January 31, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MAURICE FLOWERS, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 03-02-0273.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 10, 2010
Before Judges Gilroy and Ashrafi.
Defendant Maurice Flowers appeals from an order dated November 5, 2008, denying his petition for post conviction relief (PCR). A jury convicted defendant, and he was sentenced by the court, for striking a fellow drug dealer in the eye and blinding him over a five-dollar dispute.
The Law Division correctly rejected defendant's claim that he received ineffective assistance of counsel. Nevertheless, we remand to the Law Division to determine whether defendant was resentenced in accordance with the Supreme Court's order of September 6, 2006.
In February 2003, defendant was indicted by a Mercer County grand jury on charges of first-degree robbery, N.J.S.A. 2C:15-1 (count one), third-degree theft by unlawful taking, N.J.S.A. 2C:20-3a (count two), and second-degree aggravated assault, N.J.S.A. 2C:12-1b(1) (count three). He was tried before a jury in February 2004. In a prior opinion, we recited the relevant facts shown by the evidence:
On October 12, 2002, at approximately 2:30 a.m., Waldine Davis, Joseph Harris, and defendant were engaged in the sale of cocaine. Davis gave a $20 bag of crack cocaine to Harris with directions for him to sell it, retain $15 for himself, and give $5 to defendant. Two men pulled up in a minivan, and defendant approached the vehicle with the $20 bag of cocaine, and attempted to sell the cocaine for $40 to the individuals in the van. Harris intervened, and took a $20 bill in exchange for the cocaine. After the sale, defendant approached Harris and demanded $10, instead of the original $5 defendant was promised, because defendant believed he had performed all the work, and had taken the risk that the buyers could have been police officers.
Harris refused, and defendant struck Harris, causing him to lose consciousness and fall to the pavement. While Harris was lying on the pavement, defendant took the $20 bill from Harris's hand; exchanged the $20 bill for two $10 bills with a third party walking nearby; and returned one $10 bill to Harris by putting the $10 bill in his pocket. When Harris awoke, he could not see. Harris was taken to the hospital the next day, where he was diagnosed with a ruptured globe of the left eye that caused total blindness in that eye.
At trial, both Davis and Harris testified as to the events surrounding the assault. Defendant testified and gave a version of events similar to that of Harris and Davis.
[State v. Flowers, No. A-5505-03 (App. Div. Feb. 2, 2006) (slip op. at 2-3).]
The jury found defendant not guilty of count one, robbery, and guilty of counts two and three, theft and aggravated assault. Because defendant had a prior record of at least five indictable convictions, the sentencing court granted the State's motion for a discretionary extended term under N.J.S.A. 2C:44- 3a. Defendant was sentenced to thirteen years' imprisonment for aggravated assault, with eighty-five percent of the term to be served before parole eligibility and three years of parole supervision pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant was also sentenced to a concurrent term of four years' imprisonment for the theft charge.*fn1
Defendant appealed his conviction and sentence, raising the following points of argument:
POINT ONE THE PROSECUTOR SPECIFICALLY ELICITED, IN DIRECT CONTRAVENTION OF STATE V. ALVAREZ, 318 N.J. SUPER. 137 (APP. DIV. 1999), THAT THE POLICE HAD A WARRANT FOR DEFENDANT'S ARREST. (NOT RAISED BELOW).
POINT TWO IMPOSITION OF A PERSISTENT OFFENDER EXTENDED TERM VIOLATES DEFENDANT'S CONSTITUTIONAL RIGHTS TO TRIAL BY JURY AND DUE PROCESS OF LAW. (NOT RAISED BELOW).
POINT THREE THE TRIAL COURT ABUSED ITS DISCRETION BY IMPOSING A THIRTEEN-YEAR EXTENDED TERM WITH AN 85% PERIOD OF PAROLE INELIGIBILITY.
We affirmed the conviction and sentence in a written opinion. Flowers, supra, No. A-5505-03. Defendant petitioned for certification. By order dated September 6, 2006, the Supreme Court granted defendant's petition for certification on the issue of the sentence imposed and summarily remanded for resentencing in light of the Court's intervening decision in State v. Pierce, 188 N.J. 155 (2006). State v. Flowers, 188 N.J. 347 (2006).
Nothing in the record provided to us indicates that defendant was ever resentenced in compliance with the Supreme Court's order.*fn2 Instead, defendant filed a petition for PCR in April 2008. The Law Division considered the petition and arguments of counsel and denied the relief requested by oral decision placed on the record in open court on November 3, 2008.
On appeal from denial of his PCR petition, defendant argues the following:
THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION THAT HE FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION AT THE TRIAL LEVEL.
A. THE PREVAILING LEGAL PRINCIPLES REGARDING CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL, EVIDENTIARY HEARINGS AND PETITIONS FOR POST CONVICTION RELIEF.
B. TRIAL COUNSEL FAILED TO ADEQUATELY REPRESENT THE DEFENDANT'S INTERESTS AT SENTENCING BY FAILING TO DEMONSTRATE THE APPLICABILITY OF VARIOUS MITIGATING FACTORS, BY FAILING TO ADEQUATELY ARGUE AGAINST THE IMPOSITION OF A DISCRETIONARY EXTENDED TERM AND BY FAILING TO EMPHASIZE THE INAPPLICABILITY OF TWO AGGRAVATING FACTORS ONCE THE TRIAL COURT DECIDED TO IMPOSE A DISCRETIONARY EXTENDED TERM.
C. TRIAL COUNSEL WAS REMISS BY FAILING TO OBJECT TO TESTIMONY ELICITED BY THE STATE INFORMING THE JURY THE POLICE HAD A WARRANT FOR THE DEFENDANT'S ARREST.
D. SINCE THE DEFENDANT PRESENTED A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF COUNSEL, HE IS AT LEASE ENTITLED TO AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION.
We have reviewed the record and the arguments of counsel on appeal. We affirm the decision of the trial court as to ineffective assistance of counsel essentially for the reasons stated by Judge Mitchell Ostrer in his oral decision of November 3, 2008.
Briefly, we note specific agreement with the judge's conclusion that our prior rejection of sentencing errors raised on direct appeal, and our prior determination that issues raised on direct appeal demonstrated at most harmless error, preclude defendant's ability to satisfy both prongs of the test established for claims of ineffective assistance of counsel by Strickland v. Washington, 466 U.S. 668, 689, 694, 104 S. Ct. 2052, 2065, 2068, 80 L. Ed. 2d 674, 694, 698 (1984), and State v. Fritz, 105 N.J. 42 (1987).
The order denying post-conviction relief based on ineffective assistance of counsel is affirmed. However, the matter is remanded to the Law Division to determine if defendant was resentenced in accordance with the order of the Supreme Court dated September 6, 2006. If not, the court shall promptly schedule defendant's resentencing. We do not retain jurisdiction.