June 21, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
SADIQ ARNOLD, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 06-02-0424.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 18, 2010
Before Judges Parrillo and Lihotz.
Defendant Sadiq Arnold appeals from a Law Division order denying his petition for post-conviction relief (PCR). We affirm.
Tried by a jury, defendant was convicted of second-degree robbery, N.J.S.A. 2C:15-1, for which he was sentenced to a ten-year term subject to an eighty-five percent parole ineligibility bar pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
We recount the facts of the criminal event as stated in our previous opinion affirming defendant's conviction:
At 6 p.m., on August 24, 2005, Elizabeth Ogunbanjo waited for a bus at the intersection of Chestnut and Broad Streets in Newark. Defendant approached Ogunbanjo seeking directions. She ignored him. Defendant then grabbed Ogunbanjo's neck "trying to take off [her] chain." The chain broke and fell into her shirt. Following a struggle between the two, defendant grabbed Ogunbanjo's earring and fled. A patrolman was alerted and defendant was apprehended. Ogunbanjo suffered scratches to her neck and chest. Her cousin rendered first aid; her injuries did not require further medical attention.
[State v. Arnold, No. A-1921-06T4 (App. Div. January 24, 2008) (slip op. at 2).]
After defendant ran off, Ogunbanjo alerted Officer Danny Johnson of the Newark Police Department, who was stopped at a red light on Chestnut Avenue. Once Ogunbanjo pointed out defendant running away, Officer Johnson followed him in his marked vehicle for about two blocks before catching up with him at Crawford and Washington Streets. Defendant then voluntarily returned with Officer Johnson to the intersection of Chestnut and Washington Streets, where Officer Johnson found Ogunbanjo at her aunt's store tending to the scratches that she sustained as a result of defendant grabbing her neck. Ogunbanjo told Officer Johnson what had taken place and later identified defendant. Officer Johnson searched defendant and found the earring inside his pocket.
On appeal, defendant argued that he was deprived of his state and federal constitutional rights when the trial court failed to charge theft from the person as a lesser-included offense of robbery, and instead charged theft of movable property. Also, defendant asserted on appeal that trial counsel should have argued against the imposition of a NERA sentence.
We rejected both arguments, finding as to the former that the jury had sufficient evidence to support the conclusion that defendant used force against the victim and that the jury was not precluded from finding defendant guilty of third-degree theft. Id. at 12. Furthermore, we held that the judge's findings with respect to sentencing were supported by the applicable sentencing guidelines. Id. at 13.
Subsequently, defendant filed a timely PCR petition, wherein he argued, among other things, that trial counsel failed to object to the theft of property charge and to the imposition of a NERA sentence. In his November 18, 2008 decision denying relief, the PCR judge concluded that defendant's petition was procedurally barred because it "asserts claims and raises issues which are 'identical or substantially equivalent' to those asserted in [defendant's] [direct] appeal. The Appellate Division dealt with the claims and affirmed the trial court's decision." Nevertheless, the PCR judge went on to reject defendant's arguments on the merits:
The [defendant's] first point that trial counsel failed to argue that theft from a person should have been charged as a lesser-included offense of robbery is without merit. The Appellate Division provided careful consideration of this issue and concluded that the jury based their decision on the facts presented during the trial that force was used by [defendant]. Further the Appellate Division noted that "[a]s to the charge itself, the trial judge recited a charge for theft of movable property, an appropriate lesser included offense to robbery." The Appellate Division further distinguished the Court's charge from the "cases where the trial judge neglects to provide a charge on a lesser included offense." Therefore, the jury had the opportunity to reject the State's proofs and find that [defendant] was guilty of theft rather than robbery. The jury, however, after two day trial where physical evidence was introduced and testimony was heard, found [defendant] guilty of second degree robbery.
The [defendant's] second argument that trial counsel should have argued against the No Early Release Act (NERA) is similarly without merit. According to N.J.S.A. 2C:43-7.2(a) "[a] court imposing a sentence of incarceration for a crime of the first or second degree enumerated in subsection d. of this section shall fix a minimum term of 85% of the sentence imposed, during which the defendant shall not be eligible for parole."
Subsection d. lists robbery as one of the enumerated offenses. Therefore, the Court accurately imposed NERA in sentencing the [defendant]. [Defendant] has failed to establish deficiency of trial counsel, the first prong under Strickland.
The PCR judge also rejected defendant's contention that appellate counsel was ineffective for failing to meet or consult with defendant and failing to argue sentencing issues on the appeal, reasoning:
In sum, [defendant] has failed to demonstrate by a preponderance of the evidence that had Appellate counsel raised the issues [defendant] now asserts, the result of the appeal would have been different. Prejudice must be proved and this, the [defendant] has failed to do. [State v. Fritz, 105 N.J. 42, 52 (1987)]. The record does not support or even give rise to a fair inference that counsel's performance was in any way inadequate or below a level of reasonable competence. The impact of [defendant's] claims of error could not have had a prejudicial impact on the appeal's outcome. Accordingly, this claim should be rejected.
Appellate counsel's failure to meet with his client or discuss the appeal with his client does not amount to counsel['s] performance being deficient. Additionally, [defendant] has been unable to show that the holding of the Appellate Division would have been different but for counsel's error. Accordingly, this claim should also be rejected.
On appeal, defendant raises the following issues:
POINT I: THE PCR COURT ERRED IN HOLDING THAT THE DEFENDANT'S ARGUMENTS WERE PROCEDURALLY BARRED UNDER R. 3:22-4(a) SINCE THEY WERE ALREADY RAISED ON DIRECT APPEAL.
POINT II: THE PCR COURT ERRED IN DENYING DEFENDANT'S PCR PETITION WHERE DEFENDANT ESTABLISHED A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF TRIAL AND APPELLATE COUNSEL.
A. Defendant's Trial Attorney
Rendered Ineffective Assistance of Counsel By Failing To Object To The Trial Court's Flawed Jury Instruction For The Lesser Included Offense Of Theft From A Person.
B. Defendant's Trial Attorney
Rendered Ineffective Assistance Of Counsel By Failing To Argue Against The Imposition Of the No Early Release Act At Sentencing.
C. Defendant's Appellate Counsel Rendered Ineffective Assistance By Failing To Argue That The Defendant's Sentence Violates Natale and Thomas.
D. Defendant's Appellate Counsel Rendered Ineffective Assistance By Failing To Communicate With The Defendant Regarding His Appeal.
POINT III: ALL ISSUES IN DEFENDANT'S PRO SE BRIEF, IF ANY, MUST BE CONSIDERED IN SUPPORT OF THE INSTANT APPEAL.
We have considered each of these issues in light of the record, the applicable law, and the arguments of counsel, and we are satisfied that none of them is of sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). Accordingly, we affirm substantially for the reasons stated by the PCR judge in his letter opinion of November 18, 2008. We add only the following comments.
Rule 3:22-5 precludes a defendant from raising issues that were properly adjudicated in prior proceedings. Here, defendant alleges that his trial counsel provided ineffective assistance based on grounds that have already been adjudicated. Yet, Rule 3:22-5's procedural bar may not be circumvented by "attiring [claims] in ineffective assistance of counsel clothing." State v. Moore, 273 N.J. Super. 118, 125 (App. Div.), certif. denied, 137 N.J. 311 (1994).
To be sure, the rule's procedural bar may be relaxed where the previously adjudicated issue raises constitutional concerns of "sufficient import." State v. Johns, 111 N.J. Super. 574, 576 (App. Div. 1970), certif. denied, 60 N.J. 467, cert. denied, 409 U.S. 1026, 93 S.Ct. 473, 34 L.Ed. 2d 319 (1972). But that is not the case here. As noted, the trial judge did not fail to charge a lesser included offense of robbery; indeed, he charged "theft of movable property," an appropriate lesser included offense, State v. Jordan, 240 N.J. Super. 115, 119 (App. Div.), certif. denied, 122 N.J. 328 (1990), and specified that the property in question "is an earring." Thus, the jury realized that the theft involved an earring that was necessarily on the victim's person because no evidence indicated that the earring was elsewhere. Accordingly, the jury was free to reject the State's proofs and find defendant guilty of theft rather than robbery.
Nor is there any merit - much less of constitutional dimension - to defendant's sentencing claim. NERA mandates imposition of the eighty-five percent parole disqualifier upon a robbery conviction. N.J.S.A. 2C:43-7.2d(9). Moreover, the sentencing reflects a proper balancing of both aggravating and mitigating factors, N.J.S.A. 2C:44-1a(3), (6), and (9), and on direct appeal we found defendant's sentence was "supported by the evidence... and followed the applicable sentencing guidelines." State v. Arnold, supra, slip op. at 13 (citing State v. Natale, 184 N.J. 458, 489 (2005)).
We also find no merit in defendant's final claim of ineffective assistance of appellate counsel. Suffice it to say, defendant has failed to allege any facts demonstrating that appellate counsel's alleged lapses had a prejudicial impact on the appeal's outcome. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984); Fritz, supra, 105 N.J. at 58.
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