Opinion
DOCKET NO. A-2929-10T4
02-14-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. WILLIAM SHEPARD, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief). Bruce J. Kaplan, Middlesex County Prosecutor, attorney for respondent (Joie Piderit, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Messano and Lihotz.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 06-02-0156.
Joseph E. Krakora, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief).
Bruce J. Kaplan, Middlesex County Prosecutor, attorney for respondent (Joie Piderit, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant William Shepard and his co-defendant, Marvin Gregory, were charged in Middlesex County Indictment No. 06-02-0156 with third-degree conspiracy to possess a controlled dangerous substance with intent to distribute, N.J.S.A. 2C:35-5a(1), N.J.S.A. 2C:5-2 and N.J.S.A. 2C:35-10a(1) (count one). Additionally, defendant was charged with third-degree possession of heroin, N.J.S.A. 2C:35-10a(1) (count six); third-degree possession of heroin with intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3) (count seven); third-degree resisting arrest, N.J.S.A. 2C:29-2a(3) (count eight); and fourth-degree obstructing, N.J.S.A. 2C:29-1 (count nine).
Gregory was also singly charged with third-degree possession of cocaine, N.J.S.A. 2C:35-10a(1) (count two); third-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5b(3), N.J.S.A. 2C:35-5a(1) (count three); third-degree resisting arrest, N.J.S.A. 2C:29-2a(3) (count four); and fourth-degree obstructing, N.J.S.A. 2C:29-1 (count five).
Following an evidentiary hearing, the judge denied defendants' motion to suppress. Defendant was tried separately from Gregory, and the jury convicted him of counts one, six, seven, and nine, and acquitted him of count eight. The judge granted the State's motion to sentence defendant to an extended term pursuant to N.J.S.A. 2C:43-6(f). After merging counts one and six with count seven, the judge sentenced defendant to an eight-year term of imprisonment with a four-year period of parole ineligibility and a consecutive one-year term on count nine.
On appeal, we affirmed defendant's convictions on counts six, seven and nine as well as the sentences imposed. State v. William Shepard, No. A-6205-06 (App. Div. July 15, 2009) (slip op. at 26). However, we reversed defendant's conviction for conspiracy, finding the State's witness exceeded the bounds of permissible expert testimony regarding that charge. Id. at 23-24. We also concluded that, because the conspiracy count merged with count seven, re-sentencing was not required. Id. at 26. We remanded the matter to the trial court solely to amend the judgment of conviction. Id. at 28. The Supreme Court denied defendant's petition for certification. State v. Shepard, 200 N.J. 505 (2009).
On March 3, 2010, defendant filed a pro se petition for post-conviction relief (PCR). After PCR counsel was appointed, defendant filed a supplemental certification alleging the ineffective assistance of trial counsel, specifically, that his attorney failed to inform him "of [his] right to testify at the trial or the Motion to Suppress." Defendant also certified that he "would have fully testified at both hearings," although he did not indicate what his testimony would have been.
PCR counsel also filed two briefs. The first argued that trial counsel was ineffective for not advising defendant of his right to testify at the motion to suppress and at trial. The second contended that defendant was entitled to be re-sentenced as a result of our reversal of the conspiracy conviction.
Oral argument took place before the PCR judge, who was not the trial judge. As to the re-sentencing issue, the judge concluded defendant was seeking redress from our earlier judgment, and "[t]hat issue is directly an appellate issue that [he] wouldn't deal with." The PCR judge also concluded the other points raised by defendant's petition were "all trial strategy issues." He entered an order denying the petition on September 30, 2010, and this appeal ensued.
Before us, defendant raises the following points:
POINT I - THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE DEFENDANT ESTABLISHED A PRIMA FACIE CASE OF TRIAL COUNSEL'S INEFFECTIVENESS FOR FAILING TO INFORM HIM THAT HE HAD THE RIGHT TO TESTIFY AT THE SUPPRESSION HEARINGWe have considered these arguments in light of the record and applicable legal standards. We affirm.
POINT II - THIS MATTER MUST BE REMANDED FOR RESENTENCING BECAUSE THE REVERSAL OF DEFENDANT'S CDS CONSPIRACY CONVICTION ON DIRECT APPEAL INVOKED MITIGATING FACTORS PREVIOUSLY NOT APPLICABLE
We first consider defendant's claim that he was entitled to an evidentiary hearing on his claim that trial counsel provided ineffective assistance because he failed to advise defendant he could testify at the hearing on the motion to suppress and at trial. To establish a claim of ineffective assistance of counsel, a defendant must satisfy the two-prong 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). First, he 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). Second, a defendant must prove that he suffered prejudice due to counsel's deficient performance. Strickland, supra, 466 U.S. at 691-92, 104 S. Ct. at 2066-67, 80 L. Ed. 2d at 696. Defendant must show by a "reasonable probability" that the deficient performance affected the outcome. Fritz, supra, 105 N.J. at 58.
Rule 3:22-10(b) provides:
A defendant shall be entitled to an evidentiary hearing only upon the establishment of a prima facie case in support of post-conviction relief, a determination by the court that there are material issues of disputed fact that cannot be resolved by reference to the existing record, and a determination that an evidentiary hearing is necessary to resolve the claims for relief."[I]n order to establish a prima facie claim, a [defendant] must do more than make bald assertions that he was denied the effective assistance of counsel." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.) (emphasis omitted), certif. denied, 162 N.J. 199 (1999). "To establish a prima facie case, defendant must 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." R. 3:22-10(b). Most importantly, 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. 436-37 (App. Div. 2008) (emphasis added). It remains within the court's discretion whether such a hearing is necessary. State v. Preciose, 129 N.J. 451, 462 (1992).
Defendant's claim that his attorney failed to advise him of his right to testify at trial lacks sufficient merit to warrant extensive discussion. R. 2:11-3(e)(2). The trial transcript reveals that, at the close of the State's case, the judge advised defendant fully of his right to testify. Defendant initially stated that he "spoke to [his] lawyer," but not his family, and he intended to "get on the stand and testify." The judge took a recess and when court reconvened, defendant told the judge he "decline[d] to testify." The judge asked defendant if he had time to speak to his family about the issue, and defendant clearly answered that he did.
Regarding the claim that trial counsel did not inform him of his right to testify at the motion hearing, we note that defendant's certification was nothing more than a bald assertion of this contention. Cummings, supra, 321 N.J. Super. at 170. The PCR judge noted that the challenged decision was trial strategy. In such circumstances, a defendant must overcome a strong presumption that counsel "rendered adequate assistance and . . . made all significant decisions in the exercise of reasonable professional judgment." State v. Savage, 120 N.J. 594, 614 (1990) (quotation and citation omitted). "If counsel thoroughly investigates law and facts, considering all possible options, his or her trial strategy is 'virtually unchalleng[e]able.'" Id. at 617 (quoting Strickland, supra, 466 U.S. at 690-91, 104 S.Ct. at 2065-66, 80 L.Ed. 2d at 695).
When questioning defendant at trial, the judge advised him that his three prior convictions would be admissible for impeachment purposes. See N.J.R.E. 609. Surely, those same convictions would have been admissible at the hearing on defendant's motion to suppress and the judge, as fact finder, could have considered them in deciding whether defendant's version of events, whatever it may have been, was credible.
Moreover, assuming arguendo defendant's claim was true, he failed to establish any prejudice as a result. We affirmed the trial court's ruling on defendant's motion to suppress in our prior opinion. Shepard, supra, slip op. at 11-13. In both certifications, defendant did not provide any information regarding his potential testimony at the motion hearing. Therefore defendant offers no factual basis to support his claim of prejudice.
In short, the petition failed to establish a prima facie case that called into question the reasoning supporting our earlier judgment. As a result, defendant was not entitled to an evidentiary hearing on his claim of ineffective assistance of trial counsel.
We turn to defendant's second point on appeal. He claims that because we reversed his conspiracy conviction, mitigating sentencing factors not found by the trial court "now were applicable," and "his sentences must be modified." To place the argument in proper context, we recount some of the evidence adduced at trial.
On the evening of December 13, 2005, New Brunswick police lieutenant Paul Schuster and eight other officers were conducting surveillance in the area of 5 Hoffman Boulevard. Defendant, Gregory and a third man, Demitrias Richardson, entered the building, and, shortly thereafter, walked past one of the surveillance vans, turned around and began talking on his cell phone. Believing Richardson may have spotted the officers and was warning the others of the police presence, the police stopped Richardson.
Schuster and other officers attempted to gain entry into 5 Hoffman Boulevard. The door was locked, requiring the police to break the door with a ramming rod. Schuster proceeded to a second-floor apartment only to find its tenant, Herv Byron, standing on the hallway landing locked out of the apartment.
Meanwhile, Schuster received a radio communication that two men were climbing down a rear fire escape from the second floor of the building. Officers at the rear of the building began to climb the fire escape and the two men, defendant and Gregory, climbed back up and into the apartment. Schuster and other officers forcibly entered the apartment and found Gregory hiding under a bed in one of the rooms. They discovered sixteen packages of cocaine near the headboard of the bed. Defendant was found in a closet in the bedroom. The police found four bags of heroin in the closet. Neither defendant nor Gregory were residents of the apartment.
Although defendant and Gregory were indicted for conspiracy to possess controlled dangerous substances with the intent to distribute, the possessory charges against Gregory were limited to the sixteen bags of cocaine, and the possessory charges against defendant were limited to the four bags of heroin. In our prior opinion, after reciting the trial testimony in greater detail, we concluded that, notwithstanding the objectionable expert testimony regarding defendant's participation in a conspiracy with Gregory, "[t]he quantum of evidence overwhelmingly support[ed] defendant's conviction for possession of CDS with intent to distribute." Shepard, supra, at 25. We also affirmed defendant's sentences, noting that the trial judge's weighing of the aggravating sentencing factors and his finding of no mitigating sentencing factors were appropriate. Id. at 26-28.
Defendant never sought reconsideration of our judgment. We have not been presented with defendant's petition for certification, but, if it sought a remand for re-sentencing, the Court denied the request. In any event, even if the claim as now presented is not procedurally barred, see Rule 3:22-5 (barring consideration of a claim previously adjudicated), it lacks sufficient merit to warrant extensive discussion. R. 2:11-3(e)(2).
Defendant now argues that since he only was convicted of possessing four bags of heroin with intent to distribute, mitigating factors one and two applied. See N.J.S.A. 2C:44-1(b)(1) ("defendant's conduct neither caused nor threatened serious harm"); N.J.S.A. 2C:44-1(b)(2) ("defendant did not contemplate that his conduct would cause or threaten serious harm"). We note trial counsel explicitly made this argument at sentencing and it was rejected by the trial court.
This is not a case where defendant possessed a small amount of an illegal substance indicative of personal use. See, e.g., State v. Cullen, 351 N.J. Super. 505, 511 (App. Div. 2002) (concluding mitigating factors one and two existed when the defendant possessed a small amount of cocaine in a single bag). Here, the jury concluded defendant's possession of the heroin, under all attendant circumstances, was with an intention to distribute the drugs. Neither mitigating factor applies.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION