February 10, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
CLIFFORD JENKINS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 98-04-0596.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: January 28, 2009
Before Judges Cuff and Baxter.
Defendant Clifford Jenkins appeals from the denial of his petition for post-conviction relief (PCR). He is serving an aggregate term of eighty years with a parole ineligibility term of forty-seven and one-half years following his conviction of two counts of first degree robbery, one count of first degree carjacking, two counts of second degree aggravated assault, and one count of second degree robbery.
This court affirmed his conviction in all respects except the manner in which the No Early Release Act*fn1 parole ineligibility term was calculated on the extended term imposed on the carjacking conviction. State v. Jenkins, Docket No. A-5711-00 (App. Div. Sept. 23, 2002). The Supreme Court denied defendant's petition for certification. 176 N.J. 74 (2003). Soon thereafter, defendant filed a pro se PCR petition. Assigned counsel filed a brief in support of the petition.
In his petition, defendant argued that trial counsel provided ineffective assistance of counsel and violated his Sixth Amendment right to counsel because counsel failed to investigate potential witnesses that could have provided exculpatory evidence in defense of the carjacking charge. In his brief in support of the PCR petition, assigned counsel argued that trial counsel was ineffective for failing to investigate and present an alibi defense, failed to request a Wade*fn2 hearing, and cumulative error. The cumulative error consisted of a failure to cross-examine victim Howard Henry and "unnecessarily prejudicial" comments made by defense counsel during summation.
At oral argument, defendant withdrew the alibi contention and focused his argument on the failure of trial counsel to request a Wade hearing. Counsel argued that Henry's out-of-court identification was unreliable. In his written opinion, Judge Moynihan properly rejected the contentions advanced by defendant. Defendant has never identified any factor that rendered the victim's out-of-court identification suggestive, and the judge noted that the threshold inquiry is suggestibility. State v. Madison, 109 N.J. 223, 236-37 (1988). The judge also observed that the prosecutor clearly established during direct examination that Henry, the first victim, was not certain about his identification. Cross-examination of this witness was not likely to improve the situation. Finally, Judge Moynihan held that defense counsel's remarks in summation simply anticipated juror reaction to the evidence and caused no prejudice. He, therefore, denied the PCR petition.
On appeal, defendant raises the following arguments:
The Defendant is Entitled to Post Conviction Relief. (partially raised below)
The Defendant Received Ineffective Assistance of Counsel on Appeal. (partially raised below)
Severance Jury Instructions Ineffective Assistance Of Appellate Counsel
The Defendant Received Ineffective Assistance of Counsel During the Post Conviction Relief Proceeding. (not raised below)
Specifically, defendant now argues that trial counsel was ineffective because he did not seek to sever the charges, and that he should have sought other crimes and receiving stolen property instructions. Defendant also urges that appellate counsel was ineffective because appellate counsel should have identified these newly cited omissions as evidence of trial counsel's ineffective representation. Defendant also contends that PCR counsel was ineffective because he also failed to cite the newly identified omissions.
To establish a prima facie claim of ineffective assistance of counsel, a defendant must demonstrate a reasonable likelihood of success under the test set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1984). Under the first prong of the Strickland test, defendant must show that defense counsel's performance was deficient. Ibid. Under the second prong, defendant must demonstrate "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. The State adopted the Strickland precepts and its tests in State v. Fritz, 105 N.J. 42, 58 (1987).
There is a strong presumption that counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, supra, 466 U.S. at 690, 104 S.Ct. at 2066, 80 L.Ed. 2d at 695. Further, because prejudice is not presumed, State v. Fritz, supra, 105 N.J. at 52, a defendant must demonstrate "how specific errors of counsel undermined the reliability" of the proceeding. United States v. Cronic, 466 U.S. 648, 659 n.26, 104 S.Ct. 2039, 2047 n.26, 80 L.Ed. 2d 657, 668 n.26 (1984). Moreover, such acts or omissions of counsel must amount to more than mere tactical strategy. Strickland, supra, 466 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed. 2d at 694.
Adequate assistance of counsel must be measured by a standard of "reasonable competence." Fritz, supra, 105 N.J. at 53; see State v. Jack, 144 N.J. 240, 248 (1996). Therefore, judicial scrutiny requires great deference because the standard does not demand "the best of attorneys," but rather requires attorneys be "[not] so ineffective as to make the idea of a fair trial meaningless." State v. Davis, 116 N.J. 341, 351 (1989).
We would be remiss if we did not note that none of the issues presented in this appeal were submitted in defendant's pro se petition or in counsel's brief in support of the petition. We are an appellate tribunal. Our function is to review orders entered in the trial court that reflect rulings on issues presented to the trial court. Our role is not to review issues presented for the first time on appeal, unless the interests of justice require us to do so. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). We have identified no basis to depart from that salutary rule in this case.
We are thoroughly familiar with this record. We discern no basis to alter the disposition of this PCR petition. The arguments presented by defendant are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add only the following brief comments concerning the contention that counsel was ineffective for failing to seek a severance of the charges.
Charges may be joined when the charges are the same or of similar character or when two or more acts are connected or are part of a common plan or scheme. R. 3:7-6. When the charges arise from a series of charges closely connected by time and place and evidence of the other offenses may be admitted in separate trials, joinder of the charges is permissible. State v. Pierro, 355 N.J. Super. 109, 117 (App. Div. 2002), certif. denied, 175 N.J. 434 (2003).
Here, as related in our opinion on direct appeal, the three incidents that were the subject of a single indictment and a single trial arose over a period of eight hours. Defendant assaulted Howard Henry and took his car. Less than seven hours later, defendant took Bernie Mae Parker's pocketbook by force and fled from the scene in the car he had taken from Henry. An hour later, defendant assaulted John Mills and took the keys to his car. A passing police officer observed defendant enter the car he stole from Henry. When the police officer approached, defendant fled. Following a chase and defendant's apprehension, the officer returned to the first victim's car and found Parker's pocketbook and Mills's keys. The offenses involving the three victims were inextricably linked. It is highly unlikely any motion to sever would have been successful.