July 30, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
RASHAD WARD, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 97-02-0112.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted July 8, 2009
Before Judges R. B. Coleman and Graves.
Defendant Rashad Ward appeals from an order entered on March 20, 2008, denying his petition for post-conviction relief (PCR). Ward's sole argument on appeal is that he was denied the effective assistance of trial counsel and, therefore, his petition for PCR should have been granted. We affirm.
Defendant was charged in a two-count indictment with first- degree carjacking, N.J.S.A. 2C:15-2 (count one), and second- degree robbery, N.J.S.A. 2C:15-1 (count two). On April 10, 2002, a jury found defendant guilty of both counts. This was defendant's third trial on these charges. Although defendant's first two trials ended in convictions, the convictions were reversed on appeal. On June 3, 2002, defendant was sentenced to a thirty-year prison term with a fifteen-year period of parole ineligibility on count one. He received a concurrent ten-year prison term with five years of parole ineligibility on count two.
In an unreported opinion, we affirmed defendant's convictions and his sentence. State v. Ward, No. A-6856-02T4 (App. Div. Feb. 7, 2005), certif. denied, 183 N.J. 588 (2005).
In that opinion, we summarized the facts of the case as follows:
On December 18, 1996, at approximately 2:00 p.m., the victim, Karen Thorburn, while in her minivan about to exit from a restaurant parking lot located on Route 22 west, was approached by defendant who asked her for a jump start. He explained that his car was parked behind a Howard Johnson's Motel adjacent to the restaurant. Thorburn followed defendant to the rear of the lot to a dark-colored Mercedes. After opening the hood of the Mercedes, defendant opened the hood of Thorburn's van. Thorburn exited her van and noticed that defendant did not have any jumper cables.
While Thorburn attempted to re-enter her van, defendant grabbed her arm and pulled her out of the van. After defendant entered the van, Thorburn followed him in, and a struggle ensued. The van proceeded a short distance whereupon Thorburn removed the keys from the ignition. Defendant grabbed Thorburn's pocketbook and attempted to flee. He was pursued by the Howard Johnson's manager and eventually ran back to the van where he was taken into custody by the police.
[Id. at 2-3.]
In his PCR petition, defendant alleged his attorney was ineffective because he "insisted" that defendant take the stand and testify during his third trial:
My case went to trial three times and I was represented by the same trial attorney for each trial. I did not testify at the first two trials. However, for the third trial, my attorney insisted that I take the stand. Although I told my trial lawyer numerous times that I did not want to testify because of my prior record, I was made to feel like I had no choice and had to testify.
Because defendant's claim involved discussions with his attorney that were not part of the trial record, the court scheduled the matter for an evidentiary hearing. Both defendant and defendant's attorney testified at the hearing. Following the hearing, the court found that defense counsel's testimony was "credible," and defendant's testimony was "not credible."
In addition, the court's findings and conclusions included the following:
And even if you take his testimony today as compared to what he put in his papers, his testimony today is that [defense counsel] recommended that he testify, not that he forced him to testify. Nobody forced him to testify. He well understood his options. The Court told him repeatedly over the years what his options were. This is his third trial in this case. By the time it got to the third trial, Mr. Ward had the entire testimony memorized.
Here in the papers the Defendant contends that trial counsel forced him to testify and therefore violated his rights to effective assistance of counsel, as well as his right to be free from self-incrimination. I clearly find that nobody forced Mr. Ward to testify in this case. He knew his options, he exercised his options.
For the record, I find that [defense counsel] . . . talked to him about tactical advantages, the pros and cons in each and every case, as indicated even by the Defendant.
In this case, the petitioner argues that defense counsel forced him to testify, and therefore presented ineffective assistance of counsel, and forced him to give up his Fifth Amendment privilege not to testify. That his will was overborne. I don't find any of that to be credible in this case, as I've indicated previously, in judging the credibility of the witnesses that have come forward.
They decided together, not the defense attorney, together decided that they would change strategies at the third trial and attempt to present the Defendant's testimony so that the jury could evaluate it and make a decision as to whether or not the Defendant was guilty of the car jacking charge, which was always the intent to beat the charge and take the robbery. It didn't work, but it was sound strategy.
There's been no showing of ineffective assistance of counsel in the case, and the motion for post conviction relief is denied.
Based on our review of the record and the applicable law, we conclude the trial court's findings are adequately supported by sufficient credible evidence, State v. Locurto, 157 N.J. 463, 472 (1999); the court correctly applied well-settled legal principles; and defendant's argument is clearly without merit. R. 2:11-3(e)(2). We therefore affirm the order denying defendant's PCR petition substantially for the reasons stated by Judge Edward M. Coleman in his comprehensive oral decision on March 18, 2008.
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