Opinion
DOCKET NO. A-4611-13T2
01-25-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. TORMU PRALL, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Rasheedah Terry, Designated Counsel, on the brief). Angelo J. Onofri, Acting Mercer County Prosecutor, attorney for respondent (Dorothy Hersh, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fuentes and Gilson. On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 07-03-0397. Joseph E. Krakora, Public Defender, attorney for appellant (Rasheedah Terry, Designated Counsel, on the brief). Angelo J. Onofri, Acting Mercer County Prosecutor, attorney for respondent (Dorothy Hersh, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief). Appellant filed a pro se supplemental brief. PER CURIAM
Defendant Tormu Prall appeals a March 18, 2014 order denying, without an evidentiary hearing, his petition for post-conviction relief (PCR). We affirm.
In 2008, a jury found defendant guilty of second-degree eluding, N.J.S.A. 2C:29-2(b); fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(5)(a); and fourth-degree resisting arrest by flight, N.J.S.A. 2C:29-2(a)(2). Defendant was sentenced to ten years in prison with five years of parole ineligibility on the eluding conviction, and two concurrent terms of eighteen months in prison with nine months of parole ineligibility on the aggravated assault and resisting arrest convictions.
In 2011, we affirmed defendant's conviction and sentence and the Supreme Court denied defendant's petition for certification. State v. Prall, No. A-3615-09 (App. Div. July 6, 2011), certif. denied, 208 N.J. 600 (2011). In July 2013, defendant filed a petition for PCR and was assigned counsel. After oral argument, Judge Robert C. Billmeier denied the petition and issued a thorough written opinion.
The evidence at trial established that defendant threw a brick through a window of his girlfriend's home. When police officers responded to the home, several people, including a person who had witnessed defendant running away, pointed towards a white U-Haul van and shouted, "That's him, get him." Defendant then got into the van and drove towards the police vehicle and stopped. One of the officers got out of the patrol car, approached the van on foot, and directed the driver to exit the van. The van, however, accelerated backwards, turned a corner and drove away. The officer still in the patrol car activated the siren and overhead lights and pursued the van.
We set forth the relevant facts in our opinion issued in 2011, and we will only summarize some of the facts here.
Less than one minute later, the van reappeared and drove at the officer who was still walking in the street. The officer had to run to the sidewalk to avoid being struck by the van, which came so close that the officer felt the vehicle's draft as it passed by. The van then drove away, still pursued by the police vehicle. During the chase, the van drove at high speeds causing other cars and pedestrians to move out of the van's way. The police broke off the pursuit when the van ran a red light, almost causing an accident. Later that evening, police located and arrested defendant.
Defendant's girlfriend testified that she and defendant had argued earlier that day while driving in a rented U-Haul van. When processing defendant after his arrest, defendant was found to be in possession of the key to the U-Haul van. After processing, defendant complained of chest pain and was taken to a hospital. The following evening, while still at the hospital, he was arraigned by a municipal court judge. After being informed of the charges against him, defendant asked how he could be charged with aggravated assault if he did not hit the police officer.
Before trial, defendant was given written and verbal Hudson warnings. Thereafter, defendant failed to appear at trial and the trial proceeded with defendant in absentia, but represented by counsel.
State v. Hudson, 119 N.J. 165 (1990) (holding that a defendant may waive his presence at trial by either a written or oral waiver or by conduct evidencing what is in effect such a waiver). --------
On his PCR appeal, defendant argues:
POINT I. THE ORDER DENYING DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF MUST BE REVERSED BECAUSE DEFENDANT RECEIVED INEFFECTIVE ASSISTSANCE OF COUNSEL DURING THE TRIAL AND ON DIRECT-APPEAL
A. Trial And Appellate Counsel Failed To Challenge The Incriminating Statement Defendant Allegedly Made During the Arraignment Hearing On The Grounds That Defendant Was Denied His Right To Counsel At The Hearing
B. Trial Counsel Failed To Object To Other Crime Evidence And Defendant Was Not Barred From Raising The Claim In His Petition For Post-Conviction Relief
C. Trial Counsel Failed To Impeach Defendant's Former Girlfriend
D. Trial Counsel Was Ineffective When He Failed To Challenge The Trial
Court's Decision To Permit Gleaton To Testify While Wearing Prison Garments
E. Trial Counsel Failed To Request A Change In Venue Based On Excessive Trial Publicity
F. The Complained-of Errors, Either Individually Or Cumulatively, Deprived Defendant Of His Right Of Effective Assistance
POINT II. THE COURT SHOULD REMAND THE MATTER FOR AN EVIDENTIARY HEARING
Defendant also filed a supplemental, self-represented, brief where he contends:
POINT I. DENIAL OF COUNSEL [AT THE ARRAIGNMENT] WAS A STRUCTURAL DEFECT
POINT II. APPELLANT WAS DENIED THE PRESUMPTION OF INNOCENCE
POINT III.FALSE EVIDENCE WAS PRESENTED
POINT IV. THE SENTENCE WAS ILLEGAL
POINT V. THERE WAS CONSTRUCTIVE DENIAL OF AND INEFFECTIVE ASSISTANCE OF COUNSEL
Having reviewed the record and the applicable law, we find no merit in any of defendant's arguments. We also conclude that none of defendant's arguments warrant discussion in a written opinion. R. 2:11-3(e)(2). We add three brief comments.
First, defendant was provided with a comprehensive review on his direct appeal. A number of the arguments defendant raises in his PCR petition were raised and rejected on his direct appeal. A petitioner on PCR is precluded from raising claims based on grounds that have already been adjudicated. R. 3:22-5; see State v. Echols, 199 N.J. 344, 357 (2009). Moreover, arguing that trial or appellate counsel were ineffective does not convert those arguments into new grounds for relief because, on this record, defendant cannot satisfy the second prong of the Strickland test. See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); see also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland test in New Jersey).
Second, on his PCR petition, Judge Billmeier accorded defendant a thorough review of his new arguments and addressed those arguments in a written opinion. We agree with Judge Billmeier that defendant did not make a prima facie showing of either prong of the Strickland test.
Third, and finally, there was nothing illegal in defendant's sentence and his arguments concerning an illegal sentence are without merit.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION