September 28, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ROBERT KNIGHT, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 98-04-1303.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 11, 2007
Before Judges Axelrad and Messano.
Defendant Robert Knight appeals from the August 12, 2005, order denying his petition for post-conviction relief (PCR). He raises three issues for our consideration.
POINT I DEFENDANT'S PCR COUNSEL RENDERED INEFFECTIVE ASSISTANCE. (Not Raised Below.)
POINT II THE PCR COURT ERRED IN BARRING DEFENDANT'S ILLEGAL SENTENCE CLAIM.
POINT III THE PCR COURT FAILED TO RULE ON THE ILLEGAL SENTENCE ISSUE RAISED IN DEFENDANT'S PRO SE BRIEF.
After consideration of these contentions in light of the record and applicable legal standards, we affirm.
In March 1998, defendant was charged by the Camden County grand jury in Indictment 1303-04-98 with various crimes including attempted murder, two counts of aggravated assault, and possession of a weapon for an unlawful purpose. In July 1998, he was indicted again and charged in Indictment 2948-08-98 with seventeen counts of various crimes including three counts of robbery, two counts of burglary, two counts of aggravated assault, and two counts of terroristic threats.
While those indictments were pending, defendant proceeded to trial on a third indictment, 3411-12-97, was convicted of various crimes, and, on March 24, 2000, was sentenced to twenty-seven years imprisonment with twenty years of parole ineligibility. He then entered guilty pleas to attempted murder, on Indictment 1303-04-98, and first-degree robbery, on Indictment 2948-08-98, pursuant to a plea agreement by which the State agreed to recommend concurrent sentences and an aggregate maximum of fifty years imprisonment including twenty-one years of parole ineligibilty.
The transcript from those proceedings reveals that defendant indicated that he 1) wished to plead guilty to both offenses; 2) had enough time to discuss the charges with his attorney; 3) was satisfied with counsel's representation; 4) understood he was giving up certain rights; 5) was not being coerced in anyway into pleading guilty; and 6) understood that by pleading guilty he was avoiding a possible sentence of fifty years imprisonment without parole. On April 7, 2000, defendant was sentenced in accordance with the plea agreement and those sentences were ordered to be served concurrently with the sentence on Indictment 3411-12-97.*fn1 On December 11, 2002, we denied defendant's direct appeal in which he claimed the sentence was excessive. His petition for certification to the Supreme Court was denied. 175 N.J. 549 (2003).
Defendant's PCR petition, filed July 19, 2005, under Indictments 1303-04-98 and 2948-08-98, argued that trial counsel provided ineffective assistance, that appellate counsel was also ineffective, that his sentence should have been below the presumptive term, and that his sentence was illegal. In his pro se brief in support of the petition, defendant further argued that the extended term sentence imposed upon him was based upon an earlier Graves Act*fn2 conviction and that the sentence in that case was illegal.
Defendant appeared before Judge Samuel D. Natal on August 12, 2005, for a hearing. Although the PCR petition was unsupported by any affidavits, certifications, expert reports, or other evidence, Judge Natal permitted defendant to testify in his own behalf. Defendant could recall little of the prior plea proceedings, but did testify that his trial counsel told him that he had to plead guilty because "it was a good case."
After considering the arguments of PCR counsel, the judge determined that defendant's testimony, limited as it was, lacked credibility. He then considered the legal points raised by the petition.
First, he concluded defendant had not demonstrated that trial counsel rendered ineffective assistance. Although defendant alleged trial counsel failed to adequately investigate the possibility of a psychiatric or psychological defense, Judge Natal referenced medical reports that evaluated defendant's pre-trial condition and concluded the claim was "without merit." Regarding defendant's claim that trial counsel failed to file a motion to dismiss the indictment based upon the original complaint/warrant not having been signed, the judge noted such a motion would have been unsuccessful in light of R. 3:3-4,*fn3 and because "the complaints in question were signed." Likewise, the judge determined that trial counsel's failure to challenge the admissibility of defendant's statement made while in police custody did not amount to ineffective assistance because such a motion would have been unsuccessful.
Considering defendant's argument that counsel failed to adequately advise him of all the material consequences of his guilty plea, Judge Natal concluded that this claim "rel[ied] on . . . bald assertions," and was contrary to the record of the proceedings.
The judge next considered defendant's claim that his appellate counsel rendered ineffective assistance because he had failed to raise these issues on direct appeal. Judge Natal noted first that since some of the issues were not raised by trial counsel, they were not "[p]reserved for appeal," and, therefore, appellate counsel did not have "any obligation to raise these matters on appeal." The judge further found that since none of the issues would have been successful, appellate counsel "could not have been ineffective for not raising them."
Turning to the sentencing issues raised by the petition, Judge Natal initially determined that defendant's claim that his sentence should have been below the presumptive term of imprisonment was really an argument "regarding [the] excessiveness of the sentence." He concluded that issue had been previously adjudicated on direct appeal and was barred from further consideration by R. 3:22-5.*fn4
Lastly, Judge Natal considered defendant's contention that his sentence was illegal under Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed. 2d 403 (2004). Noting our Supreme Court's holding in State v. Natale, 184 N.J. 458 (2005), and its limited "pipeline" retroactive effect, the judge concluded defendant was not entitled to any relief. He entered an order denying defendant's PCR petition.*fn5
Turning to the issues presented on this appeal, defendant claims PCR counsel rendered ineffective assistance because he "did nothing to establish that, but for the deficient performance of trial counsel, defendant would have taken the cases to trial." State v. DiFrisco, 137 N.J. 434, 456 (1994), cert. denied, 516 U.S. 1129, 116 S.Ct. 949, 133 L.Ed. 2d 873 (1996). Defendant claims that PCR counsel failed "to ask all of the necessary questions," failed to "present evidence at an evidentiary hearing," and failed to marshal the requisite legal arguments.
The standard for determining whether counsel's performance was ineffective for purposes of the Sixth Amendment was formulated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42 (1987). The two-pronged Strickland/Fritz test requires defendant to establish: (1) that counsel's performance was deficient and he made errors that were so serious that counsel was not functioning effectively as guaranteed by the Sixth Amendment to the United States Constitution; and, (2) that there exists a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different." Strickland, 466 U.S. at 694.
We conclude that defendant has failed to demonstrate in the first instance that PCR counsel's performance was deficient under the Strickland/Fritz standard. In State v. Rue, 175 N.J. 1, 18 (2002), the Supreme Court noted that PCR counsel is required "to communicate with his client and investigate the claims." "[C]counsel then must 'fashion the most effective arguments possible.'" Ibid. (quoting State v. Velez, 329 N.J. Super. 128, 133 (App. Div. 2000)). In State v. Webster, 187 N.J. 254 (2006), decided after the PCR hearing in this case, the Court stated
[C]counsel should advance all of the legitimate arguments that the record will support. If after investigation counsel can formulate no fair legal argument in support of a particular claim raised by defendant, no argument need be made on that point. Stated differently, the brief must advance the arguments that can be made in support of the petition and include defendant's remaining claims, either by listing them or incorporating them by reference so that the judge may consider them. That procedure, which will serve to preserve defendant's contentions for federal exhaustion purposes, is all that is required. [Id. at 257.]
We conclude that PCR counsel appropriately raised those claims supported by the record and his investigation. Defendant has failed to demonstrate in any fashion that additional, specific information should have been produced at the PCR hearing or that other additional legal arguments should have been raised. He has failed to demonstrate that PCR counsel's performance was deficient.
We conclude that defendant's second point -- the judge erred in barring the claim that his sentence was illegal -- is without sufficient merit to warrant further discussion, and we affirm substantially for the reasons set forth by Judge Natal.
Lastly, we acknowledge that Judge Natal did not address the argument raised by defendant in his pro se brief. However, since the issue raised is purely a legal one, and since our review of any legal determinations made by the PCR court would be de novo, State v. Harris, 181 N.J. 391, 415 (2004), a remand is unnecessary.
Defendant was sentenced pursuant to N.J.S.A. 2C:43-6c, which mandates an extended term of imprisonment if defendant stands convicted of certain enumerated offenses having been "previously convicted of an offense involving the use or possession of a firearm." He contends the sentence imposed for his previous conviction in 1994 was illegal and therefore his current sentence was also illegal. He further argues he was not advised at the time he entered his plea that an extended term of imprisonment was mandatory, nor was he formally noticed of the prosecutor's intention to seek an extended term. Lastly, he asserts that PCR counsel provided ineffective assistance because he did not raise this issue at the hearing before Judge Natal.
Initially we note that defendant's sentence in 1994 was not illegal. Defendant concedes that he pled guilty to second-degree possession of a weapon with the intent to use it unlawfully, was sentenced as a third-degree offender to four years imprisonment, and, because the Graves Act was implicated, received a three-year period of parole ineligibility. Since that period of time was mandated by N.J.S.A. 2C:43-6c as a minimum period of parole ineligibility, there was nothing illegal regarding defendant's sentence.
Defendant's claim that he was not given proper notice of the State's intention to seek a mandatory extended term is amply rebutted by the transcript of the plea proceedings. Any attempt by PCR counsel to further argue defendant's pro se claim would have been fruitless and therefore his decision not to do so did not render his performance deficient.