March 27, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
GIRBRON PARSON, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 98-01-0010.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued December 2, 2008
Before Judges Wefing and Parker.
Defendant Girbron Parson appeals from an order entered on March 26, 2007 denying his petition for post-conviction relief (PCR). We affirm in part and reverse and remand in part.
On July 10, 1998, defendant pled guilty pursuant to a negotiated plea agreement to first degree aggravated manslaughter, N.J.S.A. 2C:11-4a, amended from murder (Count 8); and first degree armed robbery, N.J.S.A. 2C:15-1 (Count 6). The remaining ten counts of the indictment were dismissed pursuant to the plea agreement. On September 11, 1998, defendant was sentenced to an aggregate term of fifty years subject to twenty-five years parole ineligibility.
On September 15, 1999, we affirmed the sentence on a Sentence Only Argument (SOA) calendar. On March 17, 2003, defendant filed a pro se PCR petition, claiming ineffective assistance of counsel. Counsel was assigned but the PCR petition was dismissed without prejudice because of counsel's illness.*fn1
Defendant filed a second petition and a motion for it to be filed within time. New counsel was subsequently assigned and the matter was heard on February 22, 2007.
The charges against defendant arose on March 16, 1997 when an armed robbery of a store in Jersey City led to the store owner, Abdelmalek Rezkalla, being shot in the chest and killed. Co-defendant Lamont Thomas was also charged. Thomas pled guilty prior to defendant's plea. A condition of Thomas's plea agreement was that he would testify truthfully against defendant at trial. During his plea colloquy, Thomas testified that defendant shot Rezkalla.
Defendant now claims that when he entered his plea agreement, he was heavily sedated on psychotropic medications. During the plea colloquy, defendant said he did not understand what defense counsel had related to the court about the plea agreement. The court inquired whether there was a psychological problem. Defense counsel responded that there was none he was aware of. The court advised defendant to consult with his attorney and recessed the matter until later that day. Defendant then entered the guilty plea with a factual basis in which he stated that he was in possession of a .38 caliber handgun when he entered the store, which subsequently went off accidentally while he scuffled with the decedent. Defendant testified that there was only one shot fired. The prosecutor, however, indicated that there were two shots and that the victim was wounded in the head and chest. Defendant then stated that the head wound must have occurred when he hit the decedent on the head with the gun.
In his PCR petition, defendant argued that trial counsel was ineffective. The trial court rendered a written decision on defendant's PCR application in which it analyzed each of the issues raised by defendant and determined that there was no merit to any of them.
In this appeal, defendant argues:
MR. PARSON WAS DEPRIVED EFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
A. Failure to Investigate and Communicate a Defense Strategy. (Partially raised below)
B. Failure to File a Motion to Suppress the Out-of-Court Statement made by [decedent's son] at the Police Station. (Not raised below)
C. Failure to Effectively Refute Aggravating Factors at Sentence. (Not raised below)
MR. PARSON WAS DEPRIVED EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL. (Not raised below)
THE TRIAL COURT ERRED BY NOT ORDERING AN EVIDENTIARY HEARING.
THE CUMULATIVE EFFECT OF THE AFOREMENTIONED INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS WARRANTS REMANDING THE MATTER TO THE TRIAL COURT FOR A NEW PCR WITH NEWLY ASSIGNED COUNSEL.
To demonstrate that counsel's representation of defendant was constitutionally ineffective, defendant must show a reasonable likelihood of being able to rebut the "strong presumption" of competent performance on counsel's part, and of showing that but for counsel's error, the result would have been different. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984); State v. Fritz, 105 N.J. 42, 60-61 (1987). "A claim for post-conviction relief must be established by a preponderance of the credible evidence." State v. McQuaid, 147 N.J. 464, 483 (1997) (citing State v. Preciose, 129 N.J. 451, 459 (1992)). An evidentiary hearing will be granted on a PCR petition if defendant has presented a prima facie case of ineffective assistance of counsel to support his petition. State v. Marshall, 148 N.J. 89, 158, cert. denied, 522 U.S. 850, 118 S.Ct. 140, 139 L.Ed. 2d 88 (1997) (citing Preciose, supra, 129 N.J. at 462). To establish a prima facie claim, a defendant must demonstrate a reasonable likelihood that he will succeed on the merits. Ibid.
"If the court perceives that holding an evidentiary hearing will not aid the court's analysis of whether the defendant is entitled to post-conviction relief . . . or that the defendant's allegations are too vague, conclusory, or speculative to warrant an evidentiary hearing . . . then an evidentiary hearing need not be granted." Ibid. (citations omitted). In other words, a defendant must do more than make bald assertions that he was denied effective assistance of counsel; he must allege specific facts sufficient to demonstrate counsel's alleged substandard performance. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Only then can the court determine whether a prima facie case has been made.
Defendant maintains that trial counsel failed to investigate any possible defenses; coerced him into accepting the State's plea offer while he was on medication; and failed to obtain independent experts to examine the gun, determine whether defendant's fingerprints were on it, and determine whether stains found at the crime scene matched his DNA. Defendant's presence at the crime scene, which he did not deny, would render him chargeable with manslaughter, regardless of whether he fired the gun.
With respect to the medication issue, during defendant's plea colloquy, the court inquired whether there was a "psychological problem" when defendant said he did not understand his attorney's representations. Although defendant engaged in direct colloquy with the court and did not appear to be intimidated in his responses, he never said that he was on medication. The court advised him to speak with his attorney if he did not understand the proceedings. The court advised defendant to do what he wanted to do, stating, "So either you understand it, because I'm telling you right now, if you want to go to trial, go to trial. If you don't want to go to trial, don't go to trial." After the court explained to defendant the consequences of entering a plea, it asked him if he wanted to plead guilty to the offense. Defendant responded, "Yes."
When the court asked defendant whether he was satisfied with his attorney's advice, defendant answered, "Somewhat." The court then indicated that it would not go further with the plea because defendant's conduct was "bordering on just being obstreperous." Defendant replied, "I'm being straight out with you." After further colloquy, defendant said with respect to his attorney's advice, "Some things I liked, some things I didn't. That's the way I saw it." The court then said: "So then you're not satisfied." Defendant responded: "Yeah, I'm satisfied. I wasn't satisfied when I signed the papers, I'm satisfied. You asked me a question, now I answered it." At that point, the court indicated it would not accept the plea and would adjourn the matter over the lunch break and resume in the afternoon after defendant had an opportunity to talk with his attorney.
Later that afternoon, the court asked whether defendant wanted to proceed with the plea agreement. The following colloquy ensued:
THE COURT: Is anybody forcing or threatening you to do that?
THE COURT: Now, Mr. Parson, I'm going to ask you the questions that I asked you before. I don't want you to plead guilty if you're not guilty, and I don't want you to plead to something you don't understand. That's all I'm trying to do here. Do you understand that?
THE COURT: How old are you?
THE COURT: And you speak and understand English. Correct?
THE COURT: And how far, sir, did you go in school?
THE COURT: Were you able to understand and read the paperwork you filled out with your lawyer?
THE COURT: Did he explain everything to you?
THE COURT: Okay. I'm going to ask the prosecutor to go back on the record with the plea, and I'm going to ask him to go slowly through it, and I want you to pay close attention to it and then tell me if you understand it. If you don't understand something you tell me, and I'll put it in other words. Do you understand that?
THE COURT: All right. If I don't accept your plea of guilty, or if you change your mind now and don't plead guilty, or if I don't sentence you within the plea negotiations, if any of those events occur, I'll go back to a not guilty [plea], set it down for trial in the future, nothing you say here today will be used against you. Do you understand all of that?
The prosecutor stated for the record the terms of the plea agreement that defendant had signed previously. The court then had the following exchange with defendant:
THE COURT: Now, I'm going to ask you, Mr. Parson, did you understand everything that was said?
THE COURT: All right. I'm going to go through it with you. If you don't understand it, let me know. Are you satisfied with your attorney's advice?
THE COURT: Now, before you said somewhat, then you said you were satisfied with some of what he said and not with others. But the question is, are you accepting this plea freely and voluntarily?
THE COURT: And is he forcing you to do it?
DEFENDANT: No. Am I? No.
THE COURT: Or the prosecutor?
THE COURT: All right. So you are then satisfied with his advice as far as this plea goes. Is that correct?
The court then proceeded to question defendant with respect to his understanding of his rights and asked again, "Has anybody forced you or threatened you to give up those rights?" Defendant responded: "No." The court reviewed the plea form with defendant and asked if his lawyer had explained everything to him. Defendant responded: "Yes." Defendant proceeded to give a factual basis for the offenses to which he pled guilty and acknowledged that he was in possession of the .38 caliber handgun when he and the co-defendant entered the store.
Defendant acknowledged shooting the decedent once, but the prosecutor said there were two shots -- one to the decedent's head and the other to his chest. Defendant acknowledged firing only one shot. The court permitted defense counsel to discuss the matter with defendant. The prosecutor then noted that "the medical examiner lists the manner of death as single gunshot wound to the chest" but stated, "I know there was another gunshot wound to the head. That was not listed as the cause of death." Defense counsel never checked the autopsy report and never attempted to clarify the record with respect to the number of shots fired.
Defendant has submitted documents from the Department of Corrections indicating that in October and November 1998, he was treated with certain medications. His plea was entered on July 10, 1998, however, and there is no evidentiary support for his claim that on the day he entered the plea, he was taking medications. Nor is there any medical expert report indicating what the effect of those medications would be, even if defendant had taken them on or before the day of the plea.
Defendant has provided copies of forms from the Prosecutor's Office requesting a ballistic analysis to determine whether the .38 caliber Smith & Wesson handgun seized when co-defendant Thomas was arrested was the weapon used in the crime. Defendant has also submitted a fingerprint request form for the weapon. He claims that those tests were never done before he pled guilty. Defendant does not dispute that he was in possession of the .38 caliber handgun when he entered the store, nor does he dispute that he was the shooter. In his brief before us, defendant relies on the victim's son's version of events, rather than his own recollection recited during the plea colloquy. Moreover, as we have previously noted, defendant had every opportunity to raise these issues during his plea colloquy but did not do so. We find no merit in these arguments.
Defendant next argues that defense counsel should have sought an independent DNA analysis of saliva on the decedent's son's jacket. The DNA analysis provided by the State Police laboratory clearly indicated that the DNA in the stain found on the jacket was consistent with defendant's DNA. The report further indicated that the DNA in the stain was not consistent with the DNA of the decedent, his son or the co-defendant. Defendant did not provide any basis for believing that the outcome of an independent DNA analysis would have been different. Accordingly, we find no merit in this claim.
With respect to defendant's argument that defense counsel failed to file a motion to suppress his identification by the victim's son, we note that this issue was not raised in defendant's PCR application before the trial court. Accordingly, there is no record upon which we can review it. State v. Arthur, 184 N.J. 307, 327 (2005); Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973); see also Pressler, Current N.J. Court Rules, comment 2 on R. 2:6-2 (2009).
The length of the plea colloquy, the adjournment to allow defendant to discuss the matter with his attorney, and defendant's repeated acknowledgement that he understood his rights and that he was freely and voluntarily waiving them leave us satisfied that defendant has not demonstrated ineffective assistance of counsel in entering his plea. This defendant had ample opportunity to tell the court that he was on medication, that he was not satisfied with his attorney, that he did not want to enter a plea, that he did not feel there was sufficient investigation into the charges against him, and that he did not understand the terms of the plea agreement. He did not raise any of those points during the plea colloquy. Indeed, the court was particularly patient with this defendant in light of his conduct in the earlier part of the day. Moreover, defendant has an extensive criminal history, covering thirteen pages in the presentence report, dating back to 1985 when he was first charged with a juvenile offense. From his criminal history, we infer that defendant has had extensive experience with the criminal justice system and interaction with defense counsel and the courts over a lengthy period of time. We conclude that he understood his rights and waived them freely and voluntarily.
The more significant issue in our view is the prosecutor's representation that the victim sustained two gunshot wounds. During the plea colloquy, defendant indicated that he was aware the victim was shot in the chest during the struggle for the gun but disputed the second gunshot to the victim's head. The autopsy report unequivocally stated that the victim was shot once in the chest. The report noted a bruise over the victim's left eye, but no gunshot wound to the head.
Defendant argues that the consequence of the prosecutor's error in stating that the victim sustained two gunshot wounds was the trial court's imposition of an enhanced sentence "due to the victim being shot twice, first in the chest then while he was held down and shot in the head." During sentencing, the trial court stated the following with respect to aggravating factors on the manslaughter charge:
The aggravating factors on the manslaughter are the strong need to deter this defendant and others from this type of offense, not only the risk that you would commit another offense, the almost certainty of it. And the nature and circumstance of the offense, excluding the -- the death, of course, which is an element of the offense but the nature of [the] way this happened, the holding down, the shooting in the head, the shooting of the victim. [Emphasis added.]
While we do not believe that the prosecutor intentionally misled defendant or the court during the plea colloquy, defense counsel's failure to clarify the record and note the results of the autopsy report left the court with the misapprehension that defendant inflicted two gunshot wounds to the decedent, one to the chest and one to the head. At sentencing, the court did, in fact, consider the two gunshots and defense counsel again failed to present the autopsy report and correct the record. Defense counsel's failure in this regard leads us to conclude that he rendered ineffective assistance. Accordingly, we are constrained to remand the matter for an evidentiary hearing limited to a determination of whether defense counsel was ineffective in failing to bring the autopsy report to the court's attention and whether that failure adversely affected defendant's sentence. If the court finds that defendant's sentence was adversely affected by trial counsel's failure to clarify the number of gunshots, the court should resentence defendant accordingly.
Defendant finally argues that he was deprived of effective assistance of appellate counsel, in that appellate counsel raised only sentencing issues that were argued on our SOA calendar. Defendant maintains that appellate counsel should have raised the discrepancy in the number of gunshot wounds to the victim and its effect on his sentence. We agree. During the SOA argument, defense counsel argued only that the consecutive sentencing was not warranted and noted that the trial court's statement that "the victim was held down" was "just a scenario" and "not an aggravating factor." Counsel never mentioned the autopsy report, which definitively stated that there was only one gunshot wound. Since this issue will be addressed at the remand hearing, we are satisfied that it will be resolved in that manner.
Based on our decision here, we need not address defendant's remaining points on appeal.
Affirmed in part; reversed and remanded in part for a limited plenary hearing in accordance with this opinion. We do not retain jurisdiction.