Opinion
DOCKET NO. A-4024-13T4
09-10-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JAMES THOMAS, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief). Jennifer Webb-McRae, Cumberland County Prosecutor, attorney for respondent (Danielle Pennino, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Hayden and Sumners. On appeal from Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 09-07-00639. Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief). Jennifer Webb-McRae, Cumberland County Prosecutor, attorney for respondent (Danielle Pennino, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant James Thomas appeals from an order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.
On October 21, 2008, the New Jersey State police received a complaint that several vehicles had entered a cemetery in Franklin Township. Upon arrival, the police were alarmed upon hearing approximately fifteen to twenty gun shots. Upon seeing the presence of police, a number of individuals attempted to flee the scene in cars. Defendant was one of five people in a car that was stopped by police. After obtaining consent to search the car, the police found a gun in the pocket of a jacket that defendant was seen placing on the car floor. Defendant was subsequently indicted for second-degree possession of a weapon by a convicted person, N.J.S.A. 2C:39-7(b) (count one); and second-degree unlawful possession of a firearm, N.J.S.A. 2C:39-5(b) (count two).
It was later determined that the gun shots were part of a gang ritual of firing guns in the air to mourn the death of a gang member.
Sometime in September 2010, defendant was assigned a new public defender to replace his public defender who was deployed for military service in the first week of August 2010. Consequently, the expired plea cut-off date was relaxed due to "a substantial change in circumstances," and new defense counsel was permitted to re-engage in plea negotiations with the State. R. 3:9-3(g). On October 5, 2010, the date scheduled for trial, defendant pled guilty to both counts of the indictment. During the course of his plea colloquy, defendant stated under oath that he withdrew his motion to suppress the seizure of the gun, voluntarily waived his right to trial, and pled guilty to the charges.
At sentencing on January 7, 2011, defense counsel did not argue that any mitigating factors be applied. The judge found that aggravating factors three (risk to commit another offense), six (extent of prior criminal record), and nine (need to deter defendant and others) applied. N.J.S.A. 2C:44-1(a)(3),(6),(9). The judge also found mitigating factor twelve (cooperation with law enforcement) applied. N.J.S.A. 2C:44-1(b)(12). The judge determined that the aggravating factors substantially outweighed the mitigating factors. In accordance with the plea agreement, defendant was sentenced to a five-year term of imprisonment with five years of parole ineligibility for possession of a weapon by a convicted person concurrent with a five-year term of imprisonment with three years of parole ineligibility for unlawful possession of a firearm.
Defendant did not file a direct appeal, but filed a pro se post-conviction relief (PCR) petition claiming he was "[a]ppealing [s]entence and fines only on [ex]cessive [s]entence." In his supporting certification, defendant contended that he had no confidence in his new counsel, and pled guilty only because he was told that he "would lose a trial." He also asserted that the gun did not belong to him.
After counsel was subsequently appointed to represent defendant, he made a supplemental legal argument contending that substitute trial counsel had provided ineffective assistance of counsel (IAC) because he had failed to: 1) present applicable mitigating factors at sentencing; 2) advise him that he had a meritorious motion to suppress evidence due to an illegal search; and 3) to advise him that under the law he was not guilty of the charges. It was further contended that defendant was denied his constitutional right to counsel when he was assigned substitute counsel without his consent.
Following oral argument, PCR Judge Robert G. Malestein issued a written decision denying defendant an evidentiary hearing and dismissing his petition. The judge found defendant did not establish a prima facie case of IAC as required by Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984).
Specifically, Judge Malestein, relying upon State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999), and State v. O'Neal 190 N.J. 601, 619 (2007), found that other than making a bald assertion that he was not guilty and the search was illegal, defendant failed to prove that a motion to suppress would have been successful. He also rejected defendant's argument that trial counsel was ineffective during sentencing in not arguing mitigating factors one (conduct neither caused or threatened serious harm), two (not contemplate that conduct would cause or threaten serious harm), four (substantial grounds excising or justifying conduct but not a defense) and eight (conduct was result of circumstances unlikely to recur). N.J.S.A. 2C:44-1(b) (1), (2), (4), and (8). The judge reasoned that the sentencing court adhered to the defendant's plea agreement, which called for the mandatory minimum sentence for each offense pursuant to N.J.S.A. 2C:43-6(a)(2) and N.J.S.A. 2C:39-7(b), thereby foreclosing a lesser sentence even if his trial counsel had argued for mitigating factors. Lastly, Judge Malestein determined that based upon United States v. Gonzalez-Lopez, 548 U.S. 140, 144, 126 S.Ct. 2557, 2561, 165 L.Ed. 2d 409, 416-17, defendant did not have the right to select his own appointed counsel. Thus, his right to counsel was not violated.
On appeal, defendant argues:
POINT I
THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED BECAUSE, REGARDLESS OF WHETHER TRIAL COUNSEL WAS INEFFECTIVE UNDER THE STRICKLAND TEST, DEFENDANT'S FOURTEENTH AMENDMENT DUE PROCESS RIGHT TO EFFECTIVE COUNSEL UNDER THE NEW JERSEY CODE OF CRIMINAL JUSTICE WAS VIOLATED WHEN TRIAL COUNSEL FAILED TO DELINEATE ALL MITIGATING FACTORS AT SENTENCING.
POINT II
THE MATTER SHOULD BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE DEFENDANT MADE A PRIMA FACIE SHOWING OF A VIOLATION OF HIS FOURTEENTH AMENDMENT DUE PROCESS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL.
POINT III
THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED BECAUSE DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO COUNSEL OF HIS CHOICE.
We begin with the well-settled principle that to establish a claim of ineffective assistance of counsel, a defendant must demonstrate the reasonable likelihood that his claim will ultimately succeed on the merits under the two-pronged test set forth in Strickland. "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).
The first prong "requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. The test is whether "counsel's representation fell below an objective standard of reasonableness." Id. at 688, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.
Under the second prong, a defendant must demonstrate that his counsel's errors prejudiced the defense to the extent that the defendant was deprived of a fair and reliable trial outcome. Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. To prove this element, a defendant must demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. Thus, "[t]he failure to raise unsuccessful legal arguments does not constitute ineffective assistance of counsel." State v. Worlock, 117 N.J. 596, 625 (1990) (citing Strickland, supra, 466 U.S. at 688, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; State v. Fritz, 105 N.J. 42, 52 (1987)); see also State v. Echols, 199 N.J. 344, 361 (2009) (rejecting ineffective assistance claim, noting "there being no reversible error in the prosecutor's comments, the failure of trial counsel to object . . . could not lead to the conclusion that there is a reasonable probability that, but for the errors of trial and appellate counsel, the outcome would have been different").
A court reviewing a PCR petition based on IAC claims has the discretion to grant an evidentiary hearing only if a defendant establishes a prima facie showing in support of the requested relief. State v. Preciose, 129 N.J. 451, 462 (1992). The mere raising of a claim for PCR does not entitle the defendant to an evidentiary hearing. Cummings, supra, 321 N.J. Super. at 170. When determining whether to grant an evidentiary hearing, the PCR court must consider the facts in the light most favorable to the defendant to determine if a defendant has established a prima facie claim. Preciose, supra, 129 N.J. at 462-63. It follows that a "defendant must allege specific facts and evidence supporting his allegations[,]" State v. Porter, 216 N.J. 343, 355 (2013), and "do more than make bald assertions that he was denied the effective assistance of counsel." Cummings, supra, 321 N.J. Super. at 170. PCR petitions must be "accompanied by an affidavit or certification by defendant, or by others, setting forth with particularity the facts that he wished to present." State v. Jones, 219 N.J. 298, 312 (2014).
Applying these principles, we affirm substantially for the reasons expressed by Judge Malestein in his thoughtful opinion. We add only the following comments.
Defendant's contention that his trial counsel's failure to present mitigating factors is prejudice per se under the Strickland test is without legal support. None of the cases relied upon by defendant, State v. Roth, 95 N.J. 334, 356-64 (1984) (determining that there where mitigating factors are amply based on credible evidence in the record, they must be found; the judge thereafter determines the appropriate weight), United States v. Cronic, 466 U.S. 648, 659, 104 S. Ct. 2039, 2047, 80 L.Ed. 2d 657, 668 (1984) (only circumstances, such as denial of the presence of counsel at a critical stage of prosecution, or a breakdown in the adversarial process where counsel entirely fails to subject the prosecution's case to meaningful adversarial testing, constitute prejudice per se), and State v. Fritz, 105 N.J. 42, 61 (1987) ("[A] conclusive presumption of prejudice is inappropriate except in cases exemplified by egregious shortcomings in the professional performance of counsel."), stand for the proposition that trial counsel's failure to raise mitigating factors is prejudice per se under the Strickland analysis.
As the PCR judge concluded, defendant was given the minimum mandatory sentences in accord with his plea agreement. Even though a court sentences a defendant in accord with a negotiated plea agreement, the court must make findings of aggravating and mitigating factors. See R. 3:21-4(g); State v. Sainz 210 N.J. Super. 17 (App. Div. 1986), aff'd, 107 N.J. 283 (1987). Had the sentencing court considered the aforementioned mitigating factors, it could not have deviated from the mandatory minimum sentence that was given.
Relief from the minimum mandatory sentence requirements of N.J.S.A. 2C:39-5(b) is only allowable under N.J.S.A. 2C:43-6.2 by a prosecutor's motion and upon a showing of the interests of justice. Here, no such motion was made or contemplated by the plea agreement. There is no similar relief available for N.J.S.A. 2C:39-7(b) convictions. --------
Defendant offers no facts establishing that a motion to suppress evidence seized from the search of the car would have been successful. His mere self-serving allegations without any factual support are insufficient. Jones, supra, 219 N.J. at 312.
Lastly, defendant's constitutional right to counsel was not denied. He was assigned counsel by the Public Defender's Office. An indigent defendant represented by an appointed public defender does not retain the right to pick and choose his or her own attorney. State v. Kates, 426 N.J. Super. 32, 43 (App. Div. 2012), aff'd, 216 N.J. 393 (2014).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION