June 10, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DEMITRIUS MIDDLETON, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 98-01-0479.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 18, 2010
Before Judges Grall and Messano.
"During what began as a drug buy, defendant Demitrius Middleton placed a gun to the temple of Shazam Tahir and pulled the trigger, killing him." State v. Middleton, No. A-4239-99 (App. Div. Nov. 29, 2001) (slip op. at 1), certif. denied, 171 N.J. 337 (2002). In March 1999, defendant and his co-defendant Kasib Jones were tried to a jury on a thirteen-count indictment. Defendant was charged in nine of the counts. He was acquitted on four counts, but the jury was unable to reach a verdict on the remaining five counts. Beginning in October 1999, defendant was retried on three of the five remaining counts; the other two were dismissed prior to trial. Id. at 2-3.
In November 1999, the second jury found defendant guilty of murder, N.J.S.A. 2C:11-3a(1)-(2); possession of a handgun without a permit, N.J.S.A. 2C:39-5b; and possession of a handgun with the purpose to use it unlawfully against the person of another, N.J.S.A. 2C:39-4a. Defendant was sentenced to a fifty-year term of incarceration subject to periods of parole ineligibility and supervision pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The judgment of conviction and sentence was entered on December 17, 1999. On direct appeal, we affirmed defendant's convictions. Id. at 19.*fn1 The Supreme Court denied defendant's petition for certification. 171 N.J. at 337.
The issues raised on this appeal do not require a reiteration of the facts. They are set forth in our prior opinion. Middleton, supra, slip op. at 5-9.
It is not clear whether defendant first filed his petition for post-conviction relief on December 24, 2002 - the filing date stated by defendant in a letter he purportedly wrote to the judge on February 10, 2003 - or September 7, 2006 - the date on which defendant's verified pro se petition, which is dated May 8, 2006, was stamped filed. The trial judge did not resolve the factual dispute about the filing date. Instead, the judge noted the problem but addressed the merits as if the petition were filed within the five-year period permitted by Rule 3:22-12.
The motion hearing on defendant's petition was held and the petition denied on April 22, 2008. The first matter addressed was a letter written by defendant to the judge about the performance of the attorney who was assigned to represent him on the petition. The judge summarized the content: "you don't think he's done anything to help you"; "he hasn't let you know what's going on." Defendant responded, "Absolutely."
According to defendant, he and his lawyer had only two conversations: a video conference about eight weeks after the attorney was assigned in September 2006 and a ten-to-fifteen minute telephone call placed by defendant to the lawyer on February 7, 2007. Defendant had not received a copy of the brief his attorney submitted to the judge or the brief filed by the State. While his lawyer agreed that they had one video conference, he said they had more than one telephone conversation. He also advised that someone in his office had mailed the brief he prepared for defendant to him in the prison, but he acknowledged that he had not provided defendant with the brief filed by the State. He further indicated his willingness to submit a "transmittal that includes ineffective assistance of PCR counsel" for filing with defendant's notice of appeal after the judge's ruling. Defendant asserted that he had not received any correspondence from the lawyer and had no discussion about strategy.
The judge, acknowledging prior instances in which prisoners had not received mail from their attorneys, summarized defense counsel's arguments. Defendant again noted that he had not seen the brief.
At the conclusion of the foregoing colloquy, defense counsel presented argument on the petition. He contended that trial counsel was ineffective for failure to obtain a ballistics report that may have established that defendant's co-defendant fired the fatal shot. He also argued that the judge should consider the merits of the petition because of the uncertainty about the filing date.
As noted above, the judge addressed the merits, including arguments not referenced in defense counsel's brief. Those additional issues included defendant's claims of ineffective assistance of trial counsel based upon his trial attorney's failure to: challenge the indictment; request a severance; request a charge on accomplice liability; and object to the use of evidence in the second trial that had been submitted in the first trial on charges of which the first jury acquitted defendant. The judge determined that defendant had failed to establish grounds for relief or grounds sufficient to establish a prima facie case of ineffective assistance warranting an evidentiary hearing on the petition.
This appeal followed. Subsequent to filing the notice of appeal, appellate counsel for defendant filed two motions to supplement the record, which we reserved for disposition on submission of the appeal to the panel deciding the matter. After review of the transcripts of the PCR hearing, and in light of defendant's undisputed representation that he had not had an opportunity to read the briefs submitted by his attorney or by the State, we determine that it is appropriate to grant defendant's motion to supplement the record with letters he purportedly wrote to his PCR counsel on November 10, 2006 and October 15, 2007.*fn2
In those letters, defendant outlines issues and asks counsel to advise him of counsel's "proposed course." The issues include claims not enumerated or addressed in the brief submitted by PCR counsel or considered by the judge. For example, there is a claim that a witness called by the State was shackled when he recanted testimony he had given at defendant's first trial and exonerated defendant. The testimony that a witness gave during the first trial was read to the jury.
Defendant presents the following issues on appeal:
I. DEFENDANT'S PCR PETITION MUST NOT BE TIME-BARRED.
II. DEFENDANT'S CONVICTIONS MUST BE REVERSED, OR THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING, BECAUSE DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL IN THAT COUNSEL FAILED TO CONTEND THAT THERE WAS NO FINDING, OR BASIS IN THE RECORD FOR A FINDING, OF THE NECESSITY THAT A STATE'S WITNESS TESTIFY IN RESTRAINTS, AND/OR ALSO FAILED TO CONTEND THAT THE TRIAL COURT ERRED BY NOT INSTRUCTING THE JURY THAT SUCH RESTRAINTS MUST NOT BE CONSIDERED IN ASSESSING THE PROOFS AND DETERMINING GUILT. (Not Raised Below).
III. THIS MATTER MUST BE REMANDED FOR REASSIGNMENT OF COUNSEL AND FOR A NEW PCR HEARING BECAUSE DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL. (Not Raised Below).
The obligations of an attorney representing a defendant in a post-conviction relief proceeding are clear. "PCR counsel must communicate with the client, investigate the claims urged by the client, and determine whether there are additional claims that should be brought forward." State v. Webster, 187 N.J. 254, 257 (2006). In this case, the record includes representations by defendant and his PCR counsel that raise material questions about these fundamental elements of representation. The fact that defendant was not given an opportunity to read the brief submitted by the State before the issues that were raised were addressed is undisputed.
PCR counsel also has an obligation to submit claims raised by a defendant to the judge.
[C]counsel should advance all of the legitimate arguments that the record will support. If after investigation counsel can formulate no fair legal argument in support of a particular claim raised by defendant, no argument need be made on that point. Stated differently, the brief must advance the arguments that can be made in support of the petition and include defendant's remaining claims, either by listing them or incorporating them by reference so that the judge may consider them.
[Id. at 257.]
See State v. Rue, 175 N.J. 1 (2002); cf. State v. Gaither, 396 N.J. Super. 508, 515-16 (2007) (distinguishing obligations of PCR counsel and appellate counsel), certif. denied, 194 N.J. 444 (2008).
The record does not permit us to conclude that PCR counsel listed or incorporated all of the claims raised in defendant's pro se verified petition. The PCR petition did not identify the three claims underlying defendant's request for relief because his trial attorney failed to provide the representation guaranteed by the constitution. Nor did defense counsel mention defendant's claim that he was not present when his judgment of conviction was amended to reflect a thirty-year period of parole ineligibility rather than a NERA term following this court's remand for "reconsideration in light of Manzie." Moreover, we now have letters, the authenticity of which has not been established, that suggest defendant asked his PCR counsel to raise additional issues that were not addressed.
Under the circumstances, we conclude that a remand is required. On remand, with assistance of different appointed counsel, the judge should consider any argument related to issues raised in defendant's pro se verified petition that was not previously presented to the judge. The judge should also determine whether the letters of November 10, 2006 and October 15, 2007 were sent to PCR counsel prior to the April 22, 2008 hearing. If the judge concludes that they were, the judge should also consider arguments presented by new PCR counsel in support of the issues raised therein. With respect to the issues considered, we affirm substantially for the reasons stated by the judge.
Reversed and remanded for further proceedings in conformity with this decision.