January 13, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JEREMY CALDWELL, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 03-02-0268.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 20, 2011
Before Judges Messano and Yannotti.
Defendant Jeremy Caldwell appeals from an order entered by the Law Division on July 9, 2009, which denied his petition for post-conviction relief (PCR). We affirm.
Defendant was charged under Mercer County Indictment No, 03-02-0268 with first-degree robbery, N.J.S.A. 2C:15-1; first-degree attempted murder, N.J.S.A. 2C:11-3, N.J.S.A. 2C:5-1; second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1),; second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); and fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(4).
The charges arose from an incident that took place on August 21, 2002 in Ewing Township. On that date, an officer of the Trenton Police Department was in the Club XL, assisting the State Police with a check of the premises for compliance with regulations governing the sale of alcoholic beverages. At around 1:00 a.m., the officer heard a single gun shot from the rear of the building. The officer exited the club and found the victim of a shooting, later identified as Rashone Montgomery (Montgomery). Montgomery was taken to a hospital and, as result of the shooting, he remains paralyzed from the waist down.
Police officers from Ewing Township were dispatched to area outside Club XL, where they were met by Trenton police officers. They learned that an individual named Ashmond Grier (Grier) had been a passenger in Montgomery's car. Grier gave a statement to the police.
Grier said that he and Montgomery were seated in the car, when a Nissan Altima pulled up in front of them. According to Grier, a man later identified as defendant exited the rear passenger seat of the Altima. He approached the driver's side of Montgomery's car and tried to open the door. When Montgomery resisted, the man drew a semi-automatic handgun from his waistband and shot Montgomery.
Based on information provided by an anonymous source and certain confidential informants, the police identified defendant and Jimmy Watkins (Watkins) as perpetrators of the robbery. Defendant was identified as the shooter. The police obtained warrants to search defendant's and Watkins's residences, and the Nissan Altima that was registered to Watkins.
The police encountered defendant when they executed the warrant at his residence. He confronted the officers and pointed a gun at them as they entered. The police told defendant to put the gun down and he eventually complied. The police took defendant into custody and seized the weapon. The search of the residence revealed a freshly-washed, short-sleeved shirt, which resembled the shirt that a witness said the shooter had been wearing. The police seized another weapon in the residence.
At police headquarters, defendant asked to speak with a detective with whom he had previously dealt. Defendant was informed of his Miranda*fn1 rights. He agreed to give a statement to the police. Defendant admitted that he and Watkins followed the car driven by the victim to a club and, when they arrived there, he got out of the car, approached the victim and told him it was a robbery. Defendant admitted shooting the victim. He stated that he threw the gun used to shoot the victim in the river.
On January 30, 2004, defendant pled guilty to first-degree robbery. The State agreed to the dismissal of the other charges. At the plea hearing, defendant stated that he had not been forced to enter the plea. He acknowledged that he was entering the plea of his own free will, and indicated that he had not been coerced in any manner. Defendant also indicated that he was satisfied with the advice he received from his attorney.
Defendant stated that on August 21, 2002, during the course of a theft, he used force and inflicted bodily injury upon Montgomery, while armed with a deadly weapon. Defendant said that Montgomery had been sitting in his automobile. Defendant stated that he went to the driver's side of the car and told Montgomery "it was a hold up." Defendant had a gun in his hand, which he showed to Montgomery. Defendant acknowledged that he shot Montgomery.
The trial court later sentenced defendant to eleven and one-half years of incarceration, with a period of parole ineligibility as prescribed by the No Early Release Act, N.J.S.A. 2C:43-7.2, and entered a judgment of conviction dated April 27, 2004. Thereafter, defendant filed an appeal challenging his sentence. We affirmed the sentence imposed. State v. Caldwell, No. A-5266-04 (App. Div. Aug. 24, 2006).
On July 18, 2007, defendant filed a pro se petition for PCR. He alleged that he was denied the effective assistance of counsel because trial counsel was simultaneously representing him and the victim's father. He additionally alleged that trial counsel failed to give adequate attention to the case. The trial court assigned counsel to represent defendant, and counsel filed an amended PCR petition in which he alleged that defendant had been denied the effective assistance of counsel because trial counsel did not move to suppress the statement defendant gave to the police after his arrest.
The trial court considered the petition on June 19, 2009, and on July 8, 2009, filed a written opinion concluding that defendant had not been denied the effective assistance of counsel. The court found that defendant failed to show that trial counsel's decision not to seek suppression of his statement "was anything more than a strategic decision, nor that this decision was professionally unsound."
The court stated that "[a] myriad of factors . . . support the conclusion that [defendant's] trial counsel did, in fact, make a viable decision to retain the plea offer presented by the State by opting not to file a motion to suppress[.]" The court said that this was a decision accepted by defendant and confirmed through his subsequent guilty plea. The court noted that trial counsel's decision was in furtherance of a strategy to minimize defendant's sentencing exposure.
The court additionally found that defendant had not been prejudiced by counsel's failure to file the motion because defendant had not shown that he would have succeeded in suppressing the statement. The court noted that, even without the confession, the State had extensive evidence of defendant's guilt, including statements from three eyewitnesses. The court also noted that defendant would have faced "periods of incarceration significantly greater than what [defendant] was offered by the State in their plea offer."
The court further found that defendant's other concerns about the representation provided by trial counsel were "vitiated" based on defendant's decision to resolve the matter by pleading guilty to first-degree robbery. The court noted that, in his plea colloquy, defendant indicated he was entering his plea knowingly, voluntarily and intelligently. Defendant also said that he was satisfied with the representation that his attorney had provided to him and he had no further questions to ask of counsel or the court.
The court entered an order dated July 9, 2009, denying defendant's PCR petition. This appeal followed. Defendant raises the following issues for our consideration:
THE TRIAL COURT'S DENIAL OF DEFENDANT'S PETITION FOR POST CONVICTION RELIEF SHOULD BE REVERSED BECAUSE THE DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
A. The defendant was denied the effective assistance of trial counsel as trial counsel failed to conduct an adequate investigation in this matter which [led] to her failure to file a motion to suppress defendant's confession and which [led] to her failure to file a motion to suppress defendant's confession and which [led] to her failure to properly advise the defendant prior to the entry of his guilty plea. Trial counsel's representation of defendant also created a conflict of interest as she was representing the victim's father while simultaneously representing the defendant.
POINT II NOTWITHSTANDING THE MERITS OF DEFENDANT'S ARGUMENTS, THE PETITION FOR POST CONVICTION RELIEF SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING WHEREIN DEFENDANT COULD HAVE ESTABLISHED HIS INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM.
Having considered these arguments in light of the record and the applicable legal principles, we are satisfied that the record supports the PCR court's decision to deny defendant's petition for PCR. In our view, defendant's arguments on appeal are without sufficient merit to warrant extended discussion. R. 2:11-3(e)(2). However, we add the following brief comments.
In order to prevail on such a claim of ineffective assistance of counsel, a defendant must satisfy the two-part test established by Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted by our Supreme Court for considering ineffective-assistance-of-counsel claims raised under the New Jersey Constitution. State v. Fritz, 105 N.J. 42, 58 (1987).
The Strickland test requires a defendant to establish that his attorney "'made errors so serious that counsel was not functioning as the "counsel" guaranteed [to] the defendant by the Sixth Amendment.'" Id. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). The Strickland test also requires that the defendant establish that his attorney's "'deficient performance prejudiced the defense.'" Ibid. (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). To establish prejudice, the defendant must show that there is "'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Ibid. (quoting Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698).
Here, defendant argued that his attorney erred by failing to move for suppression of the statement defendant gave to the police after his arrest. Defendant claims that his statement was not voluntary. Defendant asserts that at the time he gave the statement, he was "extremely intoxicated" because he had been drinking alcohol and consuming drugs. Defendant maintains that he made the statement in order to end the questioning so that he could get back to his mother and see that she received medical help he thought she required.
As we noted previously, the PCR court found that trial counsel's decision not to file a suppression motion was a valid strategic judgment because there was little likelihood such a motion would succeed and counsel reasonably chose to negotiate a plea that substantially limited defendant's sentencing exposure. The court further found that defendant was not prejudiced by counsel's decision to focus on the plea and not seek suppression of the statement. We are satisfied that the record supports the court's findings.
Defendant additionally contends that his trial attorney erred by failing to adequately prepare the case. Defendant asserts that he entered a guilty plea, rather than take the case to trial, because he believed he had no other choice. Defendant says that he did not think that going to trial was a viable option because he believed his attorney was not paying sufficient attention to the case. He asserts that counsel failed to spend sufficient time communicating with him.
Defendant has not established, however, that he was prejudiced by counsel's alleged lack of preparation and communication. Defendant has not shown that further preparation would have led to a different or more favorable result than that achieved by the guilty plea his counsel negotiated. As we have explained, in addition to the statement defendant gave to the police, the State had extensive evidence of defendant's guilt, including statements from several witnesses who identified defendant as the shooter. Moreover, defendant has not shown that the result here would have been different if his attorney spent more time communicating with him.
Defendant further argues that he was denied the effective assistance of counsel because at the time counsel was representing him, she was also representing the father of the victim. Defendant claims that this dual representation created an impermissible conflict of interest. Defendant has not, however, provided any factual support for this contention.
In addition, defendant claims that the PCR court erred by denying his petition without conducting an evidentiary hearing. An evidentiary hearing was not required here because defendant failed to present a prima facie case of ineffective assistance of counsel. State v. Preciose, 129 N.J. 451, 462 (1992).