December 17, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DAVID SAUNDERS, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 99-06-0434.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: October 22, 2008
Before Judges Lihotz and Messano.
Defendant appeals from a Law Division order denying his post-conviction relief (PCR) petition. Defendant and co-defendant Eric Ross were indicted on charges related to the armed robbery of the J&J News Agency (J&J) in Vineland.
Following a three-day jury trial, defendant was convicted of first-degree robbery, N.J.S.A. 2C:15-1(a)(1) and (2) (count one) and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count two). The State dismissed the third count of the original indictment. On July 14, 2000, after merger, defendant was sentenced to fifteen years imprisonment with an 85% parole bar, pursuant to the No-Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and a five year period of parole supervision. Appropriate fees and penalties were also imposed.
Defendant's conviction and sentence were affirmed in an unpublished opinion, No. A-0958-00T4 (App. Div. April 1, 2002), and the Supreme Court denied certification on November 6, 2002, State v. Saunders, 175 N.J. 76 (2002).
Defendant filed a PCR petition, alleging counsel was ineffective and his sentence was excessive.*fn1 Finding no support for defendant's claims, the PCR judge rendered a comprehensive bench decision set forth over twenty pages in the transcript, denying defendant's request for an evidentiary hearing along with his requests for relief.
Defendant raises these points on appeal:
DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL AND PCR COUNSEL BECAUSE THE ATTORNEYS FAILED TO RAISE THE FOLLOWING ISSUES AND REQUESTS THAT THIS COURT CONSIDER THESE ISSUES IN THE INTEREST OF JUSTICE.
(A) THE TRIAL COURT ERRED IN DENYING THE ADMISSION OF DEFENSIVE "OTHER CRIMES" EVIDENCE.
(B) THE TRIAL COURT ERRED IN NOT PROPERLY INSTRUCTING THE JURY REGARDING THE OUT-OF-COURT STATEMENTS BY DESIREE FLOYD AND ERIC ROSS (Not Raised Below).
(C) DEFENDANT'S STATEMENT TO THE POLICE WAS NOT VOLUNTARY AND VIOLATED HIS FIFTH AMENDMENT RIGHTS.
DEFENDANT WAS NOT PROCEDURALLY BARRED UNDER RULE 3:22-4 FROM RAISING THE ARGUMENT THAT HIS TRIAL COUNSEL WAS INEFFECTIVE.
THE TRIAL COURT ERRED IN DENYING DEFENDANT A HEARING BECAUSE A PRIMA FACIE CASE EXISTED THAT DEFENDANT WOULD ULTIMATELY SUCCEED ON THE MERITS THAT HIS TRIAL COUNSEL WAS INEFFECTIVE.
THE PCR COURT ERRED IN NOT REDUCING DEFENDANT'S SENTENCE BASED UPON A CHANGE IN THE CASE LAW.
In a brief filed directly by defendant, these supplemental points are asserted:
Defendant was deprived his 6th Amendment Right to effective assistance of counsel.
The defendant's post conviction relief should be reversed because the court's failure to hold a hearing to determine whether counsel had adequate time to submit defendant's pro se brief constitutes reversible error [sic].
We have considered each of these claims, in light of the record and applicable law, along with the arguments of counsel. We find defendant's arguments unpersuasive and affirm.
The facts underlying the criminal conviction are as follows. Prior to defendant's trial, Ross pled guilty after accepting a plea agreement, which proposed thirteen years imprisonment, subject to NERA for his role in the armed robbery. As part of his plea agreement, Ross was required to testify truthfully at defendant's trial.
Ross was called as a witness by the State. Ross explained defendant initiated a conversation about robbing J&J. Defendant told Ross he had "been staking the place out" and knew when the store would "have a lot of money." The two discussed the details of the robbery - - what they would wear, who would go in first, who would take the money, and who would hold the gun. It was agreed Ross and defendant would rob the store on January 23, 1999, prior to its closing.
On that date, defendant and Ross ripped old t-shirts to cover their faces, wore dark clothing, took a pellet gun, and then left for J&J. The two stopped at J&J, staked out the store, and purchased blunts. They returned a little more than an hour later, prior to the store's closing at 9 p.m.
Kathleen Daniels, J&J's cashier, testified two men entered the store wearing gauze around their faces, hats, and one wore a hood. One man was over six feet tall and was bigger than the other. The "little one always stayed [behind] the big one the whole time." The bigger one (Ross) exposed the gun, and the smaller one (defendant) "came behind the counter with [Daniels] and he motioned to open up the register," and told her "give me your money." Daniels complied. Defendant walked to the second cash register, motioned for Daniels to open it, which she did, and emptied its money and change drawer.
On April 11, 1999, defendant was arrested. Detective Paul Shadinger, who made the arrest, read defendant his Miranda*fn2 rights and witnessed defendant's execution of a Miranda waiver form. After receiving medical treatment, defendant was again advised of his rights by Detective Timothy Brunetta and executed a second Miranda waiver form. Defendant agreed to speak to the detectives who questioned him regarding a PNC bank robbery. Defendant was read his Miranda rights a third time and signed a third Miranda waiver form before giving a taped statement regarding the PNC robbery. Defendant then made his statement.
We recite the principles informing our review. A defendant seeking to vacate a conviction on grounds of ineffective assistance of counsel is not automatically entitled to an evidentiary hearing. State v. Preciose, 129 N.J. 451, 462 (1992) (citing R. 3:22-1). The trial court is not required to hold an evidentiary hearing unless the defendant presents a prima facie case supporting his application. Ibid.; State v. Sparano, 249 N.J. Super. 411, 419 (App. Div. 1991). Once a defendant sufficiently alleges specific facts demonstrating the deficient performance, State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999), he is entitled to an evidentiary hearing to determine whether "the result of the proceeding would have been different." State v. Russo, 333 N.J. Super. 119, 140 (App. Div. 2000).
Establishing a prima facie showing of ineffective assistance of counsel requires a defendant's petition meet both prongs of the test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984) and State v. Fritz, 105 N.J. 42 (1987). First, he must demonstrate his counsel's performance was deficient by "showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693. Second, defendant must show "'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.'" State v. Marshall, 148 N.J. 89, 157 (quoting Strickland, supra, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698), cert. denied, 522 U.S. 850, 118 S.Ct. 140, 139 L.Ed. 2d 88 (1997).
Under the first prong, "a [defendant] must do more than make bald assertions that he was denied the effective assistance of counsel. He must allege facts sufficient to demonstrate counsel's alleged substandard performance." Cummings, supra, 321 N.J. Super. at 170; see also State v. Rountree, 388 N.J. Super. 190, 206 (App. Div. 2006), certif. denied, 192 N.J. 66 (2007). The sufficiency of counsel's performance under the first Strickland prong must be evaluated based upon standards of attorney performance existing at the time of representation, Strickland, supra, 466 U.S. at 690, 104 S.Ct. at 2066, 80 L.Ed. 2d at 695, and in accordance with the law as it existed at that time. State v. Goodwin, 173 N.J. 583, 597-98 (2002).
Under the second prong, a defendant must show a trial error committed was "'so serious as to undermine the court's confidence in the jury's verdict or the result reached.'" State v. Allegro, 193 N.J. 352, 367 (2008) (quoting State v. Castagna, 187 N.J. 293, 315 (2006)).
On appeal, defendant presents several alleged instances of ineffective assistance by appellate and PCR counsel. We review each of the arguments.
Defendant first claims appellate and PCR counsel were ineffective for failing to raise three alleged trial errors, as follows: (1) when cross-examining Ross, defense counsel was denied the opportunity to inquire about the date of a prior Atlantic County robbery conviction wherein Ross used a pellet gun; (2) defendant's custodial statement was involuntary; and (3) the trial judge improperly charged the jury on the credibility of the State's witnesses raised for the first time on appeal.
The last challenge is barred by Rule 3:22-4. Specifically, defendant's challenges to the jury instructions should have been raised on appeal. The question is whether appellate and PCR counsels' failure to raise the issue deprived defendant of proper representation because trial counsel's alleged error undermined the jury verdict.
During trial, in addition to Ross's testimony, the State presented testimony from Desiree Floyd, who lived in defendant's apartment complex. Before the robbery, Floyd was with defendant and Ross and overheard their conversation in which they stated their intention to rob J&J. After the robbery, Floyd saw the two in the apartment complex parking lot and heard them say they robbed J&J. Floyd heard defendant state he "put a gun to a woman's head." Floyd later saw Ross and defendant counting money.
Defendant's argument is the trial judge failed to instruct the jury on the credibility of Ross's and Floyd's statements. Citing State v. White, 158 N.J. 230 (1999), defendant argues the jury was not specifically told to "undertake an unfettered and full consideration of all the circumstances surrounding the [statements] and disregard . . . any part thereof if it finds the statement[s] not credible." Id. at 246. We disagree.
The trial judge properly included instructions regarding the jury's role in determining the credibility of the witnesses and added specific credibility instructions concerning Ross's testimony. Trial counsel's failure to object to the charge and appellate and PCR counsels' decision not to raise this challenge were not deficient. Therefore, reversal is not warranted.
Defendant next argues appellate and PCR counsel did not address the argument that cross-examination of Ross was improperly limited because the court would not allow questions regarding the date of a prior robbery to which Ross entered a guilty plea. In an Atlantic County robbery, Ross purportedly used a pellet gun. At trial for the J&J robbery, Ross testified he held the pellet gun, which he got from defendant, during the J&J robbery. Even though defendant elected not to testify, the gist of his defense was the crime was committed by Ross. While defendant was present, his defense suggested he was unaware Ross had a pellet gun, and he intended to rob J&J. Thus, defendant maintains the trial judge's disallowance of testimony that Ross had possession of a pellet gun used in a robbery two days before the J&J robbery "materially contributed to [defendant's] conviction."
"A defendant is entitled to introduce evidence that another person committed the crime or crimes of which the defendant is charged." State v. Cook, 179 N.J. 533, 566 (2004) (citing State v. Jimenez, 175 N.J. 475, 486 (2003)). Once the court finds the evidence is relevant, it must exercise discretion to consider whether "its probative value is substantially outweighed by the risk that its admission will either (a) necessitate undue consumption of time or (b) create a substantial danger of . . . confusing the issues or of misleading the jury." Thus, a trial court must analyze the proffered defensive other-crimes evidence pursuant to N.J.R.E. 403.*fn3
[Id. at 566-67 (quoting State v. Garfole, 76 N.J. 445, 455-56 (1978)).]
We find no error in the trial judge's exercised discretion in limiting the scope of inquiry into Ross's prior convictions. State v. Sands, 76 N.J. 127, 144 (1978); N.J.R.E. 609. At trial counsel's request, defendant was permitted to present Ross's prior conviction and the terms of his plea agreement, which included the J&J and Atlantic County robberies. Thus, we find no deficiency in trial counsel's performance. Consequently, the failure of appellate and PCR counsels to present this issue held no consequence.
Finally, defendant turns to the Miranda*fn4 hearing. However, he points to no flaw in counsel's performance during the pre- trial hearing, but merely attacks the court's determination. Defendant's position lacks merit. R. 2:11-3(e)(2).
Defendant again argues trial counsel's failure to call identified defense witnesses and appellate and PCR counsels' failure to obtain statements delineating the purported exculpatory testimony offered requires a new trial. When the issue was before us on appeal we concluded:
Trial counsel's failure to locate several witnesses cannot be said to have impugned the quality of his representation, as defendant urges, at least in the absence of certifications or affidavits based on personal knowledge disclosing what exculpatory evidence those individuals would have revealed.
Although Judge Geiger noted the issue had been previously raised and rejected on appeal, Rule 3:22-5, nevertheless, he reviewed the merits of the argument stating:
What's noticeably absent in this PCR, what's entirely absent, are any such certifications or affidavits based on personal knowledge disclosing what exculpatory evidence [the] four potential witnesses would have revealed and been able to testify to. It's not there. We don't have it.
This determination is unassailable. Defendant's challenge remains void of substance. Accordingly, we reject defendant's reasserted "bald assertions that he was denied the effective assistance of counsel." Cummings, supra, 321 N.J. Super. at 170.
As noted in the prior discussion, defendant's failure to show either appellate or PCR counsel made errors so egregious as to deprive him of his Sixth Amendment right, leads to the inevitable conclusion no evidentiary hearing was necessary. Preciose, supra, 129 N.J. at 462. We need not comment further.
Finally, defendant requests review of his sentence. He suggests the "real time consequences" resulting from application of NERA to the disparate sentence he received following conviction and that sentence imposed on Ross's conviction in accordance with a plea agreement mandate reduction. When defendant challenged his sentence on appeal, we concluded "the sentence imposed fairly reflected legislatively fixed guidelines and presumptions." No. A-0958-00T4 (App. Div. March 13, 2002) slip op. 10.
Defendant argues our decision in State v. Martinez, 370 N.J. Super. 49 (App. Div.), certif. denied, 182 N.J. 142 (2004), suggests the bottom sentencing range should be imposed when a defendant commits an offense subject to NERA because NERA requires eighty-five percent of a sentence to be served prior to parole consideration. Although our discussion in Martinez, supra, recognized "the real-time consequences of NERA and the role that it customarily plays in the fashioning of an appropriate sentence," 370 N.J. Super. at 58, we did not suggest imposition of the type of sentence review now suggested by defendant.
In Martinez, supra, we found the imposed sentence excessive in light of the term above the then presumptive term and as a result of the sentencing court's failure to properly identify and weigh existing mitigation factors. 370 N.J. Super. at 59. Those circumstances are not presented here. In this matter, the trial judge identified three aggravating factors and no mitigating factors. The imposed sentence of fifteen years fell in the middle of the range and was the then presumptive term.
The PCR court determined defendant failed to meet both prongs of the Strickland/Fritz test, and the record fully supports the court's findings and conclusions. We have addressed those newly-minted arguments presented before us for the first time and find no basis to grant relief. Lastly, defendant's sentence is neither excessive nor flawed.