March 12, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
COREY ARMSTEAD, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 00-06-0583.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 27, 2009
Before Judges Lihotz and Ashrafi.
Defendant appeals from denial of his petition for post conviction relief (PCR) alleging ineffective assistance of counsel with respect to a single answer on cross-examination given by a police detective at his trial. He also contends for the first time on this appeal that his sentence to a mandatory extended term under N.J.S.A. 2C:43-6f is an illegal sentence. We affirm denial of defendant's PCR petition alleging ineffective assistance of counsel but remand to the trial court for resentencing.
At defendant's jury trial in 2001, the State presented testimony that Detective Trommelen, a Paterson narcotics detective, was conducting surveillance of a drug trafficking area when he observed defendant approach a car and engage in a hand-to-hand transaction. Some minutes later, other detectives approached defendant as he was walking away from the scene. Defendant jumped on the hood of a police car and tried to flee, but the detectives apprehended him. They found a plastic bag hanging from defendant's coat pocket, and inside the bag, they found twenty-five smaller bags of crack cocaine and nineteen bags of heroin. Defendant also had $302 on his person.
Defendant's girlfriend testified at the trial that she had dropped him and his son off to visit the child's mother, and that she had not seen any drugs on defendant's person. Two other friends of defendant, both with criminal convictions, testified they were in the area that night and that defendant did not have any drugs on his person.
The jury convicted defendant of all counts of the indictment: (count one) third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a(1); (count two) third-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5a(1) and b(3); (count three) third-degree possession of CDS with intent to distribute within 1,000 feet of a school, N.J.S.A. 2C:35-7 and 2C:35-5a; and (count four) second-degree possession of CDS with intent to distribute within 500 feet of public housing, N.J.S.A. 2C:35-7.1 and 2C:35-5a.
At defendant's sentencing on October 12, 2001, the judge noted that his record included several juvenile offenses, three prior indictable convictions including a conviction for distribution of CDS, several municipal court convictions, and a number of arrests and serious pending charges after he posted bail and was released on the charges in this case.
Before the sentencing hearing, the State had moved for an extended term under both N.J.S.A. 2C:43-6f and N.J.S.A. 2C:44-3a. The former statute requires imposition of a mandatory extended term for a repeated conviction involving distribution of CDS. The latter statute provides discretion to the sentencing court to impose an extended term upon a persistent offender as defined in the statute. Here, the sentencing court granted the State's motion for a mandatory extended term under N.J.S.A. 2C:43-6f and did not further address the motion for a discretionary extended term under the persistent offender statute.
In determining the sentence, the court found four aggravating factors applicable: the risk that defendant would offend again, the extent and seriousness of his criminal record, the need for deterrence, and a sentence without imprisonment would be perceived as the cost of doing the business of selling drugs. N.J.S.A. 2C:44-1a(3), (6), (9), and (11). Under N.J.S.A. 2C:44-1b, the court found no applicable mitigating factors.
After merging the first three counts into count four, second-degree distribution of CDS near public housing, the court sentenced defendant to an extended term of eighteen years in prison, with nine years to be served before parole eligibility, a sentence in the first-degree range. Defendant's sentence also included monetary penalties as provided by statutes.
Defendant appealed his conviction and sentence, and we affirmed both in an unpublished opinion. State v. Armstead, No. A-4232-01T4 (App. Div. May 23, 2003). The Supreme Court denied defendant's petition for certification. State v. Armstead, 177 N.J. 577 (2003).
In April 2004, defendant filed his petition for PCR. The same judge who had tried the case and sentenced defendant heard argument on the petition in January 2008.*fn1 The judge denied the petition by order and written opinion dated January 22, 2008.
With different appellate counsel on this appeal, defendant raises the following points:
POINT I THE DEFENDANT'S SENTENCE MUST BE REMANDED AS HIS EXTENDED TERM IS NOT AUTHORIZED BY LAW.
THE CRIME FOR WHICH HE WAS SENTENCED IS NOT ONE OF THE SENTENCES CONTAINED IN THE MANDATORY EXTENDED TERM PROVISION OF N.J.S.A. 2C:43-6f. (Not Raised Below)
POINT II DEFENDANT WAS DENIED HIS STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO THE EFFECTIVE ASSISTANCE OF COUNSEL WHEN HIS TRIAL ATTORNEY ELICITED "OTHER CRIMES" TESTIMONY FROM A STATE'S WITNESS, AND WHEN HIS APPELLATE ATTORNEY FAILED TO RAISE THIS AS AN ISSUE FOR APPEAL.
POINT III DEFENDANT WAS DENIED HIS STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO THE EFFECTIVE ASSISTANCE OF COUNSEL ON APPEAL WHEN HIS APPELLATE ATTORNEY FAILED TO RAISE AS PLAIN ERROR THE TRIAL JUDGE'S FAILURE TO GIVE A CURATIVE INSTRUCTION.
We find no merit in the second and third points raised.
In considering a petition for post-conviction relief, the court begins with a presumption that defendant who was represented at trial and on appeal received the assistance of counsel that is mandated by the Sixth Amendment of the United States Constitution and article I, paragraph 10 of the New Jersey Constitution. Strickland v. Washington, 466 U.S. 668, 689, 694, 104 S.Ct. 2052, 2065, 2068, 80 L.Ed. 2d 674, 694, 698 (1984); State v. Loftin, 191 N.J. 172, 198 (2007). Defendant bears the burden of proving that his attorney provided ineffective assistance in his defense. Ibid.
In Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693, the United States Supreme Court identified a two-part test for evaluating claims of ineffective assistance of counsel.
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.
To satisfy the second part of this test, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698. The Strickland standard was adopted by the New Jersey Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987).
On appeal, the standard of review from the decision of the PCR court is plenary on questions of law. See State v. Harris, 181 N.J. 391, 415 (2004), cert. denied, 545 U.S. 1145, 125 S.Ct. 2973, 162 L.Ed. 2d 898 (2005). The factual findings of that court, however, are granted deference if they are supported by adequate, substantial, and credible evidence. Ibid.
Defendant alleges that his trial attorney was ineffective because he failed to object to the following cross-examination testimony of Detective Trommelen, given in the context of the detective's ability to identify defendant as the person who had engaged in a hand-to-hand drug transaction:
Q: Had you ever seen Mr. Armstead before?
A: I don't recall actually at that point whether I could say I had or I hadn't.
Q: In the 500 surveillances, or was it 1,000 surveillances?
A: The surveillances, I would say in excess of 5,000.
Q: In excess.
A: lot of those surveillances you were in that area?
Q: You say that you saw Mr. Armstead before in that area?
A: Well, I couldn't - I can't say that I didn't see him. I can't say I knew exactly who he was. If you told me I was involved in another case with him, it's very possible I may have.
Q: Well, you haven't seen Mr. Armstead in how long?
A: I haven't see him since that day that we arrested him. (Emphasis added.)
Defendant argues that the underscored answer of Detective Trommelen was inadmissible and prejudicial because it implied to the jury that defendant had previously been arrested or convicted of a crime. He argues that evidence of his prior convictions was not admissible under N.J.R.E. 404(b), or under N.J.R.E. 609 because defendant elected not to testify at his trial. Defendant faults his trial attorney as ineffective for failing to object, the trial judge for failing to give a curative instruction to the jury, and his appellate attorney for failing to raise the inadmissibility of Detective Trommelen's answer on direct appeal.
We disagree with defendant's contentions. Detective Trommelen did not testify that defendant had previously been arrested or charged with a crime. As the PCR judge stated in his written opinion, the challenged answer on cross-examination was a hypothetical statement. It invited defense counsel to inform the witness whether defendant had been previously involved in a case with the detective. The detective could not remember any such case, thus suggesting that the detective had not previously arrested defendant.
Furthermore, there was no dispute at the trial that defendant was present in a drug trafficking area on the night of his arrest, and that his two friends who testified on his behalf had prior drug convictions. Detective Trommelen testified he had participated in more than 5,000 surveillances, many in the same area. If the detective's answer implied a possibility that he may have had prior involvement with defendant, that involvement would neither be surprising nor evidence that defendant himself had previously been arrested or convicted of a crime.
In addition, if the trial judge had stepped in to give a curative instruction, the instruction itself might have caused more damage than the detective's innocuous testimony by alerting all jurors to the prejudicial inference that defendant now reads into the testimony.
We find no error in the PCR court's conclusion that defendant failed to show his trial attorney's performance was deficient or the alleged error deprived him of a fair trial. See Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693.
With respect to defendant's contention that his appellate attorney was ineffective, appellate counsel has no duty to raise every non-frivolous argument available to a defendant. Jones v. Barnes, 463 U.S. 745, 751, 103 S.Ct. 3308, 3312, 77 L.Ed. 2d 987, 993 (1983); State v. Gaither, 396 N.J. Super. 508, 515-16 (App. Div. 2007), certif. denied, 194 N.J. 444 (2008). "Experienced advocates since time beyond memory have emphasized the importance of winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at most on a few key issues." Id. at 751-52, 103 S.Ct. at 3313, 77 L.Ed. 2d at 994. Furthermore, appellate counsel must "examine the record with a view to selecting the most promising issues for review." Id. at 752, 103 S.Ct. at 3313, 77 L.Ed. 2d at 994.
On direct appeal, defendant's court-appointed appellate attorney raised the following issues:
POINT I THE TRIAL COURT ERRED IN PERMITTING THE TESTIMONY OF A DEFENSE WITNESS WHILE HANDCUFFED AND IN PRISON CLOTHING (Not Raised Below).
POINT II THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION FOR A BRIEF ADJOURNMENT IN ORDER TO ADEQUATELY PREPARE FOR TRIAL. POINT III THE PROSECUTOR'S SUMMATION EXCEEDED THE BOUNDS OF PROPRIETY BY INFERENTIALLY COMMENTING UPON THE DEFENDANT'S FIFTH AMENDMENT PRIVILEGE (Not Raised Below).
POINT IV THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.
Defendant has no evidence to suggest that appellate counsel did not thoroughly examine the record and select the most promising issues in his professional judgment. As we have concluded, the argument arising from the alleged error in Detective Trommelen's cross-examination testimony is weak. Appellate counsel could reasonably and professionally reject its inclusion among the points that were raised.
We affirm denial of defendant's PCR petition alleging ineffective assistance of counsel.
We find merit, however, in defendant's first point, which he raises for the first time on this appeal. See State v. Chambers, 377 N.J. Super. 365, 369 (App. Div. 2005) ("a court may correct an illegal sentence at any time"); see also R. 3:22-12 ("A petition to correct an illegal sentence may be filed at any time."). We conclude that the eighteen-year extended sentence on count four is an illegal sentence.
Count four charged possession of CDS with intent to distribute within 500 feet of public housing, in violation of N.J.S.A. 2C:35-7.1. That statute is not listed as one subject to a mandatory extended term under N.J.S.A. 2C:43-6f. The latter statute provides in relevant part:
A person convicted of manufacturing, distributing, dispensing or possessing with intent to distribute any dangerous substance or controlled substance analog under N.J.S. 2C:35-5, of maintaining or operating a controlled dangerous substance production facility under N.J.S. 2C:35-4, of employing a juvenile in a drug distribution scheme under N.J.S. 2C:35-6, leader of a narcotics trafficking network under N.J.S. 2C:35-3, or of distributing, dispensing or possessing with intent to distribute on or near school property or buses under section 1 of P.L. 1987, c. 101 (2C:35-7), who has been previously convicted of manufacturing, distributing, dispensing or possessing with intent to distribute a controlled dangerous substance or controlled substance analog, shall upon application of the prosecuting attorney be sentenced by the court to an extended term as authorized by subsection c. of N.J.S. 2C:43-7, notwithstanding that extended terms are ordinarily discretionary with the court.
The statute expressly designates four statutes that give rise to a mandatory extended term if the defendant has a prior conviction for a drug offense involving distribution. Violation of N.J.S.A. 2C:35-7.1 is not among the four statutes designated.
Nevertheless, the State argues that a violation of N.J.S.A. 2C:35-7.1 is included in the extended term statute by implication. N.J.S.A. 2C:35-7.1 states in relevant part:
Any person who violates subsection a. of N.J.S. 2C:35-5 by distributing, dispensing or possessing with intent to distribute a controlled dangerous substance or controlled substance analog while in, on or within 500 feet of the real property comprising a public housing facility, a public park, or a public building is guilty of a crime of the second degree . . . .
The State argues that, because N.J.S.A. 2C:35-5 is listed as an offense subject to mandatory extended term under N.J.S.A. 2C:43-6f, and because it is also referenced in N.J.S.A. 2C:35-7.1, violation of the latter statute is also subject to an extended term. We disagree.
Defendant was convicted under count two of the indictment for violation of N.J.S.A. 2C:35-5 as a third-degree offense based on the quantity of CDS seized. If that conviction were enhanced under N.J.S.A. 2C:43-6f, the sentencing range would be five to ten years' imprisonment, the second-degree range. But enhancement of the conviction on count four for violation of the public housing statute raised the sentencing range from the second-degree to the first-degree range, between ten and twenty years' imprisonment. The underlying third-degree violation of N.J.S.A. 2C:35-5 could not enhance defendant's sentencing range to the first-degree range.
Moreover, the school zone statute, N.J.S.A. 2C:35-7, also includes reference to violation of N.J.S.A. 2C:35-5, but the school zone statute is expressly included in the provisions of N.J.S.A. 2C:43-6f as one of the offenses that is subject to an extended term. Apparently, the Legislature did not rely on reference to N.J.S.A. 2C:35-5 in the school zone statute as sufficient to make it subject by implication to an extended term under N.J.S.A. 2C:43-6f.
With respect to extended terms, the Legislature may have treated the school zone and public housing statutes differently because they are different in the sentencing ranges they impose. The school zone statute designates the degree of the offense in the same way as N.J.S.A. 2C:35-5, by the quantity of CDS involved. In this case, count three, which charged violation of the school zone statute, was a third-degree crime, the same as count two, which charged violation of N.J.S.A. 2C:35-5. In contrast, the public housing statute already enhances a violation involving the same quantity of CDS to a second-degree offense. The public housing statute is itself an enhancement of the sentencing range. Applying the extended term provisions of N.J.S.A. 2C:43-6f might have been viewed as an unnecessary doubling of the sentencing enhancement.
Finally, as defendant argues, defendant's sentence cannot be affirmed as a discretionary extended term under N.J.S.A. 2C:44-3a for a persistent offender. The sentencing judge said explicitly that he was granting the State's motion for a mandatory extended term under N.J.S.A. 2C:43-6f, and he was not addressing its motion for a discretionary extended term under N.J.S.A. 2C:44-3. Whether upon remand defendant can now be sentenced to a discretionary extended term as a persistent offender has not been briefed and, therefore, we do not address that question.
Affirmed in part. Remanded for resentencing.