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State v. Brown

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 18, 2007

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
MICHAEL BROWN, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 98-04-0345.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted February 27, 2007

Before Judges Coburn and R. B. Coleman.

Defendant Michael Brown appeals from a November 15, 2005 order denying his petition for post conviction relief (PCR). We affirm.

Defendant was charged under Passaic County Indictment No. 98-04-0345 with the following crimes: second degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (count one); third degree terroristic threats, N.J.S.A. 2C:12-3(a) or N.J.S.A. 2C:12-3(b) (count two); first degree attempted murder, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:11-3 (count three); second degree burglary, N.J.S.A. 2C:18-2 (count four); third degree possession of a weapon with an unlawful purpose, N.J.S.A. 2C:39-4(d) (count five); and fourth degree contempt of court or knowingly violating a restraining order, N.J.S.A. 2C:29-9(b) (count six). On motion by the State, the court severed count six on January 27, 1999. Following trial in January and February 1999, the jury found defendant guilty on all counts presented, save count one, as to which it found defendant not guilty of aggravated assault, but guilty of the lesser-included offense of simple assault.

After weighing the aggravating factors against the nonexistent mitigating factors, the court imposed an aggregate sentence of thirty-five years in prison with a twenty-eight year period of parole ineligibility. More particularly, the court imposed a one-hundred eighty day jail sentence on count one; a concurrent five year term, with two and one half years of parole ineligibility, on count two; a consecutive ten years with eighty-five percent parole disqualifier on count four; and a consecutive twenty years with eighty-five percent parole disqualifier on count three. The judge merged the possession of weapon for an unlawful purpose into the burglary and/or attempted murder counts. At a subsequent hearing, the trial judge restructured the order of the sentence so that the longest terms would be served first.

Defendant appealed from his judgment of conviction and, in an unpublished opinion issued on January 26, 2001, another panel of this court affirmed. The Supreme Court denied defendant's petition for certification on April 3, 2001. State v. Brown, 168 N.J. 290 (2001). On February 28, 2003, defendant filed a pro se petition for PCR, supplemented by submissions of counsel and a certification in support of the petition in April 2004. On February 9, 2005, the PCR judge entertained oral argument on the issues raised on behalf of defendant and rejected them as procedurally barred or lacking substantive merit. The judge reserved on the challenge of the sentence, pending the resolution of the appeal in State v. Natale, 184 N.J. 458 (2005). By order dated November 15, 2005, the court denied relief on the reserved issue.

Defendant now raises the following issues on appeal:

POINT I: THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S REQUESTS FOR ANOTHER ATTORNEY AS WELL AS IN DENYING TRIAL COUNSEL'S REQUEST TO BE RELIEVED AS DEFENDANT'S ATTORNEY AND TO HAVE ANOTHER TRIAL COUNSEL ASSIGNED TO REPRESENT HIM.

POINT II: DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL DUE TO TRIAL COUNSEL'S FAILURE TO INVESTIGATE HIS CASE AND ADEQUATELY PREPARE A DEFENSE; BECAUSE A PRIMA FACIE CASE WAS ESTABLISHED, THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING.

POINT III: DEFENDANT'S SENTENCE, WHICH EXCEEDED THE PRESUMPTIVE STATUTORY TERMS AND WAS BASED ON THE COURT'S FINDINGS OF AGGRAVATING FACTORS OTHER THAN A PRIOR CONVICTION, VIOLATED THE SIXTH AMENDMENT OF THE UNITED STATES CONSTITUTION.

Because the facts are sufficiently recounted in the appellate decision affirming defendant's judgment of conviction and because the resolution of the issues raised do not depend upon an analysis of the facts, we need not repeat them here.

Prior to the start of trial, defendant informed the judge that he wished to obtain different counsel because his family was in the process of obtaining private counsel. However, when questioned, defendant could not produce any information regarding potential attorneys. Based on this, the judge denied the request.

Following this denial, defendant allegedly told his counsel that he was going to get even and that he may get someone to shoot counsel in the head. Shortly thereafter, outside the presence of the jury, defendant's counsel asked to be relieved as counsel. Counsel stated that though he believed the threat was "calculated" to delay the trial, he did not discount the threats and felt that they might have a "chilling" effect on his ability to represent defendant. The trial judge again denied the request, stating that he was not going to allow defendant to regulate how the trial was conducted and that because counsel was competent and experienced, he believed that he would defend defendant to the best of his ability.

Defendant previously raised these same issues in his direct appeal and they were adjudicated upon the merits. The previous panel of this court found that defendant was unable to show any prejudice as a result of the court's ruling. Consequently, he is barred from raising these claims through his petition for PCR. R. 3:22-5. Furthermore, despite defendant's claims to the contrary, there is no constitutional element underlying these claims that would allow him to resurrect them.

Defense counsel was well prepared and vigorously pursued the defense. Counsel also stated at sentencing that defendant's threat did not affect his defense of defendant and that he had not pressed charges against him. There was clearly no abuse of discretion in this matter, and defendant is not entitled to relief on these grounds.

Defendant next argues that he was denied effective assistance of counsel. To make the requisite prima facie showing of ineffective assistance, defendant must show a "reasonable likelihood of succeeding" under the two-pronged test articulated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed. 2d 674, 698 (1984), and adopted in State v. Fritz, 105 N.J. 42, 58 (1987). Under the first prong, a defendant must show that trial counsel's representation was somehow deficient. Fritz, supra, 105 N.J. at 52 (internal quotation marks omitted). Defendant must then "show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698. (internal quotation marks omitted).

In support of his petition for PCR, defendant submitted a brief certification setting out bare allegations of ineffective assistance. Defendant did not provide any specifics and spoke only in the most general terms of deficiency. Such bare assertions do not establish a prima facie claim of ineffective assistance sufficient to warrant an evidentiary hearing. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). The judge, in finding that the claims did not warrant an evidentiary hearing, noted defendant's shortcomings when she stated:

[T]his certification, which is very brief, indicates [defendant] wasn't happy with [trial counsel] and [counsel] should have investigated his case better, but I just don't have any details that I can focus on and say well, yes, this is a legitimate claim or not.

Consequently, defendant failed to show that he is entitled to an evidentiary hearing on his ineffective assistance of counsel claims.

Finally, defendant argues that he is entitled to a remand under Natale, supra, 184 N.J. at 494, for reconsideration of his sentence because the court utilized aggravating factors other than a prior conviction in sentencing defendant. In deciding Natale, the Court determined its ruling is to be given retroactive effect to all cases in the pipeline. Ibid. Thus, "pipeline retroactivity" applies Natale's holding only to defendants with cases on direct appeal as of August 2, 2005, the date of that decision, and to those defendants who raised claims at trial or on direct appeal under Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed. 2d 403 (2004). Ibid.

Defendant's direct appeal concluded on April 13, 2001, the date that the Supreme Court denied his petition for certification. This was well before the August 2, 2005 decision date of Natale. Consequently, defendant's case was not on direct appeal at the time of the decision. Additionally, defendant did not raise any Blakely claims in the direct appeal from his sentence. Therefore, he is not entitled to retroactive application of the decision in Natale and is not entitled to a reconsideration of his sentence, although he was sentenced above the presumptive term.

Affirmed.

20070718

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