March 16, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
WILLIAM H. HARVEY, JR., DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 98-05-0650.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 4, 2009
Before Judges Stern and Lyons.
The order of September 19, 2006, denying defendant's petition for post conviction relief (PCR), is affirmed substantially for the reasons expressed by Judge James N. Citta in his oral opinion of July 10, 2007. We add only the following:
In the petition defendant claimed he received:
INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL FOR FAILURE TO RAISE ON DIRECT APPEAL INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL FOR FAILURE TO IMPEACH WITNESS AFTER SAID WITNESS GAVE TWO DIFFERENT ACCOUNTS OF WHAT TRANSPIRED, IN VIOLATION OF DEFENDANTS SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL.
DEFENDANT SEEKS NEW TRIAL BASED ON PLAIN ERROR AND CONSTITUTIONAL VIOLATIONS.
The petition, dated March 8, 2004, was supplemented by counsel's comprehensive brief dated May 1, 2006. In that brief, counsel claimed defendant was deprived of effective counsel both at his trial and on appeal. Specifically, counsel contended:
I. DEFENDANT IS ENTITLED TO THE EFFECTIVE ASSISTANCE OF TRIAL AND APPELLATE COUNSEL.
II. APPELLATE COUNSEL FAILED TO RAISE THE INEFFECTIVENESS OF TRIAL COUNSEL ON A VARIETY OF ISSUES HE COULD HAVE AND SHOULD HAVE RAISED IN ADDITION TO THE ISSUES HE HAD ALREADY RAISED, AND TRIAL COUNSEL WAS INEFFECTIVE AS HE FAILED TO EFFECTIVELY REPRESENT THE DEFENDANT IN THE FIRST INSTANCE.
III. COUNSEL FAILED TO COMMUNICATE WITH THE DEFENDANT AND FAILED TO KEEP HIM ADEQUATELY APPRISED OF THE PROCEEDINGS AND THE LACK OF A PLEA OFFER SO AS TO DENY DEFENDANT THE EFFECTIVE ASSISTANCE OF COUNSEL.
IV. TRIAL COUNSEL FAILED TO ARGUE WHY THE LETTER OF CATHY CARBONE WHICH IS EXCULPATORY OF THE DEFENDANT WAS ADMISSIBLE IN EVIDENCE.
V. APPELLATE COUNSEL WAS INEFFECTIVE IN HIS ARGUMENTS ON APPEAL AS TO THE INEFFECTIVENESS OF TRIAL COUNSEL.
VI. TRIAL COUNSEL WAS INEFFECTIVE FOR FAILURE TO OBTAIN A REASONABLE PLEA OFFER, AND APPELLATE COUNSEL RELIED ON INAPPROPRIATE PRECEDENT IN ARGUING THAT THE DEFENDANT WAS ENTITLED TO A PLEA OFFER.
VII. TRIAL COUNSEL WAS INEFFECTIVE IN HIS REPRESENTATION OF THE DEFENDANT AT SENTENCE.
VIII. TO THE EXTENT TRIAL COUNSEL COULD HAVE CONDUCT [SIC] A MORE THOROUGH CROSS EXAMINATION OF [C.C.] OR SOUGHT THE PROSECUTION TO BRING CHARGES AGAINST HER FOR HER USE OF A GUN IN THREATENING [DEFENDANT], COUNSEL WAS INEFFECTIVE.
IX. DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL AND WAS DENIED A FAIR TRIAL BECAUSE OF THE CUMULATIVE ERRORS BY COUNSEL.
X. DEFENDANT'S APPELLATE COUNSEL WAS INEFFECTIVE.
At the end of counsel's brief, he concludes:
Given the numerous serious shortcomings in the defense amounting to a "denial of counsel", the defendant submits he has demonstrated per se ineffective assistance of counsel mandating his conviction be vacated. In the alternative, he has made a prima facie showing of ineffective assistance of counsel requiring the scheduling of a plenary hearing to take testimony to establish the ineffective assistance of counsel. See State v. Preciose, id.
Independent of the fact that, at the PCR hearing, counsel in response to a colloquy with the PCR judge stated that no evidentiary hearing was required, we find nothing in the PCR record to warrant it. See State v. Preciose, 129 N.J. 451, 461- 62 (1992); State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.) certif. denied, 162 N.J. 199 (1999). The brief essentially contains speculation, and there is no affidavit or certification on which to suggest defendant could present any evidence which might have affected the result. The victim, her mother and the defendant testified at trial. Defendant denied any wrongdoing and gave an explanation for the allegations. The issues concerning the pretrial statements and recantations were explored before the jury, and we fail to understand what other counsel may have done or presented which could have impacted on the verdict. See Strickland v Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed 2d 674 (1984); State v. Fritz, 105 N.J. 42 (1987).
Defendant's counsel secured an order permitting review of DYFS records concerning the victim and reported to the trial judge that none existed. The State's case did not involve an allegation of vaginal intercourse such that there would have been medical examinations that were not obtained by counsel. In any event, there is no suggestion defense counsel did not pursue all appropriate discovery or did not obtain any relevant medical records.
Perhaps the plea offer issue, or contention defense counsel did not proper convey a plea offer, could have been differently developed on the direct appeal. But the subject had no merit. The plea offer (or ability to plead to a first degree without a sentence recommendation) and plea "cut off" were considered at a pretrial conference on September 28, 1998, and a plea cutoff was entered.
The fact defense counsel asked for a presumptive term, and not a lesser sentence, was not raised on the direct appeal. We disagree with the State's assertion that the present contention relates to a claim of excessiveness and is not cognizable on PCR. See R. 3:22-2(c). The claim, however, is directed to counsel's deficiency in not seeking a lesser sentence.
Defendant remains on parole so the contention must be addressed because the length of the sentence affects the length of parole (but not the community supervision for life).
We decline, at this time, to remand for resentencing so defense counsel can argue for a shorter sentence. We are satisfied, as was Judge Citta, that because a sentence "above the presumptive term" was being requested by the State, it is unlikely that a term less than the former "presumptive" sentence would have been imposed, and the finding of aggravating and mitigating factors supports that view. We would have had no basis for modifying the sentence imposed had it been challenged on the direct appeal, see State v. Roth, 95 N.J. 334 (1985), and Judge Citta concluded that "failure to argue for less than the presumptive term at sentencing . . . [would not] have affected the outcome."
In sum, we note the essence of what we stated on the direct appeal when the claim of "per se ineffective" assistance of trial counsel was raised based on the trial record; defense counsel endeavored to "undermine the credibility" of the victim and her mother, both of whom testified at trial. The defendant testified as well. The trial was a classic contest relating to credibility. Certainly, it can always be said that additional relevant evidence can affect that subject, but after hearing the entire case, including the testimony of the defendant himself, the jury concluded that the State satisfied its burden of proof beyond a reasonable doubt.
Accordingly, we affirm the order denying PCR.
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