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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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. ...