Opinion
DOCKET NO. A-4662-11T2
10-01-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ALVIN LOVE, a/k/a ALVIN A. LOVE, ALVEN LOVE, ALVEN LEWIS, and CLAYTON SAUNDERS, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief). Mary Eva Colallilo, Camden County Prosecutor, attorney for respondent (Robin A. Harnett, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Waugh and Carroll. On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 06-08-2941. Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief). Mary Eva Colallilo, Camden County Prosecutor, attorney for respondent (Robin A. Harnett, Assistant Prosecutor, of counsel and on the brief). Appellant filed a pro se supplemental brief. PER CURIAM
Defendant Alvin Love appeals the Law Division's February 24, 2010 order dismissing his petition for post-conviction relief (PCR). We remand for an evidentiary hearing concerning Love's petition, including the Miranda issue, followed by a more detailed explanation of the judge's decision.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
I.
We discern the following facts and procedural history from the record on appeal.
In March 2007, Love was convicted of first-degree robbery, N.J.S.A. 2C:15-1, and second-degree conspiracy, N.J.S.A. 2C:5-2 and 2C:15-1. He was subsequently sentenced to an extended term of incarceration for forty years, with an eighty-five percent period of parole ineligibility. Love appealed and we affirmed. State v. Love, No. A-0116-07 (App. Div. Dec. 23, 2009). The Supreme Court denied certification. State v. Love, 201 N.J. 442 (2010).
The jury acquitted Love of second-degree possession of a weapon (for an unlawful purpose), N.J.S.A. 2C:39-4(a), and conspiracy to commit robberies on other occasions, N.J.S.A. 2C:5-2 and
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In our opinion affirming the conviction, we outlined the underlying facts as follows:
On September 20, 2005, Harjinder Joshi was working alone at his store, the Universal Deli, in Collingswood. At approximately 8:45 p.m., two men entered the store. One man stood near the middle of the
store; the other man selected a soda and brought it to the counter where Joshi was standing. After Joshi told the man at the counter the price of the soda, the man pulled out a gun, went behind the counter, and ordered Joshi to open the cash registers. Joshi complied and the second man put the money into a blue bag.
A few moments later, a car pulled up to Joshi's store. Joshi remarked that a customer was approaching the store, and the two men fled. Joshi promptly called 9-1-1 and the police arrived within five minutes. Joshi described the incident and the assailants to the police, and informed them of the store's video camera security system. The officers viewed the videotape and took it with them.
On September 21, 2005, Detective Frank Lee of the Collingswood Police Department showed Joshi eight photographs. Joshi selected co-defendant Neil G. Hunter as the man who had brandished a gun during the incident at his store. Joshi signed the back of Hunter's picture and stated in writing: "Yes, this is the man, 200 percent sure." Detective Lee presented Joshi another photograph identification series on September 26, 2005, at which time Joshi selected [Love]'s photograph as the other man involved in the incident. In addition to signing the back of [Love]'s photograph, Joshi wrote: "I think this is the guy who took the money with the other guy."
Between these dates, the Collingswood Police Department conducted surveillance and arrested Hunter. In addition, the police went to the Pennsauken residence of co-defendant Rodney E. Gay's father. Gay's father consented to a search of the residence, and police found a blue cooler bag containing two toy handguns that had been altered to look like real guns.
[Love], Gay, and co-defendant Gene Edmonds, Jr., were arrested outside of the residence.
Following the arrests, Detective Edward Corell interviewed Edmonds. He admitted to participation in the robbery at Universal Deli along with two other men. Detective Corell then showed still photographs of the assailants caught on the store's videotape. From these photographs, Edmonds identified one of the men as "Butchy." [Love] was known to Edmonds as Butchy.
Detective Corell also interviewed [Love] after his arrest. Once shown the videotape from the store, [he] made a comment to the effect of "I guess you got me now."
Prior to [Love]'s trial, Edmonds entered a guilty plea to conspiracy to commit first degree robbery and he received a fifteen-year term of imprisonment. Thereafter, at [Love]'s trial, Edmonds testified that he drove Hunter, whom he knew simply as "KK," and the man named "Butchy" to Joshi's deli in Collingswood. Edmonds dropped the men off, left the scene, and returned when Hunter waved him down.
During his testimony, Edmonds stated that he did not recall anything he told police following his arrest due to his intoxicated state. On the other hand, he did not deny making a post-arrest statement to police in which he discussed his plans with Hunter, Gay, "Butchy," and another man named Burt, to rob a jewelry store in Collingswood. He also identified [Love] as "Butchy."
The State presented other witnesses who contradicted Edmonds' testimony. First, Joshi testified about the incident and positively identified [Love] at trial as the man who accompanied Hunter. Detective
Corell testified Edmonds identified [Love] in a post-arrest statement as the other person who committed the robbery of Universal Deli.
[Love, supra, slip op. at 2-5.]
Love filed his pro se PCR petition in June 2010. Assigned counsel subsequently filed a supplemental brief and certification. Following oral argument held over three days, the PCR judge delivered a brief oral decision outlining his reasons for denying relief and dismissing the petition. The implementing order was entered the same day, February 24, 2012. This appeal followed.
II.
Love raises the following issues through his assigned appellate counsel:
POINT I: THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED BECAUSE THE PCR COURT APPLIED AN IMPROPER "OUTCOME DETERMINATIVE" TEST FOR PREJUDICE INSTEAD OFLove raised the following issues in his pro se brief:
APPROPRIATE R. 3:22 CRITERIA.
POINT II: THE COURT'S RULING DENYING POST-CONVICTION RELIEF VIOLATED DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.
POINT III: OTHER ISSUES RAISED IN POST-CONVICTION RELIEF ESTABLISHED INEFFECTIVE
ASSISTANCE OF TRIAL AND APPELLATE COUNSEL.
POINT ONE: DEFENDANT'S CONVICTION SHOULD BE REVERSED AND REMANDED FOR A NEW TRIAL BECAUSE THE PCR COURT RECORD ESTABLISHED THAT LAW ENFORCEMENT OFFICERS DID NOT SCRUPULOUSLY HONOR DEFENDANT'S ASSERTION OF RIGHT TO COUNSEL AS GUARANTEED BY THE FIFTH AND SIXTH AMENDMENT[S] TO THE UNITED STATES CONSTITUTION.
"Post-conviction relief is New Jersey's analogue to the federal writ of habeas corpus." State v. Preciose, 129 N.J. 451, 459 (1992). Under Rule 3:22-2(a), a criminal defendant is entitled to post-conviction relief if there was a "[s]ubstantial denial in the conviction proceedings of defendant's rights under the Constitution of the United States or the Constitution or laws of the State of New Jersey." "A petitioner must establish the right to such relief by a preponderance of the credible evidence." Preciose, supra, 129 N.J. at 459 (citations omitted). "To sustain that burden, specific facts" that "provide the court with an adequate basis on which to rest its decision" must be articulated. State v. Mitchell, 126 N.J. 565, 579 (1992).
Claims of constitutionally ineffective assistance of counsel are well suited for post-conviction review. R. 3:22-4(a)(2); Preciose, supra, 129 N.J. at 460. In determining whether a defendant is entitled to such relief, New Jersey courts apply the test articulated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984) and United States v. Cronic, 466 U.S. 648, 658-60, 104 S. Ct. 2039, 2046-47, 80 L. Ed. 2d 657, 667-68 (1984 ). Preciose, supra, 129 N.J. at 463; State v. Fritz, 105 N.J. 42, 49-50 (1987).
Under the first prong of the Strickland test, a "defendant must show that [defense] counsel's performance was deficient." Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Under the second prong, a defendant must demonstrate "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.
Love focuses his appeal primarily on the Miranda issue. He argues that the PCR judge erred in determining that he failed to satisfy the second Strickland prong, which requires a showing that, but for counsel's error, there is "a reasonable probability" that the result would have been different. He highlights the fact that, during the first day of the oral argument, the judge had taken the position that Love's statement was "very, very inculpatory" and that it was hard to say "with a straight face that taking [it] out of the equation probably would not have affected the result." The judge subsequently reached the opposite conclusion. It may be that the judge changed his mind, but we note that, in delivering his brief oral opinion, the judge was still of the view that the statement was "not a de minimus piece of evidence," but rather "a very important piece of evidence." In addition, he described the State's case as "substantial" but "not overwhelming."
We have concluded that a more complete explanation of the judge's decision is required for appropriate appellate review, including findings of fact and conclusions of law with respect to each of the issues raised by Love. In addition, we direct that the judge hold an evidentiary hearing on Love's petition, including testimony on the merits of Love's Miranda claim. See State v. Jones, ___ N.J. ___ (2014) (slip op. at 19-20). We have concluded that such a determination cannot be made solely on the basis of the trial record, because the trial testimony was not directed to that specific issue.
Consequently, we reverse and remand for an evidentiary hearing, followed by a more detailed decision explaining the reasons for the conclusions reached by the judge. In remanding, we express no view on the merits of the case. We do not retain jurisdiction.
Reversed and remanded. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION