May 5, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ANDRE E. BOYER, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 93-05-1012.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 19, 2010
Before Judges Rodríguez, Reisner and Yannotti.
Defendant Andre E. Boyer, appeals from the denial of his first petition for post-conviction relief (PCR). We affirm.
In April 1996, following a jury trial, defendant was convicted of two counts of first degree robbery, N.J.S.A. 2C:15-1; three counts of first degree aggravated sexual assault, N.J.S.A. 2C:14-2a(3); second degree sexual assault, N.J.S.A. 2C:14-2c(1); two counts of kidnapping, N.J.S.A. 2C:13-1b(1); second degree conspiracy, N.J.S.A. 2C:5-2; second degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a; third degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b; fourth degree aggravated assault, N.J.S.A. 2C:12-1b(4); third degree terroristic threats, N.J.S.A. 2C:12-3a; second degree possession of a weapon by a convicted felon, N.J.S.A. 2C:39-7; and second degree witness tampering, N.J.S.A. 2C:28-5a. After appropriate mergers, the sentencing judge granted the State's motion for an extended term, finding defendant to be a persistent offender. The judge imposed two concurrent terms aggregating life with two consecutive ten-year parole disqualifiers pursuant to the Graves Act, N.J.S.A. 2C:43-6c to -6d. We affirmed on direct appeal, but remanded for re-sentencing. State v. Boyer, No. A-1507-96T4 (App. Div. January 26, 2000), certif. denied, 165 N.J. 561 (2000).
The evidence presented at trial was set forth in our decision on direct appeal. These are the salient proofs. On January 6, 1993, M.H., age nineteen, and her friend, A.D., age eighteen, were waiting for a bus in Camden when defendant pulled up in a yellow car and began talking to the women. Co-defendant William Fortune, defendant's nephew, was riding with defendant in the front passenger seat. After a brief conversation, defendant offered to give the women a ride to Woodbury. The women got into the car. Soon after, A.D. told defendant that he had driven past her exit. Then, the two men demanded money. The women gave them their pocketbooks and wallets. Defendant threatened to "put a cap" in the girls if they did not stop crying and talking.
At some point, defendant stopped the car along the shoulder of the Atlantic City Expressway. Defendant took M.H. to a wooded area and ordered her to pull down her pants. Then he raped her. A.D. pleaded with Fortune to let her go. He pointed a gun at her. She saw defendant on top of M.H.
Defendant walked M.H. back to the car and told Fortune that "it was his turn." Fortune told him, "[n]o, just get her out of the car, let's go." Defendant and Fortune left the women along the highway. They were subsequently picked up by a truck driver and taken to the State Police station.
At the police station, M.H. and A.D. described defendant's vehicle. They selected his photograph out of an array. The police arrested defendant and found clothing in his apartment matching the description given by the women.
Fortune was also arrested. He gave a statement to the police implicating defendant in the crimes. Fortune pled guilty to two counts of armed robbery and agreed to testify at defendant's trial. Fortune saw defendant two times before trial. Each time, defendant threatened him and his family. Fortune notified the prosecutor and the police. At trial, Fortune's testimony about the events on January 6, 1993, corroborated the testimonies of M.H. and A.D.
Defendant filed a first petition for PCR. Judge William J. Cook denied the petition without prejudice due to defendant's failure to "file and serve a verified [PCR] petition, as required by R. 3:22-8." Represented by counsel, defendant filed a second PCR petition. The brief raised the following arguments: (a) ineffective assistance of trial counsel for failure to raise the defense of diminished capacity and to challenge the grand jury proceedings; (b) defendant's sentence is excessive; (c) the trial court abused its discretion by imposing an extended term; (d) the trial court erred by recognizing inappropriate aggravating factors and failing to recognize an appropriate mitigating factor; (e) prosecutorial misconduct before the grand jury; (f) the trial court failed to provide a limiting instruction as to the fresh-complaint evidence (not raised below); (g) regarding defendant's convictions for tampering with a witness or informant, the trial court failed to charge the jury as to the lesser-included offense of retaliation against a witness or an informant; and (h) the trial court referred to "the victim" in its jury instructions regarding consent as a defense. Judge Cook denied the petition on procedural and substantive grounds. It is from that denial that defendant now appeals, contending:
THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT'S CLAIMS ARE NOT PROCEDURALLY BARRED UNDER R. 3:22-4. THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT'S CLAIMS ARE NOT PROCEDURALLY BARRED UNDER R. 3:22-5. THE LOWER COURT ORDER MUST BE REVERSED SINCE THE FIVE-YEAR TIME BAR SHOULD NOT BE APPLIED TO BAR DEFENDANT'S CLAIMS.
THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
A. Trial Counsel Failed To Investigate Or Develop A Defense Based On Defendant's Mental Condition.
B. Trial Counsel Failed To File Motions To Dismiss The Indictment.
THE TRIAL COURT ERRED IN NOT CHARGING THE JURY APPROPRIATELY AND THE LOWER COURT ORDER MUST THEREFORE BE REVERSED.
THE PROSECUTOR ENGAGED IN MISCONDUCT DURING THE PRESENTATION TO THE GRAND JURY AND THE LOWER COURT ORDER MUST THEREFORE BE REVERSED.
THE LOWER COURT ORDER MUST BE REVERSED SINCE THE SENTENCE SHOULD HAVE BEEN REDUCED.
A. The Imposition Of The Sentences Is Illegal And Unjustly Harsh Since The Court Erred In Assessing Mitigating And Aggravating Factors.
B. The Imposition Of Consecutive Sentences Is Illegal And Unjustly Harsh.
C. The Imposition Of An Extended Term Sentence Is Illegal And Unjustly Harsh.
THE LOWER COURT ORDER MUST BE REVERSED IN LIGHT OF NUMEROUS ADDITIONAL ERRORS.
We concur with Judge Cook that all of the claims in this PCR petition are barred by operation of Rules 3:22-4 (Bar of Grounds Not Raised in Prior Proceedings) and 3:22-5 (Bar of Grounds Expressly Adjudicated); or are otherwise patent by insubstantial 2:11-3(e)(2). Therefore, we will not address the merits in an extended fashion.
We merely note that defendant has not satisfied either prong of the Strickland v. Washington*fn1 standard for determining ineffective assistance of counsel. This standard was adopted by the New Jersey Supreme Court in State v. Fritz.*fn2
Defendant also contends:
THE LOWER COURT ERRED IN NOT GRANTING DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING AND THE LOWER COURT ORDER MUST THEREFORE BE REVERSED.
We disagree. Defendant has failed to meet the threshold for an evidentiary hearing. When issues of defective performance of counsel are raised that involve disputed facts outside the record, the appropriate procedure for their resolution is to hold a hearing, if a prima facie showing of remediable ineffectiveness is made. State v. Preciose, 129 N.J. 451, 462-64 (1992). Here, there has been no such showing. Moreover, the alleged disputed performance by counsel can be scrutinized based on the trial record.
Further, when arguing that trial counsel failed to conduct a pre-trial investigation or interview witnesses, a defendant "must do more than make bald assertions that he was denied the effective assistance of counsel." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). When a defendant alleges that his or her attorney inadequately investigated the case, defendant "must assert the facts that an investigation would have revealed, supported by affidavits or certifications based upon the personal knowledge of the affiant or the person making the certification." Ibid.; see also State v. Petrozelli, 351 N.J. Super. 14, 23 (App. Div. 2002) (discussing a defendant's burden in proving that counsel was ineffective for failure to present a witness). Here, defendant has not made a prima facie showing by presenting affidavits or certifications to support his assertions.
In conclusion, our review of the record does not disclose any deficiency by trial counsel. Further, the evidence establishes that defendant committed the crimes of which he was convicted. Trial counsel's representation, no matter how effective, cannot alter the evidence and the inferences to be drawn therefrom.