December 3, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
BENJAMIN PULLINS, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 01-08-3290 and 07-09-3598.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 9, 2010 - Decided
Before Judges Carchman and Graves.
Defendant Benjamin Pullins*fn1 appeals from an order dated November 8, 2007, denying his petition for post-conviction relief (PCR). We affirm.
A jury convicted defendant of second-degree burglary, third-degree theft, and a disorderly persons offense of simple assault as a lesser-included offense of aggravated assault. On September 16, 2002, the trial court sentenced defendant to a sixteen-year extended term as a persistent offender, with an eight-year period of parole ineligibility for second-degree burglary. Concurrent sentences were imposed for the other offenses.
On his direct appeal, defendant raised three points:
DEFENDANT WAS DEPRIVED OF HIS CONSTITUTIONAL RIGHT TO A FAIR TRIAL WHEN THE COURT FAILED TO QUESTION A JUROR WHO HAD ABSENTED HERSELF FROM THE JURY BOX, WITHOUT PERMISSION OR EXPLANATION, WHILE A WITNESS WAS ON THE STAND (Not Raised Below).
DEFENDANT'S TRIAL WAS IRREPARABLY TAINTED BY THE COURT'S MISTAKEN REFERENCE DURING VOIR DIRE TO THE OFFENSE OF ROBBERY RATHER THAN BURGLARY.
THE AGGREGATE SENTENCE IMPOSED OF [SIXTEEN] YEARS WITH AN [EIGHT]-YEAR PAROLE BAR WAS MANIFESTLY EXCESSIVE IN LIGHT OF ALL OF THE APPLICABLE CIRCUMSTANCES.
We affirmed defendant's convictions and his sentence in an unreported opinion, State v. Pullins, No. A-1538-02T4 (Apr. 7, 2004), and the Supreme Court denied defendant's petition for certification. 181 N.J. 545 (2004).
In 2004, defendant filed a petition for PCR alleging that his right to a fair trial was violated "due to both trial and appellate counsel[s'] failures." Following an evidentiary hearing on May 23, 2007, and August 15, 2007, the court rendered an oral decision on October 29, 2007, denying defendant's petition. An order was entered on November 8, 2007, memorializing the court's decision. Defendant filed a notice of appeal on June 17, 2008, and on February 23, 2009, this court entered an order remanding the matter for a reconstruction hearing, which took place on August 5, 2009. At the reconstruction hearing, it was confirmed that there were transcripts of the evidentiary hearing, and the court reconstructed the proceedings of October 29, 2007, when it denied defendant's petition.
Defendant claimed in his PCR brief that his trial attorney was ineffective for conceding he had committed the burglary.
However, defendant was apprehended on the victims' property immediately after the burglary with the victims' coins in his pocket, and defense counsel testified that defendant had agreed to the strategy in an effort to avoid being found guilty of the aggravated assault charge.
Defendant also testified at the PCR hearing. According to defendant, he was surprised and upset when defense counsel conceded his guilt on the burglary charge because they had never discussed the matter.
The PCR court found that defense counsel's testimony was credible and that defendant's "version of the events [was] not credible." The court's findings included the following:
[T]here was no concession of burglary in the opening. There was a concession after the jury had heard all of the testimony from the State['s] witnesses which established in this Court's mind overwhelming evidence as to the charge of burglary and that I accepted testimony that it was only after being confronted with all that evidence that the concession was made in the summation.
With respect to [defense counsel's] testimony, I also found credible and believable that the focus was on the aggravated assault charge and seeking an acquittal with respect to that charge. The theory being as articulated [by defense counsel] that if the defendant through his counsel were to deny the burglary it would be an insult to the jury's sensibilities and that there would be an enhanced chance that the defendant would be convicted on the aggravated assault. I accepted her testimony. I found it to be credible, that the defendant had agreed to the strategy as a means of fighting the aggravated assault charge through conceding the burglary for which there was overwhelming proof. I also noted that there were no [c]complaints by the defendant at the time of the sentencing with respect to these issues.
Because the evidence of the burglary was "overwhelming," the court determined that any deficiency by defense counsel would not have changed the outcome.
On appeal from the denial of his petition, defendant presents the following arguments:
THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE DEFENDANT'S CONVICTIONS VACATED BECAUSE TRIAL COUNSEL'S DECLARATION OF GUILT AND FAILURE TO REQUEST A SELF-DEFENSE JURY INSTRUCTION RESULTED IN A DEFICIENT PERFORMANCE AND THE ENSUING PREJUDICE TO THE DEFENDANT SATISFIED BOTH PRONGS OF THE STRICKLAND/FRITZ TEST FOR INEFFECTIVE ASSISTANCE OF COUNSEL.
THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE DEFENDANT'S CONVICTIONS VACATED BECAUSE APPELLATE COUNSEL'S FAILURE TO ARGUE ON APPEAL THAT TRIAL COUNSEL WAS INEFFECTIVE FOR CONCEDING THE DEFENDANT'S GUILT IN SUMMATION AND FOR FAILING TO REQUEST A JURY INSTRUCTION ON SELF DEFENSE RESULTED IN A DEFICIENT APPEAL AND THE ENSUING PREJUDICE TO THE DEFENDANT SATISFIED BOTH PRONGS OF THE STRICKLAND/FRITZ TEST FOR INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL.
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 ART I, ¶ 10, OF THE NEW JERSEY CONSTITUTION.
DEFENDANT REASSERTS ALL OTHER ISSUES RAISED IN POST-CONVICTION RELIEF.
Based on our examination of the record and the applicable law, we conclude that these arguments are without sufficient merit to warrant extended discussion. R. 2:11-3(e)(2). We therefore affirm with only the following comments.
The scope of our review is limited. "Appellate courts should defer to trial courts' credibility findings that are often influenced by matters such as observations of the character and demeanor of witnesses and common human experience that are not transmitted by the record." State v. Locurto, 157 N.J. 463, 474 (1999); see also State v. Elders, 192 N.J. 224, 244 (2007) ("An appellate court 'should give deference to those findings of the trial judge which are substantially influenced by his opportunity to hear and see the witnesses and to have the "feel" of the case, which a reviewing court cannot enjoy.'") (quoting State v. Johnson, 42 N.J. 146, 161 (1964)).
We conclude from our independent review of the record that the PCR court's findings and conclusions are adequately supported by sufficient credible evidence. Moreover, the court correctly applied the governing legal principles set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); United States v. Cronic, 466 U.S. 648, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984); and State v. Fritz, 105 N.J. 42 (1987). We therefore affirm the order denying defendant's PCR petition substantially for the reasons stated by Judge Thomas McCormack at the reconstruction hearing on August 5, 2009.