May 2, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
TERRY CORNELIUS JONES, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 03-12-01276.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 27, 2012 --
Before Judges Yannotti and Guadagno.
Defendant Terry Cornelius Jones appeals from an order entered by the Law Division on July 31, 2009, denying his petition for post-conviction relief (PCR). We affirm in part, reverse in part and remand to the PCR court to determine whether defendant is entitled to the award of additional jail credits.
Defendant was charged with two counts of second-degree sexual assault, contrary to N.J.S.A. 2C:14-2(c)(1) (counts one and three); and two counts of fourth-degree criminal sexual contact, contrary to N.J.S.A. 2C:14-3(b). Defendant was arrested on these charges in Florida and spent forty days in jail there before extradition to New Jersey. Defendant was tried before a jury. At the trial, the State presented evidence that K.A., the nineteen-year old daughter of defendant's friend, had moved from Florida to attend school in New Jersey and was living with defendant in his three-story home in Elizabeth.
K.A. testified that, on the evening of March 18, 2003, defendant entered her room. He was wearing a t-shirt and had a towel wrapped around his lower body. According to K.A., defendant appeared to have been drinking. K.A. testified that he forcibly penetrated her vagina with his penis. She said that her lip was injured in the assault, and she had bruises on her arm for over a week. K.A. reported the incident to her boyfriend. He told her to go to the police but she did not do so because she was afraid.
K.A. further testified that on March 22, 2003, at approximately 4:00 a.m., defendant entered her room. He sat on her bed. She stated that he took her pants off and again forcibly penetrated her vagina with his penis. She said that she screamed during the assault. K.A. logged onto her computer, entered a "chat room," and said that she needed help. She later reported the incident to the police and provided the police with a used condom.
Defendant did not testify at trial. His brother testified that he did not observe any injuries to K.A.'s lip, and he said that she never mentioned the assaults. Defendant's brother said that he was present in the house when the first assault was said to have occurred but he did not hear any commotion, screaming or fighting.
The jury found defendant guilty on all charges. The trial court sentenced defendant to consecutive, seven-year terms of incarceration on counts one and three, each with periods of parole ineligibility as prescribed by the No Early Release Act, N.J.S.A. 2C:43-7.2. The court also sentenced defendant to concurrent, eighteen-month terms of incarceration on counts two and four.
Defendant appealed from the judgment of conviction entered on October 14, 2005. In that appeal, defendant argued:
THE JURY INSTRUCTIONS ON THE STATE'S EXPERT WITNESSES WERE DEFICIENT AND LACKING CRITICAL PORTIONS OF THE MODEL INSTRUCTION (Not Raised Below).
POINT II THE JUDGE'S STATEMENT OF REASONS DOES NOT SUPORT CONSECUTIVE SENTENCING; ADDITIONALLY, MERGER SHOULD BE ORDERED.
We affirmed defendant's convictions but remanded the matter to the trial court for merger of counts two and four with counts one and three, respectively. State v. Jones, No. A-2557-05 (App. Div. May 7, 2008). Defendant filed a petition for certification with the Supreme Court. The Court denied the petition. State v. Jones, 196 N.J. 344 (2008).
On October 14, 2008, defendant filed a PCR petition. He alleged that he had been denied the effective assistance of counsel. He claimed that his attorney erred by failing to: call his female acquaintance Bernadette Brame (Brame) as a witness; adequately advise him concerning his right to testify and defend himself at trial; produce medical evidence and telephone records to support his defense; and adequately cross-examine the victim. Defendant also alleged that he was entitled to forty days of additional jail credits for the time he was incarcerated in Florida while awaiting extradition to New Jersey.
The PCR court heard argument on the petition and filed a letter opinion dated July 31, 2009, in which it concluded that defendant had not been denied the effective assistance of counsel. The court also determined that defendant was barred by Rule 3:22-4 from raising the issue concerning the jail credits because he did not raise that issue in his direct appeal. The court entered an order dated July 31, 2009, denying the petition. This appeal followed.
Defendant raises the following issues for our consideration:
TRIAL COUNSEL WAS INEFFECTIVE IN FAILNG TO CALL WITNESS BERNADETTE BRAME.
POINT II: TRIAL COUNSEL WAS INEFFECTIVE IN FAILING TO INTRODUCE DEFENDANT'S PHONE RECORDS.
POINT III: TRIAL COUNSEL WAS INEFFECTIVE IN FAILING TO ADVISE DEFENDANT THAT HIS PRIOR CONVICTION WOULD BE SANITIZED IF HE TESTIFIED.
POINT IV: THE COURT ERRED IN DENYING AN EVIDENTIARY HEARING AND IN DENYING THE PETITION.
POINT V: THE COURT ERRED IN REFUSING TO CORRECT DEFENDANT'S JAIL CREDIT.
Defendant argues that the trial court erred by finding that he was not denied the effective assistance of trial counsel.
A defendant's claim of ineffective assistance of counsel is considered under the two-part test established in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). In order to prevail on such a claim, a defendant first must show that his attorney's handling of the matter was deficient. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Defendant must establish that his attorney's performance "fell below an objective standard of reasonableness." Ibid.
In addition, a defendant must show that his attorney's deficient performance prejudiced the defense. Ibid. A defendant must establish that there exists a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.
A. Failure to present a witness.
Defendant argues that his attorney was deficient because he failed to call Brame as a witness. He contends that Brame spent the night with him when the second sexual assault was said to have occurred. The PCR court noted that defendant had not provided an affidavit or certification from Brame indicating that she was available and willing to testify. The court also noted that "even taking Ms. Brame's proposed testimony as true, defendant still could have snuck out of the bedroom to attack the victim, who lived in the same house where he and Ms. Brame were allegedly sleeping." The court concluded that Brame's proposed testimony would not have directly contradicted the victim's testimony.
Defendant argues that the court's ruling was erroneous. He contends that the statement Brame gave to the prosecutor provided the substance of the testimony she would have given, had she been called as a witness at trial. She reportedly told the police that defendant planned to put K.A. on the train to return to Florida. According to Brame, defendant called K.A.'s mother in the early morning hours of March 22, 2003, and told her that he was sending K.A. home.
Brame also reportedly said that she had sexual relations with defendant. He had used a condom and, afterwards, "threw it away." Defendant says that, while his DNA was found on the condom, the victim could have inadvertently gotten her DNA on the condom through her handling of it. He also says that DNA from a third person had been found on the sample.
Nevertheless, as the PCR court noted, Brame's proposed testimony does not directly contradict the testimony provided by K.A. at trial. The fact that Brame spent the night in defendant's home does not preclude the possibility that defendant could have left his room on the third floor, gone to the victim's room on the third floor and committed the sexual assault as K.A. claimed. Therefore, defendant failed to show that there would have been a different result here if counsel had presented Brame as a witness at trial.
B. Failure to present cell phone records.
Defendant also contends he was denied the effective assistance of counsel because his attorney failed to present his cell phone records for March 21 and 22, 2003. According to defendant, his records show that he phoned K.A.'s mother in Florida to inform her that he was sending K.A. back home. Defendant contends that this evidence would have supported his contention that the attacks never occurred and that K.A.'s allegations were in retaliation for defendant's decision to send her home in Florida.
The PCR court found counsel's failure to present this evidence did not constitute the ineffective assistance of counsel. The record supports that determination. The court correctly observed that the evidence merely showed that defendant had spoken with K.A.'s mother. The evidence did not directly contradict K.A.'s testimony. We are satisfied that defendant failed to establish that the admission of this evidence would have led to a different result at trial.
C. Advice on the right to testify.
Defendant further argues that his trial counsel was deficient because counsel allegedly failed to advise him that his prior convictions would be sanitized if he chose to testify. Defendant says that he was not advised that the jury would only be informed that he had been previously convicted of a fourth-degree felony, not that he had been convicted of endangering the welfare of a child.
In our view, PCR court correctly rejected this claim. The court pointed out that the trial court told defendant he had the right not to testify at trial and that if he did, the State could introduce evidence of his prior convictions. The trial court noted that defendant was entitled to a jury instruction stating that he had a constitutional right not to testify.
Defendant did not present an affidavit or certification from his attorney indicating that he failed to discuss with defendant the advantages and disadvantages of testifying at trial. There is no indication that defendant would have exercised his right to testify if he had been told that his prior conviction for endangering the welfare of a child would be sanitized. There also is no indication that the result here would have been different if defendant had testified.
D. Evidentiary Hearing.
Defendant additionally argues that the PCR court erred by failing to conduct an evidentiary hearing on his petition. However, 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).
Defendant also argues that the PCR court erred by refusing to award him additional jail credits. Defendant says that he is entitled to jail credits for the forty days he spent in jail in Florida, waiting for extradition to New Jersey on the charges at issue here. The PCR court found that this claim was barred by Rule 3:22-4 because defendant could have but did not raise this issue in his direct appeal.
However, defendant contends that the trial court's failure to grant him the forty days of additional jail credits renders his sentence illegal. An illegal sentence may be challenged at any time. State v. Acevedo, 205 N.J. 40, 47 n.4 (2011); State v. E.W., 413 N.J. Super. 70, 77-78 (2010). See also R. 3:21-10(b)(5). Accordingly, we remand the matter to the PCR court to determine whether defendant should be awarded additional jail credits.
Affirmed in part, reversed in part and remanded to the PCR court for further proceedings in accordance with this opinion. We do not retain jurisdiction.
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