On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 93-12-4344.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Gilroy and Chambers.
Defendant Horace Branch appeals from the January 24, 2008 order denying his petition for post-conviction relief (PCR). We affirm.
This is defendant's fourth appeal arising from his conviction of first-degree felony murder, first-degree aggravated manslaughter, various weapon offenses, and other related charges. Because the trial facts were discussed at length in our prior opinion, State v. Branch, 301 N.J. Super. 307, 314-18 (App. Div. 1997), and in the Supreme Court's decision affirming in part and reversing in part, State v. Branch, 155 N.J. 317, 319-21 (1998), it is unnecessary for us to detail either the evidence against defendant for these crimes or the protracted procedural history leading to this appeal.
Nevertheless, the following will suffice to place this appeal in context.
On December 13, 1994, following defendant's trial by jury, the trial judge set aside defendant's conviction for felony murder. After merging several of the convictions, defendant was sentenced to an aggregate term of life plus fourteen and one- half years with a thirty-year period of parole ineligibility. Defendant appealed, and the State cross-appealed. On appeal, we reversed the vacation of the felony murder conviction and affirmed the other convictions. Branch, supra, 301 N.J. Super. at 334. We remanded to the trial court to not only re-sentence defendant on the felony murder conviction, but to also state its reasons for imposing consecutive sentences on four of the convictions. Id. at 333.
On certification granted, the Court reversed our decision reinstating the felony murder conviction, but leaving undisturbed defendant's other convictions and the sentences imposed thereon. Branch, supra, 155 N.J. at 319. In addressing a collateral issue raised by defendant concerning his trial attorney's failure to request a passion/provocation manslaughter instruction, the Court stated:
Before us, defendant asserts that he raised the issue of imperfect self-defense and, thereby, alerted the trial court to the necessity for a passion/provocation manslaughter instruction. In New Jersey, there is no such defense as imperfect self-defense. State v. Bowens, 108 N.J. 662, 625 (1987). It appears that at the charge conference, when the question of imperfect self-defense arose, the trial court chose simply to give a self-defense charge. Trial counsel never requested a passion/provocation manslaughter charge. Although defendant was found in possession of the murder weapon, his theory at trial was that he did not possess the gun, that Pettie possessed the gun, and that that was the gun that went off in the course of the hallway struggle. The question for resolution is whether trial counsel failed to perceive the passion/provocation defense as relevant to these circumstances or declined as a matter of strategy to cloud the issues by having it suggested that the client acted intentionally but with provocation. See State v. Choice, 98 N.J. 295, 300-01 (1985) (explaining when trial strategy may override need to instruct on all available verdicts).
Both of these issues arise as a matter of plain error because trial counsel did not object to the instructions at trial. We have a sense that they can be better addressed on post-conviction relief, during which time a closer examination of defendant's trial strategy may be undertaken.
On October 29, 1999, the trial court re-sentenced defendant. Defendant appealed, and we remanded for a second re- sentencing, the State having conceded certain sentencing errors. State v. Branch, No. A-2224-99 (App. Div. Dec. 11, 2000). In the interim, on January 13, 2000, defendant filed a pro se petition for PCR. Although defendant requested the trial court to grant an evidentiary hearing to explore the issue as framed by the Court, it denied his request, determining that "the record in this case simply did not contain any evidence supporting such a [passion/provocation] charge." In rejecting defendant's argument that the Court had remanded the matter for an evidentiary hearing, the trial court reasoned that the Court was not inviting an evidentiary hearing on the issue when the Court stated that the matter had not been raised below and could "be better" addressed on PCR.
On appeal, we affirmed the convictions and sentences, but remanded to the trial court to conduct an evidentiary hearing on the passion/provocation jury instruction issue.
Because the Supreme Court's remand did not specifically order an evidentiary hearing on the issue, we determine no fault with the PCR judge in interpreting the Supreme Court's decision as only inviting that defendant raise the issue by PCR, and for the PCR judge to exercise his discretion in determining whether to grant an evidentiary hearing. However, contrary to the PCR judge, we view the Supreme Court's order of remand as directing that an evidentiary hearing on the issue be conducted. The Court had the trial record before it but, contrary to this court, did not conclude that such a charge was unwarranted. Accordingly, we are satisfied that the Court's use of the phrase "closer examination of defendant's trial strategy may be undertaken" implicitly directed that an evidentiary hearing on the issue be conducted. Id. at 330 [(emphasis added)]. Such an evidentiary hearing must be conducted even if the trial court, after its consideration of the trial record, believed that an evidentiary hearing is not warranted. "When a case is remanded, as occurred here, the trial court must 'obey in the particular case the mandate of the Appellate Court precisely as it is written.'" Ravin, Sarasohn, Cook, Baumgarten, Fisch & Rosen, P.C. v. Lowenstein Sandler, P.C., 365 N.J. Super. 241, 247 (App. Div. 2003) (quoting Flanigan v. McFeely, 20 N.J. 414, 420 (1956)[)].
Therefore, we remand this matter to the trial court for the purpose of conducting an evidentiary hearing on the issue of whether defendant was denied effective assistance of trial counsel based on counsel's failure to request the trial court to instruct the jury on passion/provocation manslaughter, as that issue was framed by the Supreme Court. Branch, supra, 155 N.J. at 330. We request that the hearing be conducted expeditiously. We take no position on the merits of defendant's claim of ineffective assistance of counsel on this issue. We also direct that the trial court correct the amended judgment of conviction.
[State v. Branch, No. A-2647-05 (App. Div. May 2, 2007) (slip op. at 22-23).]
On February 24, 2008, the trial court conducted an evidentiary hearing pursuant to our remand, at which defendant and his trial counsel testified. At the conclusion of the hearing, the court determined that defendant's trial counsel had made a specific decision, after consulting with defendant, that it was in the best interest of defendant not to request a passion/provocation instruction. Accordingly, the trial court entered an order denying defendant's PCR petition.
On appeal, defendant argues:
THE MATTER MUST BE REMANDED FOR REARGUMENT ON THE PETITION FOR POST-CONVICTION RELIEF AS THE DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL, APPELLATE, AND PCR COUNSEL AS TO A CHARGE ON PASSION/PROVOCATION MANSLAUGHTER.
THE CONVICTIONS FOR POSSESSION OF A WEAPON MUST BE VACATED AS THERE WAS NO STIPULATION AS TO "LACK OF A PERMIT" EVER INTRODUCED INTO EVIDENCE.
THE CONVICTIONS FOR POSSESSION OF A WEAPON AND HOLLOW NOSE[-]POINT BULLETS MUST BE VACATED AS THE COURT DID NOT CHARGE WHAT CONSTITUTED "POSSESSION[."]
THE CONVICTION FOR AGGRAVATED MANSLAUGHTER MUST BE VACATED AS IT IS PREDICATED ON A DEFICIENT CHARGE ON THE UNDERLYING "POSSESSION" OF A WEAPON THAT INFLICTED THE SERIOUS BODILY INJURY RESULTING IN DEATH.
ALL CONVICTIONS MUST BE VACATED FOR THE CUMULATIVE EFFECT OF THE ERRORS.
We have considered defendant's arguments in Points II through V in light of the record and applicable law, and we are satisfied that none of the arguments are of sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). The issues presented are time barred, having been raised more than fourteen years post conviction. R. 3:22-12(a). Although the rules permit an exception where the delay "was due to defendant's excusable neglect," no such showing has been made here. Ibid. The rule may also be relaxed to prevent injustice.
R. 1:1-2 (permitting relaxation of a rule "if adherence to it would result in an injustice"). In determining whether to relax the rules, the court must "'consider the extent and cause of the delay, the prejudice to the State, and the importance of the petitioner's claim.'" State v. DiFrisco, 187 N.J. 156, 168 (2006) (quoting State v. Afanador, 151 N.J. 41, 52 (1997)).
Defendant has failed to meet this standard.
Moreover, defendant's arguments in Points I through V are also procedurally barred for other reasons. Petitions for PCR are not substantive for an appeal from conviction. R. 3:22-3 and -4; State v. McQuaid, 147 N.J. 464, 483 (1997). An issue that could have been raised on direct appeal, but was not, will not be considered on PCR. R. 3:22-4. Here, each issue asserted could have been raised by defendant on direct appeal. Nor has defendant presented any reasons for justifying relief from being procedurally barred. Ibid.
We now turn to defendant's argument in Point I that he was denied effective assistance of trial counsel, appellate counsel and PCR counsel. Defendant contends that his trial attorney failed "to adequately request a charge on passion/provocation manslaughter," contending that his attorney "did not fully understand the law applicable to such offense." Defendant asserts that not only did his appellate counsel fail to raise that argument on direct appeal, but PCR counsel also failed to adequately present the argument at the evidentiary hearing. We reject defendant's contentions.
Claims of ineffective assistance of counsel are governed by the standards set forth in Strickland v. Washington.*fn1 State v. Fritz, 105 N.J. 42, 58 (1987) (holding the precepts of Strickland have been adopted by New Jersey). For a defendant to establish a prima facie case of ineffective assistance of counsel under Strickland, the defendant must show that defense "counsel's performance was deficient," and that "there exists 'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" State v. Preciose, 129 N.J. 451, 463-64 (1992) (quoting Strickland, supra, 466 U.S. at 694; 104 S.Ct. at 2068, 80 L.Ed. 2d at 698); see also State v. Allegro, 193 N.J. 352, 366 (2008).
"'The first prong of the [Strickland] test is satisfied by a showing that counsel's acts or omissions fell outside the wide range of professionally competent assistance considered in light of all the circumstances of the case.'" Allegro, supra, 193 N.J. at 366 (quoting State v. Castagna, 187 N.J. 293, 314 (2006)). In assessing counsel's representation, 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. Accordingly, acts or omissions of counsel must amount to more than mere tactical strategy. Id. at 689, 104 S.Ct. at 2065, 80 L.Ed. 2d at 694- 95.
To prove the second prong of Strickland, a defendant must prove "'that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Allegro, supra, 193 N.J. at 367 (quoting State v. Loftin, 191 N.J. 172, 198 (2007)). It is "an exacting standard: '[t]he error committed must be so serious as to undermine the court's confidence in the jury's verdict or the result reached.'" Ibid. (quoting Castagna, supra, 187 N.J. at 315).
Passion/provocation manslaughter has four elements: 1) adequate provocation; 2) lack of time to cool off between the provocation and the slaying; 3) the provocation actually impassioned the defendant; and 4) the defendant did not actually cool off before the slaying. State v. Viera, 346 N.J. Super. 198, 212 (App. Div. 2001), certif. denied, 174 N.J. 38 (2002). Passion/provocation manslaughter is essentially a homicide that would be a purposeful or knowing murder but for its commission in the heat of passion, so long as it was committed before sufficient time has passed which would allow an ordinary person to cool off. Ibid.; N.J.S.A. 2C:11-4b(2). Accordingly, passion/provocation manslaughter "'contains all the elements of murder except that the presence of reasonable provocation, coupled with defendant's impassioned actions, establish[es] a lesser culpability.'" Viera, supra, 346 N.J. Super. at 212 (quoting State v. Robinson, 136 N.J. 476, 482 (1994)). At the evidentiary hearing giving rise to this appeal, defendant and his trial counsel testified. Defendant testified that on the day of the incident he had gone to a building in Newark to purchase drugs. After he gave a drug dealer known as Pettie the money, the dealer gave him "fake drugs." After discovering that he received fake drugs, defendant became provoked and entered the building to get his money back.
PCR COUNSEL: Okay. Let me ask you this question. What is the basis in your mind as to the passion[/]provocation charge? What would provoke you in your mind which would have made it so that you were provoked into committing an act and didn't have enough time to cool off?
DEFENDANT: The fact that I gave somebody my money to purchase drugs and the drug they returned to me was fake drugs. And that right there had me heated and I just went off.
PCR COUNSEL: And was that person that sold you these bad drugs was it ...