August 31, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
HAKIEM D. BUTLER, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 98-06-2664.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 20, 2011
Before Judges R. B. Coleman and Lihotz.
Appellant filed a pro se supplemental brief.
Defendant Hakiem D. Butler appeals from the denial of his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm the denial of his petition, substantially for the reasons set forth by Judge Michael A. Petrolle in his written opinion.
Defendant was convicted by a jury on eleven counts that included carjacking, conspiracy, robbery and weapons charges. The sentencing court imposed an aggregate sentence of twenty- five years, with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant filed a direct appeal, and we affirmed his convictions and sentence. State v. Butler, No. A-4857-99 (App. Div. Feb. 21, 2002). The Supreme Court denied his petition for certification. State v. Butler, 172 N.J. 357 (2002).
The convictions arose out of a Newark robbery of victims Louis Pretell, Edison Guerra, and Julio Pretell. Defendant and co-defendant Stephen Green stole money and jewelry from the three victims at gunpoint outside of a chicken restaurant while the three were walking to their Acura Integra. While pointing his gun at Louis, defendant then demanded the key to the Acura and eventually took possession of the car. Four days later, the vehicle was spotted by Newark police officers who gave chase. The vehicle crashed into a tree, and defendant jumped out of the car and fled on foot, but was eventually apprehended by the police.*fn1
Defendant filed a PCR petition on May 23, 2003. Judge Petrolle denied the petition on July 3, 2008 in a written opinion. Defendant filed an appeal from the denial of PCR. Defendant now presents the following issues for our consideration in his appeal.
POINT I: DEFENDANT'S CONVICTIONS MUST BE REVERSED DUE TO INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL; IN THE ALTERNATIVE THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE A PRIMA FACIE CASE OF TRIAL COUNSEL'S AND APPELLATE COUNSEL'S INEFFECTIVENESS WAS ESTABLISHED.
A. Trial counsel's failure to call Stephen Green as an exculpatory witness mandates that this matter be remanded for an evidentiary hearing.
B. Appellate counsel's failure to order and/or review the Wade hearing transcripts and to raise the denial of defendant's constitutional right to confrontation constitutes reversible error; in the alternative, this matter must be remanded for an evidentiary hearing.
In the pro se supplemental brief filed by defendant, he raises the following assertions of error:
POINT I: NEW JERSEY REQUIRES POST-CONVICTION RELIEF CLAIMS TO BE THOROUGHLY INVESTIGATED BY LOWER COURTS BEFORE A RULING ON THE MERITS CAN BE GIVEN.
POINT II: THE LOWER COURT ERRED WHEN IT FOUND THAT DEFENDANT WAS NOT DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF THE UNITED STATES AND NEW JERSEY CONSTITUTIONS.
A. THE LOWER COURT ERRED WHEN IT FOUND THAT DEFENDANT WAS NOT DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL WHEN HIS APPELLATE COUNSEL OMITTED A SIGNIFICANT AND OBVIOUS ISSUE ON DIRECT APPEAL WHILE PURSUING ISSUES THAT WERE CLEARLY WEAKER.
POINT III: THE LOWER COURT ERRED IN FINDING THAT THE DEFENDANT WAS PROCEDURALLY BARRED FROM RAISING PARTICULAR CLAIMS FOR POST-CONVICTION WITHOUT ANALYZING SUCH CLAIMS UNDER A CAUSE AND PREJUDICE STANDARD. THE ENFORCEMENT OF THE PROCEDURAL BAR IS MANIFESTLY UNJUST, AND A DENIAL OF THE REQUESTED RELIEF WOULD BE CONTRARY TO THE CONSTITUTIONS OF THE UNITED STATES AND THE STATE OF NEW JERSEY.
POINT IV: THE CUMULATIVE EFFECT OF THE ERRORS COMPLAINED OF RENDERED DEFENDANT'S TRIAL AND APPEAL UNFAIR, AND AS SUCH, AN EVIDENTIARY HEARING MUST BE GRANTED TO INVESTIGATE THE ALLEGATIONS WITHIN HIS PETITION FOR POST-CONVICTION RELIEF.
The standard for determining whether counsel's performance was ineffective for purposes of the Sixth Amendment was formulated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42 (l987). In order to prevail on a claim of ineffective assistance of counsel, defendant must meet the two-prong test of establishing both that: (1) counsel's performance was deficient and he or she made errors that were so egregious that counsel was not functioning effectively as guaranteed by the Sixth Amendment to the United States Constitution, and (2) the defect in performance prejudiced defendant's rights to a fair trial such that there exists 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 687, 694, 104 S. Ct. at 2064, 2068, 80 L. Ed. 2d at 693, 698.
A court should grant an evidentiary hearing on a PCR petition if a defendant has presented a prima facie case of ineffective assistance of counsel. State v. Preciose, 129 N.J. 451, 462 (1992); see also State v. Goodwin, 173 N.J. 583, 596 (2002). "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 . . . then an evidentiary hearing need not be granted." State v. Marshall III, 148 N.J. 89, 158, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997) (internal citations omitted).
Judge Petrolle thoroughly addressed defendant's arguments that (a) trial counsel was ineffective for failure to call Stephen Green as an exculpatory witness and (b) appellate counsel was ineffective for failure to review Wade transcripts. First, we address defendant's claim that his trial counsel was ineffective for failing to call his co-defendant, Stephen Green, as a witness. Green entered into a plea on January 25, 1999. At that time, Green testified that on August 23, 1997, he was with defendant at a chicken restaurant in Newark when they stole a car. Green admitted he went up to Louis Pretell, Edison Guerra, and Julio Pretell in a restaurant, armed with a .38 caliber gun, intending to rob them. Following his plea and conviction, at an October 19, 1999 pretrial conference, Green disavowed the statements made at the time of his plea and stated that defendant was with him at the time of the robberies of the victims' person and their vehicle. At a pretrial conference, Green then exculpated defendant by stating that he was not the co-conspirator for the robbery and weapons offenses and that defendant was not involved at all. He provided a handwritten statement dated October 13, 2004, avowing defendant was not with him at the time of the carjacking and that defense counsel was supposed to call him as a witness.
Addressing defendant's argument that Green should have been called to testify at trial, Judge Petrolle found:
Trial counsel's eschewal of Green's testimony was clearly professional trial strategy. Green's assertion in his 2004 statement that trial counsel was supposed to call him as a defense witness for the trial, . . . cannot reasonably be read to imply a binding undertaking by trial counsel to call him as a witness. Trial counsel is entitled to deference not afforded by any contention, including Green's assertion, that he was obligated to call Green as a witness. The claim of ineffective assistance of trial counsel for failure to call Stephen Green as a witness for the defense at trial is second-guessing [that] the post-conviction relief courts are admonished to avoid.
As to defendant's appellate counsel argument, Judge Petrolle explained:
The claim . . . that appellate counsel was ineffective for failure to order the transcript of the Wade hearing lacks merit in that the failure to order and review the transcript, though an oversight, did not actually prejudice the defense or materially contribute to the conviction of the defendant/petitioner or its affirmance on direct appeal. The exclusion of the out-of-court and in-court identifications sought on the part of the defendant/petitioner at the hearing was ordered by the trial court in a decision in all respects favorable to the defendant/petitioner. Accordingly, review of the trial court's Wade hearing decision was not warranted on appeal, and the claim of error constituting ineffective assistance of appellate counsel is unfounded.
We are satisfied from our review of the record that defendant failed to make a prima facie showing of ineffectiveness either of appellate counsel or trial counsel within the Strickland-Fritz test. Accordingly, the PCR court correctly concluded that an evidentiary hearing was not warranted. See Preciose, supra, 129 N.J. at 462-63. Defendant's arguments in his supplemental pro se brief were likewise adequately addressed by the PCR judge. Certain of them were clearly the same arguments that PCR counsel made in Points I and II, which Judge Petrolle considered and rejected as unavailing. R. 2:11-3(e)(2).