Opinion
DOCKET NO. A-3031-14T4
09-19-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. VIRGIL MITCHELL, 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 (Andrew R. Burroughs, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Alvarez and Simonelli. On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 04-02-0384. 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 (Andrew R. Burroughs, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Virgil Mitchell appeals the October 20, 2014 Law Division order denying his petition for post-conviction relief (PCR) based on claims of ineffective assistance of counsel. We affirm.
Defendant was found guilty at trial of aggravated manslaughter, N.J.S.A. 2C:11-4(a)(1), (2), as the lesser-included of murder (count one); felony murder, N.J.S.A. 2C:11-3(a)(3) (count two); two counts of first-degree robbery, N.J.S.A. 2C:15-1 (counts three and four); fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(4) (count five); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count six); and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count seven). Defendant was sentenced on May 9, 2005, to thirty years imprisonment without the possibility of parole on count two. After the appropriate merger of offenses, the remaining charges resulted in separate sentences to be served concurrent to the felony murder. On appeal, we affirmed and the Supreme Court denied certification. State v. Mitchell, (Mitchell I), No. A-0227-06 (App. Div. Apr. 4, 2008), certif. denied, 196 N.J. 343 (2008).
We described the facts that led to defendant's charges in our first opinion on this PCR appeal:
The charges arose from defendant's armed robbery and shooting of Serge Guerrier. The victim was purchasing marijuana from defendant when defendant circled around the back and pulled out a gun. He demanded Guerrier's gold chain, and when Guerrier resisted, he shot him. When the victim dropped to the ground, defendant took the gold chain as well as other items of value from the victim's pockets.
Joseph Medlin, a friend of Guerrier, who was standing next to him as he was shot, immediately threw his hands up into the air. Defendant patted him down and also took items of value from him, including a cell phone and money. Later, Medlin identified defendant through a photograph.
A friend of defendant, Shaniqua Jones, testified at trial that defendant called several of his friends to a meeting at which time he allegedly told her to "lie on the stand." He also admitted shooting someone and robbing the person of $800 and a chain. Defendant gave the chain to Jones, who in turn gave it to someone else. In later conversations with Jones, defendant denied that he had killed anyone.
On September 28, 2002, an arrest warrant was issued based on Medlin's identification. A few days later, defendant turned himself in, was arrested, and placed in a holding cell. He refused to give a formal statement and would not sign a Miranda waiver. Defendant informed the investigating officers that on the evening in question he had patronized a White Castle restaurant with Jones and a second friend, Duwan Jeter. While there, he had spoken briefly with an off-duty policeman named Isaac Eason, who was working a second job as a security guard. After Eason met with defendant at the police station at defendant's request, defendant signed the Miranda waiver but denied any wrongdoing. He suggested the officers meet with Jones and Jeter, however, claiming they could confirm his whereabouts and lack of culpability.
[State v. Mitchell, (Mitchell II), No. A-3875-11 (App. Div. Sept. 13, 2013), slip op. at 2-4, rev'd and remanded, 217 N.J. 300 (2014).]
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Defendant's PCR petition was denied without the benefit of oral argument on January 24, 2011. We affirmed, however, and the Supreme Court summarily reversed, stating that the matter was "remanded to the trial court for the limited purpose of that court reconsidering the denial of oral argument on defendant's petition for [PCR] in light of State v. Parker, 212 N.J. 269 (2012)." Mitchell, supra, 217 N.J. at 300; Mitchell II, supra, slip. op. at 8.
In his original petition, defendant argued that he was entitled to an evidentiary hearing on PCR on his contention that Jones's testimony was inadequately redacted in light of Bruton v. U.S., 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968), and that Medlin's out-of-court identification was improper. We concluded that because both points could have been raised on direct appeal, they were barred by Rule 3:22-4(a)(2). See also State v. Hess, 207 N.J. 123, 145 (2011). We also found that defendant's claims regarding Miranda were barred by Rule 3:22-5, as they had been considered on direct appeal. Mitchell II, supra, slip op. at 8.
We did not discuss the claim defendant made on appeal that counsel was ineffective because he failed to communicate with defendant, as that contention was based on a certification submitted after the first PCR matter was decided. Thus the certification was precluded from consideration under Rule 2:5-4 as not in the record for disposition of the appeal. Mitchell II, supra, slip op. at 9.
The Law Division judge conducted oral argument on remand. She did not address the Parker factors on the need for oral argument, rather she heard the matter as if it were a first PCR. The judge ruled on a claim that defendant had included in his original PCR petition but not the earlier appeal, that being the allegation that counsel was ineffective by virtue of failing to call Jeter as a witness. In Jeter's certification, attached to the original brief, he claimed to have spent the evening with Jones and defendant at a White Castle restaurant.
Jeter's certification stated that after leaving White Castle, he saw defendant and "two girls" drive away on Bradford Street. According to the police report, Bradford is one of the intersecting streets where the shooting occurred. Jeter further certified that when approached by police, and advised of the time and place of the shooting, he informed them that defendant "had not been in the area at the time of the crime."
The judge found that the failure to call Jeter did not prejudice the outcome of defendant's trial because defendant had not presented any evidence to suggest that "[Jeter's] testimony would have changed the outcome in the case . . . ." The judge also addressed defendant's new claim that his attorney was ineffective because after the unsuccessful Miranda motion, a material change in circumstances occurred and his attorney should have arranged for the matter to be removed from the trial calendar so he could accept the State's offer. At defendant's pretrial conference, conducted pursuant to Rule 3:9-3(g), defendant had rejected the State's offer that he plead guilty in exchange for the State's recommendation of a twenty-year state prison term. It was after the pretrial conference that the court heard the unsuccessful motion to suppress.
At oral argument, the prosecutor, who coincidentally had been the trial prosecutor, said that "once the State had interviewed the witnesses in preparation for trial . . . and realized exactly how strong the case was . . . there was no reason why the offer would have remained what it was."
The judge ruled that it was not ineffective assistance of counsel for defendant's attorney to have failed to advise the trial judge that defendant wanted to accept the twenty-year offer after his motion was denied. She opined that since the offer would have been withdrawn after the matter was placed on the trial list, and would not have been reinstated when defendant's negotiating position worsened, "that does not fit the criteria of ineffective assistance of counsel." Thus trial counsel's failure to remove the matter from the trial list was no failure at all. Therefore, the judge held defendant did not establish even a prima facie case for PCR relief.
Now on appeal, defendant urges we consider the following issues:
POINT I - THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE MATTER REMANDED FOR AN EVIDENTIARY HEARING BECAUSE DEFENDANT MADE A PRIMA FACIE SHOWING OF INEFFECTIVE ASSISTANCE OF COUNSEL.Defendant reiterates that counsel was ineffective because he failed to advise the judge that a material change had occurred, the matter should be removed from the trial list and defendant allowed to accept the twenty-year offer, and that counsel was ineffective for failing to either interview Jeter or call him as a witness.
POINT II - THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED BECAUSE IT VIOLATED DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.
It is well-established that in order to prevail on a PCR petition alleging ineffective assistance of counsel, a defendant must demonstrate he received substandard professional assistance and that prejudice resulted from the substandard representation. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). The Strickland standard was adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987).
On petitions for PCR, defendant bears the burden of establishing by a preponderance of the evidence the facts which entitle him to relief. State v. Gaitan, 209 N.J. 339, 350 (2012), cert. denied, ___ U.S. ___, 133 S. Ct. 1454, 185 L. Ed. 2d 361 (2013). Additionally, we view the facts in the light most favorable to defendant. State v. Marshall, 148 N.J. 89, 158, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997).
We first address defendant's contention that his attorney should have advised the court that he wished to accept the twenty-year offer after the motion was denied. In a case with strong proofs, eyewitness identifications as well as Jones's testimony and statements, once the matter was placed on the trial list, the State's offer was withdrawn. No doubt it was withdrawn on the record at the time of the pretrial conference, and defendant would have been so advised. We agree with the Law Division judge that failing to contact the judge about defendant's willingness to accept a by-then-withdrawn offer is not ineffective assistance of counsel.
No copy of that proceeding was provided. --------
With regard to Jeter's information, it was not helpful to defendant. The State was aware that defendant and the others went to a White Castle restaurant at some point on the evening or during the early morning hours before the shooting. That Jeter saw defendant drive away was a meaningless detail. In fact, in his certification, Jeter says he saw defendant drive away on the same street mentioned in the police report to pinpoint the scene of the killing. Jeter's certification, curiously, indicates that once told the time and place of the murder, Jeter was able to assure the authorities that defendant was not present. The eyewitness Jones selected defendant's photograph, and identified him in court. She said defendant told her to lie on the stand and that he admitted to shooting someone. He gave her a gold chain he said he had taken from the victim. Under these circumstances, it was not ineffective assistance of counsel to have failed to interview Jeter.
In order to establish a prima facie case which warrants an evidentiary hearing, a defendant has to do more than make bald assertions regarding "counsel's alleged substandard performance." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Having failed to meet that standard, defendant has failed to establish a prima facie case or his entitlement to an evidentiary hearing. Ibid.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION