July 21, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
CHARLES MEEKINS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 98-01-0068.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: May 19, 2010
Before Judges C.L. Miniman and Fasciale.
Defendant Charles Meekins appeals from the denial of his petition for post-conviction relief (PCR). The PCR judge granted the petition in part and dismissed it in part. We reverse and remand for an evidentiary hearing and for resentencing.
Following a jury trial, defendant was convicted of second-degree burglary, N.J.S.A. 2C:18-2 (Count One); first-degree robbery, N.J.S.A. 2C:15-1 (Count Two); fourth-degree theft by unlawful taking as a lesser included offense, N.J.S.A. 2C:20-3a (Count Three); third-degree aggravated assault as a lesser included offense, N.J.S.A. 2C:12-1b(1) (Count Four); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d (Count Five); and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d (Count Six)
After merging Counts One, Three and Four into Count Two, and Count Six into Count Five, the trial judge sentenced defendant to an extended term of life in prison with a twenty-five-year parole ineligibility term. We affirmed his conviction and sentence, but we did not address the issue of whether a pre-amendment No Early Release Act (NERA)*fn1 sentence may be imposed on the extended term or only on the ordinary term because the issue was not briefed. State v. Meekins, No. A-5429-99 (App. Div. May 8, 2002) (slip op. at 5-6). The Supreme Court summarily remanded the matter to us for a decision on the merits. State v. Meekins, 174 N.J. 542 (2002) (Meekins I). We affirmed the trial judge's application of pre-amendment NERA to defendant's extended term sentence. State v. Meekins, No. A-5429-99 (App. Div. July 29, 2002). The Supreme Court held that the parole ineligibility term should have been applied to the ordinary term. State v. Meekins, 180 N.J. 321, 328 (2004) (Meekins II). Therefore, the Court reversed the sentence and remanded to the Law Division for resentencing. Ibid. On July 11, 2008, the trial court resentenced defendant to life in prison subject to a parole ineligibility term of twenty years.
The evidence at trial established that on September 21, 1997, the Nalbone family returned to their home from a picnic to observe defendant walking down their driveway carrying their CD player and a CD carrying case. Mr. Nalbone exited his car and shouted at defendant, but defendant continued walking away. Nalbone gave chase and tackled defendant. During the struggle, defendant stabbed Nalbone in the neck and arm with a screwdriver. Nalbone yelled to his wife to call the police while he restrained defendant. The police arrived, arrested defendant, and discovered evidence of a break-in at the Nalbone home.
Defendant denied the charges, testifying at trial that he found the items near a garbage can on someone else's property. He explained that he walked through the Nalbone property as a shortcut to his sister's home. He further claimed that it was Nalbone who produced a screwdriver and began stabbing him, not the other way around.
In his petition, defendant contended that counsel was ineffective: (1) in advising him to testify on his own behalf; (2) by failing to investigate a potential alibi witness; (3) in failing to object to the prosecutor's comments during summation; (4) by failing to discuss trial strategy with defendant; (5) by failing to ask the judge to instruct the jury on a claim-of-right charge; and (6) due to trial and appellate counsel's failure to argue a violation of NERA during sentencing.
As to the first ground, defendant claimed that his counsel gave him improper advice about testifying. He argued that he was not fully advised of his right to remain silent, and had this been done, he would have thought twice about testifying because his prior convictions were admitted to impeach his credibility.
As to the second ground, defendant claimed that that his counsel failed to investigate an alibi witness, Theresa Ford, who died before trial. Specifically, he contended that had this been done, a statement would have been obtained and possibly admitted at trial. Since no statement was obtained, defendant argued that he was deprived of that opportunity.
As to the third ground, defendant claimed that counsel failed to object to improper comments made by the assistant prosecutor in closing. In commenting on defendant's version of events, the assistant prosecutor said "[t]hat's ridiculous. It's absurd. It's the most ridiculous story I've ever heard in my life. It's incredible. It's not to be believed. It's [a] concoction to save him from going back to jail, because he doesn't want to go back to jail." The prosecutor later said,
"[t]he defense would have you believe that this is a self defense case. To believe this is self defense, you would have to believe that the defendant had no idea that that was the Nalbones' property, that he happened upon it, and unfortunately for him, was cutting through their yard when they happened to come home. The State thinks that's incredible. How can that possibly be?"
Specifically, defendant claimed that it was improper for the assistant prosecutor to give her personal opinion about defendant's credibility.
As to the fourth ground, defendant claimed that counsel did not meet with him to discuss trial strategy and that he was dissatisfied with counsel.
As to the fifth ground, defendant claimed that counsel failed to request a claim-of-right charge. He asserted that the jury was not told that the State bore the burden of proving that he did not act pursuant to a claim of right. He argued that counsel refused to ask for the charge.
As to the sixth ground, defendant argued that he was not sentenced to the correct period of parole ineligibility. He contended that both trial and appellate counsel were ineffective by overlooking that the parole ineligibility period applied only to the maximum ordinary portion of his sentence.
Oral argument on defendant's PCR petition was conducted on June 1, 2007. On August 18, 2008, the PCR judge issued his written opinion and order denying the petition. The judge rejected the first five grounds on which defendant relied to support his claim of ineffective assistance of counsel and resentenced defendant to twenty years of parole ineligibility.
As to the first ground, the PCR judge found during oral argument that defendant knew about the consequences of testifying because the court advised him twice. In his written opinion, the judge said:
The right to decide whether a defendant will testify is defendant's alone. In this case, defendant was advised by the court of his option to testify or remain silent and the consequences thereof. He was given an opportunity to confer with his attorney, which allowed him to make an informed decision prior to testifying. There is no suggestion that his attorney unduly influenced him to testify or pressured him in any way. If his attorney did suggest that testifying would strategically be the best course, his attorney's actions do not rise to the level of ineffective assistance of counsel.
Defendant's claim fails the prejudice prong of the Strickland [v. Washington, 466 U.S. 668, 685, 104 S.Ct. 2052, 2063, 80 L.Ed. 2d 674, 692 (1984),] test. Defendant was found with the victim's property outside the victim's house. If he did not take the stand to attempt to explain his actions, it is likely that he would have been convicted. Therefore, it cannot be said that the outcome would have been different if he had not testified.
As to the second ground, the PCR judge found at oral argument that Ford, the purported alibi witness, was not with defendant when he cut through the Nalbones' property. In his written opinion, the judge said:
Defendant, when testifying[,] did not mention Theresa Ford as an alibi witness. He did not testify that he was with her at the time of the robbery and assault of Mr. Nalbone. Defendant did not claim that Ms. Ford was at the Nalbones' [home]. He simply stated that he was on his way to pick her up at an Acme when he was in the vicinity of the Nalbones' residence.
Defense counsel informed the court there would be no witnesses other than the defendant, so it is clear that she had not been told about Ms. Ford prior to defendant taking the stand. If defendant was aware that Ms. Ford had information pertinent to his case, he would have so informed counsel. An attorney cannot be faulted for failing to investigate an alibi of which she has no knowledge.
Even if defense counsel had secured Ms. Ford's statement it would not have affected the outcome of the proceedings. By defendant's own admission, Ms. Ford was not present when he picked up the items that did not belong to him. She also was not present when defendant says Mr. Nalbone attacked him. Since she would not have been an eyewitness to defendant's version of events, it is unlikely that her testimony or statement would have changed the outcome of the proceedings. Finally, the issue appears academic - Ms. Ford died before commencement of the trial.
As to the third ground, in his written opinion, the PCR judge found that that:
While it was improper for the prosecutor to give his personal opinion of [defendant's] credibility, his comments were not so egregious as to deprive [defendant] of a fair trial. The prosecutor's comments were a small part of his closing statement in which he also gave a detailed summation of the evidence against [defendant]. Even if trial counsel was ineffective for failing to object to the prosecutor's remarks, it is not likely that his comments had any prejudicial effect.
As to the fourth ground, at oral argument the judge found that "I've looked at the transcript, and it did refresh my thinking about the case, and just a number of aspects of it suggest strongly to me that there was communication between [defense counsel] in trial preparation with [defendant]." For instance, defense counsel made copies of fingerprint documents available to defendant, and when defense counsel represented to the court that there were no other witnesses, defendant did not object implying that they discussed the case. In his written opinion, the PCR judge found that defendant took a statement made by defense counsel out of context. Specifically, defense counsel stated,
"Your [H]onor, I've spoken to my client.... [J]ust to clarify the record, there's a discussion of a Clawans charge regarding a possible witness[,] Theresa Ford. In talking it over now with my client - and this is my first opportunity to really speak to my client - he indicates that Ms. Ford is deceased...."
The judge found that defendant took this statement out of context and that defense counsel was "referring only to her ability to speak with her client regarding the issue raised during his testimony, not to her ability to speak with him about the trial as a whole."
As to the fifth ground regarding the claim-of-right charge, in his written opinion, the judge said:
A charge was given regarding the credibility of witnesses and the jury did hear [defendant's] explanation for why he was in possession of the Nalbones' property. If they believed [defendant's] version of events and found them credible, as they were instructed, they could have found him not guilty.
As to the sixth ground, the PCR judge accepted defendant's argument that trial and appellate counsel were ineffective for failing to argue that pre-amendment NERA did not apply to an extended term sentence. He resentenced defendant to an extended life term on his first-degree robbery conviction with a period of twenty years of parole ineligibility and entered an amended judgment of conviction. This appeal followed.
Defendant makes the following arguments on appeal:
DEFENDANT ESTABLISHED AT LEAST A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF COUNSEL THAT WARRANTED AN EVIDENTIARY HEARING BELOW.
A. Counsel failed to sufficiently investigate witnesses and obtain evidence that might have impeached the State's charges.
B. Counsel failed to meet with defendant sufficiently and discuss the charges and possible defenses to them, resulting in part in counsel's improper advice to defendant that he should testify in his own defense trial.
C. Counsel failed to object to improper and prejudicial statements that the prosecutor made at trial.
D. Trial counsel should have requested a claim of right charge or clarification to the jury regarding the version of events supported by defendant's proffered evidence.
E. At the very least, the court below erred in rejecting defendant's ineffective assistance claim without an evidentiary hearing.
REMAND FOR RECALCULATION OF DEFENDANT'S SENTENCE IS WARRANTED.
In a pro se supplemental brief, defendant makes the following arguments, which we have renumbered to run consecutively to the points in the counseled brief:
DEFENDANT WAS DENIED HIS STATE AND FEDERAL CONSTITUTIONAL RIGHTS UNDER THE SIXTH AND FOURTEENTH AMENDMENTS OF THE FEDERAL CONSTITUTION, AND UNDER ARTICLE 1, PARAGRAPH 10, OF THE NEW JERSEY CONSTITUTION, AND HIS RIGHT TO TRIAL BY JURY BASED UPON FACTS NEITHER ADMITTED BY THE DEFENDANT NOR FOUND BY A JURY BEYOND A REASONABLE DOUBT.
DEFENDANT WAS DENIED HIS STATE AND FEDERAL CONSTITUTIONAL RIGHTS UNDER THE SIXTH AND FOURTEENTH AMENDMENTS OF THE FEDERAL CONSTITUTION AND UNDER ARTICLE 1, PARAGRAPH 9, OF THE NEW JERSEY CONSTITUTION AT SENTENCING.
Pursuant to the Sixth Amendment of the United States Constitution, every criminal defendant is guaranteed the assistance of counsel. Strickland, supra, 466 U.S. at 685, 104 S.Ct. at 2063, 80 L.Ed. 2d at 692. Whether "retained or appointed," counsel must "ensure that the trial is fair"; therefore, "'the right to counsel is the right to the effective assistance of counsel.'" Id. at 685-86, 104 S.Ct. at 2062-63, 80 L.Ed. 2d at 692 (quoting McMann v. Richardson, 397 U.S. 759, 771 n.14, 90 S.Ct. 1441, 1449 n.14, 25 L.Ed. 2d 763, 773 n.14 (1970)). The New Jersey Constitution affords the same right to counsel. N.J. Const. art. I, § 10; State v. Fritz, 105 N.J. 42, 58 (1987).
In order to establish a prima facie case of ineffective assistance of counsel, defendant must demonstrate a reasonable likelihood of success under the two-pronged test established by Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693; State v. Goodwin, 173 N.J. 583, 596 (2002). First, defendant must show that defense counsel's performance was deficient. Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693. Second, defendant must demonstrate that there exists "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698. The precepts of Strickland and its tests have been adopted in New Jersey. Fritz, supra, 105 N.J. at 58.
There is a strong presumption that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Strickland, supra, 466 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed. 2d at 694. Further, because prejudice is not presumed, Fritz, supra, 105 N.J. at 61, defendant must demonstrate how specific errors of counsel undermined the reliability of the proceeding, United States v. Cronic, 466 U.S. 648, 659 n.26, 104 S.Ct. 2039, 2047 n.26, 80 L.Ed. 2d 657, 668 n.26 (1984).
An evidentiary hearing is required only when the facts viewed in the light most favorable to defendant would entitle a defendant to PCR. State v. Marshall, 148 N.J. 89, 158, cert. denied, 522 U.S. 850, 118 S.Ct. 140, 139 L.Ed. 2d 88 (1997). Our Supreme Court has noted that there is a "pragmatic dimension" to this inquiry. Ibid. It stated:
If the 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. [Ibid. (citations omitted).]
We reject defendant's arguments in Point I-A and B, namely, that counsel was ineffective in advising him to testify on his own behalf, counsel was ineffective by failing to investigate a potential alibi witness, and counsel was ineffective by failing to discuss trial strategy with defendant. Defendant knew about the consequences of testifying because the court advised him twice. By defendant's own trial admission, Ms. Ford did not witness defendant's version of events, and the record reflects that there were discussions between defendant and counsel about trial preparation. As such, defendant's arguments "are without sufficient merit to warrant [further] discussion in a written opinion...." R. 2:11-3(e)(1)(E).
We now turn to Point I-C, defendant's argument that trial counsel was ineffective for failing to object to statements made by the assistant prosecutor in summation. In commenting on defendant's version of events, the assistant prosecutor said "[t]hat's ridiculous. It's absurd. It's the most ridiculous story I've ever heard in my life. It's incredible. It's not to be believed. It's [a] concoction to save him from going back to jail, because he doesn't want to go back to jail." Defendant argues that these comments were improper. This issue could and should have been raised on direct appeal as plain error. R. 3:22-4. PCR is not a substitute for appeal from a conviction. R. 3:22-3. However, since the right to effective assistance of counsel is a fundamental constitutional right, we will consider whether counsel's failure to object during summation amounted to ineffective assistance of counsel. R. 3:22-4(c).
We agree with the PCR judge that the prosecutor's comments were improper. Prosecutors are expected to present their cases vigorously and forcefully. State v. Frost, 158 N.J. 76, 82 (1999) (citing State v. Harris, 141 N.J. 525, 559 (1995)). Nevertheless, "the primary duty of a prosecutor is not to obtain convictions, but to see that justice is done." Id. at 83 (quoting State v. Ramseur, 106 N.J. 123, 320 (1987)). An objection should have been made. Thus, defendant has satisfied the first prong of Strickland by establishing a prima facie claim that his trial counsel was ineffective.
In order to satisfy the second prong of Strickland, defendant relies on three cases to support his argument that he was denied a fair trial to his prejudice because his counsel failed to object to the assistant prosecutor's comments. In Frost, supra, 158 N.J. at 81, the assistant prosecutor suggested that police officers would not lie because of the "magnitude of the charges that could be brought" against them. He accused defense counsel of "lawyer talk" and of hoping that one or more of the jurors "got a ticket last week and... got a bad taste in [his or her] mouth towards officers." Ibid. "Our courts have consistently held that such statements by a prosecutor about a police officer's credibility are wholly inappropriate." Id. at 85. Additionally, the assistant prosecutor made inaccurate factual and legal assertions during the trial. Id. at 84-85. We remanded for a new trial.
In State v. Acker, 265 N.J. Super. 351, 356-57 (App. Div.), certif. denied, 134 N.J. 485 (1993), the assistant prosecutor characterized the defense attorney and the defense as "absolutely preposterous and absolutely outrageous" and then argued that "it was the function of the jury to protect young victims of alleged sexual offenses as a group." We held that "[w]arnings to a jury about not doing its job is considered to be among the most egregious forms of prosecutorial misconduct." Ibid. (citing State v. Knight, 63 N.J. 187, 193 (1973)). We also remanded for a new trial.
In State v. Sherman, 230 N.J. Super. 10, 16-18 (App. Div. 1988), the assistant prosecutor criticized the defense attorneys for defending clients who they knew were guilty; commented on defendant's failure to testify; suggested that the defendant committed the offense because he needed money; and accused the defense lawyers of throwing "stumbling blocks" in front of the jury. The assistant prosecutor "accused defendant of conspiring with his counsel to conceal and distort the truth." Id. at 19. Once again, we remanded for a new trial.
Unlike Frost, Acker, and Sherman, the assistant prosecutor here did not comment on a police officer's credibility, tell the jury it was their job to protect young victims of sexual abuse, or criticize the defense attorneys for representing their clients. Here, we do not find a reasonable probability that the result of the proceeding would have been different. As the PCR judge noted, "The prosecutor's comments were a small part of his closing statement in which he also gave a detailed summation of the evidence against [defendant]." We are satisfied that defendant has not proven the second prong of Strickland.
We now turn to Point I-D, defendant's argument that his counsel failed to request a claim-of-right charge. The PCR judge found that the jury charge on credibility was adequate and that defendant was not prejudiced by counsel's failure. We disagree.
A claim of right is an affirmative defense to theft. N.J.S.A. 2C:20-2c provides that:
It is an affirmative defense to prosecution for theft that the actor:
(1) Was unaware that the property or service was that of another;
(2) Acted under an honest claim of right to the property or service involved or that he had a right to acquire or dispose of it as he did; or
(3) Took property exposed for sale, intending to purchase and pay for it promptly, or reasonably believing that the owner, if present, would have consented.
The burden of proof is on the State to prove beyond a reasonable doubt that defendant did not honestly believe that he had a right to the property or was authorized to "acquire or dispose of it as he did." See State v. Galiyano, 178 N.J. Super. 393, 397 (App. Div.) (N.J.S.A. 2C:1-13b(1) makes it clear that "the State must disprove an affirmative defense"), certif. denied, 87 N.J. 424 (1981). The charge should only be given when there is some evidence that would support it. N.J.S.A. 2C:1-13b(1).
Here, defendant asserted that he stumbled upon the property laying on the ground when he was cutting through the victim's property. He picked up the items and began walking away when he was attacked by the victim. These facts support defendant's request for a claim-of-right charge on the theft offense.
Defendant argues that he asked his counsel to request a claim-of-right charge but was refused. Such a charge would have alerted the jury that the State bore the burden of proving beyond a reasonable doubt that defendant did not act pursuant to a claim of right. The charge on credibility, standing alone, certainly did not inform the jury of this burden of proof.
We are satisfied that the failure to request such a charge when the evidence supported it, and where the charge shifted the burden of proof to the State, establishes a prima facie case of ineffective assistance of counsel. Further, the charge had a clear capacity to bring about a different result. As a consequence, defendant has made out a prima facie case under both prongs of Strickland. As defendant argues, an evidentiary hearing to explore why defense counsel did not request a claim-of-right charge is required on remand. At that time, defense counsel may explain why he did not request such a charge. The court will then decide whether defendant is entitled to a new trial.
In Point II defendant argues that the judge did not properly apply the rule announced by the Court in Meekins II. The issue presented is whether the parole ineligibility period is legal. As such, it is properly addressed in a PCR petition.
The PCR judge accepted defendant's argument that trial and appellate counsel were ineffective for failing to argue that pre-amendment NERA did not apply to an extended term sentence. He resentenced defendant to an extended life term on his first-degree robbery conviction with a period of twenty years of parole ineligibility. As modified, defendant is serving a life sentence with a twenty-year parole ineligibility term. However, the Supreme Court held "that when applying pre-amendment NERA to an extended term sentence, the trial court shall limit defendant's parole ineligibility period to [eighty-five percent] of the maximum ordinary term sentence." Meekins II, supra, 180 N.J. at 322. Defendant argues correctly that the ordinary maximum term is twenty years and eighty-five percent of twenty years is seventeen and one-half years. Therefore, a second amended judgment of conviction must be entered to reflect a parole ineligibility term of seventeen and one-half years.
Reversed and remanded. We do not retain jurisdiction.