August 23, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
AUGUSTUS SALUD, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, 99-06-1309.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted July 31, 2007
Before Judges Yannotti and C.L. Miniman.
Defendant appeals from the denial of his petition for post-conviction relief (PCR). No evidentiary hearing was granted and the application was denied after oral argument. We affirm.
Defendant was charged in a fourteen-count indictment with multiple violations regarding weapons possession, armed robbery, aggravated assault, attempted murder, and conspiracy. Defendant entered a plea on April 17, 2000, to one count of first-degree armed robbery and was sentenced on June 23, 2000, to the then-extant presumptive sentence of fifteen years in prison with an eighty-five percent parole disqualifier under the No Early Release Act, N.J.S.A. 2C:43-7.2 (NERA). Defendant did not file a direct appeal.
On March 14, 2005, defendant filed a pro se PCR petition, counsel was assigned, and on October 17, 2005, counsel filed an amended PCR petition on defendant's behalf. Defendant certified on November 11, 2005, regarding his plea that his trial attorney rarely discussed the case with him, was not responsive to any strategy, and only advised him to plead guilty to the charge. He also certified that his trial counsel did not answer or address any of defendant's "questions about the strengths, possible sentencing provisions, and other tactical matters other than to [say] that the case 'did not look good.'" Defendant asserted that he believed that his only option was to plead guilty.
Regarding the sentence imposed, defendant averred that his trial attorney did not review the presentence report with him and never objected to the application of NERA to defendant's case, even though defendant was only in possession of an unloaded weapon. He also certified that his trial attorney failed to argue that the court should not rely on a trial-court NERA opinion, which was subsequently overruled, as it was not binding on the sentencing judge. Finally, he certified that his trial attorney did not provide the sentencing judge with the aggravating and mitigating factors that applied to defendant,*fn1 did not notify defendant that he would not do so, did not object to the comments made by the prosecutor at sentencing, and did not advise defendant that he would not object.*fn2
The motion was argued on March 3, 2004, and the PCR judge began by noting that the judgment of conviction had to be amended because it did not conform to what was said at sentencing respecting mitigating and aggravating factors and failed to reflect NERA parole supervision for five years. Defendant's PCR counsel pointed to these errors as evidence that his trial counsel was ineffective. The attorney stated that he had defendant's family members in court, who would testify that they had asked the trial attorney to file an appeal, entitling defendant to an evidentiary hearing. However, none of the family members submitted a certification regarding this issue, and it was not addressed in defendant's certification.
With respect to the NERA issue, defendant argued that the State was required to prove whether the weapon was operable or inoperable, loaded or unloaded, at the time of the offense in order to support application of the NERA to the sentence, and that there were no such proofs, which defendant contended were required by State v. Grawe, 327 N.J. Super. 579 (App. Div.), certif. denied, 164 N.J. 560 (2000). As a consequence, defendant contended that the weapon was unloaded and that his trial counsel was ineffective in failing to demand a hearing to establish the factual predicate for application of the NERA.
PCR counsel also argued that the particular prosecutor who appeared at sentencing should not have handled the matter. He based this on the remarks the prosecutor made about the impact of the crime on the victims, who did not appear for sentencing. PCR counsel asserted this made the prosecutor a witness. He argued that defendant's trial counsel was ineffective for failing to object to the prosecutor's remarks.
After recessing to review Grawe, the PCR judge denied the motion from the bench on March 3, 2004, in a lengthy and carefully reasoned oral opinion addressing each issue raised by defendant and discussing the law applicable to each issue. He noted that, other than one factual issue about an alleged failure to file an appeal, all of the issues were legal. The judge found that there were no certifications before him attesting to any request that trial counsel file an appeal after sentencing. As a consequence, he held that defendant had not made out a prima facie case of ineffective assistance of counsel in this respect and concluded that no evidentiary hearing was required.
The PCR judge reviewed the plea hearing and plea form and concluded that they clearly established that the plea was knowing and voluntary, contrary to defendant's contentions. He also noted that the plea form included the NERA supplemental plea form, which advised defendant of the consequences of a crime subject to the NERA, and concluded that he was aware of same. The judge observed that defendant did not seek any relief from his plea and sentence for almost five years and concluded that there was no merit to the claim based on the plea form and plea transcript.
With respect to the NERA issue, the PCR judge discussed the law extant at the time of sentencing, June 23, 2000, including the 1997 version of the NERA (applying the NERA to "any crime in which the actor . . . uses or threatens the immediate use of a deadly weapon"); Grawe, supra, 327 N.J. Super. at 593 (holding that the intent and conduct of the defendant, not the victim, controls for NERA sentencing purposes when death or serious bodily injury were not caused); and State v. Perez, 331 N.J. Super. 497, 504-05 (Law Div. 2000) (holding that a temporarily inoperable weapon was nonetheless subject to NERA), aff'd, in part, and remanded, in part, on other grounds, 348 N.J. Super. 322 (App. Div.), certif. denied, 174 N.J. 192 (2002).*fn3
The PCR judge concluded that Grawe was factually distinguishable from this case because the defendant in Grawe possessed a hammer, which he used to break the glass in a jewelry case during a robbery, but did not threaten the shopkeeper with the hammer nor did he admit that he intended to do so. Grawe, supra, 327 N.J. Super. at 594-95. By contrast, the PCR judge found that defendant at the plea hearing admitted that he possessed an Uzi at the time of the armed robbery, that he went to a TGI Fridays with the intention of robbing it, and that he used the gun to get the money and to intimidate and frighten the individuals at the restaurant. Furthermore, the co-defendants were armed, and at least two shots were fired from the defendants' weapons with one co-defendant being shot in the leg by one of the three perpetrators and the other committing suicide before the police could apprehend him. The judge noted that there was no proof or even an allegation that the Uzi was inoperable and found that it was operable, although the police record was silent as to whether it was loaded or not. There was also no suggestion anywhere in the record that the Uzi was not loaded.
The PCR judge concluded that the record supported the application of NERA to this case and pointed out that, subsequent to sentencing here, our Supreme Court decided State v. Rumblin, 166 N.J. 550, 557 (2001) (holding that an unarmed accomplice may be subject to NERA), and State v. Parolin, 171 N.J. 223, 227-30 (2002) (holding that a factual basis at the plea can support the application of NERA without a NERA hearing prior to sentencing). Based on Rumblin the judge concluded that there was no issue respecting the application of the NERA to defendant and concluded that a NERA hearing was not required.
As a consequence, he concluded that trial counsel was not ineffective with respect to the NERA issues.
Next, the PCR judge examined the issues respecting the aggravating and mitigating factors. He noted that the sentencing transcript, contrary to defendant's certification, revealed that his attorney reviewed the presentence report with defendant and represented that "it [is] accurate in scope and content for the purpose of this proceeding." At sentencing, defendant did not dispute this representation, even though he was given an opportunity to speak. With respect to aggravating and mitigating factors, the court found that the sentencing transcript revealed that counsel pointed out the good things about defendant, his remorse, his age, his minimal prior criminal history, his good background, and his employment. Although defendant pled to a fifteen-year sentence, his counsel argued forcefully for a term of only twelve years, contending that a NERA sentence was too harsh. Based on the strong presumption of reasonable, professional assistance, the PCR judge concluded that the assistance of defendant's trial counsel was not ineffective. The PCR judge also pointed out that the sentencing judge did consider the non-statutory mitigating factors, balanced them against the aggravating factors, and concluded that he could not depart from the then-extant presumptive term.
Finally, the PCR judge addressed the claim of prosecutorial misconduct, acknowledging that it, like many of the other issues, should have been brought up on direct appeal. Nonetheless, he found that the prosecutor's statements were fair and did not amount to misconduct. He concluded that there was no merit to any of defendant's claims and denied all relief.
This timely appeal followed and defendant raises the following issues for our consideration:
POINT I -- TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO ARGUE THAT THE FACTS CONTAINED IN THE DEFENDANT'S PLEA DID NOT ESTABLISH THE NECESSARY CRITERIA FOR THE APPLICATION OF THE NO EARLY RELEASE ACT TO HIS SENTENCE.
POINT II -- THE DEFENDANT IS ENTITLED TO AN EVIDENTIARY HEARING ON THE ISSUES OF TRIAL COUNSEL[']S FAILURE TO ARGUE AGAINST THE APPLICATION O[F] NERA TO HIS SENTENCE AND FAILURE TO SUBMIT A TIMELY APPEAL.
POINT III -- TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO OBJECT TO THE PROSECUTOR'S HEARSAY COMMENTS AT SENTENCING USED TO ESTABLISH THE NECESSARY REQUIREMENTS FOR APPLICATION OF THE NO EARLY RELEASE ACT AND FOR FAILURE TO OBJECT TO THE PROSECUTOR[']S CONSPICUOUS CONFLICT OF INTEREST.
Post-conviction relief is considered New Jersey's analogue to the federal court's writ of habeas corpus. "A claim for post-conviction relief must be established by a preponderance of the credible evidence." State v. McQuaid, 147 N.J. 464, 483 (1997) (citing State v. Preciose, 129 N.J. 451, 459 (1992)); State v. Ball, 381 N.J. Super. 545, 553 (App. Div. 2005). In order for a court to consider such a claim, a defendant must establish by a preponderance of the evidence one of the following: (a) denial of defendant's rights under the constitution or the laws of New Jersey; (b) lack of jurisdiction of the rendering court; (c) excessive sentence under the law; or (d) any grounds for collateral attack. R. 3:22-2.
The Sixth Amendment of the United States Constitution guarantees every criminal defendant the assistance of legal counsel in his or her defense. Strickland v. Washington, 466 U.S. 668, 685, 104 S.Ct. 2052, 2063, 80 L.Ed. 2d 674, 692 (1984). Moreover, the right to counsel is expansively viewed as the right to the effective assistance of counsel. Ibid.
The evaluation of a claim of ineffective assistance of counsel requires a two-prong analysis. In order to prevail on a claim of ineffective assistance of counsel, the defendant must first demonstrate that trial counsel committed serious professional errors. Id. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693. Second, defendant must demonstrate that the professional errors prejudiced the defendant to the extent that he was deprived of a fair trial. Ibid. "Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable." Id., 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693. The standards embodied in the Strickland test have been adopted by the New Jersey courts. State v. Fritz, 105 N.J. 42, 58 (1987).
"'Judicial scrutiny of counsel's performance must be highly deferential,' and must avoid viewing the performance under the 'distorting effects of hindsight.'" State v. Norman, 151 N.J. 5, 37 (1997) (quoting, Strickland, supra, 466 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed. 2d at 694). Moreover, there is a strong presumption that counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, supra, 466 U.S. at 690, 104 S.Ct. at 2066, 80 L.Ed. 2d at 695.
Adequate assistance of counsel should be measured by a standard of "reasonable competence." Fritz, supra, 105 N.J. at 60-61. That standard does not require "the best of attorneys," but rather requires that attorneys be "not . . . so ineffective as to make the idea of a fair trial meaningless." State v. Davis, 116 N.J. 341, 351 (1989). Also, counsel's effectiveness must be assessed based on the totality of circumstances taking into consideration the evidence that the State puts forth regarding the guilt of the defendant. State v. Marshall, 123 N.J. 1, 165 (1991), cert. denied, 507 U.S. 929, 113 S.Ct. 1306, 122 L.Ed. 2d 694 (1993).
The second prong of Strickland requires that there be a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Fritz, supra, 105 N.J. at 52 (quotations omitted). A presumption is not appropriate in the second prong of the Strickland/Fritz test unless the performance of counsel had "egregious shortcomings." Id. at 61.
Viewing the facts in the light most favorable to defendant, we conclude defendant has failed to present a prima facie claim for post-conviction relief. First, R. 3:22-8 requires that a PCR "petition shall be verified by defendant and shall set forth with specificity the facts upon which the claim for relief is based, the legal grounds of complaint asserted, and the particular relief sought." If the defendant does not have personal knowledge of some of the facts relevant to his position, he must support his application with third-party "affidavits or certifications based upon the personal knowledge of the affiant or the person making the certification." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).
Here, defendant did not certify that he had asked his trial counsel to file a direct appeal, nor did he submit affidavits or certifications from any family member attesting that they had asked defendant's trial counsel to file an appeal. The PCR judge correctly concluded that defendant had not made out a prima facie claim of ineffective assistance of counsel in this regard and, thus, an evidentiary hearing was not required. Id. at 170-71.
As to the remaining claims of ineffective assistance of counsel, after carefully reviewing the record in the light of the written arguments advanced by the parties, we conclude that defendant's arguments "are without sufficient merit to warrant discussion in a written opinion." R. 2:11-3(e)(2). Those arguments are (1) that trial counsel was ineffective in failing to argue that the facts did not support application of the NERA, (2) that trial counsel was ineffective for failing to argue against the application of the NERA, and (3) that trial counsel was ineffective for failing to object to the prosecutor's sentencing comments and his alleged conflict of interest.
We affirm substantially for the reasons expressed by the PCR judge in his oral opinion delivered on March 3, 2006. The findings and conclusions of the judge are supported by substantial, credible evidence in the record. State v. Locurto, 157 N.J. 463, 471 (1999). We add the following: The NERA was clearly applicable to the crime to which defendant pled guilty based on the facts before the sentencing judge. Even if it was reasonable to argue that it did not apply at the time of sentencing, or to argue that the sentencing judge should not rely on Perez, those arguments would have proved fruitless on direct appeal because in 2001 we concluded that the NERA applies to an unloaded operable weapon. Jules, supra, 345 N.J. Super. at 192-93.*fn4 Thus, defendant's claim that the Uzi was unloaded would have been unavailing and counsel's failure to raise the issue was not ineffective. Finally, there was nothing improper about the prosecutor's comments at sentencing and the failure to object to those comments does not rise to the level of ineffective assistance of counsel.