February 6, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JEROME D. HOLLEY, AKA JEROME S. HOLLEY, JEROME GANDY, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment Nos. 04-08-1684 and 05-06-1284.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 14, 2011
Before Judges A. A. Rodriguez and Ashrafi.
Defendant Jerome Holley appeals from denial of his petition for post conviction relief (PCR) alleging ineffective assistance of counsel. We affirm.
Defendant pleaded guilty on charges from two separate indictments. Indictment No. 04-08-1684 contained seven counts, including first-degree armed robbery, N.J.S.A. 2C:15-1; second-degree aggravated assault, N.J.S.A. 2C:12-1b(1); and other assault and weapons charges. The indictment accused defendant of shooting Jermaine Carmichael in the back and arm in the course of an attempted robbery on June 21, 2004. Indictment No. 05-06-1284 contained two counts, third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b, and second-degree possession of a firearm by a convicted person, N.J.S.A. 2C:39-7. Those charges arose from an April 2, 2005 arrest of defendant, at which time police found a handgun in his possession.
As trial on the first indictment was about to begin on October 25, 2005, defendant accepted a combined plea offer from the prosecution for concurrent sentences on charges from both indictments. He pleaded guilty to second-degree aggravated assault from the first indictment and to second-degree possession of a firearm by a convicted person from the second indictment. Defendant was sentenced on February 3, 2006, to concurrent terms of ten years imprisonment on each charge, with eighty-five percent of the sentences to be served before parole eligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
On direct appeal, we heard argument on a sentencing calendar pursuant to Rule 2:9-11, and by order dated March 3, 2008, we remanded to the trial court for resentencing. On April 25, 2008, the trial court resentenced defendant to the same ten year NERA sentence on the aggravated assault charge and to a concurrent sentence of seven years imprisonment on the firearms charge with five years of parole ineligibility.
Defendant filed a petition for PCR on October 14, 2008. The judge who had taken defendant's guilty pleas and sentenced him both times considered the written PCR submissions and heard argument of counsel. By oral decision on July 17, 2009, the judge denied the petition without holding an evidentiary hearing.
On appeal, defendant does not challenge his guilty plea and sentence on the second indictment charging the weapons offense. As to the aggravated assault charge of the first indictment, he argues ineffective assistance of counsel prior to his guilty plea on two related grounds: that his attorney failed to conduct an adequate investigation to obtain exculpatory testimony from the victim, Carmichael, and that he failed to make a pretrial motion challenging identification of defendant as the person who shot Carmichael. Defendant's brief on appeal summarizes his arguments under the following point headings:
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR POST-CONVICTION RELIEF.
DEFENDANT'S TRIAL COUNSEL PROVIDED INEFFECTIVE ASSISTANCE TO DEFENDANT. POINT III
THE TRIAL COURT ERRED BY REFUSING TO AFFORD DEFENDANT AN EVIDENTIARY HEARING.
We reject defendant's arguments.
Carmichael identified defendant from a photo array while he was hospitalized and recovering from his injuries after the June 21, 2004 shooting. Defendant was arrested on June 24, 2004. He made statements to detectives admitting that he had fought with Carmichael on June 21, but he claimed that Carmichael had produced the gun and the gun had fired accidentally while the two struggled.
After defendant was indicted on robbery, aggravated assault, and weapons charges, defendant and Carmichael were incarcerated at the same time in the county jail. In October 2004, Carmichael sent an affidavit to the Atlantic County Public Defender's office stating that defendant was not the person who shot him. In November 2004, Carmichael rescinded his recantation. He gave a taped statement to Atlantic County investigators claiming that he had been coerced into signing the exculpatory affidavit and that he feared reprisal in jail if he did not provide a favorable statement to defendant.
In April 2007, after defendant's guilty plea and sentencing, Carmichael gave another taped statement, this time to a private investigator employed on behalf of defendant. He told the investigator that defendant had not shot him and he did not even see defendant at the scene when he was shot. On October 5, 2008, Carmichael changed his version of the facts for a fifth time, this time submitting an affidavit to PCR counsel stating that defendant was present at the scene and fought with Carmichael but someone else had fired the shots.
In October 2005, near the time scheduled for his trial, defendant had retained a new attorney. The attorney represented to the court that he could not obtain the cooperation and testimony of a witness (presumably Carmichael) to aid in the defense. Based on that representation, the attorney obtained approval from the Presiding Judge of the Criminal Division for defendant to accept the prosecution's earlier plea offer of ten years imprisonment. Defendant entered his plea of guilty to the charge of aggravated assault, admitting under oath that he had fought with Carmichael and fired the shots that injured him.
Defendant argues now that his attorney's performance was deficient because he failed to investigate adequately and obtain Carmichael as a witness for the defense and because he failed to request a pretrial hearing under United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967), to challenge defendant's identification as the person who shot Carmichael.
Regardless of what Carmichael might have testified at defendant's trial if he had been found and cooperated with the defense, identification of defendant was not an issue in the case. Within days after the shooting, defendant had made statements identifying himself as the person who had fought with Carmichael. He admitted he had shot Carmichael but explained at that time that the shooting was accidental. He did not claim he was not involved in the shooting. Carmichael's subsequent recantations and vacillations lacked credibility because he told investigators he was coerced and feared reprisal. Moreover, Carmichael's testimony would not have refuted defendant's admissions. There was no need for a pretrial hearing to assess the reliability of Carmichael's identification of defendant in accordance with Wade and other identification cases because defendant had not denied he was the person involved in the fight and the shooting.
Defendant's claims and arguments did not overcome the presumption that he received the assistance of counsel that is mandated by the Sixth Amendment of the United States Constitution and Article I, Paragraph 10 of the New Jersey Constitution. See Strickland v. Washington, 466 U.S. 668, 689, 694, 104 S. Ct. 2052, 2065, 2068, 80 L. Ed. 2d 674, 694, 698 (1984); State v. Loftin, 191 N.J. 172, 198 (2007). Defendant bears the burden of proving that his attorney's assistance was a violation of his constitutional rights. Loftin, supra, 191 N.J. at 198. His allegations did not satisfy the two-pronged Strickland test for ineffective assistance of counsel, namely, first that "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment. Second, . . . that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; see State v. Fritz, 105 N.J. 42, 51-52 (1987).
In a PCR appeal, our standard of review is plenary on questions of law, but the factual findings of the trial court are granted deference if they are supported by adequate, substantial, and credible evidence. See State v. Harris, 181 N.J. 391, 415-16 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). We find no error in the conclusions of the trial judge that defendant's allegations of deficient performance were not borne out by the record of his guilty plea and the subsequent submissions on the PCR petition.
We also reject defendant's contention that the PCR court erred in dismissing his petition without holding an evidentiary hearing. An evidentiary hearing may be required where matters beyond the trial record must be examined. See State v. Preciose, 129 N.J. 451, 462 (1992). We review the PCR court's determination to decide the matter without holding an evidentiary hearing under the abuse of discretion standard of review. State v. Marshall, 148 N.J. 89, 157-58, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). Here, an evidentiary hearing would not have been beneficial in assessing whether defense counsel's representation was deficient, or whether Carmichael's exculpatory testimony or a Wade hearing might have affected defendant's decision to plead guilty. In that regard, we note the trial court's comments that defendant received a late and favorable plea offer, and we also note the absence of any challenge to his conviction and sentence on the separate indictment for possession of a firearm by a convicted person.
© 1992-2012 VersusLaw Inc.