December 1, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
WILLIAM LOATMAN, JR., DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 01-09-0838.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 13, 2008
Before Judges Cuff and Baxter.
Defendant William Loatman, Jr. appeals from a June 29, 2007 order that denied his first petition for post-conviction relief (PCR). He maintains that he received ineffective assistance of counsel during the PCR proceeding because PCR counsel did not raise trial counsel's failure to request a mistrial or seek a postponement when a defense witness did not appear and testify at trial. We affirm.
Defendant was convicted, following a trial by jury, of three counts of second-degree possession of a weapon for an unlawful purpose, one count of third-degree unlawful possession of a handgun and one count of fourth-degree aggravated assault by pointing a handgun. On direct appeal, he raised only a single claim pertaining to his conviction; namely, that the trial court erred when it denied his motion for a judgment of acquittal or for a new trial. We rejected that argument, as well as the sentencing issue he raised, and affirmed. State v. Loatman, No. A-0865-02 (App. Div. December 17, 2003).
On December 29, 2004, defendant filed the PCR petition that is the subject of this appeal, raising three claims: 1) appellate counsel provided ineffective assistance when he failed to take any steps to "have [defendant's] State sentence run [con]current with his federal sentence"; 2) State v. Natale, 184 N.J. 458 (2005), affords him the right to a sentencing remand; and 3) trial counsel was ineffective when he failed to object to the prosecutor's comment in summation that "[f]rom the defense side of the room... you heard very, very, very, very little about [defendant]."
At the PCR hearing on June 27, 2007, Judge Geiger rejected all three claims. As to the concurrent sentencing issue, the judge observed that the federal sentence was imposed after defendant was sentenced in this matter, and therefore any application for a concurrent sentence should have been addressed to the federal court. Judge Geiger also found that had appellate counsel filed a motion for reconsideration of sentence, such motion would have been unsuccessful because the State sentence concerned "a separate crime, different location, different date, different victim, different type of crime, unrelated, no nexus between them, whatsoever."
On the question of the Natale remand, Judge Geiger correctly observed that because defendant's sentence was affirmed on direct appeal in December 2003, defendant's sentence was not in the Natale pipeline and defendant therefore had no right to a Natale remand.
As to the claim of prosecutorial misconduct, Judge Geiger observed that "the comment, although perhaps it would have been better for [it] not to have been made, do[es] not directly implicate defendant's right to remain silent, and his other trial rights." Consequently, Judge Geiger, having rejected all three claims that were advanced in the PCR proceeding, denied the petition.
On appeal from the denial of the PCR, defendant has not briefed any of the three arguments he raised in the Law Division. Consequently, we deem them abandoned and need not decide them. McGarry v. Saint Anthony of Padua Roman Catholic Church, 307 N.J. Super. 525, 531 (App. Div. 1998). He presents a lone substantive claim before us on appeal:
THE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL DURING THE POST-CONVICTION RELIEF PROCEEDING.*fn1
To prove ineffective assistance of counsel, defendant must demonstrate that counsel's performance was deficient, and that this deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d. 674, 693 (1984). Performance is deficient "when counsel made errors so serious that counsel was not functioning as the'counsel' guaranteed the defendant by the Sixth Amendment." Id. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693. To show prejudice, the defendant must demonstrate 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. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Ibid. There is a "strong presumption that counsel's conduct falls within a wide range of reasonable professional assistance." Id. at 689, 104 S.Ct. at 2065, 80 L.Ed. 2d at 694. The New Jersey Supreme Court has adopted the Strickland test. State v. Fritz, 105 N.J. 42 (1987).
Although this court must defer to the trial court's factual findings that underpin its determination, this court owes no deference to the determination itself. State v. Cleveland, 371 N.J. Super., 286, 295 (App. Div.), certif. denied, 182 N.J. 148 (2004). Whether the trial court's fact-finding satisfies the applicable legal standard is a question of law subject to plenary review on appeal. Ibid.
We turn to defendant's claim that PCR counsel was ineffective because he did not raise the issue of trial counsel's failure to request a mistrial or seek a postponement when a defense witness, Officer Joseph Rodriguez, did not appear at trial to testify. As we have already discussed, and as is evident from the nature of the claim itself, there was no discussion of this issue during the PCR proceeding; however, we are able to make several observations from our own review of the trial record.
On the last day of trial, April 30, 2002, defense counsel notified the judge that the assistant prosecutor informed him the day before that the State intended to call only one more witness, a Sergeant Davis, after which the State intended to rest. Defense counsel told the judge that because Officer Rodriguez was on the State's witness list, the defense assumed the State would call Rodriguez and defendant would be able to cross-examine him and thereby elicit favorable testimony. When defense counsel learned from the assistant prosecutor that the State did not intend to call Rodriguez, defense counsel arranged to have a subpoena delivered to the Vineland Police Department where Rodriguez was employed. The individual who delivered the subpoena learned that Rodriguez was off-duty on April 29 and April 30 and was not expected to return to work until midnight on April 30, which would make Rodriguez unavailable unless the trial were adjourned until the next day, May 1.
The judge asked the prosecutor to contact the Vineland Police Department to secure its cooperation in locating Rodriguez. The prosecutor spoke to a sergeant who "was not able to talk to Rodriguez" but who instead "left a message on Rodriguez's home taping system" telling Rodriguez to telephone the sergeant about the trial. The record reflects that this discussion between the judge and counsel occurred shortly before 11:00 a.m. At defendant's request, the judge agreed to wait until 1:00 p.m. for Rodriguez to respond.
During the discussion at 11:00 a.m., defense counsel explained that if Rodriguez could not be located by 1:00 p.m., "then I guess we'll go into closings because... I have a concern. I don't want to delay this for this jury [because] they were of the understanding that this [trial] was going to end as of today probably." Defense counsel explained that if the trial "spilled over as a result of someone testifying, then fine, but my concern is that... maybe Rodriguez is someone that can't be reached and if we don't know by 1:00 o'clock then fine, I'll have to go without that."
Defendant argues that PCR counsel was ineffective because he did not raise trial counsel's failure to seek an adjournment of the trial or request a mistrial. The State, in turn, urges us to decline to consider this claim because it was not raised in the Law Division, and to instead preserve this issue for a second PCR petition. We disagree and conclude that the record is sufficiently developed to afford appellate review. State v. Preciose, 129 N.J. 451, 459-61 (1992).
For purposes of discussion, we are willing to assume that trial counsel provided ineffective assistance either because he failed to deliver a subpoena to Rodriguez far enough in advance to guarantee his appearance at trial, or because counsel failed to seek a one-day adjournment to facilitate Rodriguez's appearance. That assumption satisfies the first prong of the Strickland/Fritz test. We turn next to the second prong, which requires an analysis of whether such ostensibly ineffective assistance prejudiced the defense. To decide this latter issue, we must determine whether it is likely that Rodriguez's testimony would have resulted in defendant's acquittal on some or all of the counts. It is, of course, impossible to make that determination without knowing the substance of the testimony Rodriguez would have provided. Defendant concedes that he does not know what testimony trial counsel sought to elicit from Rodriguez. Consequently, he urges us to remand the PCR proceeding to the Law Division for the development of a record on this subject. We decline to do so.
Defendant had two different avenues open to him to ascertain the testimony Rodriguez could have offered. First, through an investigator he could have contacted Rodriguez to determine if Rodriguez had any recollection of the events in question and, if so, whether his testimony would have been favorable. Defendant could then have presented an affidavit from Rodriguez summarizing the testimony he would have offered. With even less effort, defendant could simply have included within his appendix on appeal a copy of the police report that Rodriguez prepared describing his role in the investigation of the events of July 10, 2001. It is beyond dispute that Rodriguez either prepared a police report himself or was mentioned in the report of another officer. Otherwise, the State could not have placed Rodriguez's name on its witness list. Either one of those methods would have permitted us to determine whether defendant had made a showing sufficient to warrant a remand of this matter to the Law Division for a hearing.
What defendant may not do, however, is make "bald assertions" unsubstantiated by documentary proof. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). When a petitioner claims his trial attorney failed to call a favorable witness, the petitioner must present the facts to which the witness would have testified had he been called. Ibid. Defendant has not done so. We conclude that because defendant has failed to satisfy the evidentiary burden Cummings requires, he has not established the prima facie case that would entitle him to an evidentiary hearing. See Ibid. We therefore decline to order the remand defendant seeks and affirm the denial of post-conviction relief. While we do so for reasons different from those that were presented to Judge Geiger, we affirm judgments, not reasons. State v. Maples, 346 N.J. Super. 408, 417 (App. Div. 2002).