July 13, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
GERARD WATKINS, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 96-11-1331.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 17, 2011
Before Judges Wefing and Payne.
Defendant appeals from a trial court order denying his petition for post-conviction relief. After reviewing the record in light of the contentions advanced on appeal, we affirm.
Two indictments were returned against defendant and a co-defendant, Deandre McKenzie. One related to a burglary and allied offenses committed on September 10, 1996, in Hillside, and the second related to a burglary and allied offenses committed on September 13, 1996, in Scotch Plains. Both indictments charged defendant with unlawful possession of a handgun, N.J.S.A. 2C:39-5b, and possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4a. McKenzie and defendant were tried together, but the indictments were tried separately. The Hillside charges were tried first and resulted in defendant being convicted of the unlawful possession charge, among others, but acquitted of the charge of possession for an unlawful purpose. When the Scotch Plains charges were tried, defendant was convicted of robbery while armed, N.J.S.A. 2C:15-1; burglary, N.J.S.A. 2C:18-2; unlawful possession of a handgun, N.J.S.A. 2C:39-5b; possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4a; and aggravated assault, N.J.S.A. 2C:12-1b. Defendant was subject to a mandatory Graves Act extended-term sentence, and the trial court sentenced defendant to a custodial term of fifty years, with a twenty-year period of parole ineligibility. Defendant appealed his convictions and sentence, and we affirmed in an unpublished opinion. State v. Watkins, No. A-3315-98 (App. Div. Aug. 8, 2000).
Defendant thereafter filed a timely petition for post-conviction relief.*fn1 Counsel was assigned to represent defendant, and counsel prepared a brief on his behalf and orally argued the merits of defendant's contentions. After hearing argument, the trial court determined that a plenary hearing was not required and denied defendant's petition. This appeal followed. On appeal, defendant raises the following contentions:
THE DEFENDANT'S CLAIMS CONCERNING TRIAL COUNSEL'S FAILURE TO MOVE TO SEVER THE DEFENDANT'S TRIAL, AND TRIAL COUNSEL'S FAILURE TO MOVE FOR REDACTION OR TO REQUEST A N.J.R.E. 404(B) LIMITING INSTRUCTION CONCERNING THE STATE'S USE OF CO-DEFENDANT MCKENZIE'S STATEMENT WERE NOT PROCEDURALLY BARRED UNDER R. 3:22-5 BECAUSE THEY WERE RAISED IN THE CONTEXT OF AN INEFFECTIVE ASSISTANCE OF COUNSEL ARGUMENT AND THEREFORE WERE NOT "IDENTICAL" TO OR "SUBSTANTIALLY EQUIVALENT" TO THE IDENTIFICATION ISSUES RAISED ON DIRECT APPEAL.
POINT II THE DEFENDANT'S POST-CONVICTION RELIEF ARGUMENTS CONCERNING THE SENTENCE IMPOSED WERE NOT PROCEDURALLY BARRED UNDER R. 3:22-4 BECAUSE THE DEFENDANT'S SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL, AND THE DEFENDANT'S FOURTEENTH AMENDMENT RIGHT TO A FAIR TRIAL AND A JUST SENTENCE, WERE VIOLATED.
THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE MATTER REMANDED FOR A FULL EVIDENTIARY HEARING ON INEFFECTIVE ASSISTANCE OF COUNSEL BECAUSE TRIAL COUNSEL'S FAILURE TO FILE A PRETRIAL MOTION TO DISMISS COUNT THREE (CHARGING POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE) ON DOUBLE JEOPARDY GROUNDS WAS PRIMA FACIE INEFFECTIVE ASSISTANCE OF COUNSEL UNDER THE FIRST PRONG OF THE STRICKLAND/FRITZ TEST AND THE ENSUING PREJUDICE TO THE DEFENDANT SATISFIED THE SECOND PRONG OF THE TEST.
THE COURT'S RULING DENYING POST-CONVICTION RELIEF VIOLATED THE DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.
DEFENDANT REASSERTS ALL OTHER ISSUES RAISED IN POST-CONVICTION RELIEF.
We note first the principles that guide our analysis of these contentions. To prevail on a claim of ineffective assistance of counsel, a defendant must overcome a presumption that defense counsel's "conduct falls within the wide range of reasonable professional assistance," Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 2065, 80 L. Ed. 2d 674, 694 (1984). Further, a defendant must not only establish that counsel's performance was "deficient" but also that "the deficient performance prejudiced the defense." Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. See also United States v. Cronic, 466 U.S. 648, 653-58, 104 S. Ct. 2039, 2043-46, 80 L. Ed. 2d 657, 664-67 (1984). New Jersey has adopted this two-pronged test. State v. Fritz, 105 N.J. 42, 58 (1987).
As we noted earlier, both Watkins and McKenzie were tried together. During the course of the trial, McKenzie's statements to the police were properly admitted to impeach his trial testimony. On defendant's direct appeal, he argued this was improper with respect to him. He also argued that the trial court erred when it admitted this statement without giving the jury a limiting instruction. We specifically rejected those arguments, noting that McKenzie was fully subject to cross-examination by defendant's attorney and that the absence of a limiting instruction was harmless in light of the totality of the evidence. Watkins, supra (slip op. at 5). Because the issues were raised on direct appeal, defendant may not revisit them through the guise of a PCR petition. Further, even if we were to overlook that procedural bar, defendant would be unable to satisfy the second prong of the Strickland/Fritz test. To the extent that defendant argues that his trial counsel was ineffective for not seeking to sever his trial from that of McKenzie, the issue is barred under Rule 3:22-4.
We also reject defendant's contention that the court that heard his petition for post-conviction relief improperly rejected his challenge to his sentence. Defendant raised on direct appeal the argument that his sentence was excessive, and we rejected it, describing it as "without merit" and "not warrant[ing] extended discussion in a written opinion." Watkins, supra (slip op. at 4). Defendant asserts that his argument is not procedurally barred under Rule 3:22-4 and 3:22-5 because, in his view, his sentence was illegal. We are satisfied, however, that his sentence was entirely legal.
As we noted, the trial court sentenced defendant to a mandatory extended term under the Graves Act, N.J.S.A. 2C:43-6c. Defendant maintains he was not subject to such a sentence because he did not have the requisite prior conviction.
N.J.S.A. 2C:44-3d. Defendant's arguments overlook his convictions with respect to the Hillside incident.
We also reject defendant's third argument - that he was entitled to an evidentiary hearing with respect to the question whether his trial attorney was ineffective for not moving to dismiss the charge of possession of a weapon for an unlawful purpose with respect to the Scotch Plains incident in light of his acquittal on that charge with respect to the Hillside incident. The jury's finding with respect to his purpose on September 10, 1996, has no bearing on the question of his purpose on September 13, 1996.
Defendant's remaining two arguments - that the denial of his petition infringed upon his Sixth Amendment right to the assistance of counsel, and incorporating all of defendant's other grounds previously asserted, are without merit. R. 2:11-3(e)(2).