November 9, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
KENNETH GILLIARD, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 01-12-2309.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 20, 2009
Before Judges Parrillo and Ashrafi.
Defendant Kenneth Gilliard appeals from an order of the Law Division denying his petition for post-conviction relief (PCR). We affirm.
Defendant was indicted for first-degree attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3a(1), (2); two counts of first-degree robbery, N.J.S.A. 2C:15-1; four counts of aggravated assault ranging from fourth- to second-degree, N.J.S.A. 2C:12-1b(1), -1b(2), and -1b(4); five counts of weapons offenses, including second-degree possession of a weapon by a convicted felon, N.J.S.A. 2C:39-7; and first-degree conspiracy, N.J.S.A. 2C:5-2. These charges stem from an October 6, 2001 incident at a private residence in Pleasantville where defendant allegedly pointed a shotgun at two individuals, Michael Meritt and Stephan Bunch, and demanded money. Meritt complied, but later returned with a gun. Supposedly, both defendant and Meritt fired at each other. Meritt was shot in the head, causing permanent loss of vision.
On the day of the incidents, Meritt gave a statement, naming defendant as the offender. In addition to Meritt and Bunch, there were other witnesses to the robbery - Anthony Stevens, Carl Callaway and Paul Campos - the latter of whom also observed the shooting. That same day, Campos gave a statement to police describing and naming defendant as the offender in both the robbery and the shooting. The next day Campos contacted police and notified them that Bunch, Stevens, and Callaway were at his residence and willing to give statements.
During the ensuing police interviews, Campos and Stevens identified defendant from a photo array. Callaway picked out photos of two individuals, one of whom was defendant, as possibly being the offender. All witnesses were in close proximity to the robbery and described the offender as wearing a camouflage jacket. Campos was also in close proximity to the shooting.
Defendant ultimately pled guilty to first-degree robbery, admitting that he took a shotgun, pointed it at Meritt, and demanded money. In exchange for the plea, the State agreed to dismiss the remaining charges for which he was exposed to a life sentence as extended-term eligible, and to recommend a fifteen-year term subject to an eighty-five percent parole ineligibility period and five years of parole supervision. Defendant signed a general plea form and supplemental plea forms for Graves Act, N.J.S.A. 2C:43-6(c), and No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, offenses. These forms stated that the charge carried a maximum sentence of twenty years, an eighty-five percent parole ineligibility period, and a five-year parole supervision term during which time if defendant violated the terms of parole, he may be required to serve the remainder of the term incarcerated, even if he had previously served his maximum sentence.
At the plea hearing, defendant acknowledged that he understood the contents of the plea forms and that he was facing a life sentence should he otherwise decide to go to trial. See N.J.S.A. 2C:44-3(a). Defendant was sentenced in accordance with the terms of the plea agreement. At sentencing, the judge informed defendant that he would receive 234 days in gap-time credits. We affirmed the judgment of conviction on our Excessive Sentencing Oral Argument (ESOA) calendar.
Defendant then filed a timely PCR petition arguing counsel was ineffective in recommending a guilty plea; failing to file a pretrial Wade*fn1 motion to suppress the photo identifications; failing to move to dismiss the indictment for the State's failure to present exculpatory evidence before the grand jury; failing to move for a change of venue; and lastly, failing to advise of the inapplicability of gap-time credits to a mandatory minimum term on a NERA sentence. Following argument, at which defendant was not present, the judge denied the application without an evidentiary hearing.
Defendant appeals raising the following two issues:
I. THE COURT ABUSED ITS DISCRETION WHEN IT DENIED DEFENDANT AN EVIDENTIARY HEARING TO ESTABLISH THAT HE FAILED TO RECEIVE THE EFFECTIVE ASSISTANCE OF COUNSEL CONSTITUTIONALLY GUARANTEED TO HIM AT TRIAL, BY THE U.S. CONST., AMENDS. VI, XIV; N.J. CONST. ART. I, PAR, 10.
II. THE COURT ABUSED ITS DISCRETION IN DENYING THE DEFENDANT THE RIGHT TO BE PRESENT AT HIS INITIAL HEARING FOR POST CONVICTION RELIEF.
We find neither of these contentions meritorious.
It 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 but for counsel's deficiency, he would not have pled guilty and would have insisted on going to trial. See Hill v. Lockhart, 474 U.S. 52, 56, 59, 106 S.Ct. 366, 369-70, 88 L.Ed. 2d 203, 208-10 (1985); Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693, reh'g denied, 467 U.S. 1267, 104 S.Ct. 3562, 82 L.Ed. 2d 864 (1984); State v. DiFrisco, 137 N.J. 434, 456-57 (1994), cert. denied, 516 U.S. 1129, 116 S.Ct. 949, 133 L.Ed. 2d 873 (1996); State v. Fritz, 105 N.J. 42, 58 (1987). We are persuaded that the alleged deficiencies here clearly fail to meet either the performance or prejudice prong of the Strickland test.
In challenging the constitutionality of the identification procedure, defendant contends that the "identifications were done in the same house at the same time[,]" by individuals who may have discussed the identification beforehand with each other, and who selected the photo of the only one wearing a camouflage jacket. We find no merit to the contention. First, there is no evidence that the eyewitnesses were questioned simultaneously, and serial interviews at the same location are not per se impermissibly suggestive. Neither is the fact that the witnesses may have discussed the matter beforehand, since it is suggestiveness of law enforcement procedures that the Constitution protects against; the credibility of witnesses is an issue for trial. See State v. Farrow, 61 N.J. 434, 451 (1972), cert. denied, 410 U.S. 937, 93 S.Ct. 1396, 35 L.Ed. 2d 602 (1973).
As for the possibility that defendant may have been the only person in the photo array wearing a camouflage jacket, an identification procedure is not impermissibly suggestive merely because the defendant was the only person in the photographic lineup wearing a particular garb. United States v. Fletcher, 121 F.3d 187, 194-95 (5th Cir. 1997), cert. denied, 522 U.S. 1063, 118 S.Ct. 725, 139 L.Ed. 2d 664 (1998). But even assuming that feature of the procedure in this case to be impermissible, the reliability of the witnesses' identification far outweighs any suggestiveness. See State v. Herrera, 187 N.J. 493, 503-04 (2006) (citing Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53 L.Ed. 2d 140, 154 (1977)). Here, the identifications took place shortly after the robbery and shooting incidents. Campos gave a description and named defendant, whom he knew, as the perpetrator on the very day of the incident. The photo identifications were done one day after the incident. The witnesses had sufficient opportunity to make an identification, and, under the circumstances, would have been playing close attention. All witnesses were in close proximity to the robbery; Campos was in close proximity to the shooting as well. Consequently, we conclude that the reliability of the identifications was not affected by any impermissible suggestiveness in the procedures involved.
Because a Wade motion to suppress the photo identifications would not have been successful, defendant has failed to satisfy the first prong of the Strickland test, showing that counsel's performance was deficient. He has also failed to demonstrate, under the second prong, that counsel's claimed ineffectiveness prejudiced him. Even assuming that a Wade motion would have been successful, Meritt, the victim, could still identify defendant, whom he knew, by name as the person who robbed and shot him. There is no indication that, in the face of such evidence and a life sentence exposure, defendant would not have pled guilty.
Defendant next argues that counsel failed to advise him of the parole supervision*fn2 and true gap-time consequences of his NERA sentence. We disagree. The former claim is clearly refuted by the record. See State v. Ercolino, 65 N.J. Super. 20, 24 (App. Div. 1961) (citing State v. Raicich, 30 N.J. Super. 316 (App. Div. 1954)). The plea agreement contained a supplemental form, which the defendant signed separately, advising him of all material aspects of NERA parole supervision. Defendant acknowledged at time of plea that he had read the plea form, reviewed it with counsel, understood it, and signed it. Moreover, the judge questioned defendant specifically about his understanding of the five-year parole supervision period and was satisfied with defendant's affirmative response. Thus, even assuming a lack of consultation between counsel and client on this subject, the advice communicated by the plea form, augmented by the court's colloquy of record, belies any claim of prejudice to defendant.
Equally without merit is defendant's claim of misadvice as to gap-time, which, contrary to what he alleges he was told by counsel, is not applied to the mandatory minimum term, but only serves to reduce the maximum term. On this score, the record reflects that defendant earned 234 days of gap-time credit by virtue of his incarceration for a parole violation when he was indicted for the instant offenses. Thus:
When a defendant who has previously been sentenced to imprisonment is subsequently sentenced to another term for an offense committed prior to the former sentence... the defendant shall be credited with time served in imprisonment on the prior sentence in determining the permissible aggregate length of the term or terms remaining to be served.
However, "[i]n all cases where the sentence includes a mandatory minimum term of imprisonment, commutation credits, work credits, gaptime and minimum credits may not be applied to the mandatory minimum term, but may only reduce the maximum term." N.J.A.C. 10A:9-5.2(b) (emphasis added). Furthermore, gap-time credits cannot reduce a mandatory period of parole supervision required by NERA. Salvador v. Dep't of Corr., 378 N.J. Super. 467, 470 (App. Div.), certif. denied, 185 N.J. 295 (2005).
Even if defendant could show he was misadvised as to the application of gap-time credits, he has failed to demonstrate that any such ineffectiveness was material to his decision to plead guilty or that he was prejudiced thereby. Given defendant's exposure, as extended term eligible, to possible consecutive life sentences and the strength of the evidence against him, when compared to the reduced term recommended by the State, it cannot reasonably be argued that defendant would have eschewed the plea agreement, elected to go to trial, and ultimately have been acquitted, but for faulty advice as to gap-time credit.
Lastly, defendant claims error in not being present at the PCR hearing. He cites to no supporting law, however, establishing such a right. On the contrary, "[t]he defendant's presence is not required... under R. 3:21-10 or, except as provided in R. 3:22-10, at a hearing on a petition for post conviction relief." R. 3:16(b). "A defendant in custody may be present in court in the court's discretion and shall be entitled to be present when oral testimony is adduced on a material issue of fact within the defendant's personal knowledge." R. 3:22-10.
Here, as noted, defendant has failed to establish a prima facie case of ineffective assistance of counsel and, as such, was not entitled to an evidentiary hearing. State v. Preciose, 129 N.J. 451, 462-63 (1992). Consequently, because no testimony was required to resolve any material issue of fact, defendant's presence was neither necessitated nor indicated.
To be sure, "counsel must advance the claims the client desires to forward in a petition and brief and make the best available arguments in support of them." State v. Rue, 175 N.J. 1, 19 (2002). It does not follow, however, that a defendant must be present on the initial return date of the PCR petition to assist in the preparation of claims set forth in the petition. Rather, "as in any case in which a brief is filed, counsel may choose to stand on it at the hearing, and is not required to further engage in expository argument." Ibid.
Here, we perceive no abuse of discretion in the court proceeding in defendant's absence. Defendant was afforded a fair hearing on all his claims and no showing has been made that his presence was necessary for a fair determination of the issues well-presented in both the PCR petition and counsel's legal argument.