May 3, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
GREGORY HINES, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 97-02-0223.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 15, 2010
Before Judges Lisa and Alvarez.
Defendant Gregory Hines appeals the denial of his post-conviction relief (PCR) application without evidentiary hearing. For the reasons that follow, we affirm.
Tried to a jury, defendant was convicted on July 28, 1999 of first-degree armed robbery, N.J.S.A. 2C:15-1 (count one), and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count two). Count two was merged with count one. Defendant was sentenced on January 7, 2000, to an extended term of sixty years imprisonment subject to a twenty-three-year parole disqualifier pursuant to N.J.S.A. 2C:43-7.1b(2) under the "Three Strikes and You're In" Law. The sentence was affirmed on November 20, 2001. State v. Hines, No. A-3896-99 (App. Div. Nov. 20, 2001). Certification was denied by the Supreme Court on May 22, 2002. State v. Hines, 172 N.J. 356 (2002).
Sometime in July 2002, defendant filed a petition for post-conviction relief. Counsel thereafter filed a supplemental brief and certification in support of the petition. On March 19, 2007, the petition was heard and denied, and this appeal followed.
We now review the facts necessary to the determination of defendant's arguments on appeal. On November 9, 1996, at approximately 3:50 a.m., a newspaper delivery person was robbed at knifepoint in the vestibule of an apartment building in Elizabeth. Later that day, defendant was arrested on unrelated charges. Because of similarities in the clothing worn by defendant at the time of the arrest and the description given by the victim of her assailant, as well as his possession of a folding pocketknife similar to that used during the robbery, defendant was placed in a physical line-up at the Union County jail on November 15, 1996. He was identified by the victim, who testified at defendant's trial as to this out-of-court identification; she also made an in-court identification of defendant.
Defendant's mother, Ernestine Hines (Hines), testified at trial as defendant's alibi witness. On cross-examination, she acknowledged having testified as an alibi witness in at least two previous trials. The judge allowed the testimony because of relevance to Hines's credibility, but the jury was given a limiting instruction informing them that they could only use the information to assess Hines's credibility. They were told that they were "not to assume that the prior proceedings of which Ms. Hines is testifying involve [defendant]." In closing, the prosecutor described Hines as a "very practiced witness" who was well-coached.
Identification was a crucial issue in the case; the attack on the credibility of defendant's alibi witness was, as we previously said on the direct appeal, "critical to the State's position."
On direct, Hines claimed that upon learning of the charges against her son in November 1996, she immediately called his trial attorney and told her that she had been in Atlantic City with her son and a mutual friend when the robbery was alleged to have occurred. Hines was subsequently cross-examined about testimony she previously gave to the effect that she had not contacted anyone about the alibi until October 1997, almost a year later. At the earlier proceeding, Hines also testified that a defense investigator came to her house on October 15, 1997, to interview her about the alibi. In order to ameliorate the confusion without creating prejudice to defendant, trial counsel stipulated that defense counsel commenced representing defendant on November 21, 1996. This reconciled Hines's prior testimony with her trial testimony, as Hines could have spoken with defense counsel in November 1996 but not met with an investigator until October 1997.
On appeal, defendant raises the following points:
DEFENDANT'S CONVICTIONS MUST BE REVERSED DUE TO INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL; IN THE ALTERNATIVE, THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE A PRIMA FACIE CASE OF INEFFECTIVENESS OF COUNSEL WAS ESTABLISHED.
A. TRIAL COUNSEL MISADVISED DEFENDANT OF HIS SENTENCING EXPOSURE
B. TRIAL COUNSEL FAILED TO TESTIFY SO AS TO BOLSTER DEFENDANT'S ALIBI
C. TRIAL COUNSEL FAILED TO OBJECT TO THE PROSECUTION'S CHARACTERIZING THE ALIBI WITNESS AS A "PRACTICED WITNESS" AND "WELL COACHED"
Defendant's first contention is that he is entitled to PCR because he was not properly counseled as to the potential sentence that could be imposed upon him as an extended term offender, both under the "Three Strikes and You're In," N.J.S.A. 2C:43-7.1b, and the discretionary persistent offender statute, N.J.S.A. 2C:44-3a. The affidavit defendant submitted in support of his application for PCR, however, included his assertion that he "would not plead to these trumped-up charges since I didn't rob anyone. . . ." In a later affidavit he reiterated that he "had no involvement in these robberies."
As the Court has most recently stated, "[t]he notion that a defendant can enter a plea of guilty, while maintaining his innocence, is foreign to our state jurisprudence." State v. Taccetta, 200 N.J. 183, 195 (2009). It logically follows, as the night does the day, that the PCR court could not vacate the jury's verdict because of defendant's asserted innocence even if it were convinced that defendant's attorney did not accurately convey defendant's sentencing exposure. Defendant cannot be heard to complain that he would have accepted the plea offer "while maintaining his innocence." Ibid.
In order to succeed on a claim of ineffective assistance of counsel, a defendant must establish that his counsel's performance was seriously deficient and that the deficient performance prejudiced his right to a fair disposition of the charges. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 52-53 (1987). In this case, defendant cannot prove any prejudice from the alleged failure of counsel to provide him with an accurate explanation of his sentencing exposure because he continues to maintain his innocence.
Defendant asserts in his second point that counsel was ineffective because she failed to withdraw during the trial and proffer her testimony to corroborate Hines's statement that she communicated defendant's alibi to counsel as early as November 1996. Again, the key question is whether the purportedly deficient performance actually prejudiced the accused's defense. Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693.
As the PCR judge stated, the stipulation more than adequately filled the gap between Hines's testimony at the trial and the earlier proceeding. Defendant's suggestion that had his trial attorney testified that Hines called her about the alibi defense in November 1996, the trial outcome would have been different is nothing more than speculation. This claim also fails to meet the Strickland standard in any respect.
Additionally, defendant's suggestion that such testimony would have been available from trial counsel is not supported by any affidavit or certification. It would also be sheer speculation on our part to find in defendant's favor on this point based on the bare allegation that had the attorney withdrawn, her testimony would have corroborated that of Hines. See State v. Cummings, 321 N.J. Super. 154, 168 (App. Div. 1999). Without such corroboration, defendant's contention is not a sufficient basis to find the outcome of the trial would have been different. No ineffective assistance of counsel has been established on this basis either.
Lastly, defendant asserts his counsel was ineffective due to her failure to object to the prosecutor's characterization of his mother as a "practiced witness" and "well coached." As we said on direct appeal, the "practiced witness" comment was reasonable in the context of the State presenting to jurors the significant question of Hines's credibility. As the decision explains, to describe her as "well coached" was improper, but the reference "was fleeting and relatively inconsequential." Under the circumstances, we are satisfied this issue has been previously expressly adjudicated, and defendant is therefore barred from raising the claim anew. See R. 3:22-5.
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