman Gillyard and two detectives proceeded to the Washington Terrace residence to arrest defendant. On their arrival, defendant was just leaving the shower. The officers detained defendant in his second floor bedroom. While there, the officers recovered a bloodstained, white thermal tee shirt with a large bloodstain on the chest from defendant's bedroom floor, and a bloodstained pair of blue jeans from the hallway just outside the bedroom. Officer Gillyard collected the clothing and requested Martin to respond to the apartment. Once there, Martin identified defendant as the individual he saw exit the Chevrolet and climb the stairs to the residence.
[Kinney I, supra, slip op. at 5-8.]
Prior to the trial, defendant filed a pro se motion to suppress the evidence seized during the warrantless search of his residence. The motion was subsequently withdrawn by defendant's trial counsel with defendant's consent.
Jones testified at defendant's trial. She described the events of January 28, 2006, and her and defendant's assault of Simmons. She explained that she and defendant went to Jackie Kinney's home where she had a confrontation with Simmons. She fought with Simmons, defendant intervened, and he fought with Simmons. According to Jones, defendant held Simmons down while she repeatedly struck Simmons in the head with a broken table leg. After Simmons was rendered unconscious, Jones and defendant dragged Simmons into the kitchen, took the racks out of the heated oven, and placed the top part of his body, head first, into the oven. Jones testified she and defendant left the scene in a car, she subsequently let defendant out of the car, and she was then stopped by the police.
Defendant was convicted of the lesser-included offense of second-degree conspiracy to commit aggravated assault and second-degree aggravated assault, and acquitted of the remaining charges. The court merged the convictions and sentenced defendant to a discretionary extended twenty-year prison term, subject to the requirements of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
In August 2011, following the disposition of defendant's direct appeal, defendant filed a PCR petition and was assigned counsel who filed a supplemental petition. Kinney II, supra, slip op. at 3. Defendant argued: (1) his appellate counsel was ineffective by failing to present arguments regarding the warrantless search and seizure of evidence from defendant's residence; (2) trial counsel was ineffective by failing to make use of Jones's alleged incompetence at trial; (3) trial counsel was ineffective by failing to object to the trial court's instruction concerning Jones's status; and (4) the trial judge imposed an illegal sentence. Id. at 3-4. The court denied the petition without oral argument or an evidentiary hearing, and defendant appealed. Id. at 4.
We determined the record was unclear as to whether defendant's suppression motion had been adjudicated or withdrawn, and resolution of the issue was necessary to consider defendant's claim his appellate counsel was ineffective by failing to make challenge the disposition of the motion on defendant's direct appeal. Id. at 11-12. We reversed and remanded for the court to consider anew all of the issues raised in defendant's petition. Id. at 14. On remand, the PCR court heard oral argument and found an evidentiary hearing was required to consider defendant's argument that his trial counsel was ineffective by withdrawing the motion to suppress evidence.
At the hearing, defendant's trial counsel testified he did not file the motion to suppress on defendant's behalf and believed it was filed by a predecessor counsel. After reviewing the State's brief in opposition to the motion, trial counsel concluded there were no issues of fact, determined the search and seizure fell within the fresh pursuit exception to the warrant requirement, and withdrew the motion. Moreover, he explained the evidence seized was not inconsistent with the defendant's defense because defendant did not dispute he was present with Jones during the incident that resulted in Simmons's injuries. Defendant instead argued that whatever actions he took were solely to defend Jones from Simmons's alleged assault upon her.
Defendant testified he filed the motion to suppress and subsequently agreed to its withdrawal after trial counsel told him he should obtain trial counsel's approval prior to filing any motions. Defendant opined that the motion should not have been withdrawn because the police went into his apartment, handcuffed him, and conducted a search without a warrant. Defendant also denied that he fled from the scene of the Simmons's incident to his residence.
The court found defendant failed to demonstrate that trial counsel was ineffective by withdrawing the suppression motion. The judge determined that trial counsel made a strategic decision the motion lacked merit and the seized evidence was unimportant to defendant's defense.
The court also rejected defendant's claim that his appellate counsel was ineffective by failing to argue on direct appeal that trial counsel erred by withdrawing the suppression motion. The court found appellate counsel's performance was not deficient and defendant did not suffer prejudice because the withdrawn motion was devoid of any substantive merit.
The PCR court also addressed and rejected other claims made by defendant in his PCR petition, including defendant's claim the trial court imposed an illegal sentence. We do not discuss the PCR court's disposition of those claims because they have not been challenged on this appeal. We address defendant's claim he received an illegal sentence in our discussion of the court's denial of his motion to correct an illegal sentence.
On February 10, 2015, the court entered an order denying defendant's PCR petition. Defendant appealed.
In July 2015, defendant filed a motion to correct what he argued was an illegal sentence. Defendant claimed his sentence was illegal because it was grossly disproportionate to the sentence imposed on his codefendant Jones. The court denied the motion, finding it was time barred by Rule 3:21-10 because it was not filed within sixty days of the judgment of conviction. The court also determined that defendant's sentence was not impermissibly disparate from Jones's sentence because defendant was not similarly situated to Jones for purposes of the imposition of his sentence. Last, the court concluded it lacked jurisdiction to reconsider defendant's sentence because defendant had an appeal pending before this court. See R. 2:9-1(a); R. 3:21-10(d). On July 29, 2015, the judge entered an order denying defendant's motion. Defendant appealed the court's order.
II.
As noted, defendant's appeals were scheduled back-to-back and consolidated for purposes of this opinion. In support of defendant's appeal of the court's order denying his PCR petition, his counsel argues:
POINT ONE
THE POST CONVICTION RELIEF COURT ERRED IN DENYING DEFENDANT'S PETITION ON THE ARGUMENT THAT TRIAL COUNSEL WAS INEFFECTIVE IN WITHDRAWING THE SUPPRESSION MOTION.
A. DEFENDANT MADE A [PRIMA FACIE] SHOWING THAT TRIAL COUNSEL WAS INEFFECTIVE IN WITHDRAWING THE MOTION TO SUPPRESS EVIDENCE.
The brief's table of contents reflected the following argument under Point One: "DEFENDANT'S POST CONVICTION RELIEF COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL." The subheading and point heading in the body of the brief refer solely to the alleged ineffective assistance of trial counsel. We limit our discussion to defendant's contention that his trial counsel was ineffective by withdrawing defendant's motion to suppress evidence and have included above the Point One heading as set forth in the body of the brief. --------
In his pro se brief supporting his appeal of the court's order denying his PCR petition, defendant argues:
POINT ONE
THE LOWER COURT ERRED WHEN IT DID NOT FOLLOW THE APPELLATE DIVISION'S MANDATE - IN REGARDS TO HOLDING AN EVIDENTIARY HEARING TO DETERMINE WHETHER APPELLATE COUNSEL WAS INEFFECTIVE IN FAILING TO PRESENT AN ARGUMENT IN THE
PETITIONER'S DIRECT APPEAL ABOUT A WARRANTLESS SEARCH AND SEIZURE OF EVIDENCE.
POINT TWO
THE LOWER COURT NEGLECTED THE USE OF [RULE] 1:9-1 WHEN IT DID NOT SUBPOENA APPELLATE COUNSEL TO GIVE TESTIMONY AT [THE] PCR [HEARING] ON WHY A POINT WAS NOT BRIEFED CONCERNING THE WARRANTLESS SEARCH AND SEIZURE OF EVIDENCE.
POINT THREE
TRIAL COUNSEL WAS INEFFECTIVE FOR WITHDRAWING PETITIONER[']S PRO SE[] MOTION TO SUPPRESS. TRIAL COUNSEL ALSO FILED A MOTION TO SUPPRESS AND WITHDREW IT, BUT TESTIFIED UNDER OATH THAT HE DID NOT FILE A MOTION TO SUPPRESS AND ASSUMED ANOTHER ATTORNEY FILED A MOTION TO SUPPRESS BECAUSE THE STATE RESPONDED THEREBY GIVING COUNTER[-]FACTUAL TESTIMONY.
POINT FOUR
THE PETITIONER REQUEST[S] THAT THE APPELLATE DIVISION RETAIN ORIGINAL JURISDICTION PURSUANT TO [RULE] 2:10-5.
POINT FIVE
THE POST CONVICTION RELIEF COURT ERRED WHEN IT UPHELD AN EXTENDED TERM USING A CONVICTION THAT IS OUTSIDE OF THE [TEN-]YEAR TIME BAR SET BY [N. J.S.A.] 2C:44-3(a), THUS THE EXTENDED TERM MUST BE VACATED.
POINT SIX
THE 1983 CONVICTION BEING USED IN THE EXTENDED TERM PROCEEDING WAS OBTAINED IN A CONSTITUTIONALLY IMPERMISSIBLE MANNER, WHERE AN LR-27 PLEA FORM WAS USED IN VIOLATION OF [UNITED STATES] Const. Amends 5, 6, 14. N.J. [Const. art. I, par. 1, 10.]
In support of defendant's challenge to the court's order denying his motion to correct his alleged illegal sentence, defendant makes the following argument in his pro se brief:
POINT I
WHEN DEFENDANT'S SENTENCE IS COMPARED TO HIS CO-DEFENDANT'S SENTENCE, THE OBVIOUS DISPARITY BETWEEN THEIR SENTENCES IS ILLEGAL. PURSUANT TO THE STATE'S PRECEPTS OF SENTENCING UNIFORMITY, THIS DEFENDANT IS ENTITLED TO HAVE HIS JUDGMENT OF CONVICTION AMENDED TO CONFORM WITH THE SENTENCE IMPOSED ON HIS CO-DEFENDANT.
We first address defendant's contention that the PCR court erred by finding he failed to demonstrate his trial counsel's performance was constitutionally deficient. The Sixth Amendment to the United States Constitution and Article I, Paragraph 10 of the New Jersey Constitution guarantee that a defendant in a criminal proceeding has the right to the assistance of counsel. State v. Nash, 212 N.J. 518, 541 (2013). The right to counsel includes "the right to the effective assistance of counsel." Ibid. (quoting Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2063, 80 L. Ed. 2d 674, 692 (1984)).
In Strickland, the Court established a two-part test, later adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987), to determine whether a defendant has been deprived of the effective assistance of counsel. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; Fritz, supra, 105 N.J. at 58. Under the first prong of the Strickland standard, a petitioner must show that counsel's performance was deficient by demonstrating that counsel's handling of the matter "fell below an objective standard of reasonableness" and that "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland, supra, 466 U.S. at 687-88, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.
Under the second prong of the Strickland standard, a defendant "must show that the deficient performance prejudiced the defense." Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. There must be a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. A petitioner must demonstrate that "counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. "The error committed must be so serious as to undermine the court's confidence in the jury's verdict or result reached." State v. Chew, 179 N.J. 186, 204 (2004) (citing Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698).
"With respect to both prongs of the Strickland test, a defendant asserting ineffective assistance of counsel on PCR bears the burden of proving his or her right to relief by a preponderance of the evidence." State v. Gaitan, 209 N.J. 339, 350 (2012), cert. denied, ___ U.S. ___, 133 S. Ct. 1454, 185 L. Ed. 2d 361 (2013). A failure to satisfy either prong of the Strickland standard requires the denial of a petition for PCR. Strickland, supra, 466 U.S. at 700, 104 S. Ct. at 2071, 80 L. Ed. 2d at 702; Nash, supra, 212 N.J. at 542; Fritz, supra, 105 N.J. at 52.
Where, as here, the court has conducted an evidentiary hearing on a defendant's PCR petition, our review "is necessarily deferential to [the] court's factual findings based on its review of live witness testimony." Nash, supra, 212 N.J. at 540; see also State v. O'Donnell, 435 N.J. Super. 351, 373 (App. Div. 2014) ("If a court has conducted an evidentiary hearing on a petition for PCR, we necessarily defer to the trial court's factual findings."). We review any legal conclusions of the trial court de novo. Nash, supra, 212 N.J. at 540-41; State v. Harris, 181 N.J. 391, 419 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). The de novo standard of review also applies to mixed questions of fact and law. Harris, supra, 181 N.J. at 419.
Defendant argues the PCR court erred by finding trial counsel's withdrawal of the suppression motion did not constitute deficient performance and instead was the product of a reasoned trial strategy. Defendant asserts that trial counsel's performance was deficient because the facts and applicable law did not support trial counsel's conclusion that the search and seizure was justified under the fresh pursuit doctrine. See generally, Warden v. Hayden, 387 U.S. 294, 298-300, 87 S.Ct. 1642, 1645-1647, 18 L.Ed. 2d 782, 787-88 (1967); State v. Josey, 290 N.J. Super. 17, 24-30 (App. Div.), certif. denied, 146 N.J. 497 (1996); State v. Stupi, 231 N.J. Super. 284, 288 (App. Div. 1989). Thus, defendant claims the PCR court erroneously determined he failed to establish his counsel's performance was deficient under the first prong of the Strickland standard.
We find it unnecessary to determine if the PCR court correctly concluded trial counsel's decision to withdraw the suppression motion did not constitute deficient performance under the first prong of Strickland. "Although a demonstration of prejudice constitutes the second part of the Strickland analysis, courts are permitted leeway to choose to examine first whether a defendant has been prejudiced, and if not, to dismiss the claim without determining whether counsel's performance was constitutionally deficient." Gaitan, supra, 209 N.J. at 350 (citation omitted). We employ that analysis here.
At trial, defendant did not dispute that he was present in Simmons's home when Simmons sustained his serious injuries, nor could he credibly have done so because Jones testified as to defendant's presence, he was observed by police officers in the car with defendant immediately following the assault, and he was observed by his neighbor to be covered in blood after he exited the vehicle and entered his home. As correctly noted by the PCR court, the evidence seized from defendant's residence was unimportant because it established nothing more than what defendant readily conceded at trial — that he was present during the violent physical confrontation with Simmons that resulted in Simmons's injuries. Thus, based on our review of the record, we are convinced defendant failed to demonstrate that but for his counsel's purported error, there is a reasonable probability that the result of the trial would have been different. Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.
Moreover, even assuming trial counsel did not withdraw the suppression motion and it had been granted, defendant did not demonstrate there is a reasonable probability that exclusion of the evidence at trial would have been of such "magnitude that [its absence] could have 'led the jury to a result it otherwise might not have reached.'" State v. Clowney, 299 N.J. Super. 1, 21 (App. Div. 1997) (quoting State v. Macon, 57 N.J. 325, 336 (1971)).
A petitioner must establish both prongs of the Strickland standard in order to obtain a reversal of the challenged conviction. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; Nash, supra, 212 N.J. at 542; Fritz, supra, 105 N.J. at 52. Defendant's failure to establish he was prejudiced under the second prong of the Strickland standard required the PCR court's denial of his PCR petition. Strickland, supra, 466 U.S. at 700, 104 S. Ct. at 2071, 80 L. Ed. 2d at 702.
We next consider defendant's argument that the court erred by denying his motion to correct what he contends was his illegal sentence. Defendant claims his sentence is illegal because the twenty-year prison term he received was substantially longer than the eight-year prison term imposed on his codefendant Jones, who was convicted of the same offenses. Defendant asserts "the sentencing disparity is so egregious that it has resulted in his serving an illegal sentence." We find no merit in defendant's position.
"Disparity may invalidate an otherwise sound and lawful sentence." State v. Roach, 146 N.J. 208, 232 (1996). Nevertheless, "[a] sentence of one defendant not otherwise excessive is not erroneous merely because a co-defendant's sentence is lighter." Ibid. (alteration in original) (quoting State v. Hicks, 54 N.J. 390, 391 (1969)). When a court considers imposing disparate sentences, it "must determine whether the co-defendant is identical or substantially similar to the defendant regarding all relevant sentencing criteria." Id. at 233.
Defendant failed to demonstrate that he and Jones were substantially similar regarding all relevant sentencing criteria. Although defendant and Jones were convicted of the same offenses, there is no evidence Jones had a criminal history similar to defendant's record of five prior criminal convictions, including three convictions for first-degree robbery for which defendant received an eighteen-year prison term, or that Jones had a consistent history of parole violations, similar to defendant's. In addition, defendant was eligible for sentencing to an extended term as a persistent offender under N.J.S.A. 2C:44-3(a), but there was no showing Jones was similarly eligible. Last, Jones was entitled to the court's finding of mitigating factor eleven, N.J.S.A. 2C:44-1(b)(12), based on her willing cooperation with law enforcement authorities. This factor is inapplicable to defendant.
Accordingly, we reject defendant's contention the court erred by denying his motion to correct an illegal sentence because he failed to demonstrate he and Jones were similarly situated under the applicable sentencing criteria. We further affirm the court's denial of defendant's motion for each of the reasons set forth in the court's July 29, 2015 letter opinion.
Defendant's remaining arguments are insufficient 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