July 14, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
KALEE COLEMAN A/K/A KHALEE COLEMAN A/K/A KHALEE COLEMAN MUHAMMAD, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 02-12-4396.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued March 2, 2010
Before Judges Fuentes, Gilroy and Simonelli.
Defendant Kalee Coleman*fn1 appeals from the December 18, 2008 written decision that denied his petition for post-conviction relief (PCR).*fn2 We affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.
On May 31, 2002, following a verbal confrontation with Jose Gonzalez, defendant struck Gonzalez in the face causing Gonzalez to fall backward and to strike his head on the street pavement. Gonzalez died four days later from the injuries suffered in the incident. On December 13, 2002, an Essex County Grand Jury charged defendant with second-degree manslaughter, N.J.S.A. 2C:11-4b. A jury found defendant guilty of the lesser-included offense of second-degree attempted aggravated assault, N.J.S.A. 2C:12-1b(1).
On November 7, 2003, the trial court granted the State's motion to sentence defendant to an extended term as a persistent offender, N.J.S.A. 2C:44-3a. The court sentenced defendant to a term of fifteen years of imprisonment with an 85% period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and to a three-year term of parole supervision upon release. Because the trial facts were discussed at length in our prior opinion, State v. Coleman, No. A-2392-03 (App. Div. December 21, 2004), it is unnecessary for us to detail the evidence against defendant for this crime.
On direct appeal, defendant argued that he was denied effective assistance of trial counsel when his attorney failed to call an expert witness to rebut the State's expert's opinion as to the cause of the victim's death, and that the court erred in providing the jury with instructions on the lesser-included offense of second-degree aggravated assault. In an unpublished opinion, we affirmed. Id. (slip op. at 5). On May 3, 2005, the Supreme Court denied defendant's petition for certification. 183 N.J. 586 (2005).
On July 7, 2005, defendant filed a pro se petition for PCR. On January 3, 2007, assigned counsel filed a brief in support of defendant's petition raising the following argument: 1) defendant was denied effective assistance of trial counsel by his attorney failing to: a) "object to the court's failure to charge fighting as a lesser[-]included offense"; b) "move for a mistrial and/or further voir dire of the jury due to juror taint"; c) "produce evidence of the asserted victim's intoxication"; d) investigate and interview witnesses; and e) communicate a plea bargain, or alternatively, the State violated due process by failing to offer a plea bargain. Counsel further argued: 2) defendant was denied effective assistance of appellate counsel because the attorney failed to raise as plain error trial counsel's failures, and withheld the transcripts and the State's reply brief from defendant denying him an opportunity to file a supplemental brief; 3) the court erred in instructing the jury on the necessary elements of attempted aggravated assault by not charging that to convict the jury was required to find defendant committed or failed to perform an act constituting a "substantial step" toward the crime charged; and 4) the court imposed an illegal sentence in violation of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed. 2d 435 (2000).
On December 18, 2008, the trial court issued a written decision denying defendant's petition for PCR without an evidentiary hearing. It is from this decision that defendant appeals.
On appeal, defendant argues:
PETITIONER WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL IN VIOLATION OF HIS CONSTITUTIONAL RIGHTS.
DEFENDANT'S TRIAL ATTORNEY FAILED TO RENDER EFFECTIVE ASSISTANCE OF COUNSEL IN THAT HE FAILED TO OBJECT TO THE OMISSION OF THE WORDS "SUBSTANTIAL STEP" IN THE JURY CHARGE.
DEFENDANT WAS DENIED HIS RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL DURING TRIAL WHEN COUNSEL FAILED TO INTRODUCE EVIDENCE THAT THE VICTIM, , WAS INTOXICATED WHICH SUPPORTED DEFENDANT'S CLAIM OF SELF-DEFENSE.
TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO OBJECT TO THE TRIAL COURT'S REFUSAL TO CHARGE FIGHTING AS A LESSER[-]INCLUDED OFFENSE AND THE COURT ERRED IN FAILING TO CHARGE THE JURY SUA SPONTE.
TRIAL COUNSEL WAS INEFFECTIVE FOR FAIILNG TO INVESTIGATE AND INTERVIEW A KEY WITNESS. POINT SIX.
TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE FOR FAIING TO MOVE FOR A MISTRIAL AND/OR REQUEST FURTHER VOIR DIRE OF THE JURY DUE TO JURY TAINT.
TRIAL COUNSEL FAILED TO REQUEST AND/OR COMMUNICATE A PLEA OFFER TO DEFENDANT.
APPELLATE COUNSEL WAS INEFFECTIVE FOR WITHHOLDING THE TRIAL TRANSCRIPTS AND BRIEF WHICH DENIED DEFENDANT AN OPPORTUNITY TO FILE A SUPPLEMENTAL BRIEF ON DIRECT APPEAL.
The decision whether to conduct an evidentiary hearing on a claim of ineffective assistance of counsel rests primarily on the trial court's determination of whether a defendant has made a prima facie showing of the claim. State v. Preciose, 129 N.J. 451, 462 (1992). Rule 3:22-1 does not require that an evidentiary hearing be granted in every PCR proceeding. Ibid. Where a "court perceives that holding an evidentiary hearing will not aid the court's analysis of whether the defendant is entitled to post-conviction relief, . . . or that the defendant's allegations are too vague, conclusory, or speculative to warrant an evidentiary hearing, . . . then an evidentiary hearing need not be granted." State v. Marshall, 148 N.J. 89, 158 (internal citations omitted), cert. denied, 522 U.S. 850, 118 S.Ct. 140, 139 L.Ed. 2d 88 (1997).
Claims of ineffective assistance of counsel are governed by the standards set forth in Strickland v. Washington.*fn3 See State v. Fritz, 105 N.J. 42, 58 (1987) (holding the precepts of Strickland have been adopted by New Jersey). For a defendant to establish a prima facie case of ineffective assistance of counsel under Strickland, the defendant must show that defense "counsel's performance was deficient," and that "there exists 'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Preciose, supra, 129 N.J. at 463-64 (quoting Strickland, supra, 466 U.S. at 694; 104 S.Ct. at 2068, 80 L.Ed. 2d at 698); see also State v. Allegro, 193 N.J. 352, 366 (2008).
"'The first prong of the [Strickland] test is satisfied by a showing that counsel's acts or omissions fell outside the wide range of professionally competent assistance considered in light of all the circumstances of the case.'" Allegro, supra, 193 N.J. at 366 (quoting State v. Castagna, 187 N.J. 293, 314 (2006)). To prove the second prong of Strickland, a defendant must prove that "'there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Id. at 367 (quoting Castagna, supra, 187 N.J. at 315). It is "an exacting standard: '[t]he error committed must be so serious as to undermine the court's confidence in the jury's verdict or the result reached.'" Ibid. (quoting Castagna, supra, 187 N.J. at 315).
We have considered defendant's arguments in light of the record and applicable law. We are satisfied that none of them, except for the arguments raised in Points II and VII, are of sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm on all issues, except those two points, substantially for the reasons expressed by the trial court in its written decision of December 18, 2008.
In Point II, defendant argues, as he did in the trial court, that he was denied effective assistance of counsel because his attorney failed to object to the court's omission of the words "substantial step" in its jury instruction on the lesser-included offense of attempted aggravated assault. We note that the trial court did not address the issue in its December 18, 2009 written decision. Generally, we would reverse and remand for the court to address the issue in the first instance. However, we are satisfied that the trial court's omission of the phrase "substantial step" in its instructions on criminal attempt does not require reversal.
Criminal attempt is defined in the New Jersey Code of Criminal Justice in relevant part as follows:
A person is guilty of an attempt to commit a crime if, acting with the kind of culpability otherwise required for commission of the crime, he:
(1) Purposely engages in conduct which would constitute the crime if the attendant circumstances were as a reasonable person would believe them to be;
(2) When causing a particular result is an element of the crime, does or omits to do anything with the purpose of causing such result without further conduct on his part; or
(3) Purposely does or omits to do anything which, under the circumstances as a reasonable person would believe them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.
The statute creates three separate categories of criminal attempt. State v. Smith, 262 N.J. Super. 487, 503 (App. Div.), certif. denied, 134 N.J. 476 (1993). The first category, subsection a(1), is "where the criminal act is complete but for the attendant circumstances which did not coincide with the actor's reasonable belief"; the second, subsection a(2), is "where the criminal act is very nearly complete and requires one more step either beyond the actor's control or not requiring his control for completion"; and the third, subsection a(3), is "where the actor has taken a substantial step toward commission of a crime." Cannel, New Jersey Criminal Code Annotated, comment 2 on N.J.S.A. 2C:5-1 (2006). Accordingly, a court must tailor the criminal attempt charge to the facts of the particular case.
Here, the court instructed the jury on the lesser-included offenses of second-degree aggravated assault, N.J.S.A. 2C:12-1b(1) and third-degree aggravated assault, N.J.S.A. 2C:12-1b(7). In so doing, the court also charged criminal attempt on both offenses. N.J.S.A. 2C:5-1a. In charging criminal attempt, the court instructed the jury that it could find criminal attempt under subsection (2) of the statute. We find no error in the court's instruction. Defendant punched Gonzalez in the face, causing him to fall back and strike his head on the street pavement. After striking the victim, defendant's participation in the assault was complete, regardless of whether it is characterized as an attempt to cause serious or significant bodily injury. No further action on his part was required. Not only was the trial court not obligated to charge criminal attempt under subsection (3) of the criminal attempt statute, but it would have been inappropriate to do so.
In Point VII, defendant argues that he was denied effective assistance of trial counsel by his attorney failing to request a plea offer from the State. Alternatively, defendant contends that although there were plea negotiations between his attorney and the prosecutor, his attorney never informed him of any plea offers made by the prosecutor. The State counters that defendant failed to present any credible evidence that a plea offer had been extended to his counsel by the prosecutor. Because the matter was never subjected to an evidentiary hearing, "we must view [defendant's] assertions in the light most favorable to him, and appraise them against the State's contrary arguments." State v. Powell, 294 N.J. Super. 557, 564 (App. Div. 1996).
Plea bargaining is a critical stage of the proceedings at which the right of effective assistance of counsel attaches. Padilla v. Kentucky, 559 U.S. ___, 130 S.Ct. ___, 176 L.Ed. 2d 284, 298 (2010); State v. Taccetta, 351 N.J. Super. 196, 200 (App. Div.), certif. denied, 174 N.J. 544 (2002). An attorney's failure to communicate a plea offer to his or her client satisfies the first prong of Strickland. Powell, supra, 294 N.J. Super. at 565. The second prong can be satisfied by examining "'the difference between the proposed sentence, the offer of which was allegedly not conveyed to [the] defendant, and the sentence actually imposed by the trial judge.'" Ibid. (quoting U.S. v. Barber, 808 F. Supp. 361, 378 (D.N.J. 1992), aff'd. 998 F.2d 1005 (3d Cir. 1993))
Here, in addressing this issue, the trial court found that defense counsel had not requested a plea agreement from the prosecutor, and even if the attorney had, there was no obligation on the prosecutor to offer one. The court concluded that "counsel cannot be considered ineffective for not requesting a plea bargain which is not required to be given to a defendant nor did the prosecutor violate due process by failing to offer defendant a plea bargain."
We agree with the trial court that although a defendant may request a plea agreement from the prosecutor, there is no obligation on the prosecutor to offer one. State v. Rosario, 391 N.J. Super. 1, 8 (App. Div. 2007). However, while the State is correct that defendant failed to proffer any evidence that a plea agreement had not been communicated to him by his counsel, whether such a plea offer was actually made by the prosecutor to defense counsel is unclear.
The trial court found that no offer had been extended by the prosecutor. That finding is clouded by the State's PCR brief where the State asserted: "The defendant next argues that a plea offer was never extended. This is completely untrue.
There were significant plea negotiations that took place prior to trial." From these statements, it is unclear whether a plea offer had been extended or whether the attorneys merely engaged in negotiations for a potential agreement.
The issue of whether a plea offer had been extended by the prosecutor but not communicated to defendant by his attorney needs to be fleshed out by an evidentiary hearing with both defense counsel and the prosecutor testifying on the issue. Absent that fact-finding hearing, a fair determination cannot be made on the merits of the claim. Accordingly, we reverse that part of the decision denying PCR based on the argument that defendant was denied ineffective assistance of trial counsel by his attorney failing to communicate a plea offer to him and remand for an evidentiary hearing on that limited issue.
Affirmed in part, reversed in part and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.