July 17, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
SHAQUANA COUNCIL A/K/A BARBARA COUNCIL, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 99-06-2071 and 99-02-0584.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 26, 2009
Before Judges Carchman and Sabatino.
Following a jury trial, defendant Shaquana Council was convicted of first-degree robbery, N.J.S.A. 2C:15-1; fourth- degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d); and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d). On January 21, 2000, after appropriate mergers, Judge Lester sentenced defendant on the robbery charge to a prison term of fifteen years with an 85% period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2, together with a concurrent sentence of nine months on the fourth-degree weapons offense and appropriate fines and penalties.*fn1 Defendant appealed, and in an unreported opinion, we affirmed. The Supreme Court denied certification. State v. Council, 171 N.J. 337 (2002).
On August 11, 2005, defendant filed a petition for post- conviction relief (PCR). Following argument, Assignment Judge Costello denied defendant's petition. Defendant appeals, and we affirm.
These are the relevant facts adduced from the record. On February 18, 1999, at approximately 5:30 p.m., Natasha Samantha Mootoo walked from her place of employment, the Footlocker located at 1022 Springfield Avenue in Irvington, to pick up her son from his grandmother's residence on Schuyler Avenue. As she walked along Nye Avenue, she saw defendant across the street "waving at cars." Defendant then crossed the street, caught up with Mootoo and asked her for fifty cents. Mootoo told defendant that she did not have any money.
Mootoo continued walking, and defendant followed. At the corner of Leslie Street and Nye Avenue, defendant came up behind Mootoo, put her arm around Mootoo from the back and brandished a razor in Mootoo's face. Defendant then said "[b]itch, I'm going to cut you." Mootoo told defendant that she did not have any money. A fight ensued, defendant grabbed Mootoo's pocketbook, and Mootoo hit defendant with her umbrella. During the struggle, Mootoo remembers seeing at least three or four people watching, but nobody came to help her. Mootoo then tried to move the struggle into the middle of the street in order to stop traffic and make a commotion since nobody was assisting her.
Eventually, Mootoo saw a police car going by. She ran to the car, began screaming, "[s]top, help me" and the police car stopped. As Mootoo ran towards the police car, defendant let go of the pocketbook and then began walking to the corner of the street. She explained to Officers Eugene Venable and Eric Brown that she "had a bracelet and a watch that just disappeared" and the officers began questioning the onlookers. She pointed to the corner of Dewey Street, one block east of Leslie Street and stated "[t]here's the person that robbed me right there." As Officer Venable walked toward defendant, she began walking away quickly. The officer had gone into a "little jog," but eventually apprehended her. Mootoo then identified her as the woman who had robbed and assaulted her.
Mootoo did not receive her watch or bracelet back. She
suffered a cut on her wrist which resulted in a scar, and some of her hair was cut off during the struggle. The officers on the scene could not locate the razor defendant used to attack the victim. Officer Venable attempted to interview some of the "10, 11 people" at the scene, but "[n]o one wanted to talk."
At trial, defendant indicated that on the day in question she wanted to speak with her sister, who was at a "crack house," and when she arrived at the house, she alleged that Mootoo ran out of the apartment and into the street. Defendant claimed that she was trying to calm the victim down and help her out of the street. Defendant asserted that she was the one who stopped the police car. Despite defendant's assertions, the jury found defendant guilty of all charges.
On her direct appeal, defendant argued:
THE PROSECUTOR'S EXCESSES AND COMMENTS IN SUMMATION WERE SO EGREGIOUS AS TO DENY THE DEFENDANT OF HER CONSTITUTIONAL RIGHT TO A FAIR TRIAL.
THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.
In her PCR petition, defendant claimed ineffective assistance of trial and appellate counsel asserting that she was advised to reject a plea agreement and was told by counsel "we can win at trial." She also claimed that counsel did not investigate a "woman whom [defendant] knew by her first name only," and that defendant "told . . . defense counsel about her and asked . . . defense counsel to try to find her, in the hope that her testimony could assist [defendant's] case. To [defendant's] knowledge . . . defense counsel never made any attempt to find this woman."
Following argument, Judge Costello concluded:
Council's request for an evidentiary hearing and petition for PCR are denied. The defense's claims do not amount to ineffective assistance of counsel. As to Council's first argument regarding prior defense counsel's urgings and persuasion regarding going to trial, these statements by prior counsel, even if accurate, amount only to opinions and not to coercion. It was Council's decision whether to go to trial or accept a plea. Using hindsight to argue that her attorney's opinion was incorrect does not meet the threshold for a finding of ineffective assistance of counsel. An attorney is obligated to provide their client with plea options but it is the client's decision whether to take a plea or proceed to trial. R.P.C. 1.2(a).
Nothing alleged by defendant rises to the level of coercion on her attorney's part.
In order to establish prejudice, Council has to show that, but for the advice of her attorney, she would have accepted the plea. Engelen v. United States, 68 F.3d 238, 241 (8th Cir. 1995). "To command an evidentiary hearing, the movant must present some credible, non-conclusory evidence that [s]he would have pled guilty had [s]he been properly advised."
In reference to the second argument, the judge added:
Council's petition also argues that defense counsel should have made an effort to take steps to find the witness she described. Council only knew the woman's first name and had no further information about her or her whereabouts. There is no proof that even if this woman could have been found, that she had any exculpatory information. Cf[.] State v. Davis, 116 N.J. 341 (1989) in which a defendant's failure to provide full information to his attorney did not result in a conclusion that his lawyer was ineffective. In the present case, the arresting officer testified that no one present at the scene was willing to give any information about the incident, and the defendant was only able to provide her attorney with a first name. Failure to find a witness with speculative value on such minimal information does not rise to ineffective assistance.
Lastly, the judge found:
With regard to the argument that defense counsel did not emphasize to the jury that the defendant could be found guilty of lesser included charges, the trial court judge adequately charged the jury on lesser included offenses. In fact, when defense counsel asked for a break to speak to defendant about possibly objecting to the lesser included offenses being charged, the court indicated it would charge them over the defense's objections, if any. That defense counsel did not address those options in summation does not present a fatal flaw. In fact, a decision to do so would have been inconsistent with the defendant's assertion that she was not guilty of any offense, and consistency is certainly a reasonable exercise of defense counsel's judgment. Ibid.
Further, Council raises the fact that defense counsel failed to make a motion to the court to set aside the guilty verdict as against the weight of the evidence. In order for a verdict to be considered against the weight of the evidence, the court must determine that "the State had [not] offered sufficient proof from which a jury may conclude beyond a reasonable doubt that the defendant committed the crime charged." State v. Afandor, 134 N.J. 162, 177 (1993). See also State v. Herrera, 385 N.J. Super. 486, 492 (App. Div. 2006) (stating there is no miscarriage of justice under the law because the trier of fact could rationally have found beyond a reasonabl[e] doubt that the essential elements of the crime were present.) In light of the facts and inferences of this case seen in the light most favorable to the State, and the above, it is clear that such a motion would not be successful. Failure to bring such a motion does not amount to ineffective assistance of counsel.
The judge denied the request for an evidentiary hearing and dismissed the petition.
In the present appeal, defendant raises the following issues:
THE POST-CONVICTION RELIEF COURT ERRED IN FINDING THAT DEFENDANT FAILED TO DEMONSTRATE THAT HE [SIC] WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL
A. Trial Counsel's Misadvice Regarding the Likelihood of Success at Trial Induced Defendant to Reject a Plea She Would Have Otherwise Accepted
B. Trial Counsel's Failure to Investigate and Prepare for Trial Constituted Ineffectiveness of Counsel
THE POST-CONVICTION RELIEF COURT ERRED IN FAILING TO GRANT DEFENDANT AN EVIDENTIARY HEARING ON THE ISSUE OF INEFFECTIVENESS OF TRIAL COUNSEL
DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL ON HIS [SIC] PETITION FOR POST-CONVICTION RELIEF (NOT RAISED BELOW)
We have carefully reviewed the record and conclude that defendant's arguments are without merit. R. 2:11-3(e)(2).
We add the following comments. In specifically reviewing ineffective assistance of counsel cases, ""judicial scrutiny . . . must be highly deferential,' and must avoid viewing the performance under the 'distorting effects of hindsight.'" State v. Arthur, 184 N.J. 307, 318-19 (2005) (quoting State v. Norman, 151 N.J. 5, 37 (1997) (quoting Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 2065, 80 L.Ed. 674, 694 (1984))). Further, the inherent difficulty in evaluating "defense counsel's tactical decisions from his or her perspective during trial, [militates that] 'a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.'" Id. at 319 (quoting Strickland, supra, 466 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed. at 694-95). In other words, "the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'" Ibid. (quoting Strickland, supra, 466 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed. at 694-95 (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 164, 100 L.Ed. 83, 93 (1955))). As the judge noted, the decision to accept or reject a plea belongs to defendant not to counsel. Even if counsel advised as to the strength of the State's case, we will not allow hindsight to dictate a finding that such advice, in retrospect, did not prove successful.
We note that the judge questioned whether defendant would have accepted a plea given her protestations of innocence. We observe that in many instances, the attractiveness of the State's offer renders such declarations secondary, not a relevant consideration here.
We agree with the conclusions reached by Judge Costello including her thorough consideration of the standards enunciated in Strickland. We affirm substantially for the reasons set forth in Judge Costello's thoughtful, written opinion of November 15, 2007.