January 27, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
CHARLES PARKER, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 01-01-0002.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: December 17, 2008
Before Judges C.L. Miniman and King.
Defendant Charles Parker timely petitioned the court on February 28, 2005, for post-conviction relief (PCR) with respect to his April 12, 2001, conviction on three counts of a four-count indictment charging him with first-degree armed robbery, fourth-degree unlawful possession of a weapon, and third-degree possession of a weapon for an unlawful purpose.*fn1 He received a sentence of twenty years in prison subject to the eighty-five percent parole disqualifier of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on the armed-robbery conviction and five concurrent years in prison on the conviction for possession of a weapon for an unlawful purpose. The other gun charge was merged into the armed-robbery conviction for sentencing purposes. The PCR judge concluded that defendant was not entitled to PCR and denied his petition. We affirm.
In his direct appeal from his conviction and sentence, defendant raised two issues, one relating to the jury charge and the other to the sentence imposed. State v. Parker, No. A-4899-00 (App. Div. July 29, 2002), certif. denied, 174 N.J. 548 (2002). After reciting the relevant facts, which we incorporate here, id., slip op. at 3-5, we affirmed defendant's conviction and sentence. Id., slip op. at 5-6. In his petition for PCR, defendant contended that his sentence was unconstitutional under Blakely,*fn2 Apprendi,*fn3 and Natale*fn4 because the aggravating factors found by the sentencing judge should not have been applied to all offenses and should have been submitted to the jury. The PCR judge denied relief on May 20, 2005, and we summarily reversed by order on October 17, 2006, because it was defendant's first PCR petition and the judge failed to appoint counsel pursuant to Rule 3:22-6(a), relying on State v. King, 117 N.J. Super. 109, 111 (App. Div. 1971).
After the PCR judge assigned counsel, defendant also contended that his trial counsel provided constitutionally ineffective assistance to him in that he failed to properly protect defendant from testifying; failed to object to extended term sentencing; and his cumulative omissions deprived defendant of a fair trial. He also contended that extended term sentencing was not warranted under the circumstances and under the applicable statute. In a thorough written opinion and order on November 27, 2007, Judge Thomas R. Vena denied all PCR relief on all grounds sought by defendant.
In appealing this denial of PCR, defendant raises the following issue:
POINT I -- THE DENIAL OF DEFENDANT'S PCR PETITION MUST BE REVERSED, AND THIS MATTER MUST BE REMANDED FOR AN EVIDENTIAL HEARING, BECAUSE A PRIMA FACIE CASE WAS ESTABLISHED AS TO TRIAL COUNSEL'S INEFFECTIVENESS BY FAILING TO ADVISE DEFENDANT OF THE POTENTIAL HARM BY HIS TESTIFYING.
With respect to this issue, Judge Vena found as follows:
The Petitioner's first argument that the trial counsel should have properly advised his client of the potential harm of testifying at trial is also without merit. The [p]petitioner was voir dired in open court by the [judge] about his right to remain silent or his right to take the stand in his defense and fully understood the consequences of his decision. The [p]petitioner can[no]t now in handsight argue that his attorney should have tried harder to dissuade him from testifying because the jury did not find his testimony to be credible. How defense counsel chose to advise his client about testifying is a strategic decision that is accorded considerable deference. State v. Arthur, 184 N.J. 307 (2005). In State v. Arthur, the New Jersey Supreme Court held that an attorney's decision about whether to call a witness is a strategic one. Moreover, it is ultimately the defendant's decision whether or not to testify, not the attorney's.
State v. Bogus, 223 N.J. Super. 409 (1988)[.] As the court in Bogus said, "Defendant's election to testify was a tactical decision and defendant must bear the consequences of it." Defense counsel should not now be deemed ineffective because he permitted his client to exercise his constitutionally protected right to testify.
Further, the defense cannot now establish, as is required, that but for the defendant taking the witness stand, the outcome of the trial would have been different.
Defendant asserts that (1) he was not questioned on the record by the judge about his right to remain silent or to testify, contrary to the above finding;*fn5 (2) the Arthur decision relates only to witnesses, not defendants; (3) Bogus and State v. Savage, 120 N.J. 594, 631 (1990) make it the responsibility of counsel, not the court, to advise defendant about the factors to consider in electing his right to testify; (4) an evidentiary hearing should have been conducted on this ineffective assistance of counsel claim.
In Strickland v. Washington, 466 U.S. 668, 685, 104 S.Ct. 2052, 2063, 80 L.Ed. 2d 674, 692 (1984), the U.S. Supreme Court explained the constitutional guarantee of effective assistance of counsel for every criminal defendant embodied in the Sixth Amendment. A two-prong analysis is required when evaluating a claim of ineffective assistance of counsel. Id. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693. To prevail, the defendant must first demonstrate that trial counsel committed serious professional errors. Ibid. Second, defendant must demonstrate that the professional errors prejudiced the defendant to the extent that he was deprived of a fair trial. Ibid. Our Supreme Court has adopted the standards embodied in Strickland. State v. Fritz, 105 N.J. 42, 57-58 (1987). The errors must be "'so serious that counsel was not functioning as the "counsel" guaranteed by defendant by the Sixth Amendment.'" State v. Allah, 170 N.J. 269, 283 (2002) (quoting Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 692).
Additionally, "'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.'" Ibid. (quoting Strickland, supra, 466 U.S. at 695, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698). Defendant has failed to satisfy these standards.
First, defendant did not submit any certification from himself or his trial counsel as to the particulars of the advice he received respecting the decision to exercise his constitutional right to testify. An argument in a brief is not sufficient to raise an ineffective-assistance-of-counsel issue. See State v. Cummings, 321 N.J. Super. 154, 170-71 (App. Div.), certif. denied, 169 N.J. 199 (1999); see also State v. Gaither, 396 N.J. Super. 508, 514 (App. Div. 2007), certif. denied 194 N.J. 444 (2008); cf. State v. Petrozelli, 351 N.J. Super. 14, 23 (App. Div. 2002). Thus, he did not prove the first prong of a prima facie claim of ineffective assistance of counsel under Strickland and its New Jersey progeny.
Second, defendant did not establish a reasonable probability that the result of "the proceeding would have different" had he elected not to testify. Allah, supra, 170 N.J. at 283 (quoting Strickland, supra, 466 U.S. at 695, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698). The only other witnesses who testified at the trial were the victim, Robert Scruggs; the police officer who apprehended defendant near the scene of the robbery, Wilfredo Gonzalez; and one of the other police officers who assisted in the arrest, Edward Davila. Gonzalez observed defendant in possession of the stolen bicycle and saw him discard the knife used in the robbery. Defendant simply did not demonstrate that, had he not testified, there was a reasonable probability that the jury, based only on the testimony of the victim and officers, would have concluded that a reasonable doubt existed respecting his guilt. Our review of the trial record does not suggest such a probability. State v. Arthur, supra, 184 N.J. at 319 ("'A reasonable probability is a probability sufficient to undermine confidence in the outcome.'") (quoting Strickland, supra, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698). As a consequence, defendant was not entitled to an evidentiary hearing on his claim of ineffective assistance of counsel. State v. Preciose, 129 N.J. 451, 462-63 (1992).