August 24, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ANGELA BARNES, A/K/A ANGELIA BARNES, ANGELICA BARNES, BARCHES ANGELA, BURNES ANGELA, LAFEES ANGELA, MORRIS TANYA, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 07-05-1619.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 9, 2011
Before Judges Waugh and Koblitz.
Defendant Angela Barnes appeals the dismissal of her petition for post-conviction relief (PCR). We affirm.
This case arises out of the death of Tracy Meredith by stabbing on November 6, 2006, in Camden. In May 2007, Barnes was indicted and charged with the following offenses: purposeful or knowing murder, contrary to N.J.S.A. 2C:11-3(a)(1) or (2) (count one); third-degree possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-4(d) (count two); fourth-degree unlawful possession of a weapon, contrary to N.J.S.A. 2C:39-5(d) (count three); and third-degree terroristic threats, contrary to N.J.S.A. 2C:12-3(b) (count four).
On February 4, 2008, Barnes accepted a plea offer that called for her to plead guilty to count one of the indictment, which was amended to charge first-degree aggravated manslaughter, contrary to N.J.S.A. 2C:11-4(a)(1). In exchange for the plea, the State agreed to recommend a sentence of incarceration between fifteen and eighteen years, subject to the eighty-five percent period of parole ineligibility established by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and to dismiss the remaining charges. Before accepting the plea, the judge satisfied himself that the plea was entered into knowingly and voluntarily, and also that there was a factual basis for the plea.
Barnes was sentenced on April 11, 2008. The judge found aggravating factors three (the risk of reoffending), six (prior offenses and their seriousness), and nine (deterrence). N.J.S.A. 2C:44-1(a)(3), (6), and (9), respectively. The judge found mitigating factor five ("[t]he victim of the defendant's conduct induced or facilitated its commission"). N.J.S.A. 2C:44-1(b)(5). He found that "the aggravating factors clearly, convincingly and substantially outweigh[ed] the mitigating factors." He imposed a sentence of incarceration for seventeen years, subject to NERA. The required fines and penalties were also imposed. No appeal was filed.
Barnes filed a pro se petition for PCR in August 2008. Her appointed counsel filed a letter brief in support of the petition, which was opposed by the State. A different judge heard oral argument on September 11, 2009. In an oral decision delivered following the argument, he denied Barnes's request for an evidentiary hearing and dismissed the petition. This appeal followed.
Barnes raises the following arguments on appeal:
POINT I: THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
A. Counsel failed to argue in favor of mitigating factors during sentencing.
B. Counsel failed to argue for a sentence less than that specified in the plea agreement.
C. Counsel failed to file a motion to suppress the evidence.
D. Counsel failed to provide defendant proper advice during plea bargaining.
E. Counsel failed to prepare a diminished capacity defense.
F. Counsel failed to properly prepare an intoxication defense.
POINT II: THE LOWER COURT ORDER MUST BE REVERSED SINCE CUMULATIVE ERRORS DEPRIVED DEFENDANT OF DUE PROCESS AND RENDERED THE SENTENCING UNFAIR.
POINT III: THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT'S CLAIMS ARE NOT PROCEDURALLY BARRED UNDER R. 3:22-5.
POINT IV: THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT'S CLAIMS ARE NOT PROCEDURALLY BARRED UNDER R. 3:22-4.
POINT V: THE LOWER COURT ERRED IN NOT GRANTING DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING AND THE LOWER COURT ORDER MUST THEREFORE BE REVERSED.
"Post-conviction relief is New Jersey's analogue to the federal writ of habeas corpus." State v. Preciose, 129 N.J. 451, 459 (1992). Under Rule 3:22-2, there are four grounds for PCR:
(a) Substantial denial in the conviction proceedings of defendant's rights under the Constitution of the United States or the Constitution or laws of the State of New Jersey;
(b) Lack of jurisdiction of the court to impose the judgment rendered upon defendant's conviction;
(c) Imposition of sentence in excess of or otherwise not in accordance with the sentence authorized by law . . . .
(d) Any ground heretofore available as a basis for collateral attack upon a conviction by habeas corpus or any other common-law or statutory remedy.
"A petitioner must establish the right to such relief by a preponderance of the credible evidence." Preciose, supra, 129 N.J. at 459. To sustain that burden, specific facts which "provide the court with an adequate basis on which to rest its decision" must be articulated. State v. Mitchell, 126 N.J. 565, 579 (1992).
Claims of ineffective assistance of counsel are well suited for post-conviction review, and petitioners are rarely barred from raising such claims in petitions for PCR. R. 3:22-4(a); Preciose, supra, 129 N.J. at 459-60. Merely raising such a claim does not, however, entitle a defendant to an evidentiary hearing. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Rather, the decision to hold an evidentiary hearing on a defendant's ineffective assistance claim is within the trial court's discretion. Ibid.
Trial courts should grant evidentiary hearings and make a determination on the merits of a defendant's claim only if the defendant has presented a prima facie claim of ineffective assistance. Preciose, supra, 129 N.J. at 462-64. In determining whether a prima facie claim has been established, the facts should be viewed in the light most favorable to a defendant. Id. at 462-63.
To establish a prima facie claim of ineffective assistance of counsel, a defendant must demonstrate a reasonable likelihood of success under the test set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). Under the first prong of the Strickland test, a defendant must show that defense counsel's performance was deficient. Ibid. Under the second prong, a defendant must demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. The two-part test set forth in Strickland was adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987).
In demonstrating that counsel's performance was deficient under the first prong of Strickland, defendant must overcome "'a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.'" Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694). Further, because prejudice is not presumed, id. at 52, a defendant must demonstrate "how specific errors of counsel undermined the reliability" of the proceeding. United States v. Cronic, 466 U.S. 648, 659 n.26, 104 S. Ct. 2039, 2047 n.26, 80 L. Ed. 2d 657, 668 n.26 (1984).
A defendant must establish a prima facie claim of ineffective assistance of counsel in order to obtain an evidentiary hearing. Preciose, supra, 129 N.J. at 462. We are satisfied that no evidentiary hearing was required in this case because, for the reasons explained below, we have concluded that Barnes failed to present a prima facie case of ineffective assistance of counsel.
Having reviewed Barnes's arguments in light of the record and the applicable law, we find them to be without merit and not warranting extended discussion in a written opinion. R. 2:11-3(e)(2). We add the following.
The PCR judge correctly found that Barnes did not satisfy the second prong of the Strickland test with respect to her argument that trial counsel failed to make a motion to suppress her statement to the police. Even if her statement had been suppressed, there was sufficient evidence to support a conviction for the offenses with which Barnes was charged or the one to which she pled guilty. For example, Linda Barnes, defendant's cousin, gave a statement to the police in which she described a fight between her cousin and the victim, after which her cousin left the location and then returned to stab the victim. Claudius Hughes also gave a statement that he heard Barnes threaten the victim before she left and then saw her stab the victim when she returned.
With respect to a diminished capacity defense, N.J.S.A. 2C:4-2, Barnes does not articulate the parameters of such a defense nor did she submit any expert reports to support it. "[I]n order to establish a prima facie claim, a petitioner must do more than make bald assertions that he was denied the effective assistance of counsel. He must allege facts sufficient to demonstrate counsel's alleged substandard performance." Cummings, supra, 321 N.J. Super. at 170.
With respect to a possible defense of intoxication, we note that Barnes pled guilty to aggravated manslaughter, N.J.S.A. 2C:11-4(a)(1), which is defined as a homicide in which "[t]he actor recklessly causes death under circumstances manifesting extreme indifference to human life." "[I]ntoxication of the actor is not a defense unless it negatives an element of the offense." N.J.S.A. 2C:2-8(a). Evidence of intoxication can be a defense to crimes requiring either "purposeful" or "knowing" mental states but not to "crimes requiring mental states of only recklessness or negligence." State v. Cameron, 104 N.J. 42, 52 (1986).
The viability of such a defense to the murder charge is questionable in light of the State's ability to offer testimony that Barnes fought with the victim, threatened her before leaving the scene, and then returned with a knife and stabbed her. We are satisfied it had little chance of success. In any event, although there may have been an intoxication defense, however weak, to the original murder charge, it would not have applied to the charge to which Barnes actually pled guilty.
Other than the type of "bald assertions" referred to in Cummings, there is nothing in the record to support Barnes's assertions that she was not advised about her rights, did not understand the plea, and would not have pled guilty had she been properly guided by defense counsel. She told the plea judge, under oath, that she understood the rights she was giving up by entering the plea, that she was satisfied with the advice she received from her attorney, that she was entering the plea voluntarily, that she was entering the plea because she was guilty, and that she was not under the influence of any drugs or alcohol at the time of the plea. She also told the judge that she understood the sentencing range. The plea offer exposed her to considerably less prison time than a conviction for murder or even aggravated manslaughter without a plea offer.
We are not persuaded that Barnes has made out a case for ineffective assistance with respect to the sentencing aspect of her petition. She argues that defense counsel should have pressed for application of mitigating factors eight ("[t]he defendant's conduct was the result of circumstances unlikely to recur") and twelve ("[t]he willingness of the defendant to cooperate with law enforcement authorities"), N.J.S.A. 2C:44-1(b)(8) and (12), respectively. They are not applicable and a vigorous argument in their favor would not have changed the result. Barnes had two prior convictions for aggravated assault, which thoroughly undercut the applicability of mitigating factor eight. The fact that Barnes called 9-1-1 and made a statement admitting guilt does not warrant application of factor twelve. See State v. Read, 397 N.J. Super. 598, 613 (App. Div.), certif. denied, 196 N.J. 85 (2008). We are similarly persuaded that an argument to the sentencing judge for imposition of a sentence below the range mentioned in the plea agreement would not have been effective.
Although we agree that Barnes's arguments with respect to the excessiveness of the sentence could have been raised on direct appeal and are barred by Rule 3:22-4, we also find them to be without merit.*fn1 Our review of sentencing decisions is relatively narrow and is generally governed by an abuse of discretion standard. State v. Blackmon, 202 N.J. 283, 297 (2010) (citing State v. Jarbath, 114 N.J. 394, 401 (1989)). "In conducting the review of any sentence, appellate courts always consider whether the trial court has made findings of fact that are grounded in competent, reasonably credible evidence and whether 'the factfinder [has] appl[ied] correct legal principles in exercising its discretion.'" Ibid. (quoting State v. Roth, 95 N.J. 334, 363 (1984)). The traditional articulation of this standard limits a reviewing court's scope of review to situations in which the application of the facts to law has resulted in a clear error of judgment and to sentences that "shock the judicial conscience." Roth, supra, 95 N.J. at 363- 65. If the sentencing court has not demonstrated a clear error of judgment or the sentence does not shock the judicial conscience, appellate courts are not permitted to substitute their judgment for that of the trial judge. Id. at 364.
"In exercising its authority to impose [a] sentence, the trial court must identify and weigh all of the relevant aggravating factors that bear upon the appropriate sentence as well as those mitigating factors that are 'fully supported by the evidence.'" Blackmon, supra, 202 N.J. at 296 (quoting State v. Dalziel, 182 N.J. 494, 504-05 (2005)). Having reviewed the record, we are satisfied that the sentencing judge did not abuse his broad sentencing discretion in this case.
Consequently, we affirm the order denying a hearing and dismissing Barnes's PCR petition.