April 18, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DESMOND WALKER, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 05-08-3230.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 6, 2012
Before Judges Carchman, Nugent and Maven.
Defendant Desmond Walker appeals from the March 12, 2010 Law Division order denying his petition for post-conviction relief (PCR). We conclude the trial judge correctly determined the following: that (1) defendant is not entitled to an evidentiary hearing because he failed to establish a prima facie case of ineffective assistance of counsel; and (2) defendant's proffered mitigating factors were without merit and would not have resulted in a lesser sentence had counsel raised those factors.
Defendant entered a guilty plea to the charge of first-degree kidnapping, N.J.S.A. 2C:13-1b(1) and (2) (count four) and to the charge of third-degree aggravated assault, N.J.S.A. 2C:12-1b(2) (count fourteen), pursuant to a plea agreement. Under the terms of the agreement, the State agreed to recommend a fifteen-year prison term subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2c, on count four, and a four-year prison term with eighteen months of parole ineligibility on count fourteen, the sentences to run concurrent. The State also agreed to dismiss the other twelve counts of the indictment.
Before sentencing, the State moved to amend the plea agreement to allow defendant to be sentenced to a reduced term of twelve years on count four.*fn1 The sentencing judge found aggravating factors three and nine*fn2 to apply, as well as mitigating factor twelve, and found that the aggravating factors outweighed the mitigating factors. After finding the amended plea agreement to be fair, the judge sentenced defendant in accordance with the amended plea agreement. Defendant was sentenced to a concurrent term of four years for a probation violation. Defendant did not file a direct appeal.
Defendant subsequently filed a PCR petition, which was heard on January 15, 2010 before Judge Louise D. Donaldson, the same judge who accepted defendant's plea. Defendant claimed his counsel was ineffective for failing to investigate and raise the following mitigating factors contained in N.J.S.A. 2C:44-1a:
(3) defendant acted under a strong provocation; (4) there were substantial grounds tending to excuse or justify the defendant's conduct, though failing to establish a defense;
(5) the victim of the defendant's conduct induced or facilitated its commission; (8) the defendant's conduct was the result of circumstances unlikely to recur;
(9) the character and attitude of the defendant indicate that he is unlikely to commit another offense; and
(11) the imprisonment of the defendant would entail excessive hardship to himself or his dependents.
In a comprehensive written opinion denying the petition, Judge Donaldson found that defendant failed to establish a prima facie case in support of his post-conviction petition of ineffective assistance of counsel and, therefore, was not entitled to an evidentiary hearing.
This appeal followed.
Defendant raises the following claims: POINT I
THE PCR COURT ERRED IN HOLDING THAT DEFENDANT FAILED TO ESTABLISH A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF DEFENDANT'S RIGHTS UNDER THE SIXTH AMENDMENT TO THE U.S. CONSTITUTION AND ARTICLE I, PARA. 10 OF THE NEW JERSEY CONSTITUTION.
(a) The PCR Court Erred in Holding that Defendant Failed to Establish the First Prong of Strickland.*fn3
(b) The PCR Court Erred in Finding That Defendant Failed to Establish the Second Prong of Strickland.
(c) Defendant Was Entitled to An Evidentiary Hearing On His Petition for PCR.
We have considered the record and conclude the arguments are entirely without merit.
Post-conviction relief is New Jersey's analogue to the federal writ of habeas corpus. State v. Echols, 199 N.J. 344, 357 (2009) (quoting State v. Harris 181 N.J. 391, 420 (2004)). The burden is on the petitioner to establish the right to relief by a preponderance of the credible evidence. State v. Goodwin, 173 N.J. 583, 593 (2002) (citing State v. Preciose, 129 N.J. 451, 459 (1992)).
There are four grounds for post-conviction relief: (a) substantial denial in the conviction proceedings of a defendant's state or federal constitutional rights; (b) a sentencing court's lack of jurisdiction; (c) an unlawful sentence; and (d) any ground available "as a basis for collateral attack upon a conviction by . . . any other common-law or statutory remedy." R. 3:22-2.
Rule 3:22-10 recognizes judicial discretion to conduct an evidentiary hearing on PCR petitions. Preciose, supra, 129 N.J. at 462. A court is not required to conduct a plenary hearing unless the petitioner presents a prima facie claim in support of post-conviction relief. Ibid. "As in a summary judgment motion, courts should view the facts in the light most favorable to a defendant to determine whether a defendant has established a prima facie claim." Id. at 462-63. To establish a prima facie claim for ineffective assistance of counsel, the petitioner must demonstrate a reasonable likelihood of success under the test set forth in Strickland, as adopted in State v. Fritz, 105 N.J. 42, 58 (1987). The New Jersey Supreme Court articulated a two-part test to determine whether there is ineffective assistance of counsel: (1) a "showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment" and (2) a showing "that the deficient performance prejudiced the defense." Id. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). To satisfy the second prong, there must be a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.
Having set forth the relevant legal principles, we turn now to defendant's claim that trial counsel was ineffective for failing to argue the aforementioned mitigating factors. To establish a prima facie claim, "a petitioner must do more than make bald assertions that he was denied the effective assistance of counsel." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.) certif. denied, 162 N.J. 199 (1999). He "must assert the facts . . . supported by affidavits or certifications based upon the personal knowledge of the affiant or the person making the certification." Ibid. (citing R. 1:6-6).
In an attempt to prove the first prong of Strickland, defendant submitted a PCR certification that sets forth the basis for his claim. In support of the application of mitigating factors three, four and five, he states:
On the evening of March 14, 2005 I was at the home of my girlfriend Danielle Frayer when my girlfriend, Danielle, arrived with Harvey Wilson. Danielle told me that she believed that Harvey had stolen her car and she wanted to get it back. After discussions with Mr. Wilson he admitted to stealing the car. Harvey agreed to show us where the car was. We drove around Camden looking for the car but were unable to locate it.
We returned to Danielle's house and Harvey informed us that the car was in the garage next to his home. Danielle went to look for the car in the garage while Harvey and I remained in the house. Harvey attacked me and we fought for a few moments. This was the only time I ever hit Harvey. During the altercation Harvey made a gesture as though he was reaching for a weapon in his waistband. I grabbed a handgun and shot at him out of fear for myself.
My girlfriend Danielle is Harvey Wilson's ex-girlfriend. A few days before the evening of March 14, 2005 Harvey Wilson approached me and threatened me with a handgun.
The judge found defendant's claims of justification, provocation and inducement were (1) not supported by evidence, affidavits or certifications to corroborate his claims; (2) contradicted by defendant's admission under oath at the time of his guilty plea; and (3) contrary to witness statements and his admission contained in the investigative reports, which were included in the presentence investigation report.
At his plea hearing, defendant admitted that he and Danielle Frayer came across Harvey Wilson (victim) and, at gunpoint, ordered him back to defendant's apartment. After telling defendant where the car was located, the victim remained with defendant while Danielle went to look for the car. When the victim tried to escape from the apartment, defendant shot him twice, once in the leg and once in the hip.
The Camden County Prosecutor's Summary Investigative Report indicates that the investigating officer interviewed defendant, Danielle, her sister and the victim within two days of the shooting. While the versions of the incidents varied, none of these persons, including defendant who confessed to the investigator, offered a story that supports defendant's PCR version of events.
Defendant argues that his "highly detailed" certification is sufficient to support his claim that he was provoked and induced into shooting the victim, and therefore establishes a prima facie case. He attempts to distinguish this case from Cummings, where we rejected the defendant's PCR petition because the defendant asserted an alibi but did not submit any corroborating affidavits or certifications from witnesses. Cummings, supra, 321 N.J. Super. at 171. Here, the judge correctly found that, like Cummings, defendant's certification contained mere assertions unsupported by any reliable corroborating statements, and did not establish a prima facie case by a preponderance of the evidence.
The judge's conclusion that the victim's alleged conduct would not support a finding of provocation, excuse or inducement to justify application of mitigating factors three, four or five is amply supported by the record.
Regarding the application of mitigating factors eight and nine, defendant states in his certification that, "Prior to the night of March 14, 2005 I had committed a number of juvenile and adult offenses; however, none of these involved violence of this nature or weapons." He maintains that he was only nineteen years old at the time of the shooting and was not a hardcore, habitually violent offender.
The presentence investigation report indicates that defendant had sixteen juvenile arrests, beginning at age thirteen, which resulted in eleven adjudications for offenses relating to conspiracy to receive stolen property; conspiracy to manufacture/distribute CDS; simple assault; and possession of a firearm. Defendant had been arrested five times as an adult, this being the second conviction. While under State supervision, defendant incurred a probation violation and three parole violations. The trial judge found that "defendant's lengthy juvenile record and adult criminal history alone indicate that the defendant has repeatedly broken the law, and continues to do so even while on probation." Thus, the claim that his prior criminal record would have resulted in a reduced sentence is not rationally supported by the record.
Finally, regarding the applicability of mitigating factor eleven, defendant claims that as the oldest child in the home it was his responsibility to help raise his younger brother, sister and niece, yet he provided no proof that he was the primary or sole source of their financial support, and, as the trial judge noted, defendant has no dependents. There is no basis for the consideration of this mitigating factor.
The judge could find no fault with trial counsel's conduct. To the contrary, she noted that counsel reviewed the presentence investigation report at the time of sentencing and she credited the good judgment of counsel when she found that "trial counsel's decision not to raise the now proffered mitigating factors amounted to conduct beyond the wide range of professionally competent assistance." Notwithstanding his current dissatisfaction with counsel, defendant benefitted from his counsel's effort on the date of sentencing by negotiating an amended plea agreement to reduce the recommended sentence from fifteen years to twelve years. We concur with the conclusion that the proffered mitigating factors have no merit. The findings that the first prong of Strickland was not satisfied, and that defendant failed to establish any counsel error are amply supported by the record.
Given the finding that defendant's reasons for consideration of the mitigating factors were without merit, his sentence would not have been less had trial counsel raised the argument. Defendant failed to satisfy the second prong of Strickland.
In sum, we conclude that the record fully supports the PCR court's determination that defendant failed to establish a prima facie case of ineffective assistance of counsel. The court correctly determined that an evidentiary hearing was not required.