August 3, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
SHADEE TROTMAN, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 98-04-0409.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 12, 2009
Before Judges Winkelstein and Gilroy.
Defendant Shadee Trotman appeals from the June 20, 2007 order denying his motion for post-conviction relief (PCR). We affirm the denial of defendant's petition for PCR and modify his sentence.
Tried to a jury, defendant was found guilty of second-degree conspiracy (Count One); second-degree burglary (Count Two); two counts of first-degree armed robbery (Counts Three and Four); two counts of fourth-degree aggravated assault (Counts Five and Six); third-degree terroristic threats (Count Seven); second-degree possession of a weapon (handgun) for an unlawful purpose (Count Eight); third-degree unlawful possession of a weapon (handgun) (Count Nine); fourth-degree possession of a defaced firearm (Count Ten); fourth-degree possession of prohibited devices (hollow-nose bullets) (Count Eleven); and fourth-degree resisting arrest (Count Twelve). On July 15, 1999, the trial court granted the State's motion for an extended-term sentence pursuant to N.J.S.A. 2C:44-3d.
On Count Three, the court sentenced defendant to a thirty-year extended term with a twenty-five year period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The court merged Count Five with Count Three; and merged Counts Nine and Ten with Count Eight. On the remaining convictions, the court imposed concurrent sentences.
Accordingly, the aggregate term imposed was a thirty-year base term with a twenty-five year period of parole ineligibility.
On direct appeal, defendant presented the following issues:
WHETHER THE TRIAL COURT ERRED BY ADMITTING THE "SHOW-UP" IDENTIFICATION OF DEFENDANT.
WHETHER THE UNDERLYING ARREST WAS LEGAL BECAUSE IT WAS NOT SUPPORTED BY PROBABLE CAUSE AND WHETHER THE TRIAL COURT ERRED BY ADMITTING DEFENDANT'S STATEMENT MADE WHILE UNDER ARREST.
WHETHER DEFENDANT RECEIVED EFFECTIVE ASSISTANCE OF TRIAL COUNSEL BECAUSE HIS TRIAL COUNSEL DID NOT CHALLENGE THE SUFFICIENCY OF THE ARREST INDEPENDENTLY NOR AS A PART OF HIS CHALLENGE TO THE ADMISSION OF THE CONFESSION. (NOT RAISED BELOW).
WHETHER THE TRIAL COURT ERRED BY DENYING COUNSEL'S MOTION FOR JUDGMENT OF ACQUITTAL AS THE EVIDENCE WAS INSUFFICIENT AS A MATTER OF LAW TO SUPPORT THE VERDICT.
WHETHER THE SENTENCE BELOW WAS EXCESSIVE AND IMPROPER.
We affirmed the convictions and the sentences imposed, except we modified the parole disqualifier to twenty-five and one-half years, 85% of the thirty-year base term. State v. Trotman, No. A-178-99 (App. Div. April 12, 2002). On September 25, 2002, the Supreme Court denied defendant's petition for certification. State v. Trotman, 174 N.J. 365 (2002).
On March 23, 2004, defendant filed a pro se petition for PCR. On July 8, 2005, assigned counsel filed a brief in support of defendant's petition, arguing:
TRIAL COUNSEL AND APPELLATE COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL BY FAILING TO ARGUE THE ILLEGALITY OF THE COURT'S IMPOSITION OF AN EXTENDED TERM.
TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL BY FAILING TO CONFIRM PETITIONER'S LOCATION TO [E]NSURE HIS PRESENCE AT HIS PLEA HEARING.
TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL BY FAILING TO SEVER PETITIONER'S TRIAL FROM THAT OF CO-DEFENDANT.
TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL BY FAILING TO INVESTIGATE AND PRESENT MITIGATING EVIDENCE DURING SENTENCING.
In a supplemental brief, defendant argued that his extended-term sentence was illegal, contending the finding that he had been convicted of a prior Graves Act offense was made by the court, not the jury, citing State v. Franklin, 184 N.J. 516 (2005).
On May 19, 2006, a trial judge granted defendant's application for an evidentiary hearing on Point II only, with defendant submitting on the remaining issues. On May 31, 2007, another trial judge conducted an evidentiary hearing, limited to the issue of whether defendant was denied effective assistance of trial counsel by defendant's attorney's failure to not only confirm his whereabouts to ensure his presence at the plea hearing, but also by not informing him of the plea offer before it was withdrawn by the State. On June 20, 2007, judge issued a written decision denying defendant's petition, again limited to the single issue. A confirming order was entered the same day.
On appeal defendant argues:
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF BECAUSE DEFENDANT ESTABLISHED THAT HIS TRIAL COUNSEL WAS INEFFECTIVE IN FAILING TO PROMPTLY NOTIFY HIM OF THE STATE'S PLEA OFFER.
DEFENDANT WAS ENTITLED TO AN EVIDENTIARY HEARING AND/OR POST-CONVICTION RELIEF BASED ON THE REMAINING ARGUMENTS ADVANCED BY DEFENDANT AND DEFENSE COUNSEL.
DEFENDANT'S PERIOD OF PAROLE INELIGIBILITY IS ILLEGAL AND MUST BE VACATED.
The decision whether to conduct an evidentiary hearing on a claim of ineffective assistance of counsel rests primarily on the trial court's determination whether a defendant has made a prima facie showing of the claim. Rule 3:22-1 does not require that an evidentiary hearing be granted in every PCR proceeding. State v. Preciose, 129 N.J. 451, 462 (1992). Where a "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." State v. Marshall, 148 N.J. 89, 158 (internal citations omitted), cert. denied, 522 U.S. 850, 118 S.Ct. 140, 139 L.Ed. 2d 88 (1997).
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.'" Preciose, supra, 129 N.J. at 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).
We have considered defendant's argument in Point I in light of the record and applicable law. We reject the argument for the reasons expressed by the trial court in its written opinion of June 20, 2007.
In Point II, defendant references the remaining arguments raised in support of his PCR petition. Defendant is correct that the remaining issues were not decided by the trial court. It appears that on May 19, 2006, PCR counsel submitted on all issues, except the plea issue; but when the plea issue was finally decided by the court one year later, the remaining issues were not ruled upon. Defendant requests that if we affirm the trial court's decision on the plea issue, we remand this matter for resolution of the remaining issues previously raised in his PCR proceeding. We are satisfied that an evidentiary hearing is not required for resolution of the remaining issues. Marshall, supra, 148 N.J. at 158. Accordingly, we exercise original jurisdiction and decide the issues. R. 2:10-5; State v. Harris, 181 N.J. 391, 416-20 (2004), cert. denied, 545 U.S. 1145, 125 S.Ct. 2973, 162 L.Ed. 2d 898 (2005).
Defendant argued that he was denied effective assistance of trial and appellate counsel by his attorneys failing to argue the illegality of the trial court's imposition of an extended-term sentence. Defendant contends that the trial court sentenced him as a persistent offender to an extended term pursuant to N.J.S.A. 2C:44-3a. He asserts that the extended-term sentence was illegal because he did not meet the age requirements of that statute as he was only seventeen years of age at the time he committed the predicate offense. The argument is meritless. Contrary to defendant's argument, he was not sentenced to an extended-term sentence as a persistent offender; rather, he was sentenced to an extended term as a second Graves Act offender, which only requires him to be eighteen years of age at time of sentence. N.J.S.A. 2C:44-3d.
Defendant argued that he was denied effective assistance of trial counsel by his attorney failing to sever his trial from that of his co-defendant. Defendant contended in his PCR brief that his "[t]rial counsel admitted to the [c]court during the sentencing hearing that the case against [defendant] was extremely strong. Moreover, trial counsel acknowledged that the impetus for going to trial was the weaker case the State had against the co-defendant. Yet, trial counsel did not move to sever the trials." We determine that this argument is also meritless. R. 2:11-3(e)(2).
"There is a general preference to try co-defendants jointly, particularly when much of the same evidence is needed to prosecute each defendant." State v. Brown, 170 N.J. 138, 160 (2000) (internal quotations and citations omitted). However, an exception exists if "it appears that a defendant... is prejudiced by a permissible or mandatory joinder of... defendants in an indictment[,]... the court may... grant a severance of defendants, or direct other appropriate relief."
R. 3:15-2(b). Moreover, a defendant is not entitled to severance merely because the case against one of the co-defendants is stronger. State v. Morales, 138 N.J. Super. 225, 231 (App. Div. 1975). The mere possibility of prejudice is not enough to justify a severance when co-defendants are involved; the defendant must show actual prejudice. State v. Moore, 113 N.J. 239, 274 (1988). Here, defendant did not establish any prejudice by trial counsel failing to move for severance.
The next argument raised by PCR counsel and not addressed by the trial court is that defendant was denied effective assistance of trial counsel by his attorney failing to investigate and present mitigating evidence during sentencing. We also conclude that this argument is without merit. R. 2:11-3(e)(2). For this argument to have merit, defendant must establish that trial counsel failed to present mitigating sentencing factors, N.J.S.A. 2C:44-1b, to the trial court for consideration in imposing the appropriate sentence. Here, defendant failed to present any mitigating sentencing factors in his PCR brief, or in his appellate brief, that he asserts trial counsel overlooked at sentencing.
The last remaining argument defendant raised in support of his PCR petition was that he was sentenced to an illegal extended-term sentence because the court, not the jury, found as a basis for imposing an extended-term sentence that he had committed a prior predicate Graves Act offense. N.J.S.A. 2C:44-3d. In support of his argument, defendant cites Franklin, supra. Although we agree with defendant that the Court held that the "Graves Act, which permits the imposition of an extended term based on judicial factfinding by a preponderance of the evidence, violates a defendant's Sixth Amendment right to trial by jury and Fourteenth Amendment right to due process," Franklin, supra, 184 N.J. at 540, we disagree that defendant is entitled to have his extended-term sentence vacated.
Defendant was sentenced on July 15, 1999. Franklin was decided by the Court on August 2, 2005. Because the Court's decision in Franklin established a "new rule of law," ibid, the Court gave "pipeline retroactivity" to the decision by applying it to defendants with cases on direct appeal as of the date of its decision and to defendants who had previously challenged their sentences under the principle of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed. 2d 435 (2000), at trial or on direct appeal. Ibid. Here, defendant never previously challenged his extended-term sentence on the grounds that it violated his right to trial by jury or due process at sentencing or on direct appeal. Accordingly, defendant is not entitled to relief pursuant to Franklin. See State v. Rountree, 388 N.J. Super. 190, 201-06 (App. Div. 2006), certif. denied, 192 N.J. 66 (2007).
Lastly, we turn to defendant's argument that the period of parole ineligibility imposed on Count Three is illegal. The State concedes that the imposition of a twenty-five year period of parole ineligibility is incorrect. We agree. Parole ineligibility should have been based on the twenty-five year base term, not the thirty-year extended term. Accordingly, we modify the period of parole ineligibility to seventeen years.
We affirm the order denying defendant's petition for PCR; and modify the twenty-five year period of parole ineligibility previously imposed on Count Three to a seventeen-year period of parole ineligibility.
Affirmed, as modified.