June 8, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
TROY REEVES, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 05-02-0191.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 24, 2010
Before Judges Rodríguez and Reisner.
Defendant Troy Reeves appeals from the denial of his first petition for post-conviction relief (PCR). We affirm.
In December 2005, following a jury trial, defendant was convicted of first degree robbery, N.J.S.A. 2C:15-1, and second degree aggravated assault, N.J.S.A. 2C:12-1b. Judge Edward J. Turnbach denied defendant's motion for a new trial and imposed concurrent terms aggregating fifteen years with a NERA*fn1 parole disqualifier.
These are the pertinent facts. On September 12, 2003, at approximately 9:45 p.m. at the Lakewood Bus Terminal, two men, one wearing a red sweatjacket, later identified as defendant, and another unidentified individual huddled around the victim. Defendant warned the man, "[y]ou're going to give it to me, you're going to give it to me, give me it, you know, I'm going to hurt you, I'm going to hurt you." Defendant and the other man hit the victim. The victim fell to the ground. They then kicked the victim in the head, neck, face and ribs. Eventually, defendant reached into the victim's pocket and took the victim's wallet.
An older man, who appeared to know the perpetrators, approached and told them "[l]eave it alone... you did what you did, get out of here, the police are going to come." The two perpetrators hit the victim one more time. Defendant walked up to several of the commuters located by the platform, lifted his red sweatjacket, which revealed a forty-five caliber handgun, and said, "[a]ny fucking body talks to the police, you're fucking dead." The two men left the platform. A bystander called the police.
After the police officers arrived, they spoke to the people who were in the area during the assault and the older man who interceded. The police were able to develop a suspect. Later that evening, the bystander was shown a photograph array. He identified defendant as the man wearing the red sweatjacket. The victim was unconscious and did not possess his wallet.
Approximately one week later, the victim's mother identified the victim as her son. At the time, he was still unconscious. After he retained consciousness, he could not recall the robbery. He suffered blunt-force trauma to the head, a fractured skull, fractured ribs and sixteen stitches on his eye. The left side of his body was weakened, requiring him to use a cane to walk, and his speech was affected. When he regained consciousness, he realized his wallet that contained his social security card, birth certificate, County ID and some loose papers was missing.
We affirmed the conviction on direct appeal and rejected defendant's claims that: (1) the verdict was against the weight of the evidence; (2) the judge should have charged "false in one, false in all;" and (3) the sentence was excessive. State v. Troy Reeves, No. A-3186-05T4 (App. Div. Mar. 15, 2007), certif. denied, 191 N.J. 317 (2007). However, we agreed with defendant and remanded to amend the judgment of conviction to merge the convictions. Ibid.
In January 2007, defendant filed pro se his first PCR petition. Counsel submitted a brief in support of the petition. The claims were that: (a) trial counsel was ineffective for not communicating with defendant on a timely basis; (b) trial counsel failed to request a Wade*fn2 hearing; (c) trial counsel failed to file a motion to suppress an umbrella from evidence; (d) he was denied the right to due process because the judge failed to instruct the jury on accomplice liability; (e) the verdict was against the weight of the evidence; (f) the sentence was excessive; and (g) defendant was denied due process because the judge failed to give the jury an instruction on the supplemental step element of the attempt charge.
Judge James Den Uyl denied the petition and defendant's request for an evidentiary hearing. The judge found that: defendant does not allege any facts that would establish that defense counsel failed to communicate with the defendant, i.e., he did not receive important information before trial, something along those lines. As a result, the defendant has not established a prima facie case against the trial counsel on that point.
A Wade Hearing was, in fact, held on March -- excuse me -- October 12, 2005, out of the presence of the Jury, whereby the three witnesses were questioned, an identification sheet and several photographs were entered as evidence and the motion was denied. Defendant does not set forth additional facts that would establish that there was a failure of trial counsel during the hearing. Therefore, the defendant has not established a prima facie case against trial counsel on that point.
The judge found the claim that the trial judge should have given an accomplice liability instruction was procedurally barred by Rule 3:22-4 because such a claim should have been raised on direct appeal and the defendant made no showing that the issues could not reasonably have been raised in the prior proceedings. The judge also noted that the claims that the convictions were against the weight of the evidence and the sentence was excessive were barred by Rule 3:22-5 because they were raised and rejected in a prior proceeding.
On appeal, defendant contends:
COUNSEL'S INSUFFICIENT LEVEL OF COMMUNICATION WITH THE DEFENDANT CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL BECAUSE DEFENDANT WAS PREJUDICED FROM NOT BEING AFFORDED THE OPPORTUNITY TO PARTICIPATE IN HIS OWN DEFENSE.
APPELLATE COUNSEL'S FAILURE TO RAISE AN ARGUMENT FOR JURY INSTRUCTION ON ACCOMPLICE LIABILITY CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL ENTITLING DEFENDANT TO [PCR].
APPELLATE COUNSEL'S FAILURE TO RAISE AN ARGUMENT FOR JURY INSTRUCTION ON SUBSTANTIAL ELEMENT OF ATTEMPT CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL ENTITLING DEFENDANT TO [PCR].
REMAND FOR AN EVIDENTIARY HEARING ON [PCR] IS REQUIRED BECAUSE DEFENDANT HAS PRESENTED PRIMA FACIE EVIDENCE THAT HE WAS PREJUDICED BY TRIAL COUNSEL'S LACK OF PREPARATION AND FAILURE TO PRESENT A DEFENSE.
We agree with Judge Den Uyl that this PCR petition should be denied. In addition to the procedural basis, defendant has not satisfied either prong of the Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1984), standard for determining ineffective assistance of counsel. This standard was adopted by the New Jersey Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987).
As for the argument that the judge should have granted an evidentiary hearing, 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, 460-61 (1992).
Here, we conclude that there has been no such showing. Moreover, the arguments concerning alleged deficient performance by appellate counsel are simply a rehashing of issues already adjudicated, therefore they are barred by Rule 3:22-5.