January 9, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
LAWRENCE E. PRATT, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Indictment No. 98-09-726-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 15, 2008
Before Judges Lisa and Reisner.
Defendant appeals from an order denying his post-conviction relief (PCR) petition. Tried to a jury, defendant was convicted of first-degree armed robbery, N.J.S.A. 2C:15-1 (count one); second-degree possession of a weapon (a handgun and/or sawed-off shotgun) for an unlawful purpose, N.J.S.A. 2C:39-4a (count three); disorderly persons simple assault, N.J.S.A. 2C:12-1a, as a lesser-included offense of aggravated assault (count four); and third-degree unlawful possession of a weapon (a sawed-off shotgun) (count five), N.J.S.A. 2C:39-3b. The judge sentenced defendant on count one to eighteen years imprisonment subject to an 85% parole disqualifier under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and also subject to a nine-year parole disqualifier under the Graves Act, N.J.S.A. 2C:43-6c. On the remaining counts, defendant was sentenced to lesser terms of imprisonment, all of which were ordered to be served concurrent to the sentence on count one.
Defendant appealed, and in an unreported decision we affirmed his convictions and, except with respect to the NERA parole disqualifier, we affirmed his sentences. State v. Pratt, No. A-4513-01 (App. Div. Feb. 18, 2004). Therefore, defendant's resulting aggregate sentence is eighteen years imprisonment with a nine-year Graves Act parole disqualifier. On May 19, 2004, the Supreme Court denied defendant's petition for certification. State v. Pratt, 180 N.J. 358 (2004).
By documents dated September 15, 2004, defendant filed his PCR petition. Counsel was eventually assigned, and counsel filed a supplemental brief on defendant's behalf on April 2, 2007. On April 27, 2007, Judge Marshall heard oral argument. Without granting an evidentiary hearing, he denied defendant's petition, and entered an order to that effect on April 30, 2007.
On appeal, defendant argues:
THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION THAT HE WAS DENIED ADEQUATE LEGAL REPRESENTATION AT THE TRIAL LEVEL.
A. THE PREVAILING LEGAL PRINCIPLES REGARDING CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL, EVIDENTIARY HEARINGS AND PETITIONS FOR POST CONVICTION RELIEF.
B. SINCE THE DEFENDANT PRESENTED A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL, HE IS ENTITLED TO AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION, AND THE TRIAL COURT ERRED BY FAILING TO AFFORD HIM SUCH A HEARING.
THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF ON THE BASIS THAT IT WAS PROCEDURALLY BARRED PURSUANT TO RULE 3:22-5.
We reject these arguments and affirm.
Defendant was indicted jointly with co-defendants Darnell Taylor and Michael Speller for perpetrating an armed robbery and other offenses against Kevin Pretlow on June 24, 1998. Defendant was tried separately. The indictment was still pending against Speller. Defendant's tape recorded statement to the police was admitted in evidence, and provided to the jury along with a transcript of the statement. Essentially, defendant contended in the statement that he was present during the events, but he was not armed, was not aware that any weapons were involved, did not know that any criminal activity would be engaged in, and took no part in the criminal conduct. Thus, his defense was that he was merely present at the scene, but was not a participant in any criminal conduct. Defendant did not testify and did not call any witnesses.
In our prior opinion, we summarized the trial evidence as follows:
The following evidence was presented. During the evening of June 24, 1998, Kevin Pretlow was not feeling well and lying on his couch when he heard a knock at the door of his apartment. Through a window he saw Speller whom he had known for eight years but had not seen for some time. Pretlow opened the door and, to his surprise, Speller and two other individuals, defendant and Taylor, entered the apartment. Defendant was armed with a sawed-off shotgun and Speller had a handgun, which he later handed to Taylor. Speller demanded money from Pretlow, who responded that he had none. Pratt then pushed Pretlow to the floor, hit him in the head with the shotgun, and kicked him. While defendant continued to kick and beat Pretlow with the shotgun, Pretlow managed to crawl out of the living room into the hallway and eventually into his daughter's bedroom. Taylor was given the handgun and instructed to watch Pretlow, who was ordered to lie on the floor while defendant and Speller searched the apartment for money. Pretlow continued to move and defendant came into the room, kicked him, and said to him "didn't I tell you don't move?" Defendant then left the room. In an apparent effort to escape, Pretlow hit Taylor with an iron. Taylor took the iron away from him and beat him on the head. Pretlow then threw a space heater through the bedroom window to get attention and the three then left the apartment taking with them Pretlow's safe containing $3,000 in cash, a checkbook, insurance documents, jewelry, and other items.
Carolyn Fulgnam, a neighbor, observed three men leaving. One was carrying a shotgun and another a box, presumably Pretlow's safe. They eventually fled in their vehicle. Meanwhile, Pretlow, who was dazed, wandered outside the apartment building bleeding from his head and body. He eventually was taken to the hospital where he received stitches to the back of his head and treatment for bruised ribs.
Officer William Lee of the Washington Township Police Department was dispatched to the scene where he found Pretlow. Pretlow told Lee what happened and an investigation found the apartment in disarray and blood on the floor. At about the same time that Lee was dispatched, Officer Brian Milsted was on patrol when he spotted a dark-colored Toyota Camry, which was being driven at a high rate of speed, exit the apartment complex, and disregard a stop sign. He activated his overhead lights, in response to which the operator of the Camry pulled over to the side of the road. As Milsted approached the vehicle, the Camry sped away. Milsted resumed pursuit, following the vehicle, which ran through a stop sign. Eventually, the Camry was stopped in an unlit section of a parking lot and the occupants fled on foot. Inside the abandoned car Milsted found a sawed-off shotgun, a handgun holster, Pretlow's safe, and an open container of alcohol.
According to a statement given by defendant, which was introduced into evidence, defendant and Taylor were relaxing at defendant's home in Pennsylvania when Speller arrived and asked them to join him to go to New Jersey and pick up some money from a friend. Pratt drove his wife's Toyota Camry. There were no weapons. When they entered Pretlow's apartment, Speller and Pretlow entered into a conversation that turned into an argument and a fight. Defendant denied hitting Pretlow but did see Speller take the safe. As they drove off, Speller was driving the car. Defendant did not testify. [Id. slip op. at 3-5.]
After the jury found defendant guilty, but before he was sentenced, defendant moved for a new trial, based upon allegedly newly discovered evidence. That evidence was in the form of a handwritten notarized statement by Speller that essentially corroborated defendant's version of the events and defendant's role in them. Defendant argued that had Speller testified, the result may well have been different. In the argument on the motion, defendant's attorney said:
I think the Court will recall there was some disagreement with Mr. Speller and his counsel, at some point before Mr. Pratt went to trial. Although it's not submitted on the brief and I don't [want] to undermine anyone here, but my understanding later was that the dispute was because Mr. Speller wanted to provide information at that time and his attorney didn't want him to provide it. He subsequently submitted the Affidavit.
The trial judge denied the motion, recognizing:
In this case, the problem throughout was that Mr. Pratt wanted the benefit of Mr. Speller's testimony, but that Mr. Speller himself was charged and apparently no arrangements were made as far as how to acquire that testimony. Nor was there a discussion as far as the order of the separate trials so as to at least give the opportunity for Mr. Speller to testify as the witness for Mr. [P]ratt....
The judge also noted that Speller's statement did not qualify as newly discovered evidence because it could have readily been obtained prior to trial.
In his direct appeal, one of defendant's arguments was set forth in POINT III as follows: "DEFENDANT WAS DEPRIVED OF EFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL IN VIOLATION OF THE N.J. STATE AND U.S. CONSTITUTIONS." He argued that Speller "was the primary actor who set in motion the chain of events leading to the incident on June 24, 1998," and that "[h]e would have been able to confront Mr. Pre[t]low because he would have testified that there was no theft." Defendant argued that Speller "would have corroborated the defendant's statement that he did not strike Mr. Pretlow and that the shotgun came from the apartment." Defendant argued, therefore, that the failure of his trial counsel to call Speller as a witness was deficient attorney conduct and, but for the error, the result of the trial probably would have been different.
We considered the merits of that argument and rejected it. In our prior opinion, we said:
Equally without merit is defendant's contention that he received ineffective assistance of counsel because his attorney failed to call co-defendant Michael Speller as a witness. Speller's affidavit, signed on January 24, 2002, essentially mirrors defendant's own statement and further indicates that defendant separated Speller and Pretlow after Speller grabbed Pretlow.
Defense counsel, however, revealed at the time of defendant's motion for new trial that Speller's attorney would not permit Speller to testify at defendant's trial because Speller's trial had not yet taken place.*fn1 Counsel's performance in failing to call Speller as a witness was neither deficient nor capable of changing the result. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984); United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed. 2d 657 (1984); State v. Fritz, 105 N.J. 42, 58 (1987). [Id. slip op. at 13-14.]
The failure to call Speller as a trial witness was defendant's principle argument in his PCR proceeding. Although he raised some other issues before the trial court in the PCR proceeding, he has not argued those issues on appeal, and we deem them waived. The sole issue before us, therefore, is whether Judge Marshall erred in denying defendant's PCR petition, without granting an evidentiary hearing, based upon ineffective assistance of trial counsel for failing to call Speller as a witness.
Defendant argues that Speller was willing to testify. However, there is nothing in the record to support that contention. At the colloquy on the new trial motion, it was made clear, and not contradicted, that Speller's attorney was not willing to allow Speller to testify. Nothing in Speller's statement submitted in support of the new trial motion says he was willing to testify. His statement, dated January 22, 2002, was prefaced with the following: "I Michael Speller, is [sic] making this statement without the consent from my Attorney and freely and voluntarily writing about the above matter of June 24th 1998." The statement then set forth a narrative version of the events of June 24, 1998, and concluded with Speller's signature, which was notarized.
In support of his PCR petition, defendant submitted nothing further from Speller, such as an affidavit stating that he would have been willing to testify if called as a witness, notwithstanding the fact that his charges were still pending and he had the right to assert his Fifth Amendment privilege and not testify. See State v. Cummings, 321 N.J. Super. 154, 168-69 (App. Div.), certif. denied, 162 N.J. 199 (1999).
Defendant also argues that his trial counsel was deficient for failing to make an effort to have Speller's case tried first, which might have made Speller available as a witness without a fifth amendment privilege in a subsequent trial of defendant. However, again there are no affidavits from defendant's counsel, Speller's counsel, or anyone else to back up that bald assertion. See ibid.
Judge Marshall concluded that because the very issue raised in the PCR proceeding was previously adjudicated on direct appeal, the issue was procedurally barred under Rule 3:22-5. The judge also found no substantive merit to defendant's argument, and alternatively denied relief substantively. Finally, finding that defendant failed to establish a prima facie case of ineffective assistance of counsel, the judge refused to conduct an evidentiary hearing.
To be entitled to relief for ineffective assistance of counsel, a defendant must demonstrate that counsel's performance was deficient and that a reasonable probability exists 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 61-62. A defendant must demonstrate "how specific errors of counsel undermine the reliability" of the proceedings. Cronic, supra, 466 U.S. at 659 n.26, 104 S.Ct. at 2047 n.26, 80 L.Ed. 2d at 668 n.26.
First, we note that a PCR petition is not "a substitute for appeal." R. 3:22-3. We agree with Judge Marshall that because the precise issue raised as a basis for PCR relief had been previously adjudicated on direct appeal, the issue was procedurally barred in the PCR proceeding. R. 3:22-5. We also agree that there is no substantive merit to defendant's contention. He has provided no basis to establish that Speller was willing to testify with charges still pending against him or that defendant's trial attorney did not make an effort to reverse the order of the trial or that he would have had a reasonable prospect of doing so. Accordingly, there is no basis for a finding of deficient attorney conduct, nor that any attempts to obtain Speller's testimony or reverse the order of trials would have likely been successful.
Finally, defendant's unfounded assertions of ineffective assistance of counsel did not demonstrate a reasonable likelihood of succeeding under the Strickland/Fritz test. Absent that showing, the PCR judge acted within his discretion in declining to conduct an evidentiary hearing. State v. Preciose, 129 N.J. 451, 462 (1992).