December 23, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
LESTER DENMON, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment Nos. 91-10-1034 and 95-09-1155.
Argued: December 1, 2010 - Decided: Before Judges Cuff and Fasciale.
Appellant filed pro se supplemental briefs.
Defendant appeals from the denial of his petition for post-conviction
relief (PCR) on two indictments. In I-91-10-0134, defendant argues
that his trial counsel was ineffective because
he (1) ignored his desire to testify; (2) failed to call exculpatory
witnesses to testify; (3) failed to request a Cromedy*fn1
charge; and (4) requested lesser included offenses
unnecessarily. He also argues that his right to a speedy trial was
violated, and raises a violation of the Interstate Agreement on
Detainers (IAD)*fn2 . In I-95-09-1155, defendant
contends that his trial counsel failed to consult with him prior to
trial. We affirm.
Defendant's first indictment (I-91-10-0134) involved a robbery of a victim while she parked her car. She turned the engine off, defendant approached the passenger side of the car, and stated "open the door or I'll smash it." The victim complied, defendant grabbed her handbag, and threatened her. She observed him leave in an "old red, beat-up car."
She reported the robbery to the police and described defendant as a black male, in his early twenties, about 5'10", with short hair, a red shirt, shorts and white sneakers. Police then stopped defendant in a red car and the victim identified him as the robber. The victim's belongings were found in defendant's car. Defendant did not testify at trial.
The jury convicted defendant of various offenses, including robbery, burglary and theft. The judge sentenced defendant to an aggregate nine years in state prison. In an unreported opinion, we affirmed the burglary and theft convictions, but reversed the robbery conviction. State v. Denmon, No. A-5898-91 (App. Div. June 24, 1994). On retrial, a jury found defendant guilty of robbery, and the judge sentenced him to ten years in state prison with four years of parole ineligibility. We affirmed the conviction, State v. Denmon, No. A-7420-97 (App. Div. December 6, 2000), and the Supreme Court denied certification. 168 N.J. 295 (2001).
Defendant's second indictment (I-95-09-1155) involved credit card theft from two victims and related offenses. Both victims stated they never authorized defendant to use their credit cards. Defendant did not testify at trial.
The jury convicted defendant of various offenses, including fraudulent use of a credit card, credit card theft, attempted theft by deception, and hindering apprehension. The judge sentenced defendant to an aggregate six and one-half years in state prison with two years of parole ineligibility. In an unreported opinion we affirmed the conviction for hindering apprehension, but reversed the other convictions. State v. Denmon, No. A-4306-98 (App. Div. December 18, 2000). The Supreme Court denied certification. 168 N.J. 295 (2001).
Defendant then filed two petitions for PCR.*fn3 In separate lengthy written opinions dated October 27, 2009, the PCR judge concluded that defendant failed to establish a prima facie case of ineffective assistance of counsel and denied both petitions without conducting an evidentiary hearing. On September 3, 2009 defendant filed an appeal from the denial of his petitions. On September 24, 2009, we temporarily remanded the matter for the PCR judge to address defendant's speedy trial and IAD arguments. On April 7, 2010, the PCR judge issued a supplemental written opinion rejecting the speedy trial and IAD arguments.
On appeal, defendant raises the following points:
THESE MATTERS MUST BE REMANDED FOR EVIDENTIARY HEARINGS BECAUSE DEFENDANT ESTABLISHED PRIMA FACIE CASES OF TRIAL COUNSELS' INEFFECTIVENESS
A. Indictment No. S-1034-91
1. Trial Counsel Induced Defendant Not To Testify
2. Trial Counsel Failed To Call Exculpatory Witnesses
3. Trial Counsel Failed To Request A Cross-Racial Identification Charge
B. Indictment No. S-1155-95: Trial Counsel Failed To Consult With Defendant Prior To Trial
INDICTMENT NO. S-1034-91 MUST BE REMANDED FOR THE PCR COURT TO STATE ITS FINDINGS OF FACT AND CONCLUSIONS OF LAW AS TO DEFENDANT'S SPEEDY TRIAL AND INTERSTATE AGREEMENT ON DETAINERS CLAIMS (Not Raised Below)
In a pro se eleven-page supplemental letter brief without point headings dated April 26, 2010, defendant addressed his speedy trial and IAD arguments. In a pro se supplemental brief dated September 13, 2010, defendant makes the following arguments, which we have renumbered to run consecutively to the points in the counseled brief:
PRO SE PLEADINGS SHOULD BE LIBERALLY CONSTRUED POINT IV
PCR COUNSEL, CRAIG LEEDS, ESQ. FAILED TO PREPARE AND EXERCISE NORMAL CUSTOMARY SKILLS IN HIS PREPARATION OF THIS PCR, FAILED TO INVESTIGATE CLAIMS OF APPELLANT-PETITIONER DENMON AND FAILED TO IDENTIFY ISSUES IN THIS PCR, LEEDS ALSO FAILED TO ADVANCE ANY OF APPELLANT-PETITIONER'S PRO SE ARGUMENTS.
Pursuant to the Sixth Amendment of the United States Constitution, every criminal defendant is guaranteed assistance of counsel. Strickland v. Washington, 466 U.S. 668, 684-85, 104 S. Ct. 2052, 2063, 80 L. Ed. 2d 674, 691-92 (1984). "[W]hether 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 case of ineffective assistance of counsel, defendant must demonstrate a reasonable likelihood of success under the two-pronged test established by Strickland. "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, explaining:
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).]
A PCR is not a substitute for appeal of a conviction, Rule 3:22-3, and any available ground for relief not made in a prior proceeding is barred if it could have been raised earlier. Rule 3:22-4.
We begin by addressing defendant's arguments in the robbery case that his trial counsel was ineffective because he (1) ignored his desire to testify; (2) failed to call exculpatory witnesses to testify; (3) failed to request a Cromedy charge; and (4) requested lesser included offenses unnecessarily.
We find no merit in defendant's argument that his trial counsel ignored his request to testify. After the State rested, the trial judge read to defendant the election not to testify charge "so [defendant] has it fresh in his mind when he discusses [whether to testify] with you." Defense counsel then represented that defendant did not want to testify. Defendant stated to the judge that his attorney explained that he had the right to testify or remain silent, he had enough time to talk to his counsel, and that he was satisfied with his counsel's services. Defendant declared to the judge that he would not testify. Defendant produced no evidence that while the second trial was pending he requested to testify and his counsel ignored him. Thus, defendant failed to establish the first prong of Strickland.
Next, defendant argued that his trial counsel failed to produce exculpatory witnesses to testify.*fn4 He contended that counsel did not interview a nurse, two Sheriff's Officers, an employee of the jail, and a detective who allegedly prepared a photographic array. According to defendant, these potential witnesses might have "bolstered [his] misidentification" defense. On this record, however, defendant's arguments are without merit. "[W]hen a petitioner claims his trial attorney inadequately investigated his case, he must assert the facts that an investigation would have revealed, supported by affidavits or certifications based upon the personal knowledge of the affiant or the person making the certification." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Here, because defendant has not provided any corroborative certifications, he has failed to establish a prima facie claim of ineffective assistance of counsel.*fn5
We reject defendant's argument that his trial counsel was ineffective because he failed to request a Cromedy charge and requested lesser included offenses unnecessarily. The second robbery case was tried in 1998; Cromedy was decided in 1999 and is not retroactive. The trial judge had an independent duty to review the record and instruct the jury on all applicable charges. State v. Garron, 177 N.J. 147, 180 (2003), cert. denied, 540 U.S. 1160, 124 S. Ct. 1169, 157 L. Ed. 2d 1204 (2004). This record supported the lesser included offense of receiving stolen property because the victim's belongings were found in defendant's car.
In the hindering apprehension case, defendant contends that his trial counsel failed to consult with him prior to trial. Defendant did not present any competent evidence on which to evaluate this argument, and he has not demonstrated that he was prejudiced by any alleged lack of consultation. Thus, defendant has not established a prima facie case of ineffective assistance of counsel.
Finally, we see no merit to defendant's speedy trial and IAD arguments. When analyzing whether a defendant has been afforded a speedy trial we consider the "[l]ength of [the] delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant." Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 2192, 33 L. Ed. 2d 101, 117 (1972). Defendant contributed to the delay of the second robbery trial. While he was released on bail, defendant was unavailable because he committed another crime in New York and was incarcerated in Riker's Island. Defendant also challenged the trial judge's ruling that the robbery victim was unavailable. The PCR judge stated that "the defense's delay in procuring an expert and scheduling an examination . . . served as a major impediment to progress." Finally, defendant failed to file a written request to be brought to New Jersey on the robbery charge.
We have carefully reviewed the record and the arguments presented by counsel and conclude that the remaining issues presented by defendant are without merit. R. 2:11-3(e)(2).