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State of New Jersey v. Tomango Simms

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


December 15, 2011

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
TOMANGO SIMMS, A/K/A TOMANGO SIMS, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 03-12-2430.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 14, 2011 -

Before Judges Axelrad and Sapp-Peterson.

Defendant, Tomango Simms, appeals from the June 11, 2010 order denying his petition for post-conviction relief (PCR).

We affirm.

In a five-count indictment, a jury charged defendant with first-degree felony murder, N.J.S.A. 2C:11-3a(3) (Count One); first-degree aggravated manslaughter, N.J.S.A. 2C:11-4 (Count Two); second-degree aggravated arson, N.J.S.A. 2C:17-1a (Count Three); third-degree arson, N.J.S.A. 2C:17-1b (Count Four); and third-degree aggravated assault, N.J.S.A. 2C:12-1b(8) (Count Five). The charges stemmed from the destruction, by fire, of the three-story Walter J. Conley Elks Lodge, located in Freehold Borough, during the early morning hours of July 20, 2003. The body of the lodge's caretaker, Elijah Jenkins, Jr., who also happened to be the grandfather of two of defendant's children, was found in the kitchen area of the second floor. Following a trial, the jury convicted defendant of Counts One, Four and Five, of manslaughter as a lesser-included offense of Count Two, and of arson as a lesser-included offense of Count Three. At sentencing, the court imposed an aggregate thirty-year custodial term with a thirty-year period of parole ineligibility.

In an unreported opinion, we affirmed defendant's conviction and sentence. State v. Sims, No. A-5104-05 (App. Div. Mar. 10, 2009). The Supreme Court denied defendant's petition for certification. State v. Sims, 199 N.J. 515 (2009). In June 2009, defendant timely filed a pro se PCR petition. On April 19, 2010, through assigned counsel, defendant filed an amended PCR petition. Following oral argument on June 11, 2010, the court orally denied defendant's petition, memorialized in an order of the same date. The present appeal followed.

On appeal, defendant raises the following points for our consideration:

POINT I

THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

A. TRIAL COUNSEL WAS INEFFECTIVE SINCE HE DISCLOSED CONFIDENTIAL INFORMATION, DISPARAGED THE DEFENSE POSITION AND DEMANDED ADDITIONAL MONEY TO CONTINUE REPRESENTING THE DEFENDANT.

B. TRIAL COUNSEL WAS INEFFECTIVE SINCE HE FAILED TO USE EVIDENCE TO IMPEACH DEFENDANT'S MOTHER DURING CROSS-EXAMINATION.

C. TRIAL COUNSEL WAS INEFFECTIVE SINCE COUNSEL FAILED TO CALL DEFENDANT AS A WITNESS AT THE MIRANDA*fn1 HEARING.

POINT II

THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT'S CLAIMS ARE NOT PROCEDURALLY BARRED UNDER R[ULE] 3:22-4.

POINT III

THE LOWER COURT ERRED IN NOT CONDUCTING AN EVIDENTIARY HEARING AND THE LOWER COURT ORDER MUST THEREFORE BE REVERSED.

POINT IV

THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL.

POINT V

THE LOWER COURT ORDER MUST BE REVERSED IN LIGHT OF ADDITIONAL ERRORS.

POINT VI

THE LOWER COURT ORDER MUST BE REVERSED SINCE CUMULATIVE ERRORS DEPRIVED DEFENDANT OF DUE PROCESS.

After carefully considering the record and briefs, we are satisfied that none of the arguments advanced by defendant are of sufficient merit to warrant discussion in a written opinion. We affirm substantially for the reasons expressed by Judge E. Kreizman in his thorough and well-reasoned oral opinion of June 11, 2010. We add following brief comments.

Claims of ineffective assistance of counsel are governed by the standards set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), which have been adopted by our Supreme Court. See State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the precepts of Strickland in New Jersey). To establish a prima facie case of ineffective assistance of counsel, a defendant must show that defense "counsel's performance was deficient" and that "there exists 'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" State v. Preciose, 129 N.J. 451, 463-64 (quoting Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698); see also State v. Allegro, 193 N.J. 352, 366 (2008).

"The first prong of the [Strickland] test is satisfied by a showing that counsel's acts or omissions fell outside the wide range of professionally competent assistance considered in light of all the circumstances of the case." Allegro, supra, 193 N.J. at 366 (citation and quotation marks omitted). To prove the second prong, a defendant must prove "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different." Id. at 367 (citation and quotation marks omitted). It is "an exacting standard: [t]he error committed must be so serious as to undermine the court's confidence in the jury's verdict or the result reached." Ibid. (citation and quotation marks omitted).

Measured under these standards, Judge Kreizman properly denied post-conviction relief to defendant and did not abuse his discretion in denying the motion without conducting an evidentiary hearing. Judge Kreizman not only presided over the PCR proceedings but presided over the pretrial and trial proceedings. In rejecting defendant's claim that trial counsel was ineffective for not calling him to testify during the Miranda hearing, the judge reasoned that had defendant testified at the Miranda hearing that the officers entered defendant's premises forcefully, his decision to admit defendant's statement would remain unchanged.

As we review [trial counsel's] decision not to call [defendant], I do not find that he was ineffective in regard to that. I found -- and I recall the testimony pretty well because I went through the transcript. It brought it all back to me. I found the

[S]tate's three witnesses to be credible. Their stories were consistent. They were reasonable. They made sense as to what you do when you get some information that a terrible tragedy had happened and that this person may have been responsible.

. . . I witnessed [defendant's] testimony during the course of the trial. I heard him . . . testify. I saw him on the videotape. I saw him recreate what happened at the door of the Elks Club. And the defendant testified in court. He brought out the same facts that are raised in his certification, [the] same things that if he had been called, he would have said at the Miranda [h]earing. . . .

After viewing the certification of [defendant], I still find that the

[S]tate['s] witnesses were credible, and I find that [defendant] is not credible. I don't believe him. I saw him on the videotape. He's complaining that he was drunk, he was drinking, he went out and bought more booze and drank again. Yes, he was emotional. He was emotional because he had started a fire that killed the grandparents of his children. Yes, he was emotional. When he found out exactly what happened in that fire, he was emotional. So, I understand that. The fact that he was emotional doesn't mean that he was deprived of the ability to make decisions.

The statement that he gave to the police was consistent. It was consistent in regard to the origin of the fire. It was consistent in regard to the analysis that was given by the experts. It was consistent with all the pictures I saw. I made a determination that [defendant] was not a good witness. He was not a believable witness during the course of the trial. He didn't do well on the witness stand. There is no reason for me to believe that he would have done any better if there was no jury present[,] if he had testified early on.

Likewise, apart from finding that defendant's challenge to his trial counsel's motion to withdraw was procedurally barred pursuant to Rule 3:22-4, Judge Kreizman rejected defendant's claim, supported by certifications, that trial counsel's motion was influenced by his request for more money, which had not been paid to him. The judge stated: "[Trial counsel] continued to represent defendant. He didn't ask to be relieved because he wasn't paid. That wasn't his reason. He gave a reason, which was an appropriate reason. He was concerned that somebody was going to lie. I don't find any defect in counsel's representation." Moreover, assuming, as defendant urges, trial counsel violated the Rules of Professional Conduct (RPC) by disclosing information to the court beyond that which was necessary to support his motion to withdraw as counsel, a violation of the RPC does not necessarily equate to ineffective assistance of counsel. See Nix v. Whiteside, 475 U.S. 157, 165, 106 S. Ct. 988, 993, 39 L. Ed. 2d 123, 134 (1986) (holding that a "breach of an ethical standard does not necessarily make out a denial of the Sixth Amendment guarantee of assistance of counsel").

Trial counsel, in support of his motion to withdraw, pointed to specific statements made by defendant that provided a "firm factual basis for [trial counsel's] belief" that defendant intended to commit perjury. United States ex rel. Wilcox v. Johnson, 555 F.2d 115, 122 (3d Cir. 1977). Additionally, during pretrial proceedings, trial counsel presented the court with the events that unfolded subsequent to defendant's admission to him that he had lied when he told counsel that he had not set the Elks Lodge afire. Specifically, trial counsel indicated that based upon this new revelation, defendant expressed a willingness to plead guilty, and he therefore met with the assistant prosecutor assigned to the case in an effort to negotiate a plea agreement. A proposed agreement was reached and memorialized on plea forms, but when presented to defendant, he changed his mind.

In short, while at first glance the issues defendant raised in his PCR petition may have suggested that an evidentiary hearing was warranted, having presided over all of the pretrial and trial proceedings, Judge Kreizman was in the best position to assess whether defendant's post-conviction proofs, as set forth in the certifications submitted in support of the petition, established a prima facie case of ineffective assistance of counsel warranting an evidentiary hearing. Preciose, supra, 129 N.J. 451.

A defendant is entitled to an evidentiary hearing where the PCR judge concludes there are material factual issues in dispute that cannot be resolved by reference to the existing record. See Id. at 452. Here, as Judge Kreizman stated, he had the benefit of his own recollection of the observations he made and judgments he reached throughout the Miranda proceeding and trial that led him to conclude he was able to decide defendant's motion without the necessity of conducting an evidentiary hearing. Under these circumstances, we find no abuse of the court's discretion in declining to conduct an evidentiary hearing, and we conclude the finding that defendant failed to establish a prima facie case of ineffective assistance of counsel is supported by substantial, credible evidence in the record.

Affirmed.


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