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State v. Allen


January 7, 2010


On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 01-08-00993.

Per curiam.


Submitted October 5, 2009

Before Judges Rodríguez and Yannotti.

Defendant Carnita Allen appeals from the denial of her first petition for post-conviction relief (PCR). We affirm.

In the latter part of 2000, defendant, age fourteen, left her parents' home. She met Ronald Oxner, age twenty-two, shortly thereafter. She was arrested on September 27, 2000, and charged as a juvenile, along with Oxner, with attempted murder, aggravated assault, armed robbery and robbery of Mark O'Brien. The State moved to waive the jurisdiction of the Family Part. Following a waiver hearing, Judge Cornelius Sullivan granted the State's waiver motion. At the waiver hearing, defendant presented Lynn Bornfriend, M.D., a psychiatrist, who testified about defendant's home, addictions to drug and alcohol and tendency to become attracted to and sexually intimate with older males.

Defendant was subsequently indicted. Pursuant to a plea agreement, she pleaded guilty to first degree armed robbery, N.J.S.A. 2C:15-1a(1). The State agreed to recommend a thirteen-year term with a NERA*fn1 parole disqualifier. Judge John A. Almeida imposed a thirteen-year term with a NERA parole disqualifier. Defendant appealed. We affirmed the sentence. State v. Allen, No. A-1845-03T4 (App. Div. October 19, 2004), certif. denied, 183 N.J. 217 (2005).

This is an outline of the relevant facts. At the time of the crime, Oxner lived in Willingboro with Mark O'Brien, Steven Krause, Dominic Hall and Shawn Calli, who was the owner of the house. On September 20, 2000, O'Brien reported that his vehicle was stolen. The vehicle was recovered two days later in Burlington Township, while defendant and Brittany Cocchie were occupying it. Oxner was located inside a check cashing store where the vehicle was parked. The parties were taken into custody. Approximately two weeks prior to the crime, Calli told Oxner to vacate the residence.

On the night of September 23, O'Brien found Oxner in the Willingboro house. O'Brien requested that he leave. Prior to leaving, Oxner and defendant opened one of the windows in the bedroom where they were staying. They then left, but waited until O'Brien's bedroom light turned off before re-entering the house through the open window. Defendant plotted with Oxner to obtain O'Brien's keys and steal his vehicle the next morning. According to defendant's post-arrest statement to Burlington County Prosecutor's Detective Steven Scalici, Oxner initially suggested hitting O'Brien with a baseball bat to obtain the keys to the vehicle. Defendant suggested that they stab O'Brien instead to eliminate him as a witness.

O'Brien discovered that Oxner was in the house again and told him to leave. O'Brien then went into the bathroom. Defendant attempted to locate O'Brien's car keys. Oxner retrieved two kitchen knives and asked O'Brien to accompany him. Defendant was hiding behind the door with a knife. As O'Brien walked in the direction of the vehicle, defendant stabbed him in the back multiple times. Defendant told Oxner that her knife was bent. He got her another knife. Oxner then stabbed O'Brien in the legs. Defendant and Oxner stole O'Brien's keys, vehicle, wallet and telephone. Defendant and Oxner fled to Philadelphia.

Defendant was arrested and taken into custody by the Willingboro Police Department on September 27, 2000. Because defendant was a minor, her father was contacted and requested to come to the police department. Detective Scalici conducted the interview of defendant. Defendant was advised of her Miranda*fn2 rights in the presence of her father. Defendant and her father acknowledged their understanding of defendant's rights. In defendant's presence, her father consented to defendant speaking to officers outside of his presence. Defendant was informed that she could stop talking to the detectives at any time she felt uncomfortable or desired to stop talking.

Defendant disclosed to Detective Scalici the sequence of events outlined above. In addition, defendant disclosed that it was her intent to kill O'Brien. O'Brien later identified the first stabber as the black female who occupied his car when it was recovered. Statements obtained from Oxner also implicated defendant.

After her direct appeal and denial of certification, defendant filed pro se a PCR petition. PCR counsel was appointed to represent her. Defendant alleged ineffective assistance by waiver, trial and appellate counsel. Judge Almeida denied defendant's petition in a comprehensive letter opinion dated December 20, 2007. He held that defendant was provided with effective assistance of counsel at the waiver, trial and appellate levels. The judge found that defendant was in fact apprised of her right to appeal Judge Sullivan's waiver decision. Judge Almeida also rejected defendant's ineffective assistance of counsel claims premised on the waiver counsel's failure to challenge the admission of her confession and trial counsel's failure to present the Bornfriend psychiatric report as mitigating evidence during the sentencing hearing. In addition, the judge found that because defendant failed to establish a prima facie claim of ineffective assistance of counsel, it was unnecessary to conduct an evidentiary hearing.

On appeal, defendant contends:


A. Appellate Counsel Was Ineffective By Not Raising The Issue Of The Trial Court's Decision To Transfer Defendant's Case From The Family Part Of The Superior Court To the Criminal Part.

B. Trial Counsel Was Ineffective By Not Informing Defendant About Her Right To File Either An Interlocutory Appeal At the End Of The Waiver Hearing In The Family Part Or A Direct Appeal At The Conclusion Of The Criminal Proceedings To Challenge The Waiver Court's Decision Granting The State's Motion To Transfer This Case To The Criminal Part In Order To Try Her As An Adult (Partially Raised Below).

1. Inadequate Notice of Right to File Interlocutory Appeal.

2. Inadequate Notice of Right to File Direct Appeal at the Time of Sentencing.

3. Need to Modify Right to File Appeal Notice Requirements for Juvenile Defendants to Include Notification About Right to Appeal Result of Waiver Hearing.

C. Trial Counsel In The Criminal Part Was Ineffective By Not Presenting Dr. Bornfriend's Psychiatric Report And Testimony During The Sentencing Hearing As Mitigating Evidence For Defendant.

D. Trial Counsel Was Ineffective By Not Moving To Suppress Defendant's Statement That Was Obtained During The Interrogation At The Police Station In The Absence Of A Competent Adult Who Could Serve As A Parental Advisor To Defendant.

We disagree.

Waiver of Family Part Jurisdiction

New Jersey follows the federal rule in evaluating an ineffective assistance of counsel claim. State v. Fritz, 105 N.J. 42 (1987) (adopting the United States Supreme Court test established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 2d 674). Therefore, in order to establish a prima facie case for ineffective assistance of counsel, the defendant must demonstrate a reasonable likelihood of succeeding under the test set forth in Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693. This test establishes a two-pronged analysis. Ibid. The first prong requires the defendant to demonstrate that counsel's performance was deficient. Ibid. The second prong requires the defendant to demonstrate that she was prejudiced by counsel's deficient performance. Ibid.

Defendant contends that her appellate counsel was ineffective for failing to challenge Judge Sullivan's waiver decision. The United States Supreme Court has established that appellate counsel is not ineffective for failing to raise every non-frivolous issue requested by defendant. Jones v. Barnes, 463 U.S. 745, 754, 103 S.Ct. 3308, 3314, 77 L.Ed. 2d 987, 995 (1983). The practice of appellate counsel in focusing on arguments more likely to prevail at the expense of weaker arguments is considered the hallmark of effective appellate advocacy. Id. at 751-52, 103 S.Ct. at 3312-13, 77 L.Ed. 2d at 993-94. Moreover, there is a strong legislative preference in favor of waiver to the Law Division. State v. R.G.D., 108 N.J. 1, 12 (1987).

N.J.S.A. 2A:4A-26 sets forth the standard for determining waiver. In reviewing the decision to a waive a juvenile, the standard of review is "whether the correct legal standard has been applied, whether inappropriate factors have been considered, and whether the exercise of discretion constituted a 'clear error of judgment' in all the circumstances." R.G.D., supra, 108 N.J. at 15 (quoting State v. Humphreys, 89 N.J. 4, 13 (1982)). Additionally, the three-part test set forth in State v. Roth, 95 N.J. 304, 363-64 (1984), should be utilized to evaluate whether: (1) findings of fact are grounded in competent, reasonably credible evidence; (2) correct legal principles are applied; and (3) the judicial power to modify a trial court's exercise of discretion will be applied only when there is clear error of judgment that shocks the judicial conscience. Thus, the waiver decision is subject to review pursuant to a "clear error of judgment that shocks the judicial conscience" standard. R.G.D., supra, 108 N.J. at 15; State v. Scott, 141 N.J. 457, 466-67 (1995).

Here, Judge Sullivan found that defendant's likelihood to be rehabilitated prior to her nineteenth birthday was substantially outweighed by the seriousness of the offense and need for deterrence. N.J.S.A. 2A:4A-26 creates a strong presumption of waiver where there exists probable cause that defendant committed an act of homicide or first degree robbery. The record provides ample evidence to support Judge Sullivan's finding that probable cause existed. Additionally, given the nature and seriousness of the offense, Judge Sullivan determined that defendant's likelihood of rehabilitation did not substantially outweigh the need for future deterrence.

Applying the Strickland/Fritz standard, we conclude that appellate counsel did not render ineffective assistance by failing to challenge the waiver decision on appeal. The findings by Judge Sullivan, which favor waiver, were supported by evidence in the record. Roth, supra, 95 N.J. at 363. Moreover, defendant cannot satisfy the second prong of the Strickland standard. Even if appellate counsel challenged Judge Sullivan's decision, defendant cannot demonstrate that there existed a "reasonable probability" that such a claim would have succeeded. Defendant's charged offenses: attempted murder, first degree robbery, and first degree armed robbery were serious offenses. Therefore, defendant was a "primary candidate" for waiver to the Law Division. See R.G.D., supra, 108 N.J. at 11.

Defendant argues that waiver counsel did not advise her of her right to file an interlocutory appeal after the waiver hearing. Additionally, defendant claims that she was provided ineffective assistance of counsel because she was not informed that she could file a direct appeal at the time of sentencing. We disagree. These factors are contradicted by the evidence.

Defendant cannot meet either prong of the Strickland/Fritz standard. First, Judge Almeida found that defendant was in fact informed of her right to appeal the waiver decision. Saray Miller, defendant's waiver counsel, stated in a certification that it was her normal practice to discuss the possibility of an appeal of a waiver decision after a waiver hearing. The judge credited Miller's statement.

Second, as stated above, defendant cannot demonstrate that there exists a reasonable probability that an appeal of the waiver decision would have been successful. Third, Judge Almeida found that defendant was adequately advised of her right to appeal and waived such right by knowingly and voluntarily entering into a plea agreement without reserving the right to appeal the waiver decision. Defendant's contentions, therefore, lack merit.

The Bornfriend Opinion Testimony

Defendant also argues that trial counsel was ineffective for failing to present at sentencing Dr. Bornfriend's psychiatrist report as mitigating evidence. This contention is based on the fact that trial counsel presented the sentencing judge, prior to the sentencing hearing, with a memorandum, which did not include Dr. Bornfriend's psychiatric report. We disagree.

The judge found three of the aggravating factors enumerated in N.J.S.A. 2C:44-1a, i.e., (1) nature of the offense, (2) the gravity and seriousness of harm inflicted upon the victim and (9) the need for deterring the defendant and others from violating the law. The judge also found two mitigating factors enumerated in N.J.S.A. 2C:44-1b, i.e., (8) defendant's conduct was the result of circumstances unlikely to recur and (9) the character and attitude of the defendant indicate that she is unlikely to commit another offense. The judge found that the aggravating factors outweighed the mitigating factors and imposed a thirteen-year term with a NERA parole disqualifier.

We conclude, considering the Strickland/Fritz standard, trial counsel did not render ineffective assistance by not presenting Bornfriend's expert report at sentencing. First, Bornfriend's report was prepared for the waiver hearing. The report focused on whether the "probability of rehabilitation" of defendant before the age of nineteen substantially outweighed the reasons supporting waiver. The report did not discuss the existence of mitigating factors that required a reduced sentence. Trial counsel instead argued during sentencing that defendant's upbringing and childhood living conditions warranted the finding of certain mitigating factors. Trial counsel argued in her sentencing brief that mitigating factor (4) (there was substantial grounds tending to excuse or justify the defendant's conduct, though failing to establish a defense, should be taken into consideration), was applicable. However, we reject this argument, concluding that the presentation of Bornfriend's expert report would not have added any additional factors for the judge to consider. Thus, trial counsel effectively advised the judge of the existence of defendant's troubled childhood and upbringing.

Second, defendant cannot meet the prejudice prong of the Strickland/Fritz test. The record contains evidence that contradicts the application of mitigating factors, i.e., (12) the willingness of the defendant to cooperate with law enforcement authorities and (13) the conduct of a youthful defendant was substantially influenced by another person more mature than the defendant. The record reflects that Oxner's statements to the authorities indicated that defendant influenced him, not vice versa. The record also reflects that the plan to stab the victim originated with defendant. Defendant therefore cannot demonstrate a reasonable probability that but for trial counsel's failure to present Bornfriend's report, defendant would have received a lower sentence. Strickland, supra, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698.

Motion to Suppress

Defendant also contends that trial counsel was ineffective for failing to move to suppress defendant's statement obtained during custodial interrogation at the police station. We disagree.

For a confession to be admissible into evidence, prosecutors must prove beyond a reasonable doubt that suspect's waiver was knowing, intelligent and voluntary in light of the circumstances. State v. Burris, 145 N.J. 509, 534 (1996). In admitting confessions by juveniles who are in custody, courts must consider the totality of the circumstances. State v. Presha, 163 N.J. 304, 308 (2000). In addition, courts should consider the absence of a parent or legal guardian from the interrogation as a highly significant fact when determining whether the State has met its burden in proving that a juvenile's waiver was knowing, intelligent and voluntary. Ibid.

The role of the parent in the context of a juvenile interrogation takes on special significance. Id. at 314. The parent functions as an advisor to the juvenile, offering support in the police station. Ibid. Thus, a parent or guardian should be present during interrogation whenever possible. Id. at 315.

Here, defendant's father was present prior to interrogation and defendant made a knowing, intelligent and voluntary waiver. Moreover, defendant's assertions that her father's consent was not knowing, intelligent and voluntary because he was under the influence of alcohol lacks merit because there is no evidentiary support for such claim. The State provided transcribed conversations between the interrogating officers and defendant's father. These do not indicate that defendant's father exhibited signs of alcohol consumption. The father's speech is coherent and responsive. The record at trial supports Judge Almeida's findings that the totality of the circumstances indicated that defendant's statements were made knowing, intelligent and voluntary.

In addition, the existence of other evidence of guilt was overwhelming. Oxner, the other perpetrator, and O'Brien, the victim, both identified defendant as the stabber. There was also significant physical and forensic evidence taken from the scene that connected defendant to the crime. Judge Almedia noted that this evidence, by itself, would be sufficient to result in a conviction of defendant. Defendant was therefore not prejudiced by trial counsel's failure to challenge the admissibility of the statements.

Evidentiary Hearing

Defendant also argues that:


We disagree.

Evidentiary hearings on ineffective assistance of counsel claims in a PCR petition are left to the discretion of the court. R. 3:22-10. Evidentiary hearings may be useful where a defendant must develop a record at a hearing, permitting counsel to "explain the reasons for his conduct and inaction, and at which the trial judge can rule upon the claims including the issue of prejudice." State v. Sparano, 249 N.J. Super. 411, 419 (App. Div. 1991). Neither a PCR judge nor a reviewing court is in a position to "speculate as to the reasons for counsel's conduct or accept without a more fully developed record the State's explanation for that conduct." Ibid.

Further, a judge should grant evidentiary hearings in situations where the defendant has demonstrated a prima facie claim of ineffective assistance of counsel. State v. Preciose, 129 N.J. 451, 462 (1992). PCR judges should view the facts in the light most favorable to a defendant, similar to a summary judgment motion, to determine whether the defendant has established a prima facie case. Id. at 462-63.

Establishing a prima facie claim requires the defendant to demonstrate a reasonable likelihood that his or her claim will ultimately succeed on the merits. State v. Marshall, 148 N.J. 89, 158 (1997). If the court finds that holding an evidentiary hearing will not assist the court's analysis of whether the defendant is entitled to PCR, see State v. Flores, 228 N.J. Super. 586, 590 (App. Div. 1988), certif. denied, 115 N.J. 78 (1989), or that the defendant's contentions are too vague, conclusory or speculative to warrant an evidentiary hearing, see Preciose, supra, 129 N.J. at 462-64, then an evidentiary hearing will be unnecessary. Marshall, supra, 148 N.J. at 158.

Lastly, it is settled that where the issue involves the trial court's exercise of discretion, we will not interfere unless the trial judge has "pursue[d] a manifestly unjust course." Gillman v. Bally Mfg. Corp., 286 N.J. Super. 523, 528 (App. Div.), certif. denied, 144 N.J. 174 (1996). Rather, we will defer to the trial court's exercise of discretion unless its mistaken exercise prejudiced the substantial rights of a party. See Union County Imp. Auth. v. Artaki, 392 N.J. Super. 141, 149 (App. Div. 2007) (stating that exercise of discretion will be set aside if the court pursued a manifestly unjust course).

Here, we agree with Judge Almeida's determination that defendant failed to establish a prima facie case ineffective assistance of counsel. The issues raised could be resolved by reference to the undisputed facts in the existing record. Judge Almeida's conclusion is supported by the record and based on the fact that defendant offered no more than bald assertions that her counsel was ineffective. Judge Almeida relied on waiver counsel's, Saray Miller, certification that that she customarily informs her clients about appealing a waiver decision. Judge Almeida also placed great weight on the fact that defendant's trial counsel, Rochelle Pachero-Rozier, obtained a favorable plea agreement containing a sentence below the then-existing presumptive. Thus, Judge Almeida's decision is entitled to provide deference in light of the fact that defendant provided no evidentiary support to establish a prima facie claim of ineffective assistance of counsel.


Defendant also contends:


After carefully reviewing the record, we find that defendant's claim that her sentence is illegal lacks merit. In fact, the imposed sentence falls within the statutory range for a first degree crime. N.J.S.A. 2C:44-1f. Having reached that conclusion, the contention is procedurally barred by virtue of Rule 3:22-4, Bar on Grounds Not Raised in Prior Proceedings.

If we were to address the allegation on the merits, we could conclude the sentencing factors identified by the judge are supported by the evidence. State v. Johnson, 42 N.J. 146, 161 (1964). The sentence is in accord with the sentencing guidelines and based on a proper weighing of the factors. State v. O'Donnell, 117 N.J. 210, 215 (1989). The sentence does not shock our judicial conscience. Roth, supra, 95 N.J. at 364-65.

Cumulative Error

Finally, defendant contends that:


We disagree, finding no error. Therefore, there is no cumulative effect of errors.

The Supreme Court has recognized that even when "an individual error or series of errors does not rise to reversible error, when considered in combination, their cumulative effect can cast sufficient doubt on a verdict to require reversal. State v. Jenewicz, 193 N.J. 440, 473 (2008). A reviewing court must make certain that defendant received a fair trial. Ibid. Where "the legal errors are of such magnitude as to prejudice the defendant's rights or, in their aggregate have rendered the trial unfair, our fundamental constitutional concepts dictate the granting of a new trial before an impartial jury." State v. Orecchio, 16 N.J. 125, 129 (1954). Defendant has presented no evidentiary support demonstrating that she received ineffective assistance requiring a new trial.


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