November 2, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
STANLEY BRAXTON, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 01-07-0505.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued October 18, 2011
Before Judges Payne, Reisner and Simonelli.
Defendant, Stanley Braxton, an inmate of South Woods State Prison, was found guilty of one count of second-degree assault, N.J.S.A. 2C:12-1(b)(1), and four counts of third-degree assault on a law enforcement officer, N.J.S.A. 2C:12-1(b)(5)(a). The charges arose out of a shower room altercation on April 5, 2000 involving defendant and corrections officers at the prison.
At trial, defendant testified that he was attacked by the officers as retaliation for his submission to Captain Walters, on March 20, 2000, of an administrative remedy form in which he complained that three of the officers involved in the shower room incident, Officer Stewart Richardson, Officer J.T. Banks and Sergeant Joseph Taylor, were racist and hateful, abused their authority, and conspired to impugn defendant's character. Defendant claimed further that, during the officers' attack, he did not defend himself, but instead, rolled up in a ball. The injuries sustained by the officers, defendant contended, were the result of the conduct of fellow officers.
In contrast, the State introduced evidence to demonstrate that, while showering, defendant exposed himself to a female corrections officer and made a lewd remark to her over a prison intercom. She reported the incident, Officer Richardson and Sergeant Taylor responded, and they ordered defendant to exit the shower and dress himself. Defendant refused, uttered threats and lunged at Sergeant Taylor. When Officer Richardson attempted to intervene, defendant assaulted him. A Code 33 was called, and four more officers responded. While attempting to restrain defendant, five of the officers were injured, including Officer Richardson, who suffered a fractured left orbit, a fracture of the lateral wall of the left maxillary sinus and a nasal tip fracture. Richardson subsequently underwent surgery, performed by Rodolfo Diaz, M.D., for a deviated septum.
In testimony before the grand jury, the officer who investigated the incident testified that defendant had covered his body with Vaseline to make it more difficult for the officers to restrain him, thereby demonstrating that the incident was pre-planned. Defendant acknowledged that he carried a Vaseline jar into the shower, but he claimed that he used the jar only as a container for soap. Because the Vaseline jar was lost, the initial indictment against defendant was dismissed without prejudice. However, the State was permitted to seek a second indictment, so long as no reference to Vaseline was made before the grand jury or at trial. The case was represented and a second indictment was handed down.
At trial, defense counsel caused a question regarding prospective jurors' reaction to a claim of self-defense to be inserted in the juror voir dire, although defendant contended that he did not seek to claim self-defense; Dr. Diaz was not cross-examined about the causal relationship between Officer Richardson's nasal condition and injuries sustained in the incident at issue; and, when a subpoena could not be served as addressed on Captain Walters, counsel did not seek a continuance to re-serve him at his new prison employment location. As a consequence, there was no evidence presented to suggest that Officer Richardson's nasal condition was not causally related to the incident at issue, thereby giving rise to a reduction of the assault charge from the second to the third degree. Additionally, in the absence of Captain Walters, there was no evidence that substantiated defendant's claim that he was the victim of a vengeful attack. At the conclusion of the trial, the jury accepted the State's version of the evidence, convicting defendant of all charges against him.
Following conviction, defendant was sentenced to nine years in custody for the second-degree aggravated assault, subject to the parole ineligibility provisions of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Concurrent lesser sentences were imposed on the other counts. Defendant appealed, and we affirmed his conviction in an unreported opinion. State v. Braxton, No. A-4024-04 (App. Div. May 31, 2006). Certification was denied. State v. Braxton, 188 N.J. 355 (2006).
On October 31, 2006, defendant sought post-conviction relief (PCR) in a pro se petition. On February 5, 2007, he was assigned legal counsel pursuant to Rule 3:22-6(a), and the matter was heard somewhat less than three years later, on October 9, 2009. In an oral opinion rendered on the date of argument on the petition, the court denied relief without an evidentiary hearing. The court issued a written supplemental opinion on October 19, 2009 addressing additional issues, including defendant's argument that PCR counsel was ineffective, and rejecting defendant's claims in that regard. This appeal followed. While the appeal was pending, defendant filed a motion to supplement the record with an affidavit and exhibits addressing the issue of the ineffectiveness of PCR counsel. We granted defendant's motion.
On appeal, defendant makes the following arguments through PCR appellate counsel in a thoughtful and comprehensive brief:
I. PCR COUNSEL'S REPRESENTATION OF BRAXTON FAILED TO COMPLY WITH RULE 3:22-6(d).
A. PCR Counsel did not properly communicate with Braxton.
B. PCR counsel failed to meaningfully investigate and evaluate Braxton's claims.
C. PCR Counsel failed to raise and/or incorporate by reference all of the claims that Braxton wanted the PCR court to consider.
II. THE PCR COURT ABUSED ITS DISCRETION BY DENYING BRAXTON'S REQUEST FOR AN EVIDENTIARY HEARING TO DEVELOP A RECORD ON HIS CLAIMS OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
A. The PCR court abused its discretion by not holding an evidentiary hearing to determine whether trial counsel's failure to secure the testimony of Captain Walters was a matter of sound trial strategy.
1. The PCR court should have held an evidentiary hearing because Braxton demonstrated that trial counsel's deficient performance likely affected the outcome of the trial.
2. The PCR court wrongly concluded that Braxton needed an affidavit from Captain Walters.
B. The PCR court abused its discretion by not holding an evidentiary hearing to determine whether trial counsel's unilateral decision to raise a self defense argument was a matter of sound trial strategy.
1. At the very least, a remand is warranted because the PCR court misconstrued Braxton's argument.
2. The PCR court abused its discretion by not holding an evidentiary hearing on this issue because Braxton established a prima facie case of ineffective assistance of counsel by raising a self defense argument without Braxton's authority or permission.
C. The PCR court should have held an evidentiary hearing to determine whether trial counsel's failure to cross-examine Dr. Diaz was a matter of sound trial strategy.
We reverse and remand with directions that new PCR counsel be appointed and a further hearing be held in the matter.
Defendant argues on appeal that PCR counsel was ineffective because he did not communicate with defendant, did not conduct the investigations that defendant requested, did not raise the arguments that defendant sought to advance, and misstated those arguments that he did present. Defendant supports his claim with an affidavit in which he notes that PCR counsel was assigned in February 2007 and never met with him in person. Although counsel conducted a twenty-minute videoconference with defendant in April or May of 2007, during which defendant provided an overview of the case and an explanation of some of the issues that he sought to have investigated, at the time, defendant's trial file had not been supplied to counsel, and the discussion was allegedly cursory at best. Additionally, defendant claims to have sent an affidavit to counsel setting forth the facts and legal arguments that he wished to be presented, but received no immediate response. Defendant's claim that, following the videoconference, counsel did not communicate further with him for a lengthy period is supported by defendant's letter of April 15, 2008, written more than a year after counsel was assigned, in which defendant stated, in part: Are you still practicing Law? I have written you on several occasions and there has been no response communication from you. I have not been informed as to what if any investigation has been done, and if so I'm sure I could assist if any other investigation needs to be done.
fl What is the next procedure that involves me? fl Are you advocating this case? fl Are you still researching this case? fl Where are you at in the proceedings of this case? fl Is there any type of problem you have with representing me?
Defendant states that he did not hear anything from counsel from the
time of the videoconference until May 8, 2008, at which time PCR
counsel informed defendant in a letter that he had only recently been
able to obtain defendant's trial file from trial counsel.*fn1
Counsel then discussed a number of legal issues that he was
contemplating raising on defendant's behalf, and he acknowledged
receipt of defendant's affidavit and requested that defendant revise
it to set forth facts, not argument and commentary.*fn2
Defendant did so, and the affidavit was eventually
submitted in unaltered form by counsel as an exhibit to his PCR brief.
Defendant followed up with correspondence dated July 29, 2008, August 26, 2008 and March 3, 2009 raising issues for PCR, requesting discovery and complaining about a lack of communication. Nonetheless, defendant claims that he did not meet or have a teleconference with counsel again until a March 13, 2009 status conference, more than two years after the representation had begun. The transcript of the status conference discloses that, at that time, the court permitted defendant and counsel to confer "for a few minutes," and after a "brief recess" the status conference resumed. Prior to that conference, counsel had forwarded what defendant claimed was "a very preliminary draft of certain very limited portions of his PCR arguments." Despite defendant's request to review the final version of counsel's PCR brief, he was not given a copy until after the brief had been filed.
In a further undated letter that defendant claims was mailed shortly after he received counsel's brief, he outlined eleven areas of investigation that he requested that counsel undertake. However, only one investigation request was filed.
Following further correspondence from defendant requesting investigation and discussing other matters, on August 18, 2009, counsel responded, stating:
As for the statements in your August 11, 2009 letter, you were provided a copy of my brief and the State's brief. I raised in the brief all the issues that I determined were meritorious after reviewing your file and discussing issues with you from the video conference that was held in the beginning of the case and your various correspondence since that time. . . . To the extent that there are issues that you would like to raise that were not raised in my brief I invite you to submit a pro se brief adding other issues that you wish to raise. [Emphasis supplied.]
An examination of the brief submitted by counsel discloses that he argued: (1) trial counsel was ineffective in failing to cross-examine Dr. Diaz, the doctor who had treated Officer Richardson, regarding a negative x-ray obtained on the day of the incident; (2) trial counsel should have sought dismissal of the second indictment as the product of prosecutorial vindictiveness; (3) trial counsel was ineffective in asserting a defense of self-defense that defendant did not authorize, was contrary to defendant's position that he was completely innocent, and required testimony by defendant that he had to use force to ward off the officer's unwarranted attacks; (4) counsel was ineffective in failing to call Captain Walters as a witness, who could have testified that defendant had disclosed his concerns about the officers' race-based course of conduct and could have impeached Officer Richardson's testimony that he was unaware of defendant's administrative complaint at the time of the incident at issue; and (5) counsel was ineffective in not obtaining the video taken of the incident. Additionally, counsel argued that appellate counsel was ineffective in failing to raise the shortcomings of trial counsel on direct appeal.
Defendant was present at the hearing on his PCR petition. At its inception, defendant's counsel indicated to the court that defendant did not wish counsel to represent him in the matter - a sentiment expressed in a number of defendant's letters. In response, the court remarked that counsel had submitted a "lengthy, thorough and what would seem to be somewhat comprehensive brief and attachments." The court then asked defendant if he wished to represent himself, to which defendant replied that he wished the appointment of "effective, adequate, ethical counsel." Defendant continued by noting that counsel had not visited him, had no investigative data, and had kept him in the dark. However, under questioning by the court, defendant was unable to articulate arguments that he wished to make that counsel had omitted, seemingly confusing the relationship between claims of ineffective assistance of counsel and PCR, and he eventually permitted counsel to make the arguments set forth in counsel's brief. The petition was denied.
Following the hearing, defendant submitted an additional affidavit to the court in which he complained of counsel's failure to communicate, stating:
[Counsel]: Refuse to inform this client, refuse to visit & cross references with this client, refuse to investigate & submit investigative data to client, and client is in the dark on any strategy whatsoever. [Counsel] has failed in his obligated duty to include this client's acceptable & agreeable planning of this case. Therefore, I, Stanley Braxton, object to ineffective, inadequate and unethical counsel.
Defendant argues in the present appeal that counsel did not make all the arguments that he sought to have raised, omitting fourteen additional claims of ineffective assistance of trial counsel, and that the brief submitted on his behalf contained significant factual inaccuracies and omissions and misstated several of defendant's legal claims. In an affidavit executed on November 16, 2010, after the PCR hearing had taken place, defendant lists issues that counsel omitted from his PCR petition. They include trial counsel's failure to investigate the disciplinary records of those involved in the incident, to investigate Officer Richardson's medical history, to investigate the prison's standard operating procedures to determine the validity of the claim that the officers responded to the scene because a Code 33 had been called, to investigate whether a particular officer would have been required to file a report of the incident, to determine whether he could have made a lewd remark to a female in the control booth over the prison intercom as alleged, and to investigate the circumstances of the loss of the Vaseline jar.
Defendant also claims that he wished to argue that trial counsel was ineffective in placing a question regarding self-defense among those asked of potential jurors during voir dire, in failing to cross-examine certain officers' trial testimony that they witnessed acts that occurred before their reports state they arrived on the scene, failing to use the post-detention video to demonstrate the absence of any Vaseline, failing to introduce the administrative remedy form filed with Captain Walters, failing to argue that the loss of the Vaseline jar compelled the dismissal of all indictments with prejudice, failing to argue that it was improper to base an indictment solely on the testimony of a person with no first-hand knowledge of the events, and failing to argue that the indictments should have been dismissed for failure to present exculpatory evidence, consisting of Officer Richardson's negative x-ray.
Additionally, defendant claims that, although PCR counsel raised the issue of trial counsel's failure to cross-examine Dr. Diaz regarding the negative x-ray, he omitted any reference to a CAT scan that was also initially read as negative and to an undated letter from Dr. Diaz in which he suggested that Officer Richardson's nasal condition was pre-existing when he stated:
Stewart Richardson is a thirty-one-year-old male with a history of nasal obstruction mainly in the left side with associated, post nasal drip, rhinorrhea, facial pressure unresponsive to antibiotics, decongestants, steroid nasal spray. Patient suffered nasal trauma during an altercation with a inmate, since the incident which initiated his nasal symptoms. [Emphasis supplied.]
Defendant argues, additionally, that PCR counsel missed the point in arguing prosecutorial vindictiveness as he did, when defendant wished counsel to argue that the second prosecution was vindictive because the State knew that the officers had been untruthful in alleging that defendant had covered himself with Vaseline - a claim that could be negated by viewing the video taken of defendant while in detention. Defendant also claims that, if PCR counsel had spoken to him, he would have known that there was no video of the shower incident. The video that defendant wished to have shown at trial depicted him in detention after the incident took place, and it would have demonstrated both that he had no Vaseline on his body and that he sustained significant injuries in the incident as the result of the officers' conduct.
Rule 3:22-6(a) provides for the assignment of counsel on request in connection with a defendant's first petition for PCR. Once assigned, counsel "may not seek to withdraw on the ground of lack of merit of the petition" and "should advance all of the legitimate arguments requested by the defendant that the record will support. If defendant insists upon the assertion of any grounds for relief that counsel deems to be without merit, counsel shall list such claims in the petition or amended petition or incorporate them by reference." R. 3:22-6(d). Subsection (d) was amended, effective September 1, 2009, to include the language that we have quoted. Prior to September 1, and during the period when briefing was submitted by PCR counsel in this matter, the rule provided that: "Counsel should advance any grounds insisted upon by defendant notwithstanding that counsel deems them without merit."
The Rule was construed in its unamended form by the Supreme Court in State v. Rue, 175 N.J. 1 (2002). There, the Court observed:
PCR is a defendant's last chance to raise constitutional error that may have affected the reliability of his or her criminal conviction. It is not a pro forma ritual.
That is why we require provision of counsel.
Under our scheme that attorney is responsible to communicate with his client and investigate the claims. State v. Velez, 329 N.J. Super. 128, 133 (App. Div. 2000);
State v. Casimono, 298 N.J. Super. 22, 27 (App. Div. 1997) (remanding case to trial court to determine whether PCR counsel fulfilled his obligations to interview trial counsel, meet with defendant, submit brief, and argue on behalf of defendant); State v.
King, 117 N.J. Super. 109, 111 (App. Div. 1971). Based on that communication and investigation, counsel then must "fashion the most effective arguments possible."
Velez, supra, 329 N.J. Super. at 133. [Rue, supra, 175 N.J. at 18.]
The Court then held that after communication and investigation has occurred "counsel must advance the claims the client desires to forward in a petition and brief and make the best available arguments in support of them." Id. at 19. Thereafter, counsel may choose to stand on the brief and make no further supporting arguments at the hearing. Ibid.
Four years later, Rue was construed by the Court in its decision in State v. Webster, 187 N.J. 254 (2006). There, the Court stated:
Reduced to its essence, Rue provides that PCR counsel must communicate with the client, investigate the claims urged by the client, and determine whether there are additional claims that should be brought forward. Thereafter, counsel should advance all of the legitimate arguments that the record will support. If after investigation counsel can formulate no fair legal argument in support of a particular claim raised by defendant, no argument need be made on that point. Stated differently, the brief must advance the arguments that can be made in support of the petition and include defendant's remaining claims, either by listing them or incorporating them by reference so that the judge may consider them. [Id. at 257.]
Our review of the record in this matter in light of Rue and Webster leads us to conclude that PCR counsel's failure to communicate with defendant, to appropriately address the investigations that he requested,*fn3 and to permit defendant to timely review and consider the arguments set forth in counsel's PCR brief deprived defendant of the effective representation to which he was entitled on PCR. The record supports defendant's claim of the absence of any meaningful communication by counsel. The record also suggests that counsel conducted virtually no investigation in the matter. Nothing in the record suggests that counsel made a reasoned determination as to whether many of the claims that defendant sought to assert had factual foundation and legal merit, or if such a determination were made, that it was effectively communicated to defendant. Additionally, as previously stated, the majority of the arguments that counsel did present did not accurately reflect the evidence in the case or properly advance the arguments that defendant deemed to be significant. Although counsel invited defendant to raise any issues that he sought to present in a pro se brief, this alternative cannot be deemed the equivalent of the representation to which defendant was entitled.
As a consequence, we reverse the denial of PCR in this case and remand it with instructions that new PCR counsel be assigned. State v. Hicks, 411 N.J. Super. 370, 377 (App. Div. 2010). We decline to address the substance of defendant's arguments regarding the ineffectiveness of counsel at trial and on direct appeal, determining in the circumstances to await further investigation and briefing of the issues.
Reversed and remanded. Jurisdiction is not retained.