March 4, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ANTHONY K. STOKES, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 05-06-0591.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 31, 2011 - Decided Before Judges Sabatino and Alvarez.
Defendant Anthony K. Stokes, appeals the Law Division's order dated September 8, 2009 denying him post-conviction relief ("PCR").
After a jury trial in 2006, defendant was convicted of multiple offenses, including first-degree robbery and second-degree eluding. The State's proofs showed that defendant tried to steal two portable DVD players from a Sam's Club store. According to the State's witnesses, he threatened a store security officer with a box cutter while yelling that he was not going back to jail. He also was seen striking a police car as he attempted to flee through the store parking lot onto a roadway. At trial, the security officer and the police officer both identified defendant as the individual who committed these wrongful acts. A time lapse surveillance video from the store showed defendant attempting to take the two DVD players, and running out of the store with the merchandise in his possession.
Defendant, who had a prior criminal record, chose not to testify in his own defense. After the jury found him guilty of all counts of the indictment, defendant was sentenced to a fifteen-year custodial term on the robbery count and a consecutive seven-year term on the eluding count. The other offenses were merged by the sentencing judge. The sentence on the robbery conviction included an 85% period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2.
In an unpublished opinion, we upheld defendant's convictions sentence on direct appeal. State v. Stokes, No. A-5076-05 (July 14, 2008). The Supreme Court denied certification. State v. Stokes, 198 N.J. 316 (2009).
Defendant then filed a PCR application, alleging that he was deprived of the effective assistance of counsel in numerous respects. After considering defendant's submissions and oral argument, the judge hearing the PCR application denied it without an evidentiary hearing. In his oral opinion dismissing the petition, the judge concluded that defendant had failed to demonstrate that his former counsel was ineffective, and also failed to show that he was actually prejudiced by the alleged deficient performance.
Defendant raises the following points in his brief on the present appeal:
DEFENDANT'S PCR MOTION SHOULD HAVE BEEN GRANTED WHERE HE SHOWED THAT TRIAL COUNSEL FAILED TO ADEQUATELY ADVISE HIM ON HIS RIGHT TO TESTIFY, WHERE DEFENDANT IS ALLEGED TO HAVE MADE THE STATEMENT "I AM NOT GOING TO GO BACK TO JAIL," THEN REFRAINED FROM TESTIFYING DUE TO BAD ADVICE RECEIVED FROM HIS ATTORNEY.
THE PCR COURT SHOULD HAVE GRANTED THE DEFENDANT AN EVIDENTIARY HEARING ON HIS CLAIM THAT TRIAL COUNSEL WAS INEFFECTIVE FOR
FAILING TO INVESTIGATE, LOCATE AND CALL THE PASSENGER PINKSTON AS A DEFENSE WITNESS, WHO IS NOW UNAVAILABLE BECAUSE COUNSEL NEVER ATTEMPTED TO LOCATE HIM IN THE FIRST INSTANCE.
Upon careful consideration of these arguments, and the State's opposition, we affirm the trial court's dismissal of defendant's PCR application, substantially for the reasons set forth in Judge Mitchel Ostrer's oral opinion of August 21, 2009.
The applicable law governing PCR applications claiming ineffective assistance of counsel is well settled. In reviewing such claims, courts apply a strong presumption that defense counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland v. Washington, 466 U.S. 668, 690, 104 S. Ct. 2052, 2066, 80 L. Ed. 2d 674, 695 (1984). "[C]complaints 'merely of matters of trial strategy' will not serve to ground a constitutional claim of inadequacy . . . [.]" State v. Fritz, 105 N.J. 42, 54 (1987) (quoting State v. Williams, 39 N.J. 471, 489, cert. den., 374 U.S. 855, 83 S. Ct. 1924, 10 L. Ed. 2d 1075 (1963), overruled in part on other grounds by, State v. Czachor, 82 N.J. 392, 402 (1980)); see also State v. Echols, 199 N.J. 344, 357-59 (2009). "The quality of counsel's performance cannot be fairly assessed by focusing on a handful of issues while ignoring the totality of counsel's performance in the context of the State's evidence of defendant's guilt." State v. Castagna, 187 N.J. 293, 314 (2006). "As a general rule, strategic miscalculations or trial mistakes are insufficient to warrant reversal 'except in those rare instances where they are of such magnitude as to thwart the fundamental guarantee of [a] fair trial.'" Id. at 314-15 (quoting State v. Buonadonna, 122 N.J. 22, 42 (1991)).
Applying these standards here, it is manifest that defendant's claims of ineffectiveness and ensuing prejudice all lack sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(2). We comment on only two of defendant's claims: (1) his contention that his trial counsel did not properly advise him as to his right to testify, and (2) his claim that his counsel should have pursued testimony from a passenger in the alleged getaway car.
With respect to defendant's decision not to testify, we note that he had multiple prior convictions, some of which the trial judge concluded after a Sands*fn1 hearing, could be used by the State to impeach his credibility as a witness. The trial judge explained to defendant on the record the consequences of testifying, clarifying which convictions would be admissible if he took the stand and which would not. The decision not to testify, given defendant's record and the nature of the State's proofs, was a reasonable one. If he had testified and tried to explain or deny his statement to the security officer that he did not want to go back to jail, that may have not only brought the statement to the jury's attention a second time, but also potentially opened the door to his prior criminal history. Defendant's claim that the jury would have acquitted him if he had testified is completely speculative, especially in light of the strength of the eyewitness testimony from the State's witnesses.
Defendant further contends that he should have been granted an evidentiary hearing on the issue of his trial attorney's failure to call Pinkston. Defendant posits that Pinkston would have rebutted the police officer's testimony about what occurred after he gave chase, and the security officer's testimony about defendant's threatening behavior in the parking lot. This again is sheer speculation. Notably, defendant offered no certification or affidavit from Pinkston with his PCR application. Defendant failed to make a prima facie showing that Pinkston, if he had been located, would have given exculpatory testimony, and that his testimony would have been so credible as to prompt the jury to vote to acquit. In the absence of such a prima facie showing, the PCR judge had no obligation to conduct an evidentiary hearing. State v. Preciose, 129 N.J. 451, 459 (1992).