January 17, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JONATHAN SIERRA, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 97-12-3138.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 30, 2007
Before Judges Skillman and Winkelstein.
A jury found defendant guilty of purposeful or knowing murder, in violation of N.J.S.A. 2C:11-3a(1), (2). The trial court sentenced defendant to life imprisonment. The court also found defendant's conviction to be subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and directed that defendant serve 85% of his sentence before eligibility for parole.
We affirmed defendant's conviction in an unreported opinion. State v. Sierra, No. A-5244-98T4 (Nov. 5, 2001). However, we determined, in accordance with State v. Manzie, 335 N.J. Super. 267 (App. Div. 2000), aff'd, 168 N.J. 113 (2001), that defendant's life sentence was not subject to NERA. Therefore, we vacated the parole ineligibility component of defendant's sentence and remanded the case for resentencing. On the remand, the trial court imposed a thirty-year period of parole ineligibility upon defendant. The Supreme Court denied defendant's petition for certification. 171 N.J. 340 (2002). Defendant filed a timely petition for post-conviction relief. Judge Connor, who had also been the trial judge, denied the petition by an oral opinion delivered on June 23, 2006. On appeal, the Public Defender filed a brief on defendant's behalf, which presents the following arguments:
I. JUROR INATTENTION TO THE MATERIAL TESTIMONY OF A KEY WITNESS CANNOT BE CURED BY A READBACK OF THE TESTIMONY, THEREBY DEPRIVING THE DEFENDANT OF A FAIR TRIAL.
II. THE TRIAL COURT'S CHARGE IMPERMISSIBLY ALLOWED THE JURY TO CONVICT THE DEFENDANT OF MURDER WHERE IT DETERMINED THAT A HOMICIDE OCCURRED REGARDLESS OF WHETHER SELF-DEFENSE WAS JUSTIFIED.
III. THE DEFENDANT'S APPELLATE COUNSEL WAS CONSTITUTIONALLY INEFFECTIVE WHERE HE DID NOT ADDRESS EITHER THE ISSUE OF THE INATTENTIVE JUROR OR THE IMPERMISSIBLE JURY CHARGE, BOTH OF WHICH DEPRIVED THE DEFENDANT OF A FAIR TRIAL.
We reject these arguments substantially for the reasons set forth in Judge Connor's oral opinion. In addition, defendant filed a supplemental pro se brief, which argues that the counsel assigned to represent him on his petition provided ineffective assistance because he failed to advance grounds for post-conviction relief that defendant insisted he present. At our request, the State filed a second answering brief to this supplemental brief.
Rule 3:22-6(d) provides in pertinent part:
Counsel [assigned to represent a defendant on a petition for post-conviction relief] should advance any grounds insisted upon by defendant notwithstanding that counsel deems them without merit.
Interpreting this rule, the Court stated in State v. Rue, 175 N.J. 1, 19 (2002):
[C]counsel must advance the claims the client desires to forward in a petition and brief and make the best available arguments in support of them. Thereafter, as in any case in which a brief is filed, counsel may choose to stand on it at the hearing, and is not required to further engage in expository argument. In no event however, is counsel empowered to denigrate or dismiss the client's claims, to negatively evaluate them, or to render aid and support to the state's opposition. That kind of conduct contravenes [Rule 3:22-6(d)].
In State v. Webster, 187 N.J. 254, 257 (2006), the Court refined Rue, stating:
Reduced to its essence, Rue provides that PCR counsel must communicate with the client, investigate the claims urged by the client, and determine whether there are additional claims that should be brought forward. Thereafter, 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.
Defendant has attached papers to his supplemental brief that seem to indicate that the counsel assigned to represent him in his petition failed to comply with Rule 3:22-6(d), as interpreted in Rue and Webster. It is unclear whether these papers were submitted to the trial court. If not, they would not ordinarily be considered part of the record on appeal. However, since the basis of defendant's argument is that assigned counsel failed to present the arguments set forth in those papers to the trial court, we are obligated to review them to determine whether defendant has made a prima facie showing that assigned counsel failed to comply with his obligations under Rule 3:22-6(d). If those documents were not submitted to the trial court, defendant may be required to show their authenticity on remand.
The documents attached to defendant's supplemental brief include a "Memorandum in support of Post-Conviction Relief" prepared by defendant, which presented the following arguments:
I. TRIAL COUNSEL'S FAILURE TO ADEQUATELY PREPARE AND EXERCISE NORMAL CUSTOMARY SKILLS IN ESTABLISHING DEFENDANT'S INNOCENCE, AND THE LACK OF ADEQUATE CLIENT CONSULTATION COUNSEL'S RESULTED IN GROSS IGNORANCE OF DEFENDANT'S SPECIFIC INSTRUCTIONS FOR DEFENSE TACTICS, SO UNDERMINED THE PROPER FUNCTION OF THE ADVERSARIAL PROCESS THAT THE TRIAL CANNOT BE RELIED ON AS HAVING PRODUCED A JUST RESULT; IN VIOLATION OF DEFENDANT'S RIGHT TO A FUNDAMENTALLY FAIR TRIAL WITH EFFECTIVE REPRESENTATION. U.S.C.A. CONST. AMEND. 5, 6, & 14; N.J. CONST. ART. I, PAR. 10.
A. COUNSEL FURTHER PROVED TO BE INEFFECTIVE WHEN HE FAILED TO PRESENT WITNESSES TO REFUTE CRUCIAL TESTIMONY WHICH PROVE TO BE VERY DETRIMENTAL TO MY DEFENSE.
II. THE PERFORMANCE OF DEFENDANT'S TRIAL COUNSEL WAS GROSSLY DEFICIENT, IN THAT COUNSEL FAILED TO PRESENT EXCULPATORY WITNESSES, BRING EXCULPATORY FACTS TO THE ATTENTION OF THE JURY, AND OBJECT TO OBVIOUSLY INFLAMMATORY AND IRRELEVANT TESTIMONY. THE DEFENDANT THEREFORE WAS DENIED A FAIR TRIAL, MANDATING REVERSAL.
III. THE TRIAL COURT'S CHARGE TO THE JURY WAS INADEQUATE AND MISLEADING IN SEVERAL RESPECTS, VIOLATING DEFENDANT'S RIGHT TO A FAIR AND IMPARTIAL TRIAL, PURSUANT TO HIS CONSTITUTIONAL RIGHTS. U.S.C.A. CONST. AMEND. 14TH; AND HIS N.J. CONST. ART. I, PAR. 10.
A. THE TRIAL JUDGE'S FAILURE TO INSTRUCT THE JURORS THAT THE INSANITY DEFENSE WOULD APPLY IF DEFENDANT DID NOT KNOW THAT HIS CONDUCT WAS MORALLY WRONG DEPRIVED DEFENDANT OF THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMENDS. V, VI, XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10.
B. THE TRIAL COURT'S FAILURE TO PROPERLY INSTRUCT THE JURY ON THE DISTINCTION BETWEEN SERIOUS BODILY INJURY AND BODILY INJURY WAS SUCH THAT A NEW TRIAL SHOULD BE GRANTED.
IV. PETITIONER JONATHAN SIERRA SUFFERED FROM MENTAL DISEASE CAUSED BY ALCOHOLISM AND DRUG ABUSE WHICH DEPRIVED THE DEFENDANT FROM HAVING THE REQUISITE CRIMINAL STATE OF MIND.
V. THE CUMULATIVE EFFECT OF THE TRIAL COURT'S ERROR VIOLATED THE COMMON LAW OF NEW JERSEY AND THE DUE PROCESS CLAUSE OF THE UNITED STATES CONSTITUTION.
It is unclear whether this memorandum was presented to the trial court, and the arguments contained therein were not mentioned by either assigned counsel or the trial court at the hearing on defendant's petition.
The documents alluded to in defendant's brief also include a form "verified petition in support of post-conviction relief," which states in pertinent part:
2. I, Jonathan Sierra, am not desirous of raising any claims in connection with this application for post-conviction relief aside from those set forth in my PCR counsel's brief and as those set forth in Da52-96 of the exhibits appended thereto.
The document bears the signature of assigned counsel, but was not signed by defendant.
The documents attached to the brief also include a letter from defendant to his assigned counsel, dated November 25, 2005, which states:
Please be advised that I am in receipt of your Amended Petition and Supporting Brief for review, however, I would like to express my dissatisfaction. First I would like to advise you that I do not agree with ¶ 2 of your Amended Petition. "I Jonathan Sierra, am not desirous of raising any claims in connection with this application for post-conviction relief aside from those set forth in my PCR counsel's brief." I have no intention of abandoning any of my PCR claims as cited in my original petition Da56. Also I explicitly stated that I would rely upon a supplemental memorandum of law filed by your office pursuant to R. 3:22-9. That statement was not intended for you to abandon any of my claims; your moving papers as you propose are contrary to State v. Rue, and as cited in R. 3:22-6(d).
Mr. Howard, with no disrespect intended I would greatly appreciate it if you would once again review my original PCR Petition Da52 thru Da96 and include my claims as alleged therein with your brief.
Please acknowledge receipt of this letter and if at all possible advise me of what corrective actions you would take in re-doing your Brief to include all my original claims and if you have any projection as to when you would complete your brief for my review. Thank you and I'll await to hear from you soon.
The documents attached to defendant's brief include another letter from defendant to his assigned counsel, dated January 4, 2006, which states:
Be advised that I am in receipt of your most recent letter dated 12/27/05, in which you made reference to my letter address to you dated 11/25/05. Once again in response to your 12/27/05 letter I do not wish to abandon any of my Pro Se Issues and pursuant to Rule 3:22-6(d) & Rule 3:22-9, I humbly request that you also include my Pro Se Issues per my request noted on Da52 along with your Supplemental Brief you propose on filing in the near future. Also let me made it as clear as possible that I am expecting you to Supplement my lay petition exhibits Da52-96 as noted on page 1 Da52.
If you find that supplementing my pro se arguments is problematic, please set forth your reasons in the event I have to redress your reasoning for abandoning my petition at a crucial stage of my redressing the Court.
Please acknowledge receipt of this letter prior to your filing any moving papers on my behalf.
Defendant's supplemental brief filed on this appeal contains the following additional allegations:
In Mr. Sierra's case, his matter was assigned to designated counsel (Howard B. Kraft, Esq.) on or about December 24, 2003; Sierra was notified of that assignment on or about March 19, 2004. Once assigned and, assumably, after having reviewed the trial and appeal record along with Sierra's pro se Memorandum of Law, it is apparent that PCR counsel never investigated the claims made therein, nor did he interview witnesses and secure their statements. . . .
Almost two years passed when Mr. Kraft mailed a Verified Petition in Support of Post-Conviction Relief to Mr. Sierra. (Dsa22 to 23). Of note, and without discussing his reasons for doing so, counsel incorporated a waiver into the petition, which required Sierra to aver that he was "not desirous of raising any claims in connection with this application for post-conviction relief aside from those set forth in [my] PCR counsel's brief and letter brief and as those set forth in Da52-96 of the exhibits appended hereto." (emphasis added[.)]
In his letters of November 25, 2005 (Dsa23), January 3, 2006 (Dsa24), and January 4, 2006 (Dsa25), Sierra advised Mr. Kraft of his intention not to abandon any of his issues, and to have those issues presented to the court for its consideration.
Although Sierra was not permitted to attend, a hearing was conducted on June 23, 2006 before the Hon. Michael R. Connor, J.S.C. At the hearing, and from a review of the transcript, Mr. Kraft did little more than recap the issues contained in his brief. (Emphasis added). In his brief, Mr. Kraft merely placed a portion of Sierra's pro se papers into the appendix (see Da52 to 56), and never incorporated nor presented any of Sierra's issues to the PCR court.
We conclude that if the documents contained in the appendiX to defendant's brief are authentic and the quoted allegations in defendant's supplemental brief are true, assigned counsel on defendant's petition failed to comply with Rule 3:22-6(d), as interpreted in Rue and Webster. Accordingly, we reverse the order denying defendant's petition and remand the case to the trial court to determine whether there was such a violation. If such a violation is found, the court should assign new counsel to represent defendant on his petition and conduct a new hearing in conformity with Rue and Webster. We express no opinion regarding the substance of any of the arguments that assigned counsel apparently failed to advance on defendant's behalf.
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