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State v. Ragland

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


March 27, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
MAURICE RAGLAND, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 98-09-2099.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 4, 2008

Before Judges Gilroy and Baxter.

Defendant Maurice Ragland appeals from a February 24, 2006 order that denied his petition for post-conviction relief (PCR).

We affirm.

I.

Defendant was convicted in a November 1999 trial of second- degree kidnapping, N.J.S.A. 2C:13-1(b), and third-degree burglary, N.J.S.A. 2C:18-2.*fn1 The court imposed an eighteen-year extended term sentence on the kidnapping, subject to a nine-year period of parole ineligibility. A concurrent five-year term of imprisonment, with a two and one-half year parole ineligibility term, was imposed for the burglary conviction.

The testimony at trial established that defendant and another man entered the victim's apartment. The victim was a friend of defendant's former wife. Defendant and his accomplice bound her hands with duct tape and took her to a wooded area where defendant asked her questions about his former wife and the man "she was seeing." Later that night, defendant forcibly took the victim to Atlantic City to try and identify where the former wife's boyfriend lived. He then released her.

On direct appeal, defendant's assigned counsel raised four claims, which also included nine sub-parts:

POINT I: THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO DISMISS THE INDICTMENT BECAUSE OF PROSECUTORIAL MISCONDUCT BEFORE THE GRAND JURY.

A. THE PROSECUTOR PREJUDICED THE GRAND JURY AGAINST THE DEFENDANT BY IMPROPERLY PERMITTING DETECTIVE DAVIES TO TESTIFY THAT MS. CRIPPEN HAD A RESTRAINING ORDER AGAINST THE DEFENDANT.

B. THE GRAND JURY TESTIMONY OF DETECTIVE DAVIES WAS SO INACCURATE THAT IT AMOUNTED TO TELLING THE GRAND JURY MISLEADING "HALF-TRUTHS."

C. THE PROSECUTOR FAILED TO PROPERLY INSTRUCT THE GRAND JURY ON THE ELEMENTS OF THE CRIMES OF BURGLARY AND CONSPIRACY.

POINT II: THE TRIAL COURT ABUSED ITS DISCRETION IN ADMITTING MS. HOLLAND'S OUT OF COURT HEARSAY STATEMENTS AS AN EXCITED UTTERANCE PURSUANT TO N.J.R.E. 803(C)(2).

POINT III: THE PROSECUTOR'S COMMENTS IN SUMMATION DEPRIVED THE DEFENDANT OF HIS RIGHT TO A FAIR TRIAL. (NOT RAISED BELOW)

A. THE PROSECUTOR IMPROPERLY SUGGESTED THAT THE DEFENDANT HAD A CRIMINAL PROPENSITY TO COMMIT CRIME.

B. THE PROSECUTOR IMPROPERLY SUGGESTED THAT THE DEFENDANT HAD THE OBLIGATION TO PRODUCE WITNESSES.

POINT IV: THE EIGHTEEN (18) YEAR EXTENDED TERM SENTENCE WITH A PAROLE INELIGIBILITY PERIOD OF NINE (9) YEARS WAS MANIFESTLY EXCESSIVE AND WAS AN ABUSE OF THE COURT'S DISCRETION.

A. THE MOTION TO IMPOSE AN EXTENDED TERM SENTENCE WAS ARBITRARY AND CAPRICIOUS AND VIOLATED FUNDAMENTAL FAIRNESS.

B. THE COURT ABUSED ITS DISCRETION IN GRANTING THE STATE'S MOTION TO SENTENCE DEFENDANT AS A PERSISTENT OFFENDER.

C. IMPOSING AN EIGHTEEN (18) YEAR BASE EXTENDED TERM SENTENCE WAS MANIFESTLY EXCESSIVE AND AN ABUSE OF DISCRETION.

D. IMPOSING NINE (9) YEARS OF PAROLE INELIGIBILITY WAS MANIFESTLY EXCESSIVE AND AN ABUSE OF DISCRETION.

In his pro se supplemental brief on direct appeal, defendant raised an additional nine claims, which also included fourteen sub-parts:

POINT I: THE DEFENDANT'S DUE PROCESS RIGHTS UNDER THE 14TH AMENDMENT OF THE UNITED STATES CONSTITUTION WERE VIOLATED, WHEN DETECTIVE DAVIES SIGNED THE COMPLAINT ON THE DEFENDANT KNOWINGLY AND PURPOSELY GIVING FALSE STATEMENTS TO SUPPORT TWO OF THE CHARGES, THAT DEFENDANT WAS CHARGED WITH.

POINT II: THE DEFENDANT'S 4TH AND 14TH AMENDMENT RIGHTS OF THE UNITED STATES CONSTITUTION WERE VIOLATED, WHEN THE DEFENDANT WAS ARRESTED ON A FAULTY COMPLAINT.

POINT III: THE POLICE HAD NO "PROBABLE CAUSE" TO STOP THE "CAR" THAT THE DEFENDANT WAS IN AND TO PLACE THE DEFENDANT UNDER ARREST, [] WHICH VIOLATED THE DEFENDANT'S 4TH AMENDMENT RIGHT "TO HAVE PROBABLE CAUSE FOUND" AND HIS 14TH AMENDMENT RIGHTS TO "DUE PROCESS" UNDER THE UNITED STATES CONSTITUTION, IN USING A "FAULTY COMPLAINT["] AND STOPPING THE CAR AND ARRESTING THE DEFENDANT.

POINT IV: THE DEFENDANT WAS BRIEFLY INTERROGATED, BUT HE WAS NOT READ HIS MIRANDA RIGHTS BY ANYONE.

POINT V:

A. THE PROSECUTOR PREJUDICED THE GRAND JURY AGAINST THE DEFENDANT, BY LEADING DETECTIVE DAVIES WITH QUESTIONS THAT WOULD REQUIRE INACCURATE ANSWERS, AND ALLOWING DETECTIVE DAVIES TO MISLEAD THE GRAND JURORS WITH FALSE AND INACCURATE STATEMENTS THAT INFRINGED ON THE GRAND JURY'S DECISION MAKING FUNCTION.

B. THE DEFENDANT'S 5TH AND 14TH AMENDMENT RIGHTS OF THE UNITED STATES CONSTITUTION WERE VIOLATED WHEN DETECTIVE DAVIES TESTIFIED BEFORE THE GRAND JURY TO HEARSAY, SOME OF WHICH WAS DOUBLE AND TRIPLE HEARSAY, WHICH WAS FALSE AND SO INACCURATE OF THE ALLEGED VICTIM'S STATEMENTS, THAT IT VIOLATED DEFENDANT'S RIGHTS TO BE INDICTED BY AN UNBIASED GRAND JURY.

C. THE PROSECUTOR FAILED TO INSTRUCT THE GRAND JURY COMPLETELY ON THE ELEMENTS OF "KIDNAPPING", AND IMPROPERLY INSTRUCTED THE GRAND JURY ON THE CHARGES OF "KIDNAPPING AND TERRORISTIC THREATS", BY KNOWINGLY USING FALSE TESTIMONY TO SUPPORT THE TWO ABOVE STATED CHARGES, WHICH VIOLATED THE DEFENDANT'S "DUE PROCESS" RIGHTS UNDER THE 14TH AMENDMENT TO THE UNITED STATES CONSTITUTION.

POINT VI: THE DEFENDANT'S "DUE PROCESS" RIGHTS UNDER THE 14TH AMENDMENT OF THE UNITED STATES CONSTITUTION WERE VIOLATED, WHEN THE DEFENDANT WAS IMPROPERLY CONVICTED OF KIDNAPPING.

A. THE TRIAL JUDGE FAILED TO COMPLETELY AND PROPERLY INSTRUCT THE JURY ON THE CHARGE OF 2ND DEGREE KIDNAPPING AS WELL AS INSTRUCT THE JURY ON THE ELEMENTS OF KIDNAPPING THAT THE DEFENDANT WAS INDICTED ON.

B. THE ELEMENTS OF 2ND DEGREE KIDNAPPING AS DEFINED IN 2C:13-1(b)(2), [WERE] NOT PROVEN, AND THE CONVICTION WAS AGAINST THE WEIGHT OF THE EVIDENCE. THE JUDGE[']S INSTRUCTION TO THE JURY WAS INCOMPLETE, AND DEFENDANT'S CONVICTION SHOULD BE REVERSED.

POINT VII: THE DEFENDANT'S "DUE PROCESS" RIGHTS UNDER THE 14TH AMENDMENT [OF] THE UNITED STATES CONSTITUTION [WERE] VIOLATED, WHEN HE WAS IMPROPERLY CONVICTED ON CRIMINAL RESTRAINT.

POINT VIII: COUNSEL FOR DEFENDANT WAS INEFFECTIVE WHICH VIOLATED THE DEFENDANT'S RIGHTS TO A FAIR TRIAL UNDER THE 6TH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE #1 PARAGRAPH #10 OF THE NEW JERSEY CONSTITUTION.

A. COUNSEL FOR THE DEFENDANT WAS INEFFECTIVE FOR FAILING TO MOTION THE COURT FOR A POSTPONEMENT OR A MISTRIAL, SO HE COULD PROPERLY INVESTIGATE AND PREPARE FOR TRIAL.

B. COUNSEL WAS INEFFECTIVE FOR FAILING TO INVESTIGATE IF OFFICER LUPTON WAS THE OFFICER WHO TOOK THE INITIAL STATEMENT FROM THE ALLEGED VICTIM, AFTER THERE WAS TESTIMONY PRESENTED THAT HE WAS NOT THE OFFICER TALKING TO THE ALLEGED VICTIM.

C. COUNSEL FAILED TO REQUEST A 104 HEARING AFTER LEARNING THAT THE SEQUESTRATION ORDER THAT WAS IN EFFECT WAS VIOLATED.

D. COUNSEL FAILED TO SEE WHY WAS THE ALLEGED VICTIM AND THE DEFENDANT'S EX-WIFE, SHANNON IN THE SAME ROOM, WHILE THEY WERE GIVING THEIR TAPED STATEMENTS. (FORMAL)

E. COUNSEL DID NOT SUBPOENA THE DEFENDANT'S WITNESS EVEN THOUGH HE DID NO INVESTIGATION HIMSELF INTO THE CASE.

F. TRIAL COUNSEL ERRED WHEN HE FAILED TO OBJECT TO HEARSAY TESTIMONY THAT WAS MATERIAL TO THE CASE AND CONVICTION OF THE DEFENDANT BY THE DEFENDANT'S EXWIFE/SHANNON CRIPPEN.

G. TRIAL COUNSEL ERRED IN NOT REQUESTING AN IMMEDIATE INSTRUCTION, WHEN COUNSEL OBJECTED TO THE STATE[']S WITNESS SAYING THAT DEFENDANT JUST GOT THE F[] OUT OF JAIL AND IS GETTING READY TO GO BACK.

H. STANDBY COUNSEL, . . . , SEVERELY INTERFERED WITH THE PREPARATION OF THE DEFENDANT'S DEFENSE AND GOT A WITNESS TO TESTIFY ON BEHALF OF THE STATE.

I. TRIAL COUNSEL ERRED IN ALLOWING THE PROSECUTOR TO IMPROPERLY STATE THAT THE DEFENDANT DISMISSED TWO ATTORNEYS, THEN SUED A STANDBY COUNSEL TO REMOVE HIM AS STANDBY COUNSEL, WHILE ARGUING AGAINST MOTIONS FOR A MISTRIAL AND A NEW TRIAL.

POINT IX: THE DEFENDANT'S 5TH, 6TH, AND 14TH AMENDMENT RIGHTS UNDER THE CONSTITUTION OF THE UNITED STATES CONSTITUTION AND IT[]S NEW JERSEY COUNTERPARTS WERE VIOLATED, FOR THE UNJUSTIFIABLE INTERFERENCE WITH THE PREPARATION OF THE DEFENDANT'S DEFENSE AS WELL AS EQUAL PROTECTION.

In a per curiam opinion, we concluded that with the exception of the sentencing argument presented in Point IV of his attorney's brief, the arguments raised lacked sufficient merit to warrant discussion in a written opinion. R. 2:11- 3(e)(2). We affirmed the conviction and remanded the sentence.*fn2 State v. Ragland, A-3793-99 (App. Div. May 16, 2002). The Supreme Court denied defendant's petition for certification on September 6, 2002.

Defendant filed a timely PCR petition on October 16, 2002. In his pro se PCR petition, defendant presented five claims:

POINT I: DEFENDANT WAS ARRESTED ON A FAULTY COMPLAINT, WHICH PREVENTS THE SUPERIOR COURT FROM HAVING JURISDICTION OVER HIS CASE.

POINT II: DEFENDANT'S RIGHTS TO A FAIR TRIAL WERE VIOLATED FOR THE UNJUSTIFIABLE INTERFERENCE WITH THE PREPARATION OF THE DEFENDANT'S DEFENSE.

A. DEFENDANT WAS DENIED ACCESS TO THE COURT DURING A CRUCIAL PERIOD OF DEFENDANT'S CASE.

B. IN RETALIATION FOR THE DEFENDANT TRYING TO GAIN ACCESS TO THE LAW LIBRARY, THE DEFENDANT WAS UNJUSTIFIABLY HARASSED.

C. THE LOCATION OF THE ATLANTIC COUNTY JAIL'S LAW LIBRARY SEVERELY INTERFERED AND IMPEDED THE DEFENDANT'S RIGHT TO ACCESS TO THE COURT.

D. STANDBY COUNSEL VIOLATED DEFENDANT'S RIGHT TO A FAIR TRIAL.

POINT III: DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

A. COUNSEL WAS INEFFECTIVE AFTER TAKING OVER DEFENDANT'S DEFENSE.

B. COUNSEL FAILED TO INVESTIGATE AND CALL WITNESSES, PREVENTED DEFENDANT FROM RECEIVING A FAIR TRIAL.

C. DEFENDANT IS ENTITLED TO AN EVIDENTIARY HEARING.

POINT IV: APPELLANT'S RIGHT TO DUE PROCESS WAS VIOLATED WHEN HE WAS CONVICTED OF 2ND DEGREE KIDNAPPING.

A. THE ERRONEOUS CHARGE TO THE JURY DID NOT COVER THE ELEMENTS OF KIDNAPPING UNDER 2C:13-1(b)(2), 2ND DEGREE KIDNAPPING; THE JURY WAS THUS DEPRIVED OF ITS FACT FINDING FUNCTIONS ON THREE ESSENTIAL ELEMENTS.

B. THE ELEMENTS NEEDED FOR A CONVICTION FOR 2ND DEGREE KIDNAPPING UNDER N.J.S.A. 2C:13-1(b)(2) WAS NOT PROVEN, THE EVIDENCE PRESENTED CONSTITUTED A UNITARY EVENT, THUS, THE CONVICTION WAS AGAINST THE WEIGHT OF THE EVIDENCE.

POINT V: APPELLANT'S RIGHT TO DUE PROCESS WAS VIOLATED WHEN EACH ELEMENT OF CRIMINAL RESTRAINT WAS NOT PROVEN; AND WHEN THE TRIAL JUDGE FAILED TO INSTRUCT THE JURY ON (KNOWINGLY) TO EACH ELEMENT OF THE CHARGE.

A. THE ERRONEOUS JURY CHARGE ON CRIMINAL RESTRAINT FAILED TO MAKE CLEAR THAT MENTAL STATE OF KNOWLEDGE APPLIES TO ALL MATERIAL ELEMENTS OF THE OFFENSE, INCLUDING THE RISK OF SERIOUS BODILY INJURY TO THE VICTIM.

Assigned counsel presented nine additional arguments in support of defendant's PCR petition:

POINT I: THE DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHTS TO THE EFFECTIVE ASSISTANCE OF TRIAL AND APPELLATE COUNSEL, DUE PROCESS OF THE LAW, RIGHT TO A FAIR TRIAL IN CONTRAVENTION OF THE 6TH AND 14TH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND ARTICLE I, PARAGRAPH 10 OF THE NEW JERSEY CONSTITUTION TO BE FREE FROM WARRANTS ISSUING WITHOUT SUPPORT BY OATH AND/OR AFFIRMATION IN CONTRAVENTION OF THE 4TH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ARTICLE I, PARAGRAPH 7 OF THE NEW JERSEY CONSTITUTION SINCE THE COMPLAINT WAS FAULTY.

POINT II: THE DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHTS TO THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL . . . SINCE TRIAL COUNSEL FAILED TO ATTACK THE CREDIBILITY OF THE VICTIM AND SUPPLIED A STATEMENT TO THE STATE WHICH WAS USED AGAINST THE DEFENDANT AT TRIAL.

POINT III: DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHTS TO DUE PROCESS OF LAW AND OF HIS RIGHT TO A FAIR TRIAL . . . SINCE [THE] JUDGE . . . FAILED TO RECUSE HIMSELF DURING THE TRIAL.

POINT IV: THE DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHTS TO SELF-REPRESENTATION AND DUE PROCESS OF THE LAW [ ] AS THE DEFENDANT'S ABILITY TO REPRESENT HIMSELF WAS SEVERELY IMPEDED.

POINT V: DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHTS TO A FAIR TRIAL, DUE PROCESS OF THE LAW AND THE EFFECTIVE ASSISTANCE OF TRIAL AND APPELLATE COUNSEL . . . SINCE THE COURT IMPROPERLY CHARGED THE JURY AS TO THE ELEMENTS OF KIDNAPPING AND THE CONVICTION FOR KIDNAPPING WAS PATENTLY DEFICIENT BASED UPON THE TESTIMONY ELICITED AND THE JURY'S FINDINGS AND TRIAL AND APPELLATE COUNSEL FAILED TO OBJECT.

POINT VI: DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHTS TO A FAIR TRIAL AND DUE PROCESS OF THE LAW . . . SINCE THE COURT ALLOWED THE DEFENDANT TO REPRESENT HIMSELF PRO SE AND TO THE EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL SINCE APPELLATE COUNSEL FAILED TO ARGUE THAT THE DEFENDANT SHOULD NOT HAVE BEEN PERMITTED TO REPRESENT HIMSELF PRO SE.

POINT VII: DEFENDANT'S CONSTITUTIONAL RIGHTS TO A FAIR TRIAL AND DUE PROCESS OF THE LAW . . . WAS VIOLATED AS THE DEFENDANT WAS CONVICTED OF CRIMINAL RESTRAINT AND TRIAL AND APPELLATE COUNSEL FAILED TO OBJECT AND BECAUSE THE COURT ERRONEOUSLY INSTRUCTED THE JURY AS TO THE REQUISITE MENTAL STATE.

POINT VIII: DEFENDANT RECEIVED AN ILLEGAL SENTENCE AS THE COURT ERRED IN FINDING THAT THE DEFENDANT QUALIFIED AS A PERSISTENT OFFENDER.

POINT IX: THE DEFENDANT RECEIVED AN ILLEGAL SENTENCE AND HIS CONSTITUTIONAL RIGHT TO A TRIAL BY JURY WAS VIOLATED WHEN THE COURT IMPOSED A SENTENCE FOR AGGRAVATED MANSLAUGHTER (SIC) BEYOND THE STATUTORY PRESUMPTIVE TERM.

The PCR judge, who was the same judge who had presided over the jury trial, set the PCR petition down for a hearing on February 17, 2006. At the start of the hearing, the judge rejected defendant's argument that his earlier failure to recuse himself denied defendant a fair trial.*fn3 The judge also denied defendant's motion that he recuse himself from presiding over the PCR proceedings. After hearing argument from both lawyers, in a cogent and well-reasoned oral opinion, the judge denied all of the remaining claims. The judge found that all of the claims raised by defendant and by assigned counsel were subject to the procedural bars contained in Rules 3:22-4 and 3:22-5. The judge further ruled that even if considered substantively, each issue raised in the PCR petition lacked merit.

On appeal defendant argues:

POINT I: THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED BECAUSE THE DEFENDANT WAS DENIED HIS RIGHT TO A FAIRLY CONDUCTED POST-CONVICTION RELIEF HEARING.

A. THE COURT ABUSED ITS DISCRETION IN DENYING THE DEFENDANT'S MOTION FOR RECUSAL.

B. THE COURT ABUSED ITS DISCRETION IN DENYING THE DEFENDANT THE OPPORTUNITY TO MAKE A STATEMENT FOR THE RECORD.

POINT II: THE COURT ERRED IN DENYING POST-CONVICTION RELIEF BECAUSE THE DEFENDANT DID NOT RECEIVE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL AND APPELLATE COUNSEL.

A. THE ISSUE OF INEFFECTIVE ASSISTANCE OF TRIAL AND APPELLATE COUNSEL WAS COGNIZABLE IN POST-CONVICTION RELIEF AND WAS NOT BARRED BY RULE 3:22-5.

B. THE MOTION COURT ERRED IN DENYING POST-CONVICTION RELIEF WITHOUT CONDUCTING A FULL EVIDENTIARY HEARING BECAUSE THE ASSERTIONS IN THE DEFENDANT'S PETITION CONSTITUTED PRIMA FACIE PROOF OF INEFFECTIVE ASSISTANCE OF TRIAL AND APPELLATE COUNSEL.

POINT III: THE COURT'S RULING DENYING POST-CONVICTION RELIEF VIOLATED THE DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ARTICLE I, PARAGRAPH 10 OF THE NEW JERSEY CONSTITUTION.

We affirm.

II.

On appeal, the legal conclusions reached by the PCR judge are not afforded any special deference. Our review is de novo, and we apply the same standard the PCR judge did. Manalapan Realty, L.P. v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995).

In order to establish a prima facie case of ineffective assistance of counsel, defendant must demonstrate a reasonable likelihood of succeeding under the two-prong test established by the Supreme Court in Strickland v. Washington, 466 U.S. 688, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984). This State has adopted the same test. State v. Fritz, 105 N.J. 42, 58 (1987). First, defendant must show that defense counsel's performance was indeed deficient. Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693; Fritz, supra, 105 N.J. at 58. Second, defendant must demonstrate that there exists "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L. Ed. 2d at 698.

Prejudice is not presumed. Fritz, supra, 105 N.J. at 61. Defendant must demonstrate "how specific errors of counsel undermined the reliability" of the proceeding. United States v. Cronic, 466 U.S. 648, 659 n.26, 104 S.Ct. 2039, 2047 n.26, 80 L.Ed. 2d 657, 668 n.26 (1984).

In the absence of specific facts, which, if believed, demonstrate the likelihood of injustice by a preponderance of the evidence, the petition will be denied. State v. Mitchell, 126 N.J. 565, 589 (1992); see also State v. Cummings, 321 N.J. Super. 154, 168 (App. Div.) (holding that an evidentiary hearing is not required when defendant fails to establish a prima facie showing of ineffectiveness), certif. denied, 162 N.J. 199 (1999).

There are two procedural bars that potentially apply to PCR proceedings. The first is Rule 3:22-4, which generally prevents a defendant from raising in a PCR proceeding claims that could have been raised on direct appeal. The rule provides:

3:22-4. Bar of Grounds Not Raised in Prior Proceedings; Exceptions

Any ground for relief not raised in a prior proceeding under this rule, or in the proceedings resulting in the conviction, or in a post-conviction proceeding brought and decided prior to the adoption of this rule, or in any appeal taken in any such proceedings is barred from assertion in a proceeding under this rule unless the court on motion or at the hearing finds (a) that the ground for relief not previously asserted could not reasonably have been raised in any prior proceeding; or (b) that enforcement of the bar would result in fundamental injustice; or (c) that denial of relief would be contrary to the Constitution of the United States or the State of New Jersey.

[R. 3:22-4.]

The second rule, Rule 3:22-5, bars a defendant from raising a claim in a PCR proceeding that was adjudicated on direct appeal.

The rule provides:

3:22-5. Bar of Ground Expressly Adjudicated

A prior adjudication upon the merits of any ground for relief is conclusive whether made in the proceedings resulting in the conviction or in any post-conviction proceeding brought pursuant to this rule or prior to the adoption thereof, or in any appeal taken from such proceedings.

[R. 3:22-5.]

III.

We begin by analyzing defendant's claim in Point I that the PCR judge did not conduct the hearing properly. In particular, defendant argues that the PCR judge erred when he refused to permit defendant to make a statement and failed to recuse himself from presiding over the PCR proceeding.

As to the first contention, defendant cites no authority in support of the proposition that he was entitled to make a statement. Defendant was represented by counsel, who was required to present all arguments, not only his own, but also those contained in defendant's pro se supplemental brief. See R. 3:22-6(d)(requiring assigned counsel to "advance any grounds insisted upon by defendant notwithstanding that counsel deems them without merit"). Once counsel was assigned to represent defendant, defendant was not entitled to address legal arguments to the court orally without first being granted leave from the court to act as co-counsel. State v. Roth, 289 N.J. Super. 152, 165-66 (App. Div.), certif. denied, 146 N.J. 68 (1996). Such "hybrid representation" is disfavored and is to be "discouraged." State v. Figueroa, 186 N.J. 589, 595 (2006). We perceive no abuse of discretion in the judge's decision not to permit defendant to make a statement.

IV.

We turn next to the denial of the motion for recusal. Recusal is addressed to the sound discretion of the trial court, and we will not disturb a judge's denial of such motion unless an abuse of discretion is demonstrated. Jadlowski v. Owens- Corning Fiberglas Corp., 283 N.J. Super. 199, 221 (App. Div. 1995), certif. denied, 143 N.J. 326 (1996). Here, where the judge never considered defendant to be the sender of the letter in question, did not know the State Police had concluded otherwise, and stated on the record that he had no animosity toward defendant and could preside fairly over the PCR proceeding, we find no abuse of discretion in the denial of the recusal motion.

V.

In Point II, defendant argues that the court erred when it denied his PCR petition without affording him an evidentiary hearing, and that the judge applied the procedural bars of Rules 3:22-4 and 3:22-5 "too aggressively." Because those claims are intertwined, we consider them together.

As we have observed, a defendant is not entitled to a hearing on his PCR petition unless he has established a prima facie case of ineffective assistance of counsel. Cummings, supra, 321 N.J. Super. at 170. In order to determine whether defendant established a prima facie case, we must determine whether the judge was correct when he determined that defendant's PCR claims are procedurally barred.

We have carefully compared the contentions defendant raised in the PCR proceeding to the claims he raised on direct appeal in both his pro se supplemental brief and in the brief of assigned counsel. We agree with the PCR judge's conclusion that those claims are procedurally barred, either by Rule 3:22-4 or Rule 3:22-5. Specifically, all five points in defendant's pro se PCR brief and points I, V, VIII and IX in the PCR brief of assigned counsel were already adjudicated on direct appeal, where they were either found to lack merit or remanded for reconsideration of sentence. Accordingly, we agree with the trial judge's conclusion that those claims are barred by Rule 3:22-5.

Other claims are barred by Rule 3:22-4. Points IV and VI of assigned counsel's PCR brief assert respectively, that defendant's right to self-representation was impeded and that the court erred in initially permitting defendant to represent himself. Those claims were not, but could have been, raised on direct appeal and are therefore barred by Rule 3:22-4. There are three remaining PCR claims in assigned counsel's brief. Point III is addressed to the recusal issue, which we have already discussed. Point VII alleges that the criminal restraint jury charge was defective, and Point II alleges that trial counsel was ineffective because she failed to attack the credibility of the victim and supplied a statement to the State that was used against defendant. Those arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Finally, assigned counsel argues in Points V and VI of his PCR brief that appellate counsel was ineffective because he failed to argue on direct appeal that the jury charge on kidnapping was "patently defective" and that the kidnapping conviction should therefore be reversed. In particular, defendant argued before the PCR judge that the judge erred by failing to instruct the jury that the State was required to prove that any removal of the victim was a substantial distance from where she was found or was for a substantial period of time, as required by N.J.S.A. 2C:13-1(b).

We agree with defendant's argument that appropriate and proper jury charges are essential to a fair trial, State v. Savage, 172 N.J. 374, 387 (2003), and that errors in a charge are generally poor candidates for rehabilitation under the harmless error standard. State v. Simon, 79 N.J. 191, 206 (1979). Here, however, we conclude that if this issue had been raised by appellate counsel on direct appeal, the claim would not have succeeded. The State's chief witness testified that defendant forcibly took her from her home in Galloway Township to Atlantic City and the incident lasted several hours. In light of that testimony, we cannot envision a scenario where a reasonable jury would not have concluded that the removal was for a substantial distance and the confinement for a substantial time. Thus, even if appellate counsel's performance was deficient because he failed to raise those claims, the second Fritz prong is not satisfied because defendant is unable to demonstrate any resulting prejudice.

In Point VI of his PCR brief, assigned counsel argues that appellate counsel provided ineffective assistance because he failed to argue on direct appeal that the trial court erred in permitting defendant to initially represent himself at trial. That argument lacks sufficient merit to warrant discussion. See R. 2:11-3(e)(2). We add only the following comment. At trial, defendant asked the judge to allow the assigned standby counsel to assume full representation as soon as the direct examination of the State's first witness concluded. A motion for mistrial based on the prejudice ostensibly caused to defendant by the brief period of self-representation was denied. Mistrial motions are addressed to the sound discretion of the trial court. State v. Loyal, 164 N.J. 418, 436 (2000). Accordingly, in light of that deferential standard, we deem it highly unlikely that this argument would have succeeded even if appellate counsel had advanced it. Unless a defendant demonstrates prejudice, counsel's performance is not deemed ineffective. Fritz, supra, 105 N.J. at 60-61. Thus, the PCR judge did not err when he rejected this claim. We accordingly determine that the PCR judge was correct when he concluded that the majority of defendant's PCR claims were procedurally barred and the remainder lacked merit.

We need not address defendant's argument in Point III because that point contains no separate legal argument, but is instead simply a conclusion.

Affirmed.


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