July 19, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
GRACELIA MALCOLM, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 03-10-2002.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: May 12, 2010
Before Judges Cuff, C.L. Miniman and Fasciale.
Defendant Gracelia Malcolm appeals from the denial of her petition for post-conviction relief (PCR). Following conviction of resisting arrest and aggravated assault, defendant was sentenced to concurrent three-year probationary terms conditioned on sixty days in the county jail. We affirmed defendant's conviction on direct appeal. State v. Malcolm, No. A-6981-03 (App. Div. Apr. 21, 2006), certif. denied, 187 N.J. 82 (2006).
On appeal, defendant raises the following arguments:
POINT ITHE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE MATTER REMANDED FOR A NEW HEARING BEFORE A DIFFERENT JUDGE BECAUSE TO CHARGE PCR COUNSEL WITH THE RESPONSIBILITY OF ADVANCING ALL POST-CONVICTION RELIEF CLAIMS, AND THEN HAVE PCR COUNSEL SUBJECTED TO THE COURT'S DERISION, INSULT, AND ACCUSATION, SIMPLY FOR DOING HIS JOB, DEPRIVED THE DEFENDANT OF THE TYPE OF HEARING GUARANTEED BY R. 3:22.
THE COURT VIOLATED THE "LETTER AND THE SPIRIT" OF R. 3:22-6 AND POST-CONVICTION RELIEF CRITERIA ARTICULATED IN STATE V. RUE, 175 N.J. 1 (2002).
THE COURT MALIGNED PCR COUNSEL AND ACCUSED PCR COUNSEL OF MISREPRESENTATION AND FALSEHOOD.
THE COURT IMPROPERLY PLACED PCR COUNSEL IN THE POSITION OF HAVING TO ASSESS THE MERITS OF HIS CLIENT'S PETITION.
THE COURT DENIGRATED PCR COUNSEL AND THE DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF.
POINT II THE COURT ERRED IN DENYING POST-CONVICTION RELIEF WITHOUT CONDUCTING A FULL EVIDENTIARY HEARING BECAUSE TRIAL COUNSEL'S INADEQUATE PRETRIAL PREPARATION AND INVESTIGATION SATISFIED BOTH PRONGS OF THE STRICKLAND/FRITZ TEST FOR INEFFECTIVE ASSISTANCE OF COUNSEL.
THE DEFENDANT SATISFIED THE FIRST PRONG OF THE STRICKLAND/FRITZ TEST.
THE DEFENDANT SATISFIED THE SECOND PRONG OF THE STRICKLAND/FRITZ TEST.
POINT III THE COURT'S RULING DENYING POST-CONVICTION RELIEF VIOLATED THE DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, PAR. 10, OF THE NEW JERSEY CONSTITUTION.
POINT IV-DEFENDANT REASSERTS ALL OTHER ISSUES RAISED IN DEFENDANT'S PRO SE PETITION FOR POST-CONVICTION RELIEF AND IN PCR COUNSEL'S BRIEF IN SUPPORT OF POST-CONVICTION RELIEF.
In her PCR petition, defendant argues that defense counsel was ineffective because he did not obtain and examine all medical records and a post-arrest photo of his client. Defendant contends that the medical records raise questions whether the physical confrontation between defendant and the officer occurred as related by the officer or whether defendant acted in self-defense. The State responds that the claim raised on PCR is irrelevant and of no consequence to the conviction because defendant was acquitted of aggravated assault of a police officer.
In State v. Rue, 175 N.J. 1 (2002), the Court addressed the interaction of RPC 3.1, which bars an attorney from advancing frivolous claims, and the obligation of PCR counsel to advance any and all claims and grounds insisted on by a defendant even if counsel believes them to be baseless. The Court framed PCR counsel's obligation as follows:
In some cases, the record will give PCR counsel a wealth of grist for his or her mill, in some cases, not. At the very least, where communication and investigation have yielded little or nothing, counsel must advance the claims the client desires to forward in a petition and brief and make the best available arguments in support of them. Thereafter, as in any case in which a brief is filed, counsel may choose to stand on it at the hearing, and is not required to further engage in expository argument. In no event however, is counsel empowered to denigrate or dismiss the client's claims, to negatively evaluate them, or to render aid and support to the state's opposition.
[Id. at 19.]
The Court also addressed the judge's response to a PCR petition that seems without merit. The Court directed:
It goes without saying that a trial court should never put PCR counsel in the position of having to assess the merits of his client's petition. In the first place, that is the trial court's job. In the second, it may precipitate a violation of the letter and spirit of Rule 3:22-6.
Four years later, in State v. Webster, 187 N.J. 254 (2006), the Court clarified PCR counsel's obligation to present claims advanced by the defendant. The Court directed PCR counsel that 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.]
Admittedly, defendant may have difficulty establishing either prong of the Strickland*fn1 /Fritz*fn2 standard. Our review of the record, however, raises concerns that the judge failed to recognize the obligation imposed on PCR counsel by Rue and Webster.*fn3 The tone of the April 25, 2008 argument is troublesome. The interaction between PCR counsel and the judge was contentious and overly argumentative. At times, the judge was openly dismissive of PCR counsel's attempt to advance legal arguments on behalf of his client. The State argues that the PCR hearing was simply the culmination of a series of frivolous motions filed by defendant's PCR attorney and emphasizes that the judge may ask probing and difficult questions.
To the extent that the State suggests that PCR counsel "got under the skin" of the judge, our response is simple. Counsel frequently annoy or irritate a judge and other counsel. At all times, however, the judge must maintain control and never allow the parties to conclude that one or the other did not receive a full and fair hearing of their claims.
Here, PCR counsel was assigned to advance defendant's claims. The trial record revealed that defendant was given to emotionally volatile behavior; the PCR record suggests that such behavior persists. The record before this court clearly suggests that the judge did not approach the claims advanced by PCR counsel in the spirit expected of Rue and Webster. We, therefore, reverse and remand for a new hearing, which shall be conducted by a different judge.
Reversed and remanded for further proceedings consistent with this opinion.