Opinion
DOCKET NO. A-5567-13T3
06-24-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ALFATEEM McCLAIN, a/k/a SHREEF MOTTS and AMIN McCLAIN, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (LeeAnn Cunningham, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Lihotz and Fasciale. On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 09-03-0703, 09-03-0806, 09-03-0807. Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (LeeAnn Cunningham, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant appeals from an April 30, 2014 order denying his petition for post-conviction relief (PCR). Defendant argues he received ineffective assistance from trial counsel. We affirm.
Defendant seeks to set aside his plea on three indictments. Under indictment 09-03-0807, defendant was charged with first-degree armed robbery, N.J.S.A. 2C:15-1; third-degree theft, N.J.S.A. 2C:20-3(a); unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); and second-degree tampering with a witness, N.J.S.A. 2C:28-5. Defendant was also charged under indictment 09-03-0806 with one count of second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7(b). These charges arise out of a robbery at a Newark supermarket. One of the employees at the store had previously seen defendant several times and was familiar with his face.
Under indictment 09-03-0703, defendant was charged with three counts of first-degree armed robbery, N.J.S.A. 2C:15-1; one count of second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); and three counts of second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a). These charges relate to a robbery of several patrons inside a Nextel store. While waiting at the police station to make their statements, the victims simultaneously noticed defendant's face on a wanted poster on a bulletin board. The poster was not pointed out to the victims by police, and it was surrounded by many other posters. The victims all identified defendant's picture in the poster as the perpetrator.
Defendant entered a global plea agreement, pleading guilty to: two counts of first-degree armed robbery and one count of second-degree possession of a handgun for an unlawful purpose under indictment 09-03-0703; one count of first-degree armed robbery under indictment 09-03-0807; and one count of second-degree certain persons not to have weapons under indictment 09-03-0806. All remaining charges were dismissed.
In August 2009, the judge sentenced defendant, in accordance with the plea agreement, to an aggregate term of thirteen years in prison, subject to the No Early Release Act, N.J.S.A. 2C:43-7.2. Defendant appealed from the imposed sentence, which we considered and affirmed during our excessive sentencing oral argument calendar, R. 2:9-11.
In July 2013, defendant filed a petition for PCR, alleging he received ineffective assistance from both trial and appellate counsel. As for trial counsel, defendant asserted numerous purported deficiencies, including that counsel failed to move for a Wade hearing to exclude the out-of-court identifications by witnesses of the Nextel robbery. Defendant contended appellate counsel was ineffective for failing to raise these issues on appeal.
United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967).
On April 30, 2014, the PCR judge denied defendant's PCR petition on the merits without an evidentiary hearing, rendered an oral opinion, and entered the order under review.
On appeal, defendant raises the following points:
We note that, although couched as a claim of ineffective assistance of counsel, defendant's petition implicitly claims, in part, that his sentence is excessive. Excessive sentence allegations are not cognizable in a PCR proceeding. State v. Acevedo, 205 N.J. 40, 45-47 (2011). Moreover, because we previously affirmed defendant's sentence, the claim is barred by Rule 3:22-5, which makes a prior adjudication on the merits of any ground for relief conclusive, and prohibits raising the argument in a later PCR petition. --------
POINT I
THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE MATTER REMANDED FOR AN EVIDENTIARY HEARING BECAUSE TRIAL COUNSEL'S FAILURE TO FILE A PRETRIAL MOTION FOR A WADE HEARING WAS PRIMA FACI[E] INEFFECTIVE ASSISTANCE OF COUNSEL, AND BECAUSE THE PCR COURT'S FINDINGS, WHICH WERE BASED SOLELY ON ITS BELIEF THAT TRIAL COUNSEL COULD NOT HAVE BEEN INEFFECTIVE BECAUSE DEFENDANT WAS THE RECIPIENT OF A LENIENT PLEA SENTENCE RECOMMENDATION, WERE CONTRARY TO STRICKLAND v. WASHINGTON STANDARDS.
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.
Defendant argues trial counsel was ineffective for failing to file a pretrial motion for a Wade hearing to challenge the State's identification evidence, which coerced him into pleading guilty and accepting the plea agreement. As a result, defendant urges his petition warrants an evidentiary hearing.
For a defendant to obtain relief based on ineffective assistance grounds, he or she must show not only the particular manner in which counsel's performance was deficient, but also that the deficiency prejudiced his or her right to a fair trial. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); accord State v. Fritz, 105 N.J. 42, 58 (1987). Both the United States Supreme Court and the New Jersey Supreme Court have extended the Strickland test to challenges of guilty pleas based on ineffective assistance of counsel. Lafler v. Cooper, 566 U.S. ___, ___, 132 S. Ct. 1376, 1384-85, 182 L. Ed. 2d 398, 406-07 (2012); State v. DiFrisco, 137 N.J. 434, 456-57 (1994), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996). To establish deficient performance, defendant must show "counsel's representation fell below an objective standard of reasonableness." Lafler, supra, 566 U.S. at ___, 132 S. Ct. at 1384, 182 L. Ed. 2d at 406 (citation omitted). To establish prejudice, defendant must demonstrate with "reasonable probability" that the result would have been different but for counsel's deficient performance. Id. at ___, 132 S. Ct. at 1384, 182 L. Ed. 2d at 406-07 (citing Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698).
An evidentiary hearing should be conducted when the facts, viewed in the light most favorable to defendant, establish a prima facie showing of ineffective assistance of counsel and demonstrate a reasonable likelihood of success under the Strickland test. State v. Preciose, 129 N.J. 451, 462-63 (1992); see also State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.) (requiring a defendant to "allege facts sufficient to demonstrate counsel's alleged substandard performance"), certif. denied, 162 N.J. 199 (1999).
As to the Wade hearing, a trial court may hold a hearing pursuant to N.J.R.E. 104(a) to determine whether a pretrial identification of a defendant is admissible. To warrant such a hearing, a defendant must produce "some evidence of impermissible suggestiveness." State v. Ortiz, 203 N.J. Super. 518, 522 (App. Div.), certif. denied, 102 N.J. 335 (1985). Admissibility of an out-of-court identification is governed by a two-step analysis: "whether the identification procedure was impermissibly suggestive, and, if so, whether the impermissibly suggestive procedure was nevertheless reliable." State v. Herrera, 187 N.J. 493, 503-04 (2006). A judge conducting this inquiry must consider the totality of the circumstances when "weighing the suggestive nature of the identification against the reliability of the identification." Id. at 504.
First, defendant's claim he was coerced to plead guilty is belied by the record. During the plea colloquy, defendant admitted guilt to both robberies, and testified he was satisfied with counsel and was pleading guilty voluntarily.
Second, defendant does not adequately explain how the proceedings would have differed if trial counsel filed a Wade motion. He does not address the fact the employee-witness, who identified defendant as the perpetrator of the supermarket robbery, had seen him several times in the store before the robbery. As to the Nextel store robbery, defendant argues the identifications made by the three witnesses based upon a wanted poster were impermissibly suggestive. The identification procedure was not impermissibly suggestive. The police did not attempt to use the wanted board as an identification tool and did not point it out to the witnesses. See State v. Farrow, 61 N.J. 434, 451 (1972) (explaining that identification procedures are impermissibly suggestive when the circumstances lead to the conclusion that the identification was not that of the witness, but was imposed on him or her), cert. denied, 410 U.S. 937, 93 S. Ct. 1396, 35 L. Ed. 2d 602 (1973); United States v. Stevens, 935 F.2d 1380, 1390 (3d Cir. 1991) ("The police, in creating a wanted board, generally must choose from a limited supply of pictures. It is therefore virtually impossible for them to gather uniform photographs of each suspect. Recognizing this inherent limitation, we conclude that, although wanted boards are often suggestive, they are not 'unnecessarily' so."). Further, the poster depicting defendant was surrounded by numerous wanted posters of other individuals. Finally, the witnesses' identification of the man in the poster as the perpetrator of the robbery was spontaneous and not prompted by police conduct. Defendant fails to demonstrate a Wade hearing was warranted, let alone that such a hearing would have changed the result. Thus, defendant is not entitled 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