August 25, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
CHUKWUEMEKA TUTU,*FN1 DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 89-02-0229.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted July 28, 2008
Before Judges Graves and Yannotti.
Indictment No. 89-02-0229 charged defendant Chukwuemeka Tutu with first-degree murder, N.J.S.A. 2C:11-3(a)(1)(2) (count one); second-degree possession of a weapon (a handgun) for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count two); and third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b) (count three). Trial was held on November 13, 14, and 15, 1989, and a jury convicted defendant of all three counts on November 16, 1989. Defendant was sentenced to thirty years in prison without the possibility of parole on count one; fifteen years in prison with five years parole ineligibility pursuant to the Graves Act, N.J.S.A. 2C:43-6(c), on count two; and five years in prison on count three. All three sentences were concurrent to each other.
In an unpublished decision dated May 13, 1993, this court affirmed defendant's convictions, however we remanded for resentencing on count two. State v. Graham, No. A-6073-89 (App. Div. May 13), certif. denied, 134 N.J. 479 (1993). On June 25, 1993, an amended judgment of conviction was entered, which modified defendant's sentence on count two from fifteen years with five years of parole ineligibility to seven years in prison with three and one-half years parole ineligibility.
Defendant filed his first petition for post-conviction relief (PCR) on February 4, 1994. Defendant's PCR petition was denied by the trial court on November 19, 1994, and we affirmed on April 4, 1996. State v. Graham, No. A-4721-94 (App. Div. Apr. 4, 1996).
On or about September 25, 2005,*fn2 defendant filed "a pro se application seeking to vacate [his] judgment of conviction and/or sentence as being illegal." In support of this second PCR petition, defendant submitted a seventy-five page pro se brief. Counsel was assigned to assist defendant with his second PCR petition,*fn3 however, according to defendant, his attorney "was unable to understand[d] what I was trying to present to the court," and therefore he "simply did nothing." Defendant's present appellate counsel confirms defendant's trial attorney "did not submit a brief or present any oral argument. . . . He advanced no claims whatsoever."
On appeal, defendant presents the following argument:
PCR COUNSEL'S PRO FORMA REPRESENTATION DEPRIVED DEFENDANT OF HIS SIXTH AMENDMENT RIGHT TO THE ACTUAL AND EFFECTIVE ASSISTANCE OF COUNSEL.
After carefully reviewing the record in light of the applicable law, we conclude defendant's argument is without sufficient merit to warrant extended discussion. R. 2:11-3(e)(2). We therefore affirm, adding only the following comments.
Pursuant to the Sixth Amendment of the United States Constitution, the right to counsel is recognized as the right to the effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 684-86, 104 S.Ct. 2052, 2063-64, 80 L.Ed. 2d 674, 691-92 (1984). In Strickland, the United States Supreme Court created a two-part test to determine whether a defendant received ineffective assistance of counsel. Id. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693. "First, the defendant must show that the counsel's performance was deficient" by establishing "that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Ibid. "Second, the defendant must [demonstrate] that the deficient performance prejudiced the defense" by "showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Ibid. Under the second prong, the "defendant 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 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698; see also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland test and applying it to the guarantee of effective assistance of counsel in Article I, Paragraph 10 of the New Jersey Constitution).
In the present matter, even if we assume defendant's PCR counsel's performance was deficient, it is obvious the lack of effectiveness arose from the lack of merit in defendant's claims. See State v. Velez, 329 N.J. Super. 128, 133 (App. Div. 2000) ("Neither the Sixth Amendment nor our rules call for an attorney to be 'effective' in terms of crafting a defense when none actually exists."). Thus defendant failed to satisfy the "prejudice prong" of the Strickland/Fritz test.
In the first and third points of the pro se brief defendant submitted to the trial court in support of his second PCR petition, defendant alleged his sentence was illegal under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed. 2d 435 (2000), and its progeny. In State v. Natale, 184 N.J. 458, 494 (2005), our Court gave the new Apprendi rule "pipeline retroactivity," meaning the rule would apply "to defendants with cases on direct appeal as of the date of [the Natale] decision." Defendant is not entitled to claim relief under Apprendi because his direct appeal was final prior to the decisions rendered in both Apprendi and Natale. Nevertheless, even if Apprendi was applicable to defendant's appeal, we conclude his sentence was not constitutionally infirm. See State v. Abdullah, 184 N.J. 497, 507-08 (2005) ("[T]he trial court had discretion to impose a sentence within the statutory range of thirty years to life based on its consideration of the applicable sentencing factors.").
Finally, defendant appears to allege that the prosecutor committed a Brady*fn4 violation by failing "to provide [the] grand jury with exculpatory probative . . . evidence that directly contradict state witness testimony." Because defendant could have raised this issue in either his direct appeal or his first PCR petition, he is precluded from asserting such a claim now. See R. 3:22-4 (barring grounds for relief which could have been raised in an earlier proceeding); see also R. 3:22-12 ("No . . . petition shall be filed pursuant to [Rule 3:22-1] more than 5 years after rendition of the judgment or sentence sought to be attacked unless it alleges facts showing that the delay beyond said time was due to defendant's excusable neglect."). Nevertheless, even if defendant's allegations were not procedurally barred, we conclude defendant has failed to produce any evidence demonstrating that the prosecutor suppressed evidence, which, if disclosed, would have changed the result of the his trial. State v. Russo, 333 N.J. Super. 119, 134 (App. Div. 2000) (To succeed on a Brady claim, defendant must "demonstrate that there is a reasonable probability that had the evidence been disclosed to the defense, the result of the proceeding would have been different.").