July 3, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
COREY D. WORSHAM, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Essex County, No. 01-11-0607.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 2, 2008
Before Judges Wefing and Lyons.
Defendant appeals from a trial court order denying his petition for post-conviction relief ("PCR"). After reviewing the record in light of the contentions advanced on appeal, we affirm.
A jury convicted defendant of distribution of cocaine, a crime of the third degree, N.J.S.A. 2C:35-5(a)(1) and -5(b)(3) and distribution of cocaine within five hundred feet of certain public property, a crime of the second degree, N.J.S.A. 2C:35-7.1. The prosecution moved for an extended-term sentence based upon defendant's prior record. N.J.S.A. 2C:43-6(f). The trial court sentenced defendant to eight years in prison, with a four-year period of parole ineligibility. Defendant appealed, and we affirmed his conviction and sentence. State v. Worsham, No. A-2680-03T4 (App. Div. Feb. 28, 2005).*fn1
Defendant filed a timely petition for PCR. After oral argument, the trial court denied the petition without conducting an evidentiary hearing. This appeal followed. Defendant raises the following issues on appeal:
POINT I THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF FOR INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL
A. THE PREVAILING LEGAL PRINCIPLES REGARDING CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL, EVIDENTIARY HEARINGS AND POST CONVICTION RELIEF
B. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN NOT GRANTING A REASONABLE ADJOURNMENT FOR HIS RETAINED TRIAL COUNSEL TO REVIEW OR MAKE DISCOVERY SO THAT SAID COUNSEL COULD REPRESENT HIM IN LIGHT OF DEFENDANT'S CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL OF ASSIGNED COUNSEL
C. DEFENSE COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL BY FAILURE TO PROVIDE AN ALIBI DEFENSE BY IMPROPERLY STIPULATING TO DEFENDANT'S IDENTIFICATION, FAILURE TO FILE AN ALIBI NOTICE AND FAILURE TO CALL ANY ALIBI WITNESSES
D. DEFENSE COUNSEL WAS INEFFECTIVE BY NOT SEEKING THE EXCEPTION TO RULE 516 CONFIDENTIALITY OF INFORMANT (Not raised below)
POINT II THE TRIAL COURT IMPROPERLY ALLOWED THE STATE'S VOIR DIRE QUESTION TO BE PRESENTED TO THE JURY PRIOR TO JURY SELECTION WHICH DEPRIVED DEFENDANT OF A FAIR TRIAL AND THE RIGHT TO HAVE ALL ISSUES PROVEN BEYOND A REASONABLE DOUBT
POINT III DEFENDANT'S SENTENCE WAS EXCESSIVE
POINT IV SENTENCING DEFENSE COUNSEL PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL BY
A. FAILING TO CONTEST IMPOSITION OF AN EXTENDED TERM BASED ON BLAKELY AND PRIOR DRUG RELATED INCIDENT WAS NOT TYPICAL AGGRAVATING FACTOR
B. NOT REASONABLY PROTECTING FILE SUCH THAT IT WAS NOT AVAILABLE FOR POST CONVICTION RELIEF FILE POINT V APPELLATE DEFENSE COUNSEL PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL BY
A. FAILING TO CONTEST IMPOSITION OF AN EXTENDED TERM
B. FAILING TO RAISE THE WITHIN VOIR DIRE ISSUE
C. FAILURE TO RAISE THE ISSUE OF IMPROPER STIPULATION OF DEFENDANT'S IDENTIFICATION
D. FAILING TO RAISE THE EXCEPTION TO RULE 516 CONFIDENTIALITY OF INFORMANT (not raised below)
A defendant who alleges that he received ineffective assistance from his counsel must establish that his "counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 692-93 (1984). Our Supreme Court adopted this two-pronged standard in State v. Fritz, 105 N.J. 42, 60 (1987).
[A] defendant whose counsel performed below a level of reasonable competence must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."
[Id. at 60-61 (quoting Strickland, supra, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L. Ed. 2d at 698).]
To establish a prima facie claim of ineffective assistance of counsel, defendant must meet both prongs of the Strickland/Fritz test. First, he must show that the actions of his attorney were deficient in performance and not objectively reasonable. Second, defendant must show that this deficient performance materially affected the outcome of his trial. Further, an appellate court will not second-guess defense counsel's trial decisions which rest upon strategic or tactical considerations.
Additionally, claims of ineffective assistance of counsel raised in connection with a petition for PCR are not a substitute for a direct appeal. Issues that have already been determined by way of direct appeal cannot be relitigated on a petition for PCR. State v. McQuaid, 147 N.J. 464, 483 (1997) ("[A] defendant may not use a petition for post-conviction relief as an opportunity to relitigate a claim already decided on the merits."); R. 3:22-5. In addition, claims that could have been raised on direct appeal and yet were not may not be raised for the first time in the context of a petition for PCR.
State v. McQuaid controls subsection B of defendant's first argument on this appeal. The initial point on defendant's direct appeal was THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY NOT GRANTING A REASONABLE ADJOURNMENT SO THAT RETAINED COUNSEL COULD REPRESENT DEFENDANT, THEREBY VIOLATING DEFENDANT'S CONSTITUTIONAL RIGHT TO ASSISTANCE OF COUNSEL We rejected that argument, noting that the trial court had advised defendant more than eight months previously that if he wished to retain private counsel, he had to do so expeditiously. Defendant took no steps until the day before the matter was scheduled to go to trial. We held that the trial court did not abuse its discretion in denying yet another adjournment. The matter having been fully litigated on the direct appeal, defendant may not present it anew.
We also reject so much of subsection C of defendant's first argument that deals with his trial attorney's failure to present an alibi defense. Defendant did not present to the trial court considering his PCR petition any certifications from individuals attesting to their willingness to testify in support of such a defense. Indeed, the record at the time of defendant's trial clearly establishes that defendant could not present a viable alibi defense. In the course of its oral opinion denying defendant's request for an adjournment to permit a new attorney to take over the case, the trial court noted the repeated statements that had been made about an alibi defense and that none of them had borne any fruit. Defendant is thus unable to establish the second Strickland/Fritz prong with respect to this argument.
Further, having reviewed this record, we are satisfied that the remaining portion of subsection C does not accurately reflect the state of the record in the trial court. The stipulation to which defendant refers occurred in the context of a pre-trial Wade hearing (United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed. 2d 1149 (1967)), not in the presence of the jury. In the presence of the jury, counsel vigorously maintained that defendant's arrest was a matter of misidentification.
We also reject subsection D of defendant's first argument, that his trial attorney was ineffective for not pursuing the question of the identity of the confidential informant who allegedly introduced defendant to the undercover agent who testified he purchased narcotics from defendant. Although the privilege set forth in N.J.R.E. 516 must be "construed to achieve, not thwart, a just result," Grodjesk v. Faghani, 104 N.J. 89, 96 (1986), the privilege can only be overcome by a "'substantial showing of a need' for the disclosure" of the identity of the informer. Cashen v. Spann, 77 N.J. 138, 142 (1978) (quoting State v. Oliver, 50 N.J. 39, 47 (1967)). Defendant asserts that he needed the identity of the informer because that was the only other individual who could refute the testimony of the undercover agent with respect to the drug transaction that resulted in defendant's arrest. That, however, has been held to be an insufficient ground to warrant piercing the privilege. "[A] defendant's mere hope that the informant 'would corroborate his version and destroy the State's case' is an insufficient basis to order disclosure of the informant's identity." State v. Williams, 356 N.J. Super. 599, 605 (App. Div. 2003) (quoting State v. Salley, 264 N.J. Super. 91, 101 (App. Div. 1993)). If the "role of the informer is confined to introducing the undercover agent to defendant, the majority of decisions have refused to compel disclosure of the informer's identity." State v. Milligan, 71 N.J. 373, 388-89 (1976). Defendant's attorney was not ineffective for not pursuing this issue.
Defendant's next claim revolves around the voir dire conducted during jury selection. The prosecution presented the following question to the trial court, to be asked of the prospective jurors:
The testimony in this case will indicate that a confidential informant was utilized during the investigation. The use of an informant is a legitimate law enforcement and investigative tool. Would the fact that such informant was utilized in any way affect your ability to render a fair and impartial verdict?
Defense counsel objected to this question; after argument, the trial court ruled that it would strike the word "legitimate" but pose the remainder of the question. Defendant now argues this was error. This contention, however, is barred by Rule 3:22-4 because it should have been raised on direct appeal but was not.
Defendant's next two arguments relate to defendant's sentence. His first, that his sentence is excessive, is barred by Rule 3:22-5 since it was raised and rejected on defendant's appeal. Indeed, as we noted earlier, defendant received a lesser sentence than he should have. His second, that sentencing counsel was ineffective, lacks substantial merit. He contends that his sentencing counsel was ineffective for not contesting an extended-term sentence on the basis of Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed. 2d 403 (2004). Defendant, however, was sentenced substantially in advance of the Supreme Court's decision in Blakely. Finally, a review of the website maintained by the Department of Corrections shows that defendant was released on parole more than one year ago.
Defendant's final argument is that his appellate attorney was ineffective for not raising certain issues on his direct appeal. Part of the role of appellate counsel, however, is to winnow through the possible arguments presented by the record and focus upon those which are strongest and to present those arguments in a persuasive, cogent manner. Buehl v. Vaughn, 166 F.3d 163, 174 (3d Cir.), cert. dismissed, 527 U.S. 1050, 119 S.Ct. 2418, 144 L.Ed. 2d 815 (1999) ("One element of effective appellate strategy is the exercise of reasonable selectivity in deciding which arguments to raise.").
There is no merit to defendant's challenge to the attorney who represented him on his direct appeal.
The order under review is affirmed.