January 24, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
KWESI HUDSON, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Gloucester County, Indictment No. 98-03-0219.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 4, 2011
Before Judges Parrillo and Yannotti.
Defendant Kwesi Hudson appeals from a Law Division order denying his petition for post-conviction relief (PCR). We affirm.
Tried by a jury, defendant was found guilty on five counts of first-degree robbery, N.J.S.A. 2C:15-1a(2); one count of third-degree possession of a weapon, a knife, for an unlawful purpose, N.J.S.A. 2C:39-4d; and one count of fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d.*fn1 We recount the facts underlying this criminal episode as stated in our unpublished opinion affirming defendant's convictions:
Around midnight on December 15, 1997, two eyewitnesses saw two black men outside a Blockbuster Video store in Woodbury. One of them observed the men alight from a car and change into dark clothing. The other saw them standing outside the store, peeking in through a window and ducking down. He also saw one of them "put his hoodie on . . . ." After the men then ran into the store, the first witness called the police and the second witness ran to a police officer who was in a nearby parking lot and said the store was being robbed.
Jason Croce, a Blockbuster employee, who was cleaning windows in the store's vestibule, saw the men, who were wearing ski masks, approach the door. One of the men pointed a gun at him, ordered him to back up, and struck him in the face when he did not move fast enough. Croce, after being kicked a couple of times by the man with the gun, entered the store, and the men followed.
The man with the gun ordered Croce, April Foster, Gabrielle Dariano, John Strouse and Jason Monzo to get on the floor and screamed at them, demanding their wallets. The other man approached Laura Delacour, who was attending to the cash register. He pointed a large knife at her and demanded that she open the cash register. When she said she could not comply, he told her to lay next to the other victims. All of this activity was recorded on the store's videotape and still photography equipment.
Two police officers, who had reported to the scene, watched as the men fled the store still wearing their ski masks. The men discarded items as they ran with the police in pursuit. The police found a purse and a wallet belonging to the victims, a 9mm handgun, and a knife with an eight-inch blade.
Both men were captured after short chases. The knife was found near defendant. A search of defendant's apartment revealed a "Faberware" ultra-edge knife set with one knife missing. The knife found near defendant was of the same make and "fit in the slot" of the missing knife. Also found in the apartment was a receipt for the purchase of the 9mm handgun, listing defendant as the purchaser.
At trial, defendant testified, admitting that he participated in the robbery, that he was the man with the knife, and that his co-defendant was the man with the gun, a gun that he admitted giving to the co-defendant for the purpose of the robbery. He said that he did not expect that they were going to rob the patrons. Rather, he believed the targets were the cash register, which he was to take care of by dealing with the attendant, and the back of the store, where they hoped to find more money, which was to be handled by his co-defendant.
[State v. Hudson, No. A-6506-01 (App. Div. Feb. 26, 2004) (slip op. at 2-4), certif. denied, 180 N.J. 357 (2004).]
For each of the robbery convictions, defendant received a concurrent sentence of imprisonment for twenty years, with seventeen years to be served without parole pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. For the third- degree weapons offense, which was subsequently merged with the fourth-degree weapons offense, he received a concurrent sentence of five years with eighty-five percent to be served without parole pursuant to NERA. On appeal, we affirmed the convictions but remanded for merger of the sentence on the weapons offense. State v. Hudson, supra, slip op. at 7. We also found to be without merit defendant's argument that the trial judge committed reversible error by failing to direct the jury to determine, beyond a reasonable doubt, whether defendant was guilty of a "violent crime," as then defined by NERA. Id. at 5-6. On May 21, 2004, the Supreme Court denied defendant's petition for certification. State v. Hudson, 180 N.J. 357 (2004).
Defendant filed a PCR petition on March 23, 2007, contending that NERA's application to his twenty-year sentence for robbery was illegal because the jury did not make a finding that defendant committed a "violent crime," as defined by NERA. Defendant also argued ineffective assistance of counsel, violation of the constitutional prohibition against ex post facto laws, violation of his right to a speedy trial, and due process deprivation due to the jury's inability to evaluate the evidence because of the cold temperature in the courtroom. The PCR judge denied the petition, concluding:
First, . . . the jury's ability to evaluate the evidence. I am not persuaded that the trial judge's single statement of a less than optimal courtroom climate is evidence that the defendant's constitutional rights were violated. I do not believe that this statement leads to a finding that the jury was unable to weigh the evidence due to the temperature. . . . I note that there was no evidence presented to this Court that defense counsel objected to the continuation of the trial or requested that it be reconvened on a day with more favorable weather. . . . I do not find that Mr. Hudson is entitled to relief on this ground.
Next, . . . whether the defendant received an illegal sentence because the Court and not a jury determined beyond a reasonable doubt whether the defendant was guilty of a violent crime as defined by NERA. . . .
In its review of [defendant's] appeal, the Appellate Division wrote that in regards to this point, and I quote, "In the context of this case, it is nonetheless without merit" pointing to State versus Johnson 166 N.J. 523 at 546, a 2001 case, overruled by State versus Stanton 176 N.J. 75 at 90, a 2003 case, quoting, "To the extent that Johnson can be read in any way to suggest that jury trials are required on sentence enhancement factors when there is no constitutional doubt." In Johnson, the Court wrote that, "Not withstanding [sic] the fact that the trial court failed to specifically instruct the jury to find the NERA violent crimes predicate, we affirm Johnson's sentence because the facts adduced at trial establish that the jury made that finding beyond a reasonable doubt." Johnson at 166 N.J. at 546.
. . . This Court finds that this argument is barred by Rule 3:22-5, and that no grounds exist to merit relaxation of this bar.
Next, . . . whether defendant . . . was denied his right to the prohibition against the application of ex post facto laws and received an illegal sentence as the Court imposed a sentence pursuant to NERA for possession of weapon, for unlawful purpose, and the Court not the jury found aggravating factors present when imposing the sentence.
This argument is essentially a repackaging of defendant's point 2 and will be denied on the same grounds, namely that it has previously been adjudicated and that it is a legal sentence as the evidence at trial established that the defendant pointed a knife at the victim, Ms. DeLacour, rather than merely possessing a weapon. However, for the sake of completeness, I will address petitioner's ex post facto argument. Here, the defense argues that State versus Parolin 171 N.J. 223, a 2002 case, which found that NERA can apply to an unlawful possession of a weapon where the defendant pointed the weapon at the victim and admitted to using it to threaten the victim, should not apply to [defendant's] case because . . . it was decided after he committed the crime. . . .
. . . Here, I do not find that applying Parolin to the defendant's case is an ex post facto clause violation. . . . Parolin simply interpreted the language of the NERA statute existing at the time the defendant committed these crimes and applied it to the offense the defendant was convicted of. It did not expand or enlarge the statute in any way that was unexpected and indefensible by reference to law as it was before the defendant committed these acts. Therefore, this Court is persuaded that this argument is barred by Rule 3:22-5, and that no grounds exist to merit relaxation of the bar.
Court next looked at . . . defendant's right to a speedy trial. . . .
. . . In reviewing the history of this case, the Court notes that prior to trial, defense requested eight postponements. . . .
. . . All of these factors, defense postponement requests, the motions, and the change of counsel all explain a good part of the delay.
Additionally, I find it very significant that the defendant was facing 29 counts in a 39-count indictment. This also explains part of the delay. The journey from arrest to trial for an individual facing numerous charges is a more complex route than that for someone facing an ordinary street crime. . . .
The defendant never asserted his right to a speedy trial prior to this post-conviction relief. . . .
I find it significant . . . that petitioner and his counsel have not asserted any specific pre-judicial impact the delay had on the defense other than to emphasize the length of delay. In considering and balancing the aforementioned factors, I find that the defendant was not denied his constitutional right to a speedy trial. . . .
I next looked at . . . the Court's consideration of aggravating factor 1 during sentencing. One of the arguments the defendant raised to the Appellate Division was that . . . "The trial Court abused its discretion and committed reversible error when it sentenced the defendant to 20 years on each of the robbery convictions because the Court improperly evaluated the aggravating and mitigating factors." The Appellate Division concluded that this point was without sufficient merit to warrant discussion in a written opinion. . . . It's quite clear that under Rule 3:22-5, the Appellate Division determination on the merits of this argument was and is conclusive. Thus, this argument is barred by Rule 3:22-5, and I find that no grounds exist to merit the relaxation of the bar.
. . . Petitioner also argued that because the sentence was above the presumptive term, it is invalid under Blakely versus Washington, [542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004)]. The 20-year sentence petitioner received for first-degree robbery was within the statutory term of ten to 20 years as found in N.J.S.A. 2C:43-6 which contains the permissible sentencing ranges for the various degrees of crimes.
. . . Here, I find that the absence of the presumptive term in the weighing process would not require a different result. Thus petitioner's sentence is in compliance with Blakely and Natale.
Petitioner's other [pro se] arguments assert that he had the ineffective assistance of counsel at trial as well as upon appeal. He lists numerous factors which he sees as defects in the representation of his case. Among the alleged defects of his counsel, [defendant] argues that his attorney failed to investigate three witnesses; that counsel only came to see petitioner five or six times over three and a half years, so he failed to adequately prepare for trial; that counsel failed to object to the jury instructions on the charges of robbery of Laura DeLacour and Jason Crosce [sic] when nothing was taken from these victims; not requesting a jury instruction on the photo array; that counsel failed to file a motion for a new trial in light of State v. Johnson; and that his trial attorney failed to file a motion for a speedy trial.
Defendant asserts he was denied the effective assistance of Appellate counsel for counsel's failure to raise that trial counsel was ineffective for not filing a speedy trial motion, and his attorney's failure to raise the issue of double-counting aggravating factor 1.
In the instant case, I do not find that petitioner has established a prima facie claim of ineffective assistance of counsel as he does not have a reasonable likelihood of succeeding on his claim. I did not see a reasonable probability that but for counsel's alleged unprofessional errors that the result of the proceeding would have been different. Furthermore, I do not find that the proceeding was fundamentally unfair or unreliable. Even viewing factors in the light most favorable to [defendant], the evidence in this case was overwhelming. None of the actions or inactions of [defendant's] counsel, as identified by [defendant], would have changed the results of the proceedings, nor was the proceeding made unfair or unreliable.
On appeal, defendant reiterates the same arguments
I. THE PCR COURT SHOULD HAVE HELD THAT DEFENDANT WAS DENIED HIS RIGHT TO A FAIR TRIAL AND DUE PROCESS OF LAW WHEN THE TRIAL COURT IMPOSED AN 85% PAROLE DISQUALIFICATION PERIOD PURSUANT TO THE NO EARLY RELEASE ACT (NERA) WITHOUT A DETERMINATION BY THE JURY THAT DEFENDANT HAD COMMITTED A "VIOLENT CRIME" AS DEFINED BY THE ACT.
II. THE PCR COURT SHOULD HAVE HELD THAT DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL.
III. THE PCR COURT SHOULD HAVE HELD THAT THE TRIAL COURT'S IMPOSITION OF AN 85% PAROLE DISQUALIFICATION PERIOD PURSUANT TO NERA VIOLATED THE CONSTITUTION'S PROHIBITION AGAINST EX POST FACTO LAWS.
IV. THE PCR COURT SHOULD HAVE HELD THAT DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO A SPEEDY TRIAL.
V. THE PCR COURT SHOULD HAVE HELD THAT DEFENDANT WAS DENIED HIS RIGHT TO A FAIR TRIAL AND DUE PROCESS OF LAW AS THE RESULT OF THE OPPRESSIVE CONDITIONS WITHIN THE COURTROOM THAT IMPAIRED THE JURY'S ABILITY TO FAIRLY EVALUATE THE EVIDENCE AT TRIAL.
VI. THE PCR COURT SHOULD HAVE HELD THAT THE CUMULATIVE GROUNDS FOR POST-CONVICTION RELIEF IDENTIFIED BY DEFENDANT WARRANTED THAT HIS CONVICTION AND SENTENCE BE VACATED AND A NEW TRIAL ORDERED.
We have considered each of these issues in light of the record, the applicable law, and the arguments of counsel, and we are satisfied that none of them is of sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). Accordingly, we affirm substantially for the reasons stated by Judge Becker in his comprehensive and thoughtful oral opinion of July 7, 2008. We add only the following comments. Aside from being procedurally barred, Rule 3:22-5, defendant's argument that NERA should not be applied to his sentence because the jury did not make a finding that he had committed a "violent crime" as defined under the statutory version then in effect in 1997 also lacks substantive merit.
NERA, at the time defendant committed the robbery in December 1997, read in relevant part:
a. A court imposing a sentence of incarceration for a crime of the first or second degree shall fix a minimum term of 85% of the sentence during which the defendant shall not be eligible for parole if the crime is a violent crime as defined in subsection d. of this section.
d. For the purposes of this section, "violent crime" means any crime in which the actor causes death, causes serious bodily injury as defined in subsection b. of N.J.S. 2C:11-1, or uses or threatens the immediate use of a deadly weapon. "Violent crime" also includes any aggravated sexual assault or sexual assault in which the actor uses, or threatens the immediate use of, physical force.
For the purposes of this section, "deadly weapon" means any firearm or other weapon, device, instrument, material or substance, whether animate or inanimate, which in the manner it is used or is intended to be used, is known to be capable of producing death or serious bodily injury.
[N.J.S.A. 2C:43-7.2 (1997) (amended 2001) (emphasis added).]
On the other hand, a person is guilty of first-degree robbery "if in the course of committing the theft the actor attempts to kill anyone, or purposely inflicts or attempts to inflict serious bodily injury, or is armed with, or uses or threatens the immediate use of a deadly weapon." N.J.S.A. 2C:15-1b (emphasis added). Thus, a person could be found guilty of first degree robbery if armed with a weapon, yet not be subject to NERA if the person did not threaten to use that weapon. N.J.S.A. 2C:43-7.2 (1997) (amended 2001). In State v. Johnson, 166 N.J. 523, 528-29 (2001), the defendant was convicted of first-degree robbery after robbing the victim at the point of a BB gun, which looked like a real pistol, after she left a check cashing outfit. At sentencing the State asked for NERA to apply as the defendant's conduct constituted a violent crime since he aimed the BB gun at her, threatening her. Id. at 529. The Court construed NERA to require that the "violent crime" condition must be submitted to the jury and found beyond a reasonable doubt. Id. at 543. However, the Court was also satisfied that even though the jury did not specifically determine that the defendant committed a "violent crime," the jury must have found that the defendant threatened the victim with the gun, because the victim was the only testifying witness to the robbery and her uncontradicted testimony was that the defendant aimed the gun at her. Id. at 546.
Likewise, here, Delacour testified that defendant threatened her with a knife and the four other victims testified that co-defendant Grayson threatened them with a gun. There was also video evidence of these threats presented to the jury. As in Johnson, supra, these undisputed proofs indicate that the jury could only have determined that defendant was guilty of first-degree robbery by threatening the use of a deadly weapon in commission of the five robberies.
Additionally, an accomplice to first-degree robbery is subject to NERA just as the principal. State v. Walton, 368 N.J. Super. 298, 310 (App. Div. 2004); State v. Rumblin, 326 N.J. Super. 296, 302 (App. Div. 1999), aff'd, 166 N.J. 550 (2001). Thus, defendant is subject to NERA for his convictions as to the robberies of Monzo, Dariano, Foster, Strouse, and Croce, and for co-defendant Grayson's actions. The proofs clearly demonstrate that Grayson demanded their money at gunpoint, thus threatening to use a weapon. Obviously, the jury could not have found that Grayson committed those robberies without finding that he threatened the four victims with a deadly weapon.
Defendant largely relies on State v. Williams, 168 N.J. 287 (2001), which is inapposite. There, the Supreme Court summarily reversed a trial court finding that the "violent crime" predicate of NERA was met. Id. at 287. The defendant was convicted of possession of a weapon for an unlawful purpose. State v. Williams, 333 N.J. Super. 356, 357 (App. Div. 2000), rev'd, 168 N.J. 287 (2001). We affirmed the application of NERA to his sentence because the defendant had "brandished the gun on a public street and fired it in the direction of others contemporaneous with a verbal threat to kill[,]" placing pedestrians and bystanders, including a small child, in danger. Id. at 361. As noted, the Supreme Court summarily reversed this determination, citing Johnson, and remanded to the trial court for resentencing without reference to NERA. Williams, supra, 168 N.J. at 287.
Williams, however, is distinguishable from both the present matter and Johnson. In Williams, the defendant was convicted of a weapons offense alone and not a robbery charge. Thus, the jury never had to make a predicate finding other than that the defendant possessed a weapon, unlike the juries in the present case and in Johnson, who had to determine beyond a reasonable doubt that the respective defendants had committed all of the elements of first-degree robbery. Here, specifically, in order to convict defendant of first-degree robbery, the jury had to find that defendant either threatened to use the knife or was armed with, but did not brandish, the weapon during the robbery, the latter alternative being plainly unsupported by the evidence. Thus, as the jury here was not specifically instructed to find the NERA violent crime predicate, we conclude, as did the PCR judge, that the facts adduced at trial establish that the jury made that finding beyond a reasonable doubt.