April 30, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JOSEPH ROBERTSON, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 01-04-1512.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 18, 2009
Before Judges Lyons and Waugh.
Defendant Joseph Robertson appeals the dismissal of his petition for post conviction relief (PCR). We affirm.
In April 2002, Robertson was convicted of conspiracy to commit robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1; robbery, N.J.S.A. 2C:15-1; unlawful possession of a weapon (handgun), N.J.S.A. 2C:39-5(b); and possession of a weapon (handgun), for an unlawful purpose, N.J.S.A. 2C:39-4(a). After the conspiracy and robbery convictions were merged, he was sentenced to a twenty-year term of incarceration, which was subject the eighty-five percent parole disqualification of the No Early Release Act, N.J.S.A. 2C:43-7.2, to run consecutive to an unrelated custodial term he was already serving. Robertson received a concurrent five-year term for the unlawful possession of a weapon conviction and a concurrent ten-year term for the possession of a weapon for an unlawful purpose conviction.
Robertson appealed and we affirmed his conviction. However, we vacated the sentence on the conviction for possession of a weapon for an unlawful purpose. We remanded to the trial court for merger of that conviction with the robbery conviction and correction of the sentence with respect to fines and penalties. State v. Robertson, A-0523-02T4 (App. Div. Oct. 1, 2004). The Supreme Court denied certification. State v. Robertson, 183 N.J. 585 (2005).
In September 2006, Robertson filed his PCR petition pro se. He was subsequently assigned counsel, who filed a supplemental brief raising additional issues. At oral argument on July 20, 2007, both sides relied on their briefs. Judge Michael J. Nelson issued a written decision later that day, in which he denied post-conviction relief. This appeal followed.
Briefly stated, the facts underlying Robertson's conviction are as follows. On December 26, 2000, between 9:15 and 9:30 a.m., Vann Hailey, who worked for the Elizabethtown Gas Company, drove his company vehicle to a delicatessen located at Evergreen and Thorne Streets in Newark for his morning break. When Hailey arrived, he noticed a white Lincoln parked in front of the store with two people in it. He entered the store and bought a snack and something to drink. When he left the store and began walking to his truck, a man came from behind him and told him to "give it up." Hailey did not initially know what that meant and turned around to look at the man; they were standing face-to-face, no more than a foot apart. Nothing was obstructing the man's face.
Hailey told the man that he wasn't going to give anything up. The man responded by pointing a gun to Hailey's left temple. Hailey then dropped what he was holding in his hand. He reached into his pocket and gave the man his wallet, which was black and contained his driver's license, work identification, and credit cards. It also contained approximately $100 in cash. After the man robbed Hailey, he ran down Thorne Street, toward Frelinghuysen Avenue.
During the entire time of the incident, the Lincoln remained parked in front of the store. Hailey noticed an African-American male with a dark complexion, in his twenties and wearing a dark top, in the Lincoln.
After the robbery, Hailey ran back to the store to tell the owner that he had just been robbed. The owner, Juan Marte, pressed a silent alarm so the police would come to the scene. After activating the alarm, Marte took a weapon and went outside; Hailey followed him.
Hailey testified that, once he went back outside, the man in the Lincoln spoke to him from the car. The man said he saw what happened. Once police sirens became audible, the man in the Lincoln drove off.
When interviewed by the police, Hailey described the man who robbed him as an African-American male in his late thirties or early forties, who was wearing a gray hooded sweatshirt and a red jacket. He also told police that he was a "little skeptical about why [the man in the Lincoln] was talking to [him]."
The police began broadcasting the information Hailey had given them on the radio. They told Hailey to remain at the store until they returned. Approximately five minutes later, they came back and told Hailey "[w]e got him already."
The police took Hailey to Frelinghuysen Avenue, where they had stopped a car containing the man they believed committed the robbery. Once they arrived at the scene, Hailey saw a number of police cars and the white Lincoln. The police asked Hailey if he recognized either of two men who were being held in separate police cars. He recognized Robertson as the man who robbed him at gunpoint and the other as the man who was sitting in the driver's seat of the white Lincoln. Robertson was wearing the same red jacket that he had been wearing when he robbed Hailey. The man who Bailey recognized from the Lincoln was wearing the same dark top. The police returned the property that was stolen from Hailey, including his wallet.
On this appeal, Robertson raises the following issue.
THE TRIAL COURT'S DENIAL OF DEFENDANT'S MOTION FOR POST-CONVICTION RELIEF MUST BE REVERSED BECAUSE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL IN CONNECTION WITH THIS APPLICATION.
In essence, rather than challenge the PCR judge's decision on its merits, Robertson alleges that his PCR counsel was ineffective and seeks a remand so that he can have another opportunity to present his case. Because Robertson does not challenge the PCR judge's decision and because we discern no error warranting an extended discussion in a written opinion on appeal, R. 2:11-3(e)(2), we affirm essentially for the reasons stated by Judge Michael J. Nelson in his thoughtful opinion in the Law Division.
The issue actually raised on this appeal, ineffective assistance of PCR counsel, is one that might ordinarily have been raised in a second PCR application, so that a record could be developed at the trial level. However, because Robertson has chosen to raise the issue now, we address it.
Under the Sixth Amendment of the United States Constitution, a person accused of crimes is guaranteed the effective assistance of legal counsel in his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1984). To establish a deprivation of that right, a convicted defendant must satisfy the two-part test enunciated in Strickland by demonstrating that: (1) counsel's performance was deficient; and (2) the deficient performance actually prejudiced the accused's defense. Ibid.; see also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland two-part test in New Jersey). In State v. Johnson, 365 N.J. Super. 27, 34 (App. Div. 2003), certif. denied, 179 N.J. 372 (2004), we noted that "[i]t is virtually axiomatic that in order for defendant to obtain relief based on ineffective assistance grounds, he is obliged to show not only the particular manner in which counsel's performance was deficient, but also that the deficiency prejudiced his right to a fair trial."
In reviewing such claims, courts apply a strong presumption that defense 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. "[C]complaints 'merely of matters of trial strategy' will not serve to ground a constitutional claim of inadequacy . . . ." Fritz, supra, 105 N.J. at 54 (quoting State v. Williams, 39 N.J. 471, 489, cert. denied, 374 U.S. 855, 83 S.Ct. 1924, 10 L.Ed. 2d 1075 (1963), overruled in part on other grounds by State v. Czachor, 82 N.J. 392 (1980)); see also State v. Perry, 124 N.J. 128, 153 (1991).
The question becomes whether Robertson has articulated a prima facie case of ineffective assistance of counsel in connection with his initial PCR application, in which he was entitled to representation by counsel. R. 3:22-6. We hold that he has not. Although Robertson claims that there were alibi witnesses, they are never identified and there is no sort of offer of proof as to what their testimony would be. This omission is crucial in view of the fact that Robertson himself testified at trial that he was in the Lincoln at the time of the robbery, albeit not himself the robber, and that he was identified as the perpetrator by the victim to whose head he was convicted of holding a gun. The same lack of specificity applies to the issue of whether the medication taken by Robertson, as to which he was allowed to give limited testimony at trial, somehow interfered with his ability to interact with trial counsel.
Based upon the overwhelming evidence of Robertson's guilt and the total lack of specificity with respect to the issues that Robertson contends should have been pursued by his PCR, appellate, and trial counsel, we find that he has failed to satisfy either the first or second prong of the Strickland test.
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