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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...