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State v. Rogers

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


October 19, 2007

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
KELVIN ROGERS, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 96-12-1240.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 9, 2007

Before Judges Collester and C.S. Fisher.

Defendant has appealed the denial of his petition for post-conviction relief, which alleged a deprivation of his constitutional right to the effective assistance of counsel. As a result of the judge's inadequate fact finding as well as the decision's incorporation of extraneous information, which defendant had no opportunity to challenge or rebut, we vacate the order denying post-conviction relief and remand for an evidentiary hearing.

In 1996, defendant was indicted and charged with first-degree robbery, N.J.S.A. 2C:15-1(a), second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a), and third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b). A jury found defendant guilty of all these charges at the conclusion of his trial in 1998. At sentencing, the trial judge granted the State's motion for an extended term, and imposed a fifty-four-year prison term, with an eighteen-year period of parole ineligibility, on the robbery conviction. The judge also sentenced defendant to a concurrent five-year prison term on the unlawful possession of a weapon conviction.*fn1 On February 14, 2000, we affirmed the judgment of conviction by way of an unpublished opinion, Docket No. A-1475-98T4, and, on March 2, 2000, we denied defendant's motion for reconsideration. The Supreme Court denied defendant's petition for certification on June 27, 2000. 165 N.J. 137.

Defendant filed a pro se petition for post-conviction relief (PCR) on May 30, 2001, claiming he was denied the effective assistance of counsel guaranteed by the Sixth Amendment. After a considerable delay -- the record indicates counsel was not assigned to represent defendant until late 2005 -- the trial judge heard the argument of counsel on March 3, 2006. Appointed counsel for defendant briefly argued defendant's position that his trial counsel failed to investigate an alibi defense, conceded that some of the issues raised in the pro se petition were "addressed by the Appellate Division" in the direct appeal, and then "submitt[ed]" the balance of defendant's contentions "to the Court's discretion." With this, defendant requested, but was denied, the opportunity to address the court. He, thus, asked to be returned to prison. After defendant was removed from the courtroom, and after hearing argument from the prosecutor, the judge denied defendant's petition without conducting an evidentiary hearing. Except for his discussion of the claim that trial counsel had failed to investigate and pursue an alibi defense, the trial judge briefly expressed his personal view of trial counsel's abilities, concluded that trial counsel's performance in the matter at hand conformed to that standard, and then adopted the State's brief as the balance of his findings of facts.

Defendant appealed the order denying post-conviction relief entered on March 13, 2006. In his brief on appeal, defendant presents the following arguments:

I. THE LOWER COURT ERRED IN DENYING THE PETITION SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

A. DEFENDANT'S TRIAL ATTORNEY FAILED TO OBJECT TO PREJUDICIAL COMMENTS DURING THE STATE'S OPENING STATEMENT.

B. DEFENDANT'S TRIAL ATTORNEY FAILED TO PROPERLY CROSS EXAMINE OFFICER LARRY DEPROSPO.

C. DEFENDANT'S TRIAL ATTORNEY FAILED TO PROPERLY CROSS EXAMINE VICTIM MICHAEL VANSLOOTEN.

D. DEFENDANT'S TRIAL ATTORNEY FAILED TO CALL A CRIME SCENE OFFICER.

E. DEFENDANT'S TRIAL ATTORNEY FAILED TO PROPERLY CROSS EXAMINE OFFICER SCOTT KNICK.

F. DEFENDANT'S TRIAL ATTORNEY FAILED TO PROPERLY CROSS EXAMINE THE STATE'S WEAPONS EXPERT AND FAILED TO CALL AN EXPERT TO REFUTE HIS FINDINGS.

G. DEFENDANT'S ATTORNEY FAILED TO INVESTIGATE A POTENTIAL ALIBI.

H. DEFENDANT'S ATTORNEY FAILED TO ARGUE IN THE MOTION FOR JUDGMENT OF ACQUITTAL THAT THE STATE DID NOT MEET ITS BURDEN OF PROOF REGARDING IDENTIFICATION.

I. DEFENDANT'S TRIAL ATTORNEY FAILED TO OBJECT TO THE STATE SHIFTING THE BURDEN OF PROOF ONTO THE DEFENSE IN SUMMATION.

J. DEFENDANT'S TRIAL ATTORNEY FAILED TO OBJECT TO THE IDENTIFICATION CHARGE.

K. DEFENDANT'S TRIAL ATTORNEY FAILED TO ARGUE MITIGATING FACTORS AND FAILED TO ARGUE AGAINST AN EXTENDED TERM DURING THE SENTENCING.

II. THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE CUMULATIVE ERRORS BY COUNSEL AMOUNTED TO INEFFECTIVE ASSISTANCE OF COUNSEL.

III. THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL.

IV. THE ORDER DENYING POST-CONVICTION RELIEF MUST BE REVERSED IN LIGHT OF NUMEROUS ADDITIONAL ERRORS.

V. THE COURT'S DENIAL OF DEFENDANT'S POST-CONVICTION RELIEF APPLICATION MUST BE REVERSED AS THE COURT FAILED TO MAKE SPECIFIC FINDINGS OF FACT AND CONCLUSION[S] OF LAW AS REQUIRED BY R. 3:22-11 [Not Raised Below].

VI. THE LOWER COURT ERRED IN NOT GRANTING DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING AND THE LOWER COURT ORDER MUST THEREFORE BE REVERSED.

Because the judge's findings, with one exception, merely incorporated the State's brief in opposition, and because it was inappropriate for the trial judge to have relied upon his personal knowledge of trial counsel's experiences and abilities in finding that defendant was provided with the effective assistance of counsel, we vacate the order denying post-conviction relief and remand for an evidentiary hearing.

R. 3:22-11 requires that a PCR judge "state separately its findings of fact and conclusions of law." "Naked conclusions" are insufficient; instead, a judge must "state clearly its factual findings and correlate them with the relevant legal conclusions." Curtis v. Finneran, 83 N.J. 563, 570 (1980). The absence of proper findings leaves an appellate court with uncertainty about how a case was decided and, thus, as the Supreme Court has said, "constitutes a disservice to the litigants, the attorneys and the appellate court." Id. at 569-70 (quoting Kenwood Assocs. v. Bd. of Adj. Englewood, 141 N.J. Super. 1, 4 (App. Div. 1976)). See also In re Farnkopf, 363 N.J. Super. 382, 390 (App. Div. 2003); Salch v. Salch, 240 N.J. Super. 441, 443 (App. Div. 1990).

Here, the judge provided a decision that, for the most part, was not crafted with his own words. Rather, the judge merely adopted the State's brief:

[B]ecause some of these matters seem to me to be so clearly without merit, I am not going to go through them one at a time. They are responded to in [the State's brief] . . . [a]nd I adopt by reference . . . what is stated there.

And for all of those reasons it's clear to me that if this alibi issue is the best issue the defense has going for it, then there really is no legitimate basis to even debate the merits of a post-conviction relief for this defendant, although [defendant's PCR counsel] did a very fine job in the submissions that he submitted under all of these circumstances.

But rather than go through those arguments, I adopt by reference what is recited in the . . . submission of the State, and deny the application for post-conviction relief.

We conclude that a judge's adoption of a party's brief is not a legitimate substitute for the findings required by R. 3:22-11. Although the judge's general reference to the State's brief is an improvement over the circumstances referred to in the decisions cited above -- where the trial judges gave little or no explanation for their judgments -- the obligation to provide specific findings of fact also requires that a trial judge state "his or her reasons." Vartenissian v. Food Haulers, Inc., 193 N.J. Super. 603, 612 (App. Div. 1984). Accord United States v. El Paso Nat. Gas. Co., 376 U.S. 651, 656-57, 84 S.Ct. 1044, 1047, 12 L.Ed. 2d 12, 17 (1964) (holding that, even though an appellate court should not "reject[] out-of-hand" a judge's mechanical adoption of a litigant's proposed findings, "the insight of a disinterested mind [is] more helpful to the appellate court")*fn2 ; United States v. Forness, 125 F.2d 928, 942 (2d Cir. 1942) (discussing the inadequacy of a "mechanical[] adopt[ion]" of a party's proposed findings, and holding that such a practice deprives the appellate court "of the judge's own consideration" of the matter); United States v. Premo Pharm. Labs., Inc., 511 F. Supp. 958, 978 (D.N.J. 1981) (holding that the findings required by Federal Rule of Civil Procedure 52 are to be "the findings of the court and not the findings of counsel"); Phillips v. Phillips, 464 P.2d 876, 878 (Colo. 1970) (holding that, in finding facts, the trial judge has "the responsibility to give utterance -- solely from his own lips --of his views"). The expression of the judge's own words rather than a litigant's is, as we have observed, the better practice, Vartenissian, supra, 193 N.J. Super. at 612, because it unburdens the litigants and the appellate court of the daunting task of deciphering or ferreting the judge's decision from the trial court submissions. Ibid. In addition, the judge's utterance of his own findings, rather than the adoption of those proposed by counsel, has the salutary effect of demonstrating that the judge has "heard and addressed the relevant facts and claims under the controlling legal standards." Gordon v. Rozenwald, 380 N.J. Super. 55, 77 (App. Div. 2005).

To avoid an appearance that a judge has failed to engage in a thorough consideration of the matter and has dismissively rejected a party's contentions, we hold that the findings required by R. 3:22-11 are those formulated by the judge and stated with specificity in the judge's own words. Accordingly, we concur with the observation that whenever a trial judge adopts verbatim findings suggested by one side, "a gnawing doubt" is generated "about how much the judge injected his own intelligence into the process." Makino, U.S.A., Inc. v. Metlife Capital Credit Corp., 518 N.E.2d 519, 526 (Mass. App. 1988). Because such a methodology "fail[s] to foster the appearance of fairness and impartiality in our courts, and may thereby reduce confidence in our judicial system," Schmidkunz v. Schmidkunz, 529 N.W.2d 857, 859 (N.D. 1995), we conclude that the trial judge's adoption of the State's brief in lieu of his own statement of reasons for denying post-conviction was inconsistent with the obligations imposed by R. 3:22-11.*fn3

We also conclude that it was inappropriate for the judge to incorporate into the decision his personal views -- not subject to cross-examination or rebuttal, and not otherwise contained in the record -- about the abilities, experience, and particular approach of defendant's trial counsel. In this regard, the judge made the following observations when he denied defendant's PCR petition:

[Defendant's] trial attorney . . . is still an attorney who's here now trying cases . . . in the criminal courts. That's exclusively his practice. He was [a] . . . prosecutor in Passaic County for a number of years back in the '70s and early '80s, I guess, and since then has done nothing but criminal cases. He does a lot of pool work for the public defender, and usually is given the harder cases, the more serious cases to try.

So . . . at the point of time that he was involved in this case, he had very extensive experience as a trial lawyer in jury trials in criminal matters for the defense side.

And his -- I don't want to say style, but his approach is often to zero in on key issues. Of course, someone with that experience is able to identify the precise point that you can take a stand on in a case. And rather than sometimes lose credibility and lose the jury by a . . . sort of a buckshot approach of scattering things and making many, many arguments that can readily be shown to be frivolous, he zeros in on key matters. And I think that can be seen from the record of this case, as well.

Certainly, in considering a defendant's claim of a denial of the effective assistance of counsel, a judge is entitled to weigh the parties' contentions in light of his own observations of counsel's performance during the course of the trial over which he presided. See Strickland v. Washington, 466 U.S. 668, 690, 104 S.Ct. 2052, 2066, 80 L.Ed. 2d 674, 695 (1984). But, a judge's privately-held knowledge regarding that attorney's abilities should not be considered. Such information, when generated by a judge's observations of matters outside the record, "is entitled to no weight at all." Amadeo v. Amadeo, 64 N.J. Super. 417, 424 (App. Div. 1960). See also Lazovitz v. Bd. of Adj., Berkeley Heights, 213 N.J. Super. 376, 382 (App. Div. 1986); Route 15 Assocs. v. Jefferson Tp., 187 N.J. Super. 481, 490 (App. Div. 1982); Wallington Home Owners' Ass'n v. Wallington, 130 N.J. Super. 461, 465 (App. Div.), aff'd o.b., 66 N.J. 30 (1974). Although it is perhaps inevitable that a judge's consideration of a particular attorney's performance in a given case may be, as here, impacted by the judge's prior experiences with that attorney, the judge must nevertheless be vigilant in preventing such "extraneous material from seeping into the process." State v. Humphreys, 89 N.J. 4, 14 (1982).

In the final analysis, we must be mindful that the issue in dispute is of constitutional dimension and that defendant's liberty interests rest in the balance. A judge's obligation to render his or her own findings rather than those prepared by counsel is a small burden when weighed against the interests implicated in these matters. Post-conviction relief is, after all, "a defendant's last opportunity to raise a constitutional challenge to the fairness and reliability of a criminal verdict in our state system." State v. Feaster, 184 N.J. 235, 249 (2005) (citing State v. Rue, 175 N.J. 1, 18 (2002)). The trial judge's dismissive rejection of defendant's contentions exhibited insufficient regard for the important Sixth Amendment issues raised in defendant's challenge to the reliability of the trial's outcome. The procedure adopted by the judge in simply referring to the State's brief had the qualities of speed and efficiency, but due process recognizes "higher values." Fuentes v. Shevin, 407 U.S. 67, 90 n.22, 92 S.Ct. 1983, 1999 n.22, 32 L.Ed. 2d 556, 576 n.22 (1972). We likewise observe that since defendant did not receive notice that the judge would rely upon information outside the record and was granted no opportunity to rebut or otherwise challenge the judge's privately-held views of trial counsel's abilities and experience, the judge's reliance on this extraneous information constituted a deprivation of defendant's due process rights.

Concluding that the judge's findings did not comport with R. 3:22-11 and recognizing that the judge impermissibly allowed extraneous material -- in the form of his own personally held opinions -- to seep into the process, we vacate the order denying post-conviction relief and remand for an evidentiary hearing on the factual issues raised by defendant in the trial court, to be followed by the issuance of findings of fact in a manner that conforms with this opinion.

Vacated and remanded. We do not retain jurisdiction.


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