February 14, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
GREGORY ULYSSE, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 02-04-01363.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: September 27, 2010
Before Judges A.A. Rodriguez and C.L. Miniman.
Defendant Gregory Ulysse appeals from the denial of his application for post-conviction relief (PCR) in connection with his conviction on two counts of first-degree purposeful and knowing murder of Emmanuel Previllon and Edner Pierre, contrary to N.J.S.A. 2C:11-3a(1), (2); one count of second-degree conspiracy to commit murder, contrary to N.J.S.A. 2C:5-2 and 2C:11-3; one count of second-degree possession of a handgun for an unlawful purpose, contrary to N.J.S.A. 2C:39-4a; and one count of third-degree unlawful possession of a handgun, contrary to N.J.S.A. 2C:39-5b. Defendant was acquitted on one count of second-degree aggravated assault on Reginald Fils, contrary to N.J.S.A. 2C:12-1b(1). We affirm the denial of PCR in part and reverse in part.
The crimes in question began at a family barbeque on January 28, 2001, on Boyden Avenue in Maplewood. According to Fils, he and the murder victims, his friends, arrived at the barbeque at about 6 p.m. Fils had known defendant from the neighborhood for about four years and saw him at the barbeque. When defendant arrived with his girlfriend around 7:30 in the evening, defendant and Previllon became engaged in an argument during which defendant threatened to kill Previllon. Others broke up the argument, and defendant walked away only to return several minutes later with Steve St. Fleur and Fanshiyu Florexil. According to Andre Richmond, one of the men who broke up the argument, Florexil threw a punch at Previllon and pulled out a gun, which defendant took and shot into the air.
Florexil testified for the State and stated that he had witnessed the argument between defendant and Previllon. When he tried to intervene, Previllon told him that his mother was the problem. At that point, defendant slid a gun to Florexil, who struck Previllon in the head with it. Defendant then reclaimed the gun and shot it into the air, causing everyone to run.
Fils testified that he was walking to the grill to get food when he saw defendant return to confront Previllon. When a gunshot rang out, everyone scattered. Fils called out to Previllon, who confirmed that he had not been hit. Fils decided to leave with another friend, and they drove around Florence Avenue in Irvington until they met Previllon. They had all been invited to another party, but Fils's friend could not go. Fils got into Previllon's vehicle with Pierre and Richmond, and they drove to Kerrigan Boulevard in Newark.
Previllon parked his car, and the occupants went inside a house to the party. Because it was crowded and hot inside the house, they all stepped outside and were talking to Previllon, who was still angry, to calm him down. Previllon was looking for a gun but failed to obtain one. About forty-five minutes later, a Pathfinder pulled up with defendant in the front passenger seat. Defendant told Previllon to "meet him down the corner." Previllon wondered what defendant wanted, but Pierre was in a panic and wanted to leave.
Previllon walked to his car, Fils got into the backseat, and Pierre got into the front passenger seat. Richmond stayed at the party. Previllon pulled away from the curb, put his car into reverse, and drove back to the Pathfinder. Fils, looking out the back window, saw defendant get out of the Pathfinder and stand behind the door. At that point, Pierre yelled "gun." Fils put his head down and Previllon accelerated, but the car was still in reverse and hit the Pathfinder. Within seconds, shooting broke out. Pierre started coughing and was having trouble breathing. Previllon tried to exit his vehicle and began limping. Fils got out and ran away, only to trip and fall. Fils managed to get inside a driveway, but he heard the shooting continue. He stuck his head out a few times and saw the driver looking at the damage to the Pathfinder.
According to Richmond, although he saw people running and heard the crash and about ten gunshots, he could not tell who was doing what. He saw someone run after Previllon and then get back in the Pathfinder, at which time the Pathfinder left the scene. Richmond went to the scene and found both Pierre and Previllon dead.
Fils escaped through a backyard and found a cab driver on another street who took him to Tiffany Place. After some time passed, Fils returned to the scene on foot. The police had already arrived. Fils saw Previllon on the side of the street with a bullet hole in the side of his face.
According to Florexil, he, defendant, St. Fleur, and Edson Sainte, decided to drive to another party. They did not intend to engage in a gunfight. Florexil wanted to park his car, but they saw a crowd. Defendant told Florexil to stop as defendant signaled to someone. Florexil pulled down the street and found a parking spot. The occupants all exited the Pathfinder. As Florexil walked around the back of the Pathfinder to get on the sidewalk, he heard a car coming down the street, shots rang out, and he was hit before he could dive for cover. More shots were fired, and defendant exclaimed that he shot one of the other people. After the gunfire, defendant tried to help Florexil up. Florexil tried to dial 9-1-1, but defendant grabbed his cell phone and asked if he was crazy. Florexil saw St. Fleur holding another gun. His friends got him into the Pathfinder and drove him to the hospital.
According to Sainte, when they arrived at Kerrigan Boulevard, a white car backed up into the Pathfinder while they were trying to park. They all exited the Pathfinder, and Sainte began running when he heard gunshots. He heard nine or ten gunshots and then heard Florexil screaming in pain. After everyone was back in the Pathfinder, Saint observed defendant get in the passenger front seat and place a black gun next to the hand-brake. Defendant said, "I think I got one." St. Fleur said the same thing. After bringing Florexil to the hospital, the others left within minutes, and St. Fleur told defendant that they had to "lay low for awhile."
After fleeing the scene, St. Fleur assumed a new identity, calling himself "Allen Cadestin." St. Fleur and defendant went to Allentown, Pennsylvania, where they were fugitives until December 17, 2001. Eventually, "Cadestin" was stopped for a motor vehicle violation in Allentown, but he also had a suspended license. As a result, his vehicle was confiscated; he was given a citation and taken to an Allentown police station. There, the arresting officer observed a wanted posted and recognized "Cadestin" as St. Fleur. The Allentown police contacted the Newark police, who provided Allentown with more information.
The arresting officer found two addresses associated with "Cadestin." Allentown police officers conducted a forced entry at one location and found defendant, Lens Dextra, and the real Allen Cadestin. The police arrested defendant. The police then went to the second address where the occupant signed a consent to search and advised the police that St. Fleur was asleep in the basement. The police arrested St. Fleur and recovered a .38 caliber revolver from his knapsack.
According to Dextra, defendant and St. Fleur came to stay at his home in 2001. While defendant was in Dextra's car with Dextra, he showed him a gun. Dextra hid it in the car because he did not want the gun in his home with his young children and his girlfriend. In early September, Dextra, defendant, St. Fleur, and Allen went to New Jersey to dispose of the weapon. Defendant exited the vehicle with the gun, and Dextra never saw it again.
After being arrested and given Miranda warnings,*fn1 defendant confessed to the crimes. Defendant's motion to suppress his confession was denied. The judge found that the confession was given knowingly, intelligently, and voluntarily after defendant received and waived his Miranda rights. The judge rejected defendant's claim that he was under the remaining effects of Ecstasy, marijuana and alcohol taken two days prior to his confession as "absolutely incredible." The judge also found this claim inconsistent with defendant's ability to vividly recall the facts of the crimes, make corrections to his statement, and waive his rights verbally and in writing.
Defendant admitted in his confession that he had a problem with Previllon concerning a girl. He admitted carrying and discharging the 9mm handgun in Maplewood, admitted having it on Kerrigan Boulevard, and admitted shooting it numerous times. He admitted that he intended to shoot Previllon, but thought that he shot Florexil accidentally. Defendant advised the police where to find the 9mm handgun, and they recovered it from the disclosed location. Forensic evidence established that the bullet in Previllon's head was fired from the 9mm handgun, and the bullet in Pierre's head was fired from the .38 caliber handgun. There were no fingerprints on either weapon.
Defendant testified on his own behalf and denied all culpability. He blamed St. Fleur for shooting the .38 caliber handgun and Florexil for brandishing the 9mm handgun. He claimed that he went to Allentown because he was afraid for his life. He denied providing any information about the location of a 9mm handgun and denied making the incriminating statements contained in his confession.
After the jury returned its verdict, the judge merged the conspiracy conviction and the conviction for possession of a handgun for an unlawful purpose into the first of the two murder convictions. The judge sentenced defendant on August 15, 2003, to two consecutive thirty-year terms for the two murders with thirty years of parole ineligibility on each sentence. The judge also sentenced defendant to a term of three years on the conviction for possession of a weapon without a permit to run concurrent with the murder convictions and the sentence imposed under a separate indictment,*fn2 which the judge imposed that same day. The judge also required defendant to serve a five-year term of parole supervision upon release from incarceration. The judge found no aggravating factors and found as a mitigating factor that defendant had led a law-abiding life for a substantial period of time before the commission of the offenses for which he was convicted.
After sentencing, defendant and his father retained Richard Banas, Esq., who agreed to represent defendant on a direct appeal for a total fee of $15,000. Defendant's father paid $7000 to Banas as an initial deposit. Although Banas prepared a notice of appeal and a motion for free transcripts, he never actually filed an appeal on defendant's behalf. However, defendant and his father believed that Banas was diligently pursuing an appeal. Defendant did not learn that Banas had failed to file an appeal until sometime in 2007.*fn3
Defendant apparently wrote to the Clerk of the Appellate Division on
July 16, 2007, inquiring about the pendency of his appeal.*fn4
The Clerk returned defendant's letter unfiled because the
computer docket did not show a pending appeal or a motion under the
caption of "State v. Ulysse." The Clerk advised defendant that he
could contact the Office of the Public Defender, Appellate Section,
for assistance or proceed pro se. The Clerk explained:
Please be advised that according to Appellate Court Rules you have 45 days from the date of the order/decision in which to file your appeal. If the order you are seeking to appeal was entered August 15, 2003, you must also submit a notice of motion to file your appeal out of time together with a copy of the order/decision you are appealing. Your motion to file out of time must be accompanied by a certification explaining why your appeal is untimely.
Please be advised, by copy of this letter, the Office of Attorney Ethics is being provided a copy of your letter dated July 16, 2007[,] requesting instructions for the filing [of] a violations claim. You may also contact them directly at: Office of Attorney Ethics, PO Box 963, Mountainview Office Park, Trenton, NJ 08625[.]
Although defendant pursued a grievance, he did not file a motion for leave to appeal nunc pro tunc, opting instead for PCR.
Defendant signed a verification in support of PCR on February 7, 2008. He averred that "[a]ppeal counsel failed to file a timely direct appeal after family paid for his/her services, violating both federal and state constitutions['] guarantee[d] right to reasonable effective assistance of counsel. Also due process and equal protection of law." PCR counsel prepared an amended verified PCR petition, which defendant verified on September 30, 2008. Therein, defendant averred that he was alleging ineffective assistance of counsel because:
7. Retained appellate counsel was ineffective in failing to file a Notice of Appeal after sentencing. [Defendant] retained Mr. Banas to file a Notice of Appeal and perfect the appeal. Mr. Banas failed to do anything for [defendant] other than take $7000 from [defendant's] father.
8. Trial counsel was ineffective in failing to adequately prepare for trial, conduct an adequate investigation and call witnesses.
9. For the reasons set forth above, and in the brief in support of this petition, [defendant] alleges that he was denied his federal and state rights to the effective assistance of counsel.
Defendant sought an evidentiary hearing, reinstatement of his right to appeal nunc pro tunc, resentencing pursuant to Olabode v. United States, 325 F.3d 166 (3d Cir. 2003), and the right to file a subsequent PCR. In the brief supporting PCR, defendant claimed that his assertion of state and federal constitutional issues was not barred by Rule 3:22 and that he had been denied effective assistance of counsel.
The trial judge conducted the PCR hearing on November 10, 2008. The judge denied relief as to all substantive claims regarding the trial. The judge concluded that he had no jurisdiction to permit the filing of a direct appeal nunc pro tunc and so denied that relief. The judge entered an order on November 10, 2008, denying PCR. This appeal followed.
Defendant raises the following issues for our consideration:
POINT ONE -- APPELLATE COUNSEL, WHO FAILED TO PURSUE A DIRECT APPEAL AFTER DEFENDANT AND HIS FATHER RETAINED COUNSEL TO DO SO, RENDERED PER SE INEFFECTIVE ASSISTANCE OF COUNSEL THAT ENTITLES DEFENDANT TO RELIEF HERE.
POINT TWO -- AT THE VERY LEAST, AN EVIDENTIARY HEARING IS WARRANTED FOR FURTHER EXPLORATION AND CONSIDERATION OF DEFENDANT'S POST-CONVICTION CLAIMS.
We review the legal conclusions of a PCR judge de novo. State v. Harris, 181 N.J. 391, 420-21 (2004) (citing Mickens-Thomas v. Vaughn, 355 F.3d 294, 303 (3d Cir. 2004); Hakeem v. Beyer, 990 F.2d 750, 758 (3d Cir. 1993)), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). The same scope of review applies to mixed questions of law and fact. Id. at 420 (citing McCandless v. Vaughn, 172 F.3d 255, 265 (3d Cir. 1999)). We review fact-findings for clear error, ibid. (citing Burkett v. Fulcomer, 951 F.2d 1431, 1438 (3d Cir. 1991), cert. denied, 505 U.S. 1229, 112 S. Ct. 3055, 120 L. Ed. 2d 921 (1992)), and accord deference to credibility determinations, id. at 420-21 (citing United States v. Igbonwa, 120 F.3d 437, 441 (3d Cir. 1997), cert. denied, 522 U.S. 1119, 118 S. Ct. 1059, 140 L. Ed. 2d 121 (1998)).
However, where no evidentiary hearing has been held, we "may exercise de novo review over the factual inferences drawn from the documentary record by the [PCR judge]." Id. at 421 (citing Zettlemoyer v. Fulcomer, 923 F.2d 284, 291 n.5 (3d Cir.), cert. denied, 502 U.S. 902, 112 S. Ct. 280, 116 L. Ed. 2d 232 (1991)). Thus, it is within our authority "to conduct a de novo review of both the factual findings and legal conclusions of the PCR court." Ibid.
In his second point on appeal, defendant contends that the judge should have conducted an evidentiary hearing, at which Banas should have been required to explain his failure to file an appeal, and should have considered defendant's claims that his trial counsel was ineffective. Those latter claims were that counsel was ineffective in not pursuing witnesses and other evidence that might have helped impeach the State's case and its version of events. Defendant contends that his counsel failed to adequately prepare for trial and conduct sufficient pretrial investigation. Also, trial counsel allegedly failed to sufficiently investigate the State's proofs and interview a "multitude" of witnesses who were present at the crime scene and might have provided exculpatory evidence on defendant's behalf. Defendant asserts that these deficiencies in trial counsel's performance deprived him of a fair trial.
We are satisfied that defendant was not entitled to an evidentiary hearing with respect to the ineffective assistance of trial counsel. Bare allegations without supporting certifications or evidence of record cannot support PCR. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.) ("[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." (citation omitted)), certif. denied, 162 N.J. 199 (1999). There were no affidavits from any witnesses certifying to the testimony they would have given if called to trial.
The only portion of defendant's supplemental certification relating to trial counsel was the claim that "[t]rial counsel was ineffective in failing to adequately prepare for trial, conduct an adequate investigation and call witnesses." That assertion is purely conclusory and does not meet the requirements of Cummings. The judge properly denied PCR with respect to trial counsel.
We also find no error in the PCR judge's conclusion that an evidentiary hearing was not required with respect to the failure of Banas to file a direct appeal. That failure was prima facie ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 685-92, 104 S. Ct. 2052, 2063-67, 80 L. Ed. 2d 674, 696 (1984), and State v. Fritz, 105 N.J. 42, 57-58 (1987). See Carson v. State, 15 So. 3d 554, 557 (Ala. Crim. App. 2008) ("'Failure to file timely appeal to this court is a classic example of ineffective assistance of counsel.'" (quoting Mancil v. State, 682 So. 2d 501, 502 (Ala. Crim. App. 1996)); see also United States v. Poindexter, 492 F.3d 263, 265 (4th Cir. 2007) (holding that "an attorney renders constitutionally ineffective assistance of counsel if he fails to follow his client's unequivocal instruction to file a timely notice of appeal even though the defendant may have waived his right to challenge his conviction and sentence in the plea agreement"); Garcia v. United States, 278 F.3d 134, 137 (2d Cir. 2002) ("A lawyer who disregards a defendant's specific instructions to file an appeal acts in a manner that is professionally unreasonable." (citation omitted)); Rivera v. Goode, 540 F. Supp. 2d 582, 595 (E.D. Pa. 2008); People v. Ross, 891 N.E.2d 865, 870 (Ill. 2008); State v. Allen, 99 N.J. Super. 314, 322 (Law Div. 1968) (holding that a "defendant was deprived of his right to the effective assistance of trial counsel in that he was not advised of his right to appeal and the right to counsel to prosecute an appeal").
Strickland, of course, requires an applicant for PCR to establish two elements in order to demonstrate a right to relief. The first, which we have addressed above, is proof that counsel's performance was prima facie ineffective. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. The second element is proof of prejudice. Ibid. "This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Ibid. Strickland could be construed to require that, where the allegation is that appellate counsel was ineffective, a defendant must demonstrate some issue that merited appellate review.
To meet this possibility, defendant asserts that the failure "to evaluate and pursue an appeal for defendant had real consequences for defendant. The transcripts reveal several issues that arose during defendant's trial that presented at least colorable grounds of error that could have been advanced on direct appeal." Those alleged grounds are the judge's limi- tations on defense counsel's cross-examination of Fils regarding prior hostility between one of the victims and defendant; the propriety of not charging accomplice liability to the jury; the propriety of the charge on conspiracy to commit murder; and the propriety of consecutive sentences.
Some federal and state courts have concluded that actual prejudice from the failure to appeal need not be shown. See, e.g., State v. Jim, 747 N.W.2d 410, 417 (Neb. 2008) ("[P]rejudice to the defendant will be presumed . . . and need not be proved under the two-prong test for determining ineffective assistance of counsel under Strickland v. Washington." (footnotes omitted)). The Court of Appeals for the Second Circuit has found that [t]he petitioner has . . . shown prejudice when he shows that he would have taken an appeal, such as when he asked his counsel to file an appeal; he need not make a showing of the merits of the appeal. This is so because the petitioner has been deprived of his right to a direct appeal whatever the merits of the appeal. [Garcia, supra, 278 F.3d at 137 (citations omitted).]
We are not persuaded by these decisions and deem it unnecessary to review the merits of any of the issues asserted by defendant.*fn5 As such, we treat defendant's PCR application as a motion for leave to appeal nunc pro tunc. Defendant has established that leave to appeal nunc pro tunc should be granted, and we so hold.
Defendant also certified that he was impecunious, without income or assets. However, he did not submit a copy of his account with the Department of Corrections pursuant to N.J.S.A. 30:4-16.3. Additionally, his application for leave to file as an indigent defendant must be brought up to date. As a consequence, we remand this matter to the PCR judge for a determination as to whether defendant is entitled to assignment of counsel pursuant to Rule 2:7-2(a). Defendant shall file such an application within two weeks of the date of this opinion with the assistance of his appellate PCR counsel. The judge shall determine the issue within four weeks of this opinion. Counsel assigned or retained to represent defendant on direct appeal or defendant pro se shall file a direct appeal within two months of the date of this opinion.
Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion. The Appellate Division, but not necessarily this panel, retains jurisdiction.