June 29, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
CECIL FEARON, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 93-10-1684.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: June 9, 2010
Before Judges Axelrad and Sapp-Peterson.
Defendant Cecil Fearon appeals from the May 13, 2008 order of the Law Division denying his second petition for post-conviction relief (PCR) and sentence reconsideration, arguing his arrest was the result of racial profiling and alleging ineffective assistance of trial and appellate counsel and numerous errors by the trial court denied him the right to a fair trial. We affirm.
The record reveals that a jury, following trial in absentia, convicted defendant in l994 of possession of more than a pound of cocaine, N.J.S.A. 2C:35-10a(l), and possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5a(l). The court merged the simple possession charge with the charge of possession with intent to distribute. After the State successfully moved for an extended term pursuant to N.J.S.A. 2C:43-6f, the court sentenced defendant to a term of fifty years imprisonment, one-third to be served without parole eligibility, consecutive to a sentence he was then serving in Alabama. Defendant appealed his conviction and sentence, challenging the denial of his pretrial suppression motion, asserted error in the trial judge's instructions to the jury respecting accomplice liability, and argued that imposition of the presumptive fifty-year term was excessive in view of his age and the fact he was already serving a mandatory sentence in Alabama. We affirmed defendant's conviction and sentence, but because we were satisfied under the circumstances the New Jersey sentence should have run concurrent with the Alabama sentence, we directed modification of the judgment of conviction to so provide. State v. Fearon, No. A-2198-98T4 (App. Div. Feb. 18, 2000). On July 17, 2000, the Supreme Court denied defendant's petition for certification. 165 N.J. 491 (2000).
Defendant next filed a PCR petition asserting ineffective assistance of counsel on the contentions that trial counsel refused to permit him to testify at the suppression hearing and failed to request an adjournment when defendant did not appear in court on the trial date with the consequences that the charges were tried in absentia. Defendant further argued post-conviction counsel was ineffective in failing to produce evidence of defendant's alleged abduction, which prevented his appearance at trial, and in failing to provide an affidavit that would have detailed the testimony defendant would have given had he testified at the suppression hearing. We rejected those arguments. For the first time on appeal of his PCR petition, defendant alleged he was the victim of racial profiling and post-conviction counsel was deficient in not raising the issue; we declined to consider the issue, commenting that it had not been raised before the PCR judge and we were "given neither proof nor the suggestion of the existence of proof of this claim." State v. Fearon, No. A-6199-00T4 (App. Div. Oct. 31, 2002). On March 28, 2003, the Supreme Court denied certification. 176 N.J. 73 (2003).
In March 2005, defendant filed a motion to correct what he alleged was an illegal sentence, asserting a challenge to his presumptive sentence under Blakely v. Washington, 542 U.S. 296, l24 S.Ct. 2531, l59 L.Ed. 2d 403 (2004), and State v. Natale, 184 N.J. 458 (2005). The State filed a response. On February 15, 2008, defendant filed a second PCR petition, asserting generally that newly discovered evidence of racial profiling during his traffic stop required a new trial and his sentence was illegal. He also raised a litany of ineffective assistance of counsel claims. Defendant contended trial counsel was ineffective in failing to: (1) challenge the search based on racial profiling and Fourth Amendment grounds; (2) file necessary motions, including motions to dismiss the indictment and to sever the trial from that of co-defendant; (3) properly investigate and prepare his case for trial; (4) cross-examine the State's witnesses aggressively and present evidence to impeach their credibility; (5) call available defense witnesses (not specifically identified); and (6) discuss possible trial strategies with him. Defendant contended appellate counsel was ineffective in failing to: (1) adequately examine the allegedly inconsistent trial testimony of the State's witnesses; (2) properly articulate the constitutional grounds for the issues raised on appeal; and (3) raise all relevant issues on appeal.
Defendant also challenged as inadequate the trial judge's instruction to the jury as to how to evaluate the testimony of the police officers.
The petition was denied by Judge William Meehan in its entirety, with defendant present and represented by counsel, but without an evidentiary hearing, following oral argument on April 25, 2008. The judge found defendant's sentence was within the proper range allowed at the time and was thus not illegal. Moreover, the judge found defendant was procedurally barred from challenging his sentence under Rule 3:22-5, because defendant had raised an excessive sentence challenge on direct appeal, which we rejected and affirmed in all respects save for the modification for it to run concurrent with, rather than consecutive to, the Alabama sentence he was serving. The judge also rejected defendant's constitutional challenge to his presumptive sentence as not within the "pipeline," Natale, supra, 184 N.J. at 494, and not appropriate by way of PCR, State v. Rountree, 388 N.J. Super. 190, 201-06 (App. Div. 2006), certif. denied, 192 N.J. 66 (2007). The judge further rejected defendant's racial profiling claim as nothing more than a bald allegation. An order memorializing the court's ruling was filed on May l3, 2008. This appeal ensued.
On appeal, defendant argues:
THE COURT ERRED IN DENYING THE DEFENDANT'S MOTION FOR SENTENCING RECONSIDERATION.
THE COURT ERRED IN DENYING THE DEFENDANT'S MOTION FOR VACATING THE CONVICTION BASED ON RACIAL PROFILING OF THE MOTOR VEHICLE STOP.
THE DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL FOR NOT OBJECTING TO THE HYPOTHETICAL PRESENTED TO THE STATE'S DRUG DISTRIBUTION EXPERT AND FOR APPELLATE COUNSEL'S NOT RAISING THAT POINT AS PLAIN ERROR UNDER R. 2:10-2 (Not raised below).
In a supplemental brief defendant argues:
THE DEFENDANT'S (sic) SHOULD BE GRANTED A REMAND AND ORDERED TO COMPEL DISCOVERY OF DEFENDANT'S BRIEFCASE WITH EXCULPATORY EVIDENCE WITHHELD BY DEA SPECIAL AGENT BRIAN COLLIER AND BERGEN COUNTY PROSECUTOR'S (sic) AFFORD DEFENDANT'S (sic) THE RIGHT TO PRESENT A COLORABLE CLAIM OF RACIAL PROFILING BY THE FORT LEE POLICE.
THE SUPPRESSION OF IMPEACHMENT-EVIDENCE DURING THE SUPPRESSION HEARING AND TRIAL DENIED THE DEFENDANT OF HIS DUE PROCESS RIGHTS TO A FAIR AND IMPARTIAL TRIAL FOR FAILURE OF THE PROSECUTION TO TURN OVER EXCULPATORY EVIDENCE TO DEFENSE COUNSEL IN VIOLATION OF THE UNITED STATES CONSTITUTION.
THE DEFENDANT'S (sic) WAS DENIED HIS SIXTH AMENDMENT CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF TRIAL COUNSEL GUARANTEED BY THE UNITED STATES CONSTITUTION AND ARTICLE 1, P[a]r. 10, OF THE NEW JERSEY CONSTITUTION THEREFORE HIS CONVICTION SHOULD BE REVERSED.
THE DEFENDANT'S (sic) WAS DENIED HIS SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL GUARANTEED BY THE CONSTITUTION OF THE UNITED STATES AND ARTICLE 1, Par. 10, OF THE NEW JERSEY CONSTITUTION. A NEW TRIAL IS USUALLY THE APPROPRIATE REMEDY FOR A BRADY VIOLATION CRIMINAL LAW AND PROCEDURE APPEALS PROSECUTORIAL MISCONDUCT USE OF FALSE TESTIMONY USED TO CONVICT DEFENDANT'S (sic) WAS FALSE.
We affirm substantially for the reasons articulated by the PCR judge and discern no reason to discuss defendant's meritless arguments further in a written opinion. R. 2:11-3(e)(2). Defendant is either procedurally barred from asserting the challenges as they could have been raised on direct appeal, R. 3:22-4, or were previously raised in slightly different words and rejected, R. 3:22-5. Additionally, defendant asserts new grounds on appeal as the basis for relief than were raised in his petition. We do not entertain issues raised for the first time on appeal. State v. Robinson, 200 N.J. 1, 20 (2009).
We are also satisfied from our review of the record that as to the issues raised to the trial court, defendant failed to make a prima facie showing of ineffective assistance of counsel or of any trial error justifying post-conviction relief. Defendant cannot meet the two-prong Strickland/Fritz test of demonstrating both that counsel's performance was seriously deficient and that the defect in performance prejudiced his right to a fair trial. Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S.Ct. 2052, 2064, 2068, 80 L.Ed. 2d 674, 693, 698 (1984); State v. Fritz, 105 N.J. 42, 58 (1987) (applying the Strickland test in New Jersey). As such, an evidentiary hearing is not warranted. See State v. Preciose, 129 N.J. 451, 462-63 (1992) (To establish a prima facie claim of ineffective assistance of counsel within the Strickland/Fritz test warranting an evidentiary hearing, a defendant must demonstrate that his or her claim will ultimately succeed on the merits.).
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