August 12, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
TONY PETROZZELLI,*FN1 DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 02-09-3192.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 11, 2011
Before Judges Axelrad, R. B.Coleman and Lihotz.
Defendant Tony Petrozzelli appeals from a January 6, 2009 order denying his petition for post-conviction relief (PCR), without benefit of an evidentiary hearing. On appeal defendant argues:
THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
A. Trial counsel vouched for the credibility of the state's witness.
B. Trial counsel failed to investigate potential witnesses.
C. Trial counsel failed to consult with defendant in a meaningful manner.
D. Trial counsel's strategy was deficient and amounted to ineffective assistance of counsel.
E. Trial counsel failed to file a motion to suppress the evidence.
F. Trial counsel failed to file a motion to downgrade the second-degree eluding.
G. Trial counsel was ineffective during the plea bargaining stage.
H. Counsel was ineffective during re-sentencing.
I. Trial counsel failed to investigate and present exculpatory evidence.
THE LOWER COURT ORDER MUST BE REVERSED SINCE THE OFFICE OF THE PUBLIC DEFENDER AND THE TRIAL COURT FAILED TO REMOVE TRIAL COUNSEL AND THE COURT FAILED TO HOLD A HEARING TO DETERMINE WHETHER THE ASSIGNMENT OF NEW COUNSEL WAS WARRANTED.
DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL ON THE PETITION FOR POST-CONVICTION RELIEF AND THE LOWER COURT ORDER MUST THEREFORE BE REVERSED.
THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE THE STATE ENGAGED IN MISCONDUCT BY DESTROYING EXCULPATORY EVIDENCE (NOT PRESENTED BELOW).
THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT'S CLAIMS ARE NOT PROCEDURALLY BARRED UNDER R. 3:22-4.
THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT'S CLAIMS ARE NOT PROCEDURALLY BARRED UNDER R. 3:22-5.
THE LOWER COURT ERRED IN NOT GRANTING DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING AND THE LOWER COURT ORDER MUST THEREFORE BE REVERSED.
Following our review, we conclude defendant's claims of ineffective assistance of trial counsel fail to meet either the performance or prejudice prong of the Strickland/Fritz test.*fn2
Also, we reject defendant's claims that the PCR judge erred in denying his request for an evidentiary hearing to review the assertions of ineffective assistance. Accordingly, we affirm.
A jury found defendant guilty of second-degree eluding as a result of his failure to stop when signaled by Cherry Hill Township police officers while he drove a truck south on Cooper Landing Road. The police sought to execute outstanding municipal court warrants related to motor vehicle offenses and knew defendant's driving privileges had been revoked/suspended. Defendant ignored the signal to pull over issued by two marked patrol cars and kept driving. Defendant accelerated, reaching 50 to 60 m.p.h. in a 40 m.p.h. zone and crossed the double yellow centerline into the northbound traffic lane to pass two cars also driving southbound. He suddenly attempted "a hard, sharp left turn into [a] driveway." The truck missed the paved driveway, hit the curb and some landscaping bricks, and stopped on the front lawn of the residence, at which time defendant was arrested.
The jury acquitted defendant of a second charge in the indictment for fourth-degree subjecting a law enforcement officer to bodily fluid. This charge stemmed from defendant's conduct while being transported after arrest, as he was verbally abusive and spit in the direction of one of the officers.
After granting the State's motion to sentence defendant as a persistent offender, the court sentenced him to a term of eighteen years imprisonment. In an unpublished opinion, we affirmed defendant's conviction but remanded for resentencing; certification was denied. State v. Petrozzelli, No. A-5362-02 (App. Div. December 30, 2004), (slip op. at 15), certif. denied, 183 N.J. 216, (2005). On remand, defendant was resentenced to a term of eleven years with a four and one-half year period of parole ineligibility. He did not appeal from this sentence.
Defendant filed for PCR on June 15, 2005. Upon initial review, by an order dated February 26, 2007, the trial judge denied his request "without prejudice for defendant to supplement his pleadings within a reasonable period of time[.]" Additional oral argument was held on September 10, 2007, after which the court, by order dated December 6, 2007, again denied the PCR petition without prejudice. At counsel's request, the matter was again listed for determination. The only additional documentation submitted was an investigation report, including a statement from the Cherry Hill Police Department that there were no additional dispatch records or tapes of the dispatch calls from the June 2002 incident.
A different PCR judge who was assigned to review defendant's petition conducted oral argument on November 21,2008. At that time, defendant requested that counsel be relieved and he represent himself. The court granted the request and defendant presented his position asserting counsel was ineffective. Defendant maintained that had counsel obtained the dispatch tapes, he would have been exonerated. On December 2, 2008, the court independently contacted the Cherry Hill Police Department and learned the 2002 retention policy required dispatch tapes be held for thirty-one days, but common practice resulted in an approximate six-month retention.
In a written opinion, the PCR judge denied relief. He noted defendant had not submitted any evidence to demonstrate how the dispatch tapes would have shown he was not guilty of the offense charged. Although the court agreed defense counsel should have obtained the tapes, it concluded their content would not have altered the outcome of the trial. Additionally, the court rejected defendant's claim of negligence in failing to present witnesses at trial, because he provided no affidavits from the purported witnesses explaining their testimony had they been called. Finally, the PCR judge rejected relief regarding the strategic decision made by counsel to stipulate that the police had a valid basis to stop defendant on the date in question, presumably to avoid introduction of the prior offenses for which defendant was sought. Defendant appealed.
The analytic framework that controls our review is well-recognized. To establish a claim of ineffective assistance of counsel, a defendant must satisfy the two-pronged test formulated in Strickland v. Washington, 466 U.S. 668, 687, 104S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). A defendant must show "'that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed . . . by the Sixth Amendment.'" Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693); State v. Allah, 170 N.J. 269, 283 (2002). A defendant must also prove that he suffered prejudice due to counsel's deficient performance. Strickland, supra, 466 U.S. at 691-92, 104 S. Ct. at 2066-67, 80 L. Ed. 2d at 696. That is, the defendant must show by a "reasonable probability" that the outcome of the case was affected by the deficient performance. Fritz, supra, 105 N.J. at 58.
Counsel's efforts are measured by a standard of "reasonable competence." Fritz, supra, 105 N.J. at 53. Courts are to exercise a strong presumption that counsel has rendered appropriate and sufficient professional assistance. Strickland, supra, at 688-89, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694; Fritz, supra, 105 N.J. at 52. In our review, we must evaluatethe conduct from the attorney's perspective at the time of trial, being careful to eliminate the distorting effects of hindsight. State v. Buonadonna, 122 N.J. 22, 42 (1991). Additionally, counsel may not be considered ineffective merely because the trial strategy failed. State v. Sheika, 337 N.J. Super. 228, 243 (App. Div.), certif. denied, 169 N.J. 609 (2001).
In order to establish a prima facie case, a defendant must "do more than make bald assertions that he was denied the effective assistance of counsel." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999); Allah, supra, 170 N.J. at 283. Defendant must prove to "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. This requires a showing that "counsel's errors were so serious as to deprive the defendant of a fair trial," undermining confidence in defendant's conviction. Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; Cummings, supra, 321 N.J. Super. at 170. PCR is not an opportunity to relitigate a case already decided on the merits. State v. Cerbo, 78 N.J. 595, 605 (1979); R. 3:22-5.
While a "claim of ineffective assistance of trial . . . counsel is more likely to require an evidentiary hearing because the facts often lie outside the trial record and because the attorney's testimony may be required[,]" it remains within the court's discretion whether such a hearing is necessary. Statev. Preciose, 129 N.J. 451, 462 (1992); R. 3:22-10. "An evidentiary hearing on an ineffective assistance of counsel claim is required only where the defendant has shown a prima facie case and the facts on which he relies are not already of record." Pressler & Verniero, Current N.J. Court Rules, comment 2 to R. 3:22-10 (2011). See also State v. Rountree, 388 N.J. Super. 190, 214 (App. Div. 2006), certif. denied, 192 N.J. 66 (2007).
Guided by these standards, we review defendant's arguments seeking to reverse Judge McNeill's denial of PCR. Defendant first attacks trial counsel's performance alleging nine bases of ineffective assistance. We review these claims.
Defendant states counsel vouched for the State's witnesses in summation when he stated: "I think everybody pretty much is in agreement on the - that the best efforts were made by the witnesses to tell a version of the truth and an accurate version of the truth." Defendant suggests this statement abrogated counsel's duty as an advocate and improperly deprived him of his right to a fair trial. We disagree.
At trial, three police officers related virtually the exact same set of facts regarding the circumstances of the stop and arrest. Faced with that evidence, counsel suggested the police wanted to pull defendant over and he stopped approximately 500 feet from where the police claimed to have first alerted him to pull over. Counsel conceded there was a stop, but argued the jury was to discern whether the time it took for defendant to react was reasonable given the need of the officer to make a u-turn to pursue defendant, for defendant to notice the lights of the police car and then actually find a place to pull over. The defense witness, an investigator, provided the jury with measurements and time distances to give them the perspective on the "key issue of distance."
Viewing counsel's total summation, it is clear that he was not vouching for the police witnesses as suggested, but rather framing the issue to narrow the jury's focus to the reasonableness of defendant's actions. We concur with the PCR judge's determination that no incompetence is shown by this strategic presentation.
Tied to this claim is the argument that the trial strategy used was unreasonable. Defendant contends counsel argued the circumstances surrounding the stop did not rise to eluding and effectively conceded defendant had eluded police. He cites one comment made in summation to support this claim. Counsel said: "in any event, the [o]fficer sought to stop [defendant] prior to New York Avenue. [Defendant] chose to keep going beyond New York Avenue." The factual testimony offered by the State's witnesses was consistent and unflappable. In this light, counsel's strategy to argue defendant reasonably reacted and stopped shortly after he was aware of the police request was neither ill-conceived nor incompetent.
We easily reject the claim that counsel failed to investigate potential witnesses, confining this claim to the failure to investigate "the credibility of the confidential informant" who told police where defendant could be found. The information related by the informant included the color and model of vehicle driven by defendant and his expected location -- all of which was accurate. Defendant fails to explain what type of challenge should have been undertaken and how that challenge would have altered the outcome of trial. Therefore, neither prong of the Strickland/Fritz test was met.
Defendant maintains counsel failed to consult with him "in a meaningful manner" in preparation for trial. He also raises an issue separately addressed in another point that counsel failed to discuss the benefits of accepting the plea offer, which he then rejected. These contentions are unsupported and, therefore, were properly rejected as a basis to overturn his conviction.
Defendant offers no exculpatory evidence showing his version of events other than suggesting he crossed the double yellow line to avoid parked cars. Accepting this fact as true does not exonerate defendant of eluding.
Defendant has repeatedly explained his innocence was the basis for the plea rejection. No proffer of counsel's incorrect or incomplete advice on this issue is offered.
Defendant also asserts counsel failed to file a suppression motion to preclude the admission of his purported custodial statements made after arrest but prior to being Mirandized.*fn3 He also argues counsel failed to move to down-grade the eluding charge. We are not persuaded that counsel's representation was deficient.
Defendant contends his statements were made in the absence of proper warnings and that the stop was based on an ambiguous description provided by the confidential informant. On direct appeal, we addressed the propriety of the admission of police testimony relating defendant's post-arrest comments. We concluded "there was no Miranda violation because there was no questioning." State v. Petrozzelli, supra, slip op. at 10. No error was made by counsel in failing to present a frivolous motion.
We reject defendant's claim that counsel should have moved to suppress because the stop was based on insufficient information from the informant. Defendant was not stopped because of his erratic driving or other motor vehicle infraction; he was arrested pursuant to outstanding bench warrants. The police knew who they were looking for and the informant merely told them where to find him. No basis to suppress exists.
As to a motion to downgrade the eluding offense, defendant asserts counsel should have attacked the motor vehicle offense for which he was also charged, because he incorrectly stated it was an element of the second-degree offense. The State did not introduce evidence of traffic violations, only of defendant's conduct.
Finally, defendant argues counsel was ineffective during resentencing, contending the sentence imposed was "improper" because the court did not state the factors supporting an extended term. We reject the argument as without sufficient merit to warrant extensive discussion in a written opinion. R. 2:11-3(e)(2). We fully reviewed the court's finding that defendant was a persistent offender and affirmed the court's exercise of discretion in imposing an extended term. State v. Petrozzelli, supra, slip op. at 12-13. The issue is barred from further review on a petition for PCR. PCR is not a substitution for claims denied on direct appeal. State v. Echols, 199 N.J. 344, 357 (2009); R. 3:22-5 (barring PCR relief of issues previously determined on direct appeal).
Defendant generally raises a claim of error suggesting the court denied his request to remove counsel prior to trial, without conducting a hearing. He admits he did not file a motion to remove and replace counsel, and neglects to identify when such a request was made. In short, he offers merely that the court denied his request without sufficient basis. Such a bald assertion is insufficient to allow our review. See Cummings, supra, 321 N.J. Super. at 170 (stating a defendant must "do more than make bald assertions that he was denied the effective assistance of counsel"); Allah, supra, 170 N.J. at 283. Further, PCR is not a substitute for direct appeal. R. 3:22-4.
Defendant also attacks the effectiveness of PCR counsel, who he states neglected to effectively investigate and present his claims. As we have denied the assertions challenging trial counsel's performance, we find the claims against PCR counsel equally ineffectual. Counsel presented defendant's arguments using the evidence available. State v. Rue, 175 N.J. 1, 18-19 (2002). The arguments simply failed to satisfy the Strickland/ Fritz standard or lacked merit.
Honing in on the dispatch tapes, defendant argues the State chose to destroy evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). Defendant asserts the events related by police were false, and the tapes were "material" evidence, "suppressed" by the State that would have buttressed the defense. We disagree.
Throughout his presentation, defendant contends he was innocent or the events differed from the State's version. He has yet to present his version of what happened. Instead, he offers sweeping generalizations such as counsel did not confer with him to get "his side of the story" or the "tapes would have provided visual evidence of the incident as it occurred" which would be favorable to the defense. We are not in a position to speculate as to what facts would have been offered had the tape not been destroyed. Absent plausible proofs, we concur with the PCR judge's conclusion that no relief is warranted.
Defendant's argument that the procedural bars of Rules 3:22-4 and -5 should not be applied offers no explanation warranting a waiver of these proscriptions. In our discussion above, we addressed the applications of these limitations to specific matters, when appropriate. No additional discussion is necessary. R. 2:11-3(e)(2).
Lastly, defendant asserts he should have been granted a full evidentiary hearing to present evidence of his counsel's ineffective assistance. We reject this assertion.
In order to be granted an evidentiary hearing, the defendant must present a prima facie case in support of his claim. State v. Marshall, 148 N.J. 89, 158 (1997); Preciose, supra, 129 N.J. at 462. The defendant must demonstrate a reasonable likelihood his or her claim will ultimately succeed on its merits. Preciose, supra, 129 N.J. at 463. "If the court perceives that holding an evidentiary hearing will not aid the court's analysis of whether the defendant is entitled to post-conviction relief, or that the defendant's allegations are too vague, conclusory, or speculative to warrant an evidentiary hearing, then an evidentiary hearing need not be granted." Marshall, supra, 148 N.J. at 158 (internal citations omitted). An evidentiary hearing "is not an occasion for the defendant to question witnesses in an indiscriminate search for additional grounds for post-conviction relief." Ibid.
Following our review, we agree with Judge McNeill that an evidentiary hearing was not necessary because defendant's claims of ineffective assistance of counsel fail on the merits. We conclude defendant's claims of ineffective assistance of trial counsel fail to meet either the performance or prejudice prong of the Strickland/Fritz test. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; Fritz, supra, 105 N.J. at 58. We also discern no error in the denial of his request for an evidentiary hearing.