August 2, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DERRICK FREEMAN, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 90-02-0668.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 31, 2007
Before Judges Stern and Sabatino.
Defendant Derrick Freeman, who was convicted of felony murder and other crimes in 1990, appeals the Law Division's order of April 13, 2005 denying his petition for post-conviction relief ("PCR"). We affirm.
The underlying facts, which are detailed in our July 9, 2003 per curiam opinion affirming defendant's convictions on direct appeal (A-1553-90T4), involved the fatal shooting of Keith Anderson in front of his Newark residence, and the robbery of Wayne White, in the early morning hours of September 8, 1999. A car pulled up, and Anderson was shot while attempting to run away. Defendant was identified as having gotten out of the front seat of the car, and having attempted to rob White while placing a gun in his mouth.
After a ten-day jury trial, defendant was convicted of felony murder, contrary to N.J.S.A. 2C:11-3a(3); armed robbery, contrary to N.J.S.A. 2C:15-1; and certain firearms offenses. After appropriate mergers, the trial judge sentenced defendant to an aggregate prison term of thirty years, all to be served without parole. We rejected defendant's challenges on direct appeal to his conviction, particularly as to alleged errors in the jury instructions, the admission of an out-of-court identification, and the denial of a mistrial when the State was permitted to reopen its case before summations.
Subsequently, defendant filed a PCR petition, initially on a pro se basis, and then aided by counsel. After defendant's initial PCR attorney was relieved, successor counsel was appointed and the court also permitted defendant to supplement her arguments with a pro se submission. Upon considering the submissions and hearing oral argument, the Law Division judge found that defendant's PCR claims were untimely and without substantive merit. The judge also concluded that no evidentiary hearing was warranted on the issues raised by defendant.
In this ensuing appeal, counsel for defendant argues:
THE POST-CONVICTION RELIEF COURT ERRED IN FINDING THAT DEFENDANT'S PETITION WAS PROCEDURALLY BARRED.
THE POST-CONVICTION RELIEF COURT ERRED IN FINDING THAT DEFENDANT FAILED TO DEMONSTRATE THAT HE WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
THE POST-CONVICTION RELIEF COURT ERRED IN FAILING TO GRANT DEFENDANT AN EVIDENTIARY HEARING ON THE ISSUE OF INEFFECTIVENESS OF TRIAL COUNSEL.
DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL ON HIS PETITION FOR POST-CONVICTION RELIEF.
Additionally, defendant raises the following points in a pro se supplemental brief:
SUPPLEMENTAL POINT I
THE PROCEDURAL BARS SHOULD NOT HAVE BEEN ENFORCED BECAUSE ENFORCEMENT WOULD RESULT IN A MANIFEST DENIAL OF JUSTICE, IN VIOLATION OF THE CONSTITUTIONS OF NEW JERSEY AND THE UNITED STATES.
SUPPLEMENTAL POINT II
DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT OF DUE PROCESS TO A FAIR TRIAL BY THE STATE'S CONCEALMENT OF ITS SECRET DEALING WITH LUTHER BERNARD COLEMAN, IN EXCHANGE FOR PERJURED TESTIMONY AGAINST DEFENDANT.
SUPPLEMENTAL POINT III
DEFENDANT'S SENTENCE VIOLATES BOTH THE DUE PROCESS AND EX POST FACTO CLAUSES OF THE STATE AND FEDERAL CONSTITUTIONS, WHEREFORE, POST-CONVICTION MUST BE GRANTED.
We first consider the judge's determination that defendant's PCR filing was time-barred under R. 3:22-12 because it was filed in October 1998, well more than five years after his 1990 conviction. Defendant maintains that during the five year period he had mailed court documents and paid a fee to an attorney named Roberts, who allegedly had agreed to represent him in the PCR, and that Roberts never followed through on the matter. Although we have considerable doubts as to whether the circumstances give rise to excusable neglect under R. 3:22-12(a), we choose to address defendant's claims on their merits and not rest our decision on grounds of untimeliness.
Having fully considered the various substantive arguments, we conclude that the order of April 13, 2005 should be affirmed, substantially for the reasons expressed in Judge Lester's well-reasoned and detailed written opinion of that date. We also are satisfied that no evidentiary hearing was necessary. State v. Preciose, 129 N.J. 451, 462 (1992). We add only a few comments.
We agree with the thorough analysis of Judge Lester that defendant was not deprived of effective assistance of trial counsel, under either of the two prongs of Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2063, 80 L.Ed. 2d 674, 692 (1984). We particularly discern no actual prejudice to defendant in his trial counsel's post-discovery receipt of criminal record information regarding one of the State's witnesses, Bernard Coleman. Defense counsel at trial vigorously cross-examined Coleman on matters of bias and character for untruthfulness. Moreover, Coleman's testimony was not crucial in light of the other strong proofs of guilt.
We also share Judge Lester's view that trial counsel was also not shown to be ineffective in connection with the testimony of White, who apparently recanted after trial, then recanted his recantation, then disappeared. In any event, Judge Lester denied the PCR in that respect without prejudice.
We further agree that no ineffectiveness was shown by trial counsel's failure to call supposed alibi witnesses, particularly after defendant had explicitly waived an alibi defense on the record upon questioning by the court.
The remaining arguments advanced by and on behalf of defendant, concerning the legality of his sentence--which clearly had a valid thirty-year parole disqualification that is not subject to jail credits, see State v. Webster, 190 N.J. 305 (2007)--and other substantive matters, all lack sufficient merit to be discussed in this written opinion. R. 2:11-3(e)(2).
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