Opinion
DOCKET NO. A-5700-13T1
04-15-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. DEMETRIUS MIDDLETON, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Sara A. Friedman, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief). Appellant filed a pro se supplemental brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Messano and Carroll. On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 98-01-0479. Joseph E. Krakora, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Sara A. Friedman, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief). Appellant filed a pro se supplemental brief. PER CURIAM
In 1999, defendant Demetrius Middleton was tried by a jury and convicted of murder and weapons offenses. The judge sentenced him to a fifty-year term of imprisonment, with an 85% period of parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. We affirmed defendant's convictions on appeal, but remanded for re-sentencing because, at the time, murder was not subject to NERA. State v. Middleton, No. A-4239-99 (App. Div. Nov. 29, 2001) (Middleton I) (slip op. at 18-19). Defendant's petition for certification was denied. 171 N.J. 337 (2002).
Defendant's name is spelled differently at various places in the record. We adopt the spelling used in the indictment.
An amended order of commitment after our remand sentenced defendant to a life term with a thirty-year period of parole ineligibility. The date on this order is the same as the date on the original judgment of conviction, "12/17/99." However, a notation on the front of the order indicates, "corrected 1/13/05 as to sentence."
In the interim, on February 10, 2003, defendant allegedly wrote to the judge claiming to have "filed" a petition for post-conviction relief (PCR) on December 24, 2002. There is no response from the court in the record.
On September 7, 2006, defendant filed a verified PCR petition which was dated May 8, 2006, primarily alleging the ineffective assistance of counsel (IAC). PCR counsel submitted a letter brief raising additional IAC allegations. On April 22, 2008, the judge heard arguments and denied defendant's petition. Defendant appealed.
Although we noted that the judge failed to resolve whether the petition was filed in December 2002 or September 2006, he nevertheless considered the merits of many of the points raised. State v. Middleton, No. A-4842-07 (App. Div. June 10, 2010) (Middleton II) (slip op. at 3-4). We therefore rejected the State's argument that defendant's petition was time-barred. Id. at 6 n.2. We also took note of two letters dated November 10, 2006, and October 15, 2007, which were the subject of a motion to supplement the record on appeal that we granted. Ibid. We held:
The record does not permit us to conclude that PCR counsel listed or incorporated all of the claims raised in defendant's pro se verified petition. The PCR petition did not identify the three claims underlying defendant's request for relief because his trial attorney failed to provide the representation guaranteed by the constitution. Nor did defense counsel mention defendant's claim that he was not present when his judgment of conviction was amended to reflect a thirty-year period of parole ineligibility rather than a NERA term following this court's remand . . . .
Moreover, we now have letters, the authenticity of which has not been established, that suggest defendant asked his PCR counsel to raise additional issues that were not addressed.
Under the circumstances, we conclude that a remand is required. On remand, with assistance of different appointed counsel, the judge should consider any argument related to issues raised in defendant's pro se verified petition that was not previously presented to the judge. The judge should also determine whether the letters of November 10, 2006 and October 15, 2007 were sent to PCR counsel prior to the April 22, 2008 hearing. If the judge concludes that they were, the judge should also consider arguments presented by new PCR counsel in support of the issues raised therein. With respect to the issues considered, we affirm substantially for the reasons stated by the judge.
[Id. at 8-9.]
We need not detail the procedural events that followed. It suffices to say that through no apparent fault of the remand judge, who was not the trial and PCR judge, the hearing did not take place until December 2, 2013. The judge issued a comprehensive written opinion and order the same day denying the petition. This appeal followed.
Defendant raises the following points for consideration:
POINT I
DEFENDANT'S PCR PETITION SHOULD NOT HAVE BEEN TIME-BARRED.
POINT II
THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE DEFENDANT ESTABLISHED A PRIMA FACIE CASE OF TRIAL COUNSEL'S INEFFECTIVENESS FOR FAILING TO COMMUNICATE THE STATE'S PLEA OFFER TO DEFENDANT.In a pro se supplemental brief, defendant argues:
POINT III
DEFENDANT'S CONVICTIONS MUST BE REVERSED OR THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING, BECAUSE DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL IN THAT COUNSEL FAILED TO CONTEND THAT THERE WAS NO FINDING, OR BASIS IN THE RECORD FOR A FINDING, OF THE NECESSITY THAT A STATE'S WITNESS TESTIFY IN RESTRAINTS, AND/OR ALSO FAILED TO CONTEND THAT THE TRIAL COURT ERRED BY NOT INSTRUCTING THE JURY THAT SUCH RESTRAINTS MUST NOT BE CONSIDERED IN ASSESSING THE PROOFS AND DETERMINING GUILT.
POINT IV
DEFENDANT'S SENTENCE MUST BE VACATED AND THIS MATTER MUST BE REMANDED FOR RESENTENCING, BECAUSE DEFENDANT AND COUNSEL WERE NOT PRESENT FOR THE RESENTENCING. (Partially Raised Below).
POINT I
INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL FOR NOT RAISING A MERITORIOUS CONSTITUTIONAL ISSUE THAT WAS RAISED BELOW IN THE TRIAL COURT. PETITIONER WAS DENIED HIS RIGHT TO CONFRONTATION UNDER THE SIX[TH] AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE 1, PARAGRAPH 10 OF THE NEW JERSEY CONSTITUTION. WHEN THE TRIAL JUDGE REFUSED TO LET PETITIONER CROSS EXAMINE STATE[']S WITNESS ALVIN SMOTHERS WHEN SAID WITNESS WAS AVAILABLE FOR CROSS EXAMINATION, BUT LET THE
STATE READ SMOTHERS['] TESTIMONY FROM A PREVIOUS TRIAL TO THE JURY OVER PETITIONER[']S ATTORNEY['S] OBJECTIONS.Having considered these arguments, we affirm the denial of defendant's PCR petition as to the IAC claims regarding trial and appellate counsel. However, the record fails to establish that defendant was ever accorded the opportunity to be present for re-sentencing following our decision on direct appeal; in fact, the record implies otherwise. We therefore vacate the sentence imposed and remand the matter for re-sentencing.
I.
On remand, the State argued that defendant's petition was time-barred pursuant to the five-year limitation period contained in Rule 3:22-12(a)(1). The remand judge agreed.
However, we agree with defendant that this was error. In Middleton II, because the PCR judge did not resolve whether defendant's petition was filed in 2002 or 2006, we addressed the judge's decision on the petition's merits over the State's objection that it was time-barred. Our remand did not invite further adjudication of the issue, but rather was specifically confined to certain issues which we concluded were not adequately raised by PCR counsel. However, although he determined the petition was time-barred, the remand judge addressed the merits of defendant's IAC claims. Therefore, we proceed in our review.
II.
To establish an IAC claim, a defendant must satisfy the two-pronged test formulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). We apply the same standard to defendant's claims of ineffective assistance of appellate counsel. State v. Gaither, 396 N.J. Super. 508, 513 (App. Div. 2007) (citing State v. Morrison, 215 N.J. Super. 540, 546 (App. Div.), certif. denied, 107 N.J. 642 (1987)), certif. denied, 194 N.J. 444 (2008).
First, a defendant must show "'that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed . . . by the Sixth Amendment.'" Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). As the Court recently said,
To satisfy prong one, [a defendant] ha[s] to overcome a strong presumption that counsel exercised reasonable professional judgment and sound trial strategy in fulfilling his responsibilities. [I]f counsel makes a thorough investigation of the law and facts and considers all likely options, counsel's trial strategy is virtually unchallengeable.
Mere dissatisfaction with a counsel's exercise of judgment is insufficient to warrant overturning a conviction.
[State v. Nash, 212 N.J. 518, 542 (2013) (citations omitted) (third alteration in original).]
Second, a defendant must prove that he suffered prejudice due to counsel's deficient performance. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. A defendant must show by a "reasonable probability" that the deficient performance affected the outcome. Fritz, supra, 105 N.J. at 58. "If [a] defendant establishes one prong of the Strickland-Fritz standard, but not the other, his claim will be unsuccessful." State v. Parker, 212 N.J. 269, 280 (2012).
"A defendant shall be entitled to an evidentiary hearing only upon the establishment of a prima facie case in support of post-conviction relief . . . ." R. 3:22-10(b). A "prima facie case" requires a defendant "demonstrate a reasonable likelihood that his or her claim, viewing the facts alleged in the light most favorable to the defendant, will ultimately succeed on the merits," ibid., and must be supported by "specific facts and evidence supporting his allegations." State v. Porter, 216 N.J. 343, 355 (2013); see also State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.) ("[A] petitioner must do more than make bald assertions that he was denied the effective assistance of counsel"), certif. denied, 162 N.J. 199 (1999). We apply these well-known principles to the specific arguments raised on appeal.
A.
Defendant's first trial ended in a mistrial and his second trial took place before a different judge. The record reveals that before the jury was sworn and outside its presence, the judge addressed counsel and defendant:
Once I swear the jury, I have no idea whether or not there is going to be any more negotiations, but the negotiations are going to stop once I swear the jury. The only way I will take a plea, I am going to have trouble taking a plea, and I have heard all sorts of numbers thrown around, please understand, I don't know whether I have heard the number ten years thrown around, I don't know whether ten years is going to be acceptable to the prosecutor. It is not going to be acceptable to me. Anyone thinks they are going to get a ten-year-sentence in this case is not coming from me and I am the judge in this case, so I want everyone — I don't want people to think things are impossible in this case. I want everyone to deal with whatever is going to happen realistically, as far as I am concerned, I have cleared the decks for a three-week trial, so if this case is going to be tried, it's going to be tried, we are going to know it tomorrow morning before 10 o'clock when I get thirty more jurors in here, or we will try the case.
Defendant's initial petition made no claim that trial counsel was ineffective during plea negotiations. In his November 2006 letter to PCR counsel, however, defendant claimed that he was assigned new trial counsel two weeks before his retrial because prior counsel "jeopardized [defendant's] well[-]being by negotiating a deal with the state['s] counsel[,] [o]nly to find out that it was never agreed upon by the prosecutor's supervis[or]." Defendant claimed his "trial strategy was revealed to [his] adversary."
In his October 2007 letter to PCR counsel, defendant claimed that the judge violated Rule 3:9-3 by interfering in plea negotiations, but acknowledged he was not sure if this was "deemed as ineffective assistance of counsel." Defendant claimed that during jury selection, defense counsel "presented a counter-offer of [ten] years N.J.S.P." with a guilty plea to aggravated manslaughter. Defendant stated that the prosecutor was contemplating "[twelve] maybe even [fifteen]," but knew the case was weaker since the first trial resulted in not guilty verdicts on some counts. Defendant asserted "[a]t that point my attorney should have entered a motion to dismiss . . . ."
Defendant further claimed that after two of the prosecution witnesses refused to testify, the State offered another plea, "which I'm willing to 'ACCEPT FOR VALUE AND CONSIDERATION FOR FULL SETTLEMENT . . . .' But my attorney has been reluctant to communicate with me because he's not sure if the court will allow such new offer/plea and be satisfied." Defendant asked rhetorically, "[a]re we supposed to negotiate until the number is high enough for the judge to merit a decision without looking at all the mitigating circumstances in my defen[s]e?" Defendant also claimed that the "trial judge NEVER stated the maximum sentence to be imposed 'on the record.'"
The remand judge rejected defendant's claim that trial counsel failed to "inform him of a new plea offer." He noted that the record revealed there were plea discussions, however, there was no evidence "that the State actually made a plea offer." The remand judge concluded "that the case proceeded to trial because a plea agreement could not be reached." He further noted that defendant had "failed [to] demonstrate that trial counsel's negotiations were deficient or that he was prejudiced by her performance."
In Point II, defendant claims he was entitled to an evidentiary hearing "to determine the scope of the acknowledged 'plea negotiations,' and whether trial counsel failed to communicate any of the State's plea offers to defendant." We disagree.
The Strickland/Fritz standard applies to IAC claims regarding the plea bargaining process. State v. Gaitan, 209 N.J. 339, 350-51 (2012). "In the specific context of showing prejudice after having entered a guilty plea, a defendant must prove 'that there is a reasonable probability that, but for counsel's errors, [he or she] would not have pled guilty and would have insisted on going to trial.'" Id. at 351 (alteration in original (emphasis added) (quoting State v. Nuñez-Valdéz, 200 N.J. 129, 139 (2009)). If a defendant claims that counsel's ineffective assistance "led not to the offer's acceptance but to its rejection," he must show
that but for the ineffective advice of counsel there is a reasonable probability that the plea offer would have been presented to the court (i.e., that the defendant would have accepted the plea and the prosecution would not have withdrawn it in light of intervening circumstances), that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer's terms would have been less severe than under the judgment and sentence that in fact were imposed.
[Lafler v. Cooper, ___ U.S. ___, ___, 132 S. Ct. 1376, 1384, 182 L. Ed. 2d 398, 407 (2012).]
Initially, we note that a "[d]efendant must demonstrate a prima facie case for relief before an evidentiary hearing is required, and the court is not obligated to conduct an evidentiary hearing to allow defendant to establish a prima facie case not contained within the allegations in his PCR petition." State v. Bringhurst, 401 N.J. Super. 421, 436-37 (App. Div. 2008); see also R. 3:22-10(e)(3) (providing that no evidentiary hearing shall be held "for the purpose of permitting a defendant to investigate whether additional claims for relief exist for which defendant has not demonstrated a reasonable likelihood of success").
In this case, nothing contained in defendant's petition or the two subsequent letters he penned to PCR counsel demonstrates that a plea offer was made after defendant's counter-offer of ten years was implicitly rejected by the judge. Defendant never mentioned a subsequent plea offer in his first letter; in the second, defendant claimed that a new offer was made, but notably he did not say what it was, or that he would have accepted it at the time, only that in 2007, after serving eight years of his sentence, he was "willing" to accept it. Defendant claimed trial counsel was "reluctant to communicate" with him in light of the judge's comments, but defendant obviously knew what the alleged offer was. In sum, we agree that defendant failed to demonstrate a prima facie IAC claim regarding the plea bargaining process.
The remand judge never explicitly answered one of our reasons for remanding the case, i.e., whether the unsworn 2006 and 2007 letters were actually received by PCR counsel. Nonetheless, he addressed the merits of the claim, as do we, assuming arguendo the claim should have been made during the original PCR hearing.
B.
Not in his PCR petition, but in his November 2006 letter, defendant claimed that trial counsel failed to object to having two State's witnesses, Alvin Smothers and Jamal Turner, testify in prison garb and shackles. The record supports the claim that Smothers was in handcuffs, and co-counsel specifically requested that they remain on the witness during his testimony. It is unclear whether Turner was in prison garb or handcuffs.
Smothers testified at the first trial, however, he recanted his prior testimony at the second trial. His trial testimony was read to the jury after a hearing was held pursuant to State v. Gross, 216 N.J. Super. 98 (App. Div.), certif. denied, 108 N.J. 194 (1987). --------
The remand judge concluded that "[a]bsent compelling reasons," such a procedure was inappropriate, citing State v. Artwell, 177 N.J. 526, 534 (2003). However, he concluded that Artwell did not apply retroactively to defendant's 1999 trial, citing State v. Dock, 205 N.J. 237 (2011).
Before us, defendant argues that trial and appellate counsel provided ineffective assistance for not requiring a specific finding as to the necessity for the restraints, or for not requesting a specific limiting instruction to the jury. See Model Jury Charge (Criminal), "Witness — Testifying in Jail Garb or Prison Garb," (Approved May 12, 2014). The argument lacks sufficient merit to warrant discussion. R. 2:10-3(e)(2). It suffices to say that the Court declined to extend Artwell to PCR claims brought by a petitioner whose direct appeals were exhausted prior to the decision in 2003. Dock, supra, 205 N.J. at 259. Defendant's direct appeals were exhausted prior to Artwell being decided. Any IAC claims on this ground lacks merit.
In his pro se submission, defendant argues that appellate counsel provided ineffective assistance by failing to challenge on direct appeal the judge's decision to permit Smothers' prior testimony to be read to the jury. He claims this violated the Confrontation Clause and should have been raised on appeal. We find no merit to the claim.
The admission of a prior statement that satisfies the conditions of N.J.R.E. 803(a)(1) does not offend the Confrontation Clause. State v. Cabbell, 207 N.J. 311, 336-37 (2011). "The failure to raise unsuccessful legal arguments does not constitute ineffective assistance of counsel." State v. Worlock, 117 N.J. 596, 625 (1990); accord State v. Echols, 199 N.J. 344, 361 (2009).
III.
In his petition, defendant claimed that he never appeared for re-sentencing after our remand in Middleton I. In Middleton II, we specifically noted the failure of PCR counsel to address the issue. Id. slip op. at 8. The remand judge only said that "nothing in the record supports that Petitioner was not present when his judgment of conviction was amended . . . ."
After this appeal was filed, we granted defendant's motion to supplement the record. Counsel supplied records from the Court's Promis/Gavel computerized record system that reflect no court proceedings occurred on January 13, 2005, the date of re-sentencing as reflected on the amended order of commitment. The State has provided no evidence demonstrating that defendant was brought before the judge for re-sentencing. Therefore, defendant argues that his sentence should be vacated and he should be resentenced with the assistance of counsel. We agree.
Rule 3:16(b) provides in pertinent part that "[t]he defendant shall be present at every stage of the trial . . . and at the imposition of sentences, unless otherwise provided by Rule." Ibid. It is well established that a defendant has the right to counsel at sentencing. See State v. Jenkins, 32 N.J. 109, 112 (1960); accord State v. Briggs, 349 N.J. Super. 496, 501 (App. Div. 2002).
The State argues that defendant's sentence is a legal sentence that complied with our remand instructions in Middleton I. That is undoubtedly true, and we express no opinion whatsoever that the sentence should be changed. However, there is no evidential support for the supposition that defendant was ever produced for the re-sentencing.
Accordingly, we vacate the sentence imposed and remand the matter to the Law Division for the purpose of re-sentencing defendant at a hearing where defendant and counsel are present.
Affirmed. The matter is remanded for re-sentencing. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION