March 29, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ROCHINE HOLMES, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 03-10-3944.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 14, 2011 -
Before Judges Lihotz and Waugh.
Defendant Rochine Holmes appeals from the denial of his petition for post-conviction relief (PCR). We affirm.
Following a two-day jury trial, defendant was convicted of third-degree possession of a controlled dangerous substance (CDS) (count one), N.J.S.A. 2C:35-10a; third-degree possession with intent to distribute CDS (count two); N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3); and second-degree possession with intent to distribute CDS within 500 feet of a public housing facility (count three), N.J.S.A. 2C:35-7.1a. After merger, the trial court granted the State's application to impose an extended term sentence. On September 7, 2004, the trial judge sentenced defendant to an aggregate term of fifteen years in prison, subject to a seven-year period of parole ineligibility.
On appeal, we affirmed defendant's conviction, but remanded for resentencing following the Supreme Court's abolition of presumptive term sentences, set forth in State v. Natale, 184 N.J. 458 (2005) and State v. Pierce, 188 N.J. 155 (2006). Certification was denied. State v. Holmes, 190 N.J. 255 (2007).
On remand, the trial judge imposed the original sentence. Defendant did not appeal.
Defendant filed a PCR petition asserting his trial counsel was ineffective for failing to file pre-trial motions seeking suppression of evidence and challenging the State's identifications. Additionally, defendant maintained he was ill-advised by trial counsel during plea negotiations and his sentence was impermissible. A different judge reviewed each of these claims and, after determining there was no need for an evidentiary hearing, denied defendant's PCR petition.
Defendant now appeals, arguing:
THE FAILURE OF THE DEFENDANT'S APPELLATE COUNSEL TO CHALLENGE ON THE DEFENDANT'S DIRECT APPEAL THE TRIAL COURT'S REFUSAL TO DISCLOSE THE SURVEILLANCE SITE WAS CONSTITUTIONALLY INEFFECTIVE ASSISTANCE.
THE TRIAL COURT'S FAILURE TO CONSIDER THE FULL RANGE OF SENTENCES WHEN RE-SENTENCING THE DEFENDANT WAS FATAL.
THE TRIAL COURT'S DECISION TO IMPOSE ON COUNT THREE A 15-YEAR EXTENDED TERM WITH A SEVEN-YEAR PAROLE DISQUALIFIER WAS EXCESSIVE WHERE IT FAILED TO CONSIDER THE FULL RANGE OF SENTENCES WHEN RE-SENTENCING THE DEFENDANT.
THE DEFENDANT'S TRIAL ATTORNEY WAS CONSTITUTIONALLY INEFFECTIVE WHERE SHE DID NOT ADEQUATELY ADVISE THE DEFENDANT AS TO HIS MAXIMUM EXPOSURE.
We first set forth the applicable standards for considering an application for PCR. Under the Sixth Amendment of the United States Constitution, a person accused of crimes is guaranteed the effective assistance of legal counsel in his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). To establish a deprivation of that right, a convicted defendant must satisfy the two-part test enunciated in Strickland by demonstrating: (1) counsel's performance was deficient, and (2) the deficient performance actually prejudiced the accused's defense. Ibid. The Strickland test has been adopted in New Jersey. State v. Fritz, 105 N.J. 42, 58 (1987). See also State v. Allegro, 193 N.J. 352, 366 (2008) (holding the Strickland two-pronged test applied when reviewing allegations of appellate counsel's deficient representation (citing State v. Loftin, 191 N.J. 172, 197-98 (2007))). In reviewing such claims, there is a strong presumption defense counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. "[C]complaints 'merely of matters of trial strategy' will not serve to ground a constitutional claim of inadequacy[.]" Fritz, supra, 105 N.J. at 54 (quoting State v. Williams, 39 N.J. 471, 489, cert. denied, 374 U.S. 855, 83 S. Ct. 1924, 10 L. Ed. 2d 1075 (1963), overruled in part on other grounds by State v. Czachor, 82 N.J. 392, 402 (1980)). See also State v. Perry, 124 N.J. 128, 153-54 (1991).
In assessing the first prong, a court must determine whether counsel's conduct "fell outside the wide range of professionally competent assistance considered in light of all of the circumstances of the case." State v. Castagna, 187 N.J. 293, 314 (2006) (citation and internal quotation marks omitted). As noted, there is a strong presumption counsel's conduct "falls within the wide range of reasonable professional assistance." Ibid. (citation and internal quotation marks omitted). Defendant must demonstrate "counsel's actions did not equate to sound trial strategy." Ibid. (citation and internal quotation marks omitted). As the Supreme Court observed: an otherwise valid conviction will not be overturned merely because the defendant is dissatisfied with his or her counsel's exercise of judgment during the trial. The quality of counsel's performance cannot be fairly assessed by focusing on a handful of issues while ignoring the totality of counsel's performance in the context of the State's evidence of defendant's guilt. As a general rule, strategic miscalculations or trial mistakes are insufficient to warrant reversal except in those rare instances where they are of such magnitude as to thwart the fundamental guarantee of a fair trial.
[Allegro, supra, 193 N.J. at 367 (quoting Castagna, supra, 187 N.J. at 314-15).]
The second prong of the Strickland test requires that "prejudice must be proved; it is not presumed." Fritz, supra, 105 N.J. at 52 (citing Strickland, supra, 466 U.S. at 692-93, 104 S. Ct. at 2067, 80 L. Ed. 2d 696-97). In order to prove prejudice, defendant must show the "'reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.'" Ibid. (quoting Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698). See also State v. Gaither, 396 N.J. Super. 508, 514 (App. Div. 2007), certif. denied, 194 N.J. 444 (2008); State v. Rountree, 388 N.J. Super. 190, 206-07 (App. Div. 2006), certif. denied, 192 N.J. 66 (2007).
In light of these standards, we address defendant's challenges. In our discussion, we combine defendant's points one and four, which challenge the effectiveness of counsel's representation, and points two and three, which attack the sentence imposed.
Defendant's initial challenge addresses appellant counsel's competence, asserting counsel's negligent failure to attack on direct appeal the trial court's denial of his motion to disclose the police surveillance location warrants the grant of a new trial. The State's main witness, Patrolman Miguel Ruiz, observed what he believed were hand-to-hand drug sales by defendant and his co-defendant from an undisclosed surveillance location.
During trial, Patrolman Ruiz related his observations of an African American male, dressed in a white t-shirt and blue jeans, who after being approached by a woman, walked to the front yard of a vacant dwelling, retrieved an item from the grassy area near the wall of the house, and handed the object to the woman in exchange for currency. Also, Patrolman Ruiz identified defendant as the man he observed engage in the exchange with the woman.
Defendant argues appellate counsel was negligent in not pursuing this challenge because disclosure of the location was directly linked to Patrolman Ruiz's "ability to make a reliable observation of the person he allegedly witnessed." Further, defendant argues the State's case against him collapses without Patrolman Ruiz's identification evidence. We are not persuaded.
We have not been provided with defendant's PCR petition; however, the trial transcript reveals this issue was not raised at the hearing.
"[I]t is a well-settled principle that our appellate courts will decline to consider questions or issues not properly presented to the trial court when an opportunity for such a presentation is available unless the questions so raised on appeal go to the jurisdiction of the trial court or concern matters of great public interest." [State v. Robinson, 200 N.J. 1, 20 (2009) (quoting Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973)).]
Because defendant's arguments are premised on the guarantee found in both the Federal and New Jersey Constitutions affording criminal defendants the right to "be confronted with the witnesses against them[,]" U.S. Const. amend. VI; N.J. Const. art. 1, para. 10, and because the confrontation principle assures a defendant the opportunity to seek "favorable testimony on cross-examination of the [S]tate's witnesses[,]" State v. Budis, 125 N.J. 519, 531 (1991), we will review defendant's assertion.
The review of a defendant's request for disclosure of a surveillance location is guided by N.J.S.A. 2A:84A-27 and N.J.R.E. 515, adopted following the Supreme Court's decision in State v. Garcia, 131 N.J. 67 (1993). In Garcia, the Supreme Court held "a surveillance location falls within the type of information that a court may conceal in the public interest." Id. at 73. Both N.J.R.E. 515 and N.J.S.A. 2A:84A-27 state:
No person shall disclose official information of this State or of the United States (a) if disclosure is forbidden by or pursuant to any Act of Congress or of this State, or (b) if the judge finds that disclosure of the information in the action will be harmful to the interests of the public.
When confronted with a defendant's request for disclosure, the Supreme Court has instructed "the State must make a preliminary showing that disclosure of the surveillance location would harm the public interests and should therefore remain privileged[.]" State v. Zenquis, 131 N.J. 84, 88 (1993). "[T]he State must demonstrate a realistic possibility that revealing the location would compromise present or future prosecutions or would possibly endanger lives or property." Garcia, supra, 131 N.J. at 78. Thereafter, the defendant overcomes the privilege by making "a substantial showing of need[.]" Id. at 81. The court must balance "defendant's need for that information with the public's interest in nondisclosure." Zenquis, supra, 131 N.J. at 88. In its review, a trial "court must consider the crime charged, the possible defenses, the potential significance of the privileged information, and other relevant factors." Ibid.
Even when the State is afforded the benefit of the official information privilege, a defendant is entitled "to inquire about certain important facts" regarding the surveillance to help the jury "critically examine testimony, while also serving the State's need for confidentiality." Garcia, supra, 131 N.J. at 81. These facts would include "the distance from which the observation was made," whether "the witness used [any] vision-enhancing article[s]," whether the observations were made from an elevated position, and information about the witness's line and angle of sight. Id. at 81-82.
In this matter, the State asserted the location was an important observation post for past, present, and future drug investigations and it desired to continue using the surveillance location in this high crime area. Further, the State cited safety concerns for residents because of possible retaliatory efforts by illicit narcotic traffickers continuing to operate in the area. Consequently, the trial judge properly held an in-camera hearing once the State declined to disclose the surveillance location. See Id. at 80 ("Trial courts must consider possible disclosure of surveillance locations on a case-by-case basis").
Following the in-camera hearing, the trial judge properly balanced the State's asserted privilege against the defendant's proposed need to cross-examine Patrolman Ruiz's identification testimony. Although protecting the exact location, including the exact distance and angle of view, the court allowed defendant's cross-examination on the general distance of Patrolman Ruiz's observation of the transactions, the weather and lighting conditions, the existence of any obstructions, and whether and what vision enhancing devices were utilized.
Defendant has not articulated any substantial need for disclosure of the surveillance location, other than a generalized assertion it was critical to obtain corroborating evidence to challenge the veracity of the officers' observations and identification of defendant. See State v. Ribalta, 277 N.J. Super. 277, 288 (App. Div. 1994) (holding a "defendant must make 'a substantial showing of need' to defeat the State's proper assertion of the privilege" (quoting Garcia, supra, 131 N.J. at 81)), certif. denied, 139 N.J. 442 (1995). From this record, we discern nothing that would aid his defense by revealing Patrolman Ruiz's exact location and find no abuse of discretion by the trial judge in his pre-trial ruling as there was no demonstration defendant's constitutional rights were infringed, requiring the State to yield the surveillance-location privilege. See Garcia, supra, 131 N.J. at 80 ("Absent some showing of need by a defendant for the exact surveillance location, the trial court should deny its disclosure"). Consequently, appellate counsel was not deficient in failing to include the issue on direct appeal.
Defendant also claims his trial counsel was constitutionally deficient because she inadequately advised him regarding the maximum sentencing exposure, if convicted at trial, of twenty years imprisonment subject to ten years parole ineligibility. Defendant's claim is without merit. R. 2:11-3(e)(2). As noted by the PCR judge, defendant's pretrial memorandum set forth the maximum penalty and parole ineligibility periods if a jury convicted him of all charges. Defendant executed this memorandum, reflecting he received and presumably reviewed a copy when submitted.
Defendant's second and third arguments on appeal focus on his sentence. Before considering these arguments, we recite the sentence imposed upon remand.
In resentencing defendant, the trial judge merged the third-degree possession conviction, count one, with the third-degree conviction of distribution, count two. The judge found defendant qualified for a mandatory extended term, N.J.S.A. 2C:43-6f, based on his prior convictions, for which he was sentenced to a custodial term of ten years with a seven-year period of parole ineligibility. As to the conviction on count three for second-degree possession with intent to distribute CDS within 500 feet of a public housing facility, the court imposed a discretionary extended term after finding defendant qualified as a persistent offender, N.J.S.A. 2C:44-3a, and sentenced defendant to fifteen years imprisonment subject to a seven-year period of parole ineligibility. In making the determination, the trial judge applied aggravating factors three, the risk that the defendant will commit another offense, N.J.S.A. 2C:44-1a(3); five, the likelihood the defendant is involved in organized criminal activity, N.J.S.A. 2C:44-1a(5); six, the extent of the defendant's prior criminal record and the seriousness of the offenses of which he has been convicted, N.J.S.A. 2C:44-1a(6); and nine, the need for deterring the defendant and others from violating the law, N.J.S.A. 2C:44-1a(9). The judge found no applicable mitigating factors. The two sentences were to run concurrently.
Turning to defendant's arguments on appeal, he first maintains the sentence imposed during resentencing was "illegal" because the trial judge failed to consider the full range "it may have legally imposed as to a discretionary extended term[,]" and merely imposed the sentence after listing reasons why the initial sentence should not be altered. Second, he argues the court erred in imposing both a mandatory extended term and a discretionary extended term in the same proceeding.
We conclude the first of defendant's two sentencing arguments addresses the length of the sentence, not its legality. Defendant chose not to appeal the term imposed following remand. An excessive sentence argument is not a cognizable issue for PCR, which may not be used as a substitute for direct appeal. State v. Cerbo, 78 N.J. 595, 605 (1979). Furthermore, PCR is unavailable to review an issue which could have been raised on appeal. R. 3:22-4. "Procedural bars exist in order to promote finality in judicial proceedings." State v. McQuaid, 147 N.J. 464, 483 (1997). On this issue, the enforcement of this procedural bar will not result in fundamental injustice or the denial of constitutional protections. Cerbo, supra, 78 N.J. at 605.
That said, for completeness we note defendant's argument is belied by the record. The resentencing record reflects the trial judge's discussion with counsel that under Pierce, supra, 188 N.J. at 172, the range for a discretionary extended term imposed on a third-degree offense began at five years and extends to twenty years. The trial judge acknowledged the elimination of presumptive sentencing terms and also acknowledged the State was not requesting a sentence in excess of fifteen years for the conviction.
Defendant's second challenge attacks the legality of imposing two extended term sentences. See R. 3:22-2(c) (allowing correction of an illegal sentence presented in a PCR petition at any time); see also State v. Mercadante, 299 N.J. Super. 522, 528-29 (App. Div.), certif. denied, 150 N.J. 26 (1997). This issue was previously reviewed and is rejected.
On direct appeal, we noted no more than one extended term may be imposed on convictions arising from the same circumstances in a single sentencing proceeding. N.J.S.A. 2C:44-5a(2). This statutory limit is violated even where the two extended terms were imposed concurrently. State v. Vassos, 237 N.J. Super. 585, 588 (App. Div. 1990). However, we determined the prohibition in N.J.S.A. 2C:44-5a(2), forbidding the imposition of more than one extended term, does not apply when one of the multiple sentences imposed is a mandatory extended term. State v. Singleton, 326 N.J. Super. 351, 355 (App. Div. 1999).
Defendant's argument that the court failed to properly articulate its findings in this regard is unpersuasive. Even if the court improperly included aggravating factor six, the extent of defendant's prior criminal record, the remaining aggravating factors outweigh the non-existent mitigating factors. We reject the notion that the sentence imposed was illegal.
Following our review, we conclude no legal basis is presented warranting our interference with the order denying defendant's PCR petition.
© 1992-2012 VersusLaw Inc.