Opinion
DOCKET NO. A-4768-13T4
09-26-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ROBERT K. WILSON, a/k/a WILSON KWAME, ROMEO WILSON, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Jennifer L. Gottschalk, Designated Counsel, on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Maria I. Guerrero, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is only binding on the parties in the case and its use in other cases is limited. R.1:36-3. Before Judges Alvarez and Manahan. On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 08-10-2876. Joseph E. Krakora, Public Defender, attorney for appellant (Jennifer L. Gottschalk, Designated Counsel, on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Maria I. Guerrero, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief). PER CURIAM
Defendant Robert Wilson appeals from a denial of his petition for post-conviction relief (PCR) after an evidentiary hearing. Upon consideration of the facts and applicable law, we affirm.
We adopt the essential factual and procedural history relating to Wilson from our previous unpublished decision affirming his conviction:
Wilson was tried together with co-defendant Shadee Alexander, who was convicted and filed a direct appeal which was consolidated with Wilson's appeal. We tailor our recitation of the factual and procedural history to this appeal by Wilson.
A jury found [Alexander and Wilson] guilty of second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1; first-degree robbery, N.J.S.A. 2C:15-1; third-degree receiving stolen property, N.J.S.A. 2C:20-7; second-degree possession of a handgun without having obtained a permit, N.J.S.A. 2C:39-5(b); and second-degree possession of a firearm with the purpose of using it unlawfully against another, N.J.S.A. 2C:39-4(a). Their co-defendant, Kashif Holt, pled guilty to hindering apprehension and testified on behalf of the State in accordance with a plea agreement that called for his release on probation following his testimony.
The judge merged [the] convictions for conspiracy, receiving stolen property and possession of a firearm for an unlawful purpose with their convictions for first-degree robbery. . . . He sentenced Wilson to an eighteen-year term of imprisonment for robbery, subject to NERA periods of parole ineligibility and supervision, and to a concurrent five-year term for possession of a handgun without a permit. . . . [T]he judge imposed appropriate fines, penalties, fees and assessments.
. . . .
The robbery occurred at about 9:00 p.m. on March 29, 2008, in a deli owned by Mr. and Mrs. McElveen. The McElveens and their nine-year-old granddaughter were preparing to close the store for the night when the men entered and announced their intention to commit a robbery. Their faces were covered; one man used a black scarf that had balls on its ends. Two of the three men brandished guns; the one wearing the black scarf with balls stuck his gun in Mrs. McElveen's face.
All three members of the McElveen family followed the intruders' instructions. Mrs. McElveen opened the register, and the McElveens got onto the floor. When the men complained about how little money they found and demanded more, the McElveens told them to lift up the register's change tray. Under that tray, they found more cash. One of the men threatened to take the McElveen's granddaughter if they did not produce more money. Thereafter, they searched Mr. McElveen's pants' pockets. As the intruders left the store with the cash taken from the register and Mr. McElveen, they grabbed cigarettes, lighters, "Black and Mild" cigars, and the cash register's change tray.
Once the men were outside, the McElveens took action. Mr. McElveen got up from the floor and saw the intruders get into a black Honda Civic. His granddaughter called 911. As Mr. McElveen watched the Honda Civic back out of the parking lot, he saw its bumper catch on the pavement.
An officer responding to the 911 call noticed a Honda Civic with a hanging bumper driving in the opposite direction. Although the driver turned without stopping for a red light, the officer continued on to the deli. When he arrived, the victims gave him a general description of the skin color and
approximate heights of the three men and their make-shift face coverings. Mr. McElveen also described the getaway car and its exit from the scene.
Upon hearing about the car, the officer suspected that it was the one he had passed en route, and he relayed the information he had. Detectives who heard the transmission spotted a car matching the description pull into the parking lot of a convenience store. Two of the men, defendants Wilson and Holt, got out of the front seat and went toward the store. The third, defendant Alexander, remained in the back seat. The detectives spoke to the men and looked into the car; they saw a cash register drawer, currency and a black scarf with balls in the back seat. Wilson, Alexander and Holt were arrested and searched. Wilson had several Black and Mild cigars, two lighters and about $200 in crumpled bills in his pocket.
Mr. McElveen was taken to the convenience store, where he identified the car and the black scarf with balls worn by the perpetrator who held the gun to his wife's face, but he could not identify any of the suspects. The cigars and lighters had bar code stickers that permitted the officers to later identify the items as merchandise from the McElveen's deli.
Although Mr. McElveen had not described or been asked to identify the clothing worn by a perpetrator prior to trial, during a hearing conducted mid-trial when the jury was not present, he was shown the jacket Wilson was wearing at the time of his arrest. At that hearing McElveen asked to see the back of the jacket and identified it as one worn by a perpetrator. In the presence of the jury, McElveen testified that the jacket looked "like one of the jackets one of the guys was wearing."
Holt, in accordance with his plea agreement, testified for the State. According to his account of the events, Wilson called him for a ride and he picked up Wilson, Alexander and a friend of theirs. They asked Holt to stop at the deli, which he did. Holt waited in the Honda Civic while the others went into the deli. Seven or eight minutes later they jogged out of the store and asked Holt to "pull off," which he did. Holt then took the men back to the house. En route, the third man got out of the car. When Holt, Alexander and Wilson reached the house, Holt waited while the others talked to people on the porch and then drove to the convenience store where they were arrested.
Holt estimated that they reached the convenience store about seventeen minutes after leaving the deli. He claimed that he did not know that the cash register drawer, Black and Mild cigars, lighters and a scarf were in the backseat of the Honda Civic until he saw the officers remove those items at the convenience store.
Following his arrest, Holt gave the police a statement, which was recorded. At trial, Wilson's attorney was permitted to introduce the recording of Holt's statement to demonstrate inconsistencies between his trial testimony and his earlier account of the events. The transcript of the recording was given to the jurors to follow as they listened to the statement in court, but the transcript was not introduced into evidence. During deliberations, the jurors asked for the transcript of Holt's recorded statement. The judge denied that request but told the jurors they could listen to the recording.
The defendants presented an alibi defense. Wilson and Alexander's sister, Nafeesah Alexander, gave testimony tending to exonerate Wilson and Alexander. According to them, Alexander, Wilson and Nafeesah were at
a house-party when the robbery occurred; they testified that Wilson and Alexander left the party sometime after 9:30 p.m.
Wilson also gave testimony tending to shift the blame for the robbery to Holt and to explain his possession of the incriminating evidence — the cigars, lighters and crumpled currency. He testified that the lighters were in the backseat of the car when Holt arrived and that he had the items in his coat pocket because Holt said he could have them. Wilson further explained that the $2 00 in crumpled bills found in his pocket was the remainder of a $1250 gift given to him by his uncle in December 2007. He produced the checks his uncle had written, and they were marked for identification. Wilson gave this testimony after the judge denied his requests to present his uncle as a witness and admit the cancelled checks into evidence.
[State v. Alexander, No. A-2053-09 (App. Div. December 6, 2011) (slip op at 1-8), certif. denied, 210 N.J. 263 (2012), certif. denied sub nom., State v. Wilson, 210 N.J. 262, (2012).]
After we affirmed his conviction, Wilson filed a pro se petition for PCR. Thereafter, counsel was appointed to represent him and filed a brief on his behalf. An evidentiary hearing was conducted before Judge Michael Petrolle, who was also the trial judge. Upon the conclusion of the hearing, in which Wilson's trial counsel and Wilson testified, Judge Petrolle denied the PCR in an oral opinion. This appeal followed.
On appeal, Wilson raises the following arguments:
POINT [I]
THE PCR COURT ERRED WHEN IT DENIED [WILSON'S] CLAIM OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
A. [TRIAL] COUNSEL WAS INEFFECTIVE FOR FAILING TO COMMUNICATE ADEQUATELY WITH THE STATE AND [WILSON] TO NEGOTIATE A FAVORABLE PLEA DEAL FOR HIS CLIENT.
B. TRIAL COUNSEL WAS INEFFECTIVE FOR PROVIDING INCORRECT ADVICE TO [WILSON] ABOUT THE ADMISSIBILITY OF A CRIMINAL CONVICTION THAT IS PENDING APPEAL AS IMPEACHMENT EVIDENCE.
C. THE TRIAL COURT ERRED IN REJECTING [WILSON'S] CLAIM THAT [TRIAL] COUNSEL HAD NOT ADVANCED FACTORS THAT COULD HAVE MITIGATED HIS SENTENCE.
"Post-conviction relief is New Jersey's analogue to the federal writ of habeas corpus." State v. Preciose, 129 N.J. 451, 459 (1992). Under Rule 3:22-2(a), a criminal defendant is entitled to post-conviction relief if there was a "[s]ubstantial denial in the conviction proceedings of defendant's rights under the Constitution of the United States or the Constitution or laws of the State of New Jersey[.]" "A petitioner must establish the right to such relief by a preponderance of the credible evidence." Preciose, supra, 129 N.J. at 459 (citations omitted). "To sustain that burden, specific facts" that "provide the court with an adequate basis on which to rest its decision[]" must be articulated. State v. Mitchell, 126 N.J. 565, 579 (1992).
Claims of constitutionally ineffective assistance of counsel are well suited for post-conviction review. See R. 3:22-4(a)(2); Preciose, supra, 129 N.J. at 460. In determining whether a defendant is entitled to relief on the basis of ineffective assistance of counsel, New Jersey courts apply the two-prong test articulated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984), and United States v. Cronic, 466 U.S. 648, 658-60, 104 S. Ct. 2039, 2046-47, 80 L. Ed. 2d 657, 667-68 (1984). Preciose, supra, 129 N.J. at 463; State v. Fritz, 105 N.J. 42, 49-50 (1987).
Under the first prong of the Strickland test, a "defendant must show that [defense] counsel's performance was deficient." Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Under the second prong, 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.
Our review of an order granting or denying PCR contains consideration of mixed questions of law and fact. State v. Harris, 181 N.J. 391, 415-16 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). We defer to a PCR court's factual findings and will uphold those findings that are "supported by sufficient credible evidence in the record." State v. Nash, 212 N.J. 518, 540 (2013). However, a PCR court's interpretations of law are provided no deference and are reviewed de novo. Id. at 540-41.
Wilson argues that trial counsel provided ineffective assistance by failing to properly communicate regarding plea negotiations, providing "incorrect advice" about the admissibility of a prior conviction as impeachment evidence, and by failing to argue applicable mitigating factors at sentence. We disagree and affirm substantially for the reasons set forth in the well-reasoned opinion of Judge Petrolle. We briefly add the following.
In reaching his decision, the judge noted the proofs against Wilson were "overwhelming" and the "critique" of trial counsel by Wilson was "baseless." The judge also noted his opportunity as the trial judge to observe the performance of trial counsel. Subsequent to addressing the controlling case law enunciated in Strickland, Cronic, and Fritz, and the required showings on a PCR by a petitioner, the judge added:
The judge referenced the performance of both Wilson's counsel and Alexander's counsel. --------
Unless a defendant makes both showings it [cannot] be said that the "conviction
resulted from a breakdown in the adversary process that renders the result unreliable."
That's certainly not the case here. This adversary process was well conducted. There is no demonstration of a breakdown. Picking at whether the identifications were made, or descriptions were made accurately is certainly something to talk about. But in a situation where there's overwhelming physical evidence of involvement in the conduct of the offense, the proceeds of the robbery in [Wilson's] pockets, the result [cannot] be said to be unreliable.
The judge addressed the issue of plea negotiations:
Now, with respect to plea negotiations that took place prior to the trial. [Trial counsel] made it very clear that he did communicate the [Wilson's] counteroffer to the State and the State rejected it, and that he communicated that to [Wilson].
. . . .
The discussion of the offer itself, there's no question that the offer of [ten with eighty-five] was communicated. I [do not] have a transcript before me of what took place immediately prior to trial in the courtroom here, but the more we talk about the case the more it sparks my recollection that the offer was communicated here on the record in open [c]ourt and was rejected.
[Trial counsel] does not control the Prosecutor's Office. He asked for what [Wilson] instructed him to ask for, he couldn't get it.
The judge next addressed the substantial proofs against Wilson. In that context, the judge stated that the State's position on the plea negotiations to not reduce its offer was "reasonable" and "expectable[.]"
Concerning Wilson's argument that trial counsel misled him as to the likelihood of conviction, the judge found:
And it is preposterous that anyone would characterize a case in which a defendant has a co-defendant that has given a statement that is willing to testify, that a defendant in those circumstances would be told by his or her attorneys, the case might be, that the case is a slam dunk. And I find that unbelievable.
[Trial counsel] says that he did not do that, that those are not words he used. And those are not words consistent with the manner in which he testified here on the witness stand and he described his role in other ways. It just doesn't appear to be the demeanor, the manner, the form of expression, the choice of words, the diction that [trial counsel] would use, having seen him here in the courtroom reacting spontaneously to questions for both sides.
As to the credibility of Wilson and trial counsel, the judge further found:
I do not find in any respect where it conflicts with the testimony of [trial counsel], the testimony of [Wilson] to be credible.
I find the testimony of [trial counsel] to be credible. It appears to me that the burden is on [Wilson], and he has not carried the burden.
We note that "[a]dequate assistance of an attorney is measured according to whether the counsel has professional skills comparable to other practitioners in the field." State v. Davis, 116 N.J. 341, 351 (1989). "The test is not whether defense counsel could have done better, but whether he [or she] met the constitutional threshold for effectiveness." Nash, supra, 212 N.J. at 543.
In application of that test, we conclude, as did Judge Petrolle, that there was no basis to find that counsel's performance was deficient or that counsel was not functioning in a manner guaranteed by the Sixth Amendment. See State v. Gaitan, 209 N.J. 339, 349-50 (2012) (citation omitted), cert. denied, ___ U.S. ___, 133 S. Ct. 1454, 185 L. Ed. 2d 361 (2013). As such, Wilson has not made out a case of ineffective assistance of counsel. See Preciose, supra, 129 N.J. at 463.
Finally, Wilson argues that trial counsel failed to argue applicable mitigating factors which led to an excessive sentence. Given the procedural history of the case including this court's determination that the sentence was not excessive when raised on direct appeal, Alexander, supra, slip op. at 24-25, Wilson's argument is without sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(2).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION