June 19, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
WAYNE CHAPLAND, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 03-04-0199.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 22, 2012
Before Judges Simonelli and Hayden.
Defendant Wayne Chapland appeals from the February 1, 2010 Law Division order denying his petition for post-conviction relief (PCR). For the reasons that follow, we affirm.
The record reveals that, following a jury trial, defendant was convicted of first-degree armed robbery, N.J.S.A. 2C:15-1a. At the trial the State presented evidence that defendant had followed the victim from a bar and attempted to take her purse. When she resisted, he pulled out a knife, pointed it at her, and demanded that she hand over her purse, saying "give it to me or I'll cut you." Defendant testified that he forcefully took her purse but did not have a knife, although he put his hand behind his back and gestured as if he had a weapon.
Defendant was sentenced to ten years in prison with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. On July 20, 2005, this court reversed defendant's conviction based on an erroneous jury charge. State v. Chapland, No. A-5748-03 (App. Div. July 20, 2005). On July 13, 2006, the Supreme Court reversed our decision and reinstated the conviction and sentence. State v. Chapland, 187 N.J. 275 (2006).
On February 13, 2009, defendant filed a pro se petition for PCR, raising the following contentions:
POINT I: THE ARREST WARRANT WAS ISSUED UPON FRAUD, DECEPTION, AND PERJURY.
POINT II: THE AFFIDAVIT FOR PROBABLE CAUSE FOR ISSUANCE OF ARREST WARRANT IS PERJURY AND FRAUD.
POINT III: THE INDICTMENT HANDED DOWN BY THE GRAND JURY WAS BASED UPON PERJURY, FRAUD, AND DECEPTION.
POINT IV: THE ARREST, INDICTMENT, AND CONVICTION IS VOID.
After PCR counsel was appointed, defendant raised the following points in his amended petition:
POINT I: PETITIONER WAS DENIED HIS CONSTITUTION[AL] RIGHTS TO EFFECTIVE ASSISTANCE OF COUNSEL (U.S. CONST. AMEND. VI, XIV; N.J. CONST. ART. I, PAR 10), AND BECAUSE HE WAS PREJUDICED THEREBY, THE COURT SHOULD GRANT HIS MOTION FOR POST-CONVICTION RELIEF. IN THE ALTERNATIVE, BECAUSE THE PETITIONER HAS PRESENTED AT LEAST PRIMA FACIE PROOF THAT HE HAD BEEN DEPRIVED OF THE EFFECTIVE ASSISTANCE OF COUNSEL, THE COURT SHOULD GRANT HIM AN EVIDENTIARY HEARING ON THIS ISSUE.
POINT II: THE PETITIONER WAS DENIED HIS RIGHTS TO A FAIR TRIAL WHEN HE WAS EXCLUDED FROM SIDEBAR DISCUSSIONS (U.S. CONST. AMEND VI, XIV; N.J. CONST. ART. I, PAR 10). POINT III: PETITIONER'S POINTS RAISED IN HIS PRO SE PETITION AND BRIEF DEMONSTRATE THAT HIS PETITION SHOULD BE GRANTED; IN THE ALTERNATIVE, PETITIONER SUBMITS HE HAS SHOWN A PRIMA FACIE BASIS FOR AN EVIDENTIARY HEARING.
POINT IV: THE CUMULATIVE EFFECT OF THE ERRORS AT DEFENDANT'S TRIAL DEPRIVED HIM OF THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMENDS. V, VI, XIV; N.J. CONST.  ART. I, PARS. 1, 9, 10.
POINT V: THE DEFENDANT'S MOTION FOR POST-CONVICTION RELIEF SHOULD NOT BE BARRED BY PROCEDURAL CONSIDERATIONS.
a: The Petition For Post-Conviction Relief Is Not Time-Barred. b: The Petition For Post-Conviction Relief Is Not Procedurally Barred By Rule 3:22-4 OR Rule 3:22-5.
On January 19, 2010, Judge Armstrong, who had presided over the trial, heard argument on the petition and rendered his oral decision, which he later memorialized in the February 1, 2010 order. The judge observed that defendant's ineffective assistance of counsel argument required a showing that counsel's performance fell so below the standard expected of a reasonable attorney that it undermined the proper functioning of the adversarial process. Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 692 (1984). Additionally, defendant must demonstrate that counsel's performance so prejudiced the defendant that a reasonable probability existed 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. In considering defendant's contentions, the judge stated:
In this case, the Defendant asserts that trial counsel's failure to excuse a juror who had admitted during the voir dire to having been the victim of an unsolved street mugging fell below a professional standard of reasonableness and prejudiced the outcome of the trial. However, this Court is convinced that a thorough review of the submissions from both sides and the trial transcripts themselves indicate otherwise. In fact, the record suggests that both . . . this court, and trial counsel took steps to insure the impartiality of the juror in question. In response to several questions, the juror stated, "that an event that happened 25 years ago had no impact upon [my] ability to render a fair and impartial verdict."
Furthermore, trial counsel had previously excused an attorney and a Detective from the jury pool which indicates that counsel's decision to keep [the juror] was part of the deliberate trial strategy.
The judge found no indication in the record that the decision not to excuse the juror in any way prejudiced the ultimate outcome of the case. The evidence against defendant was overwhelming and defendant admitted feigning the possession of a weapon and taking the victim's purse. The major issue for the jury to decide, based upon the credibility of defendant and the victim, was whether defendant brandished a knife. Moreover, the juror had asserted under oath at sidebar that he could impartially decide the case based upon the facts. Consequently, Judge Armstrong decided that defendant failed to present a prima facie case of ineffective assistance of counsel.
Defendant also claimed his counsel was ineffective by failing to include defendant in the jury selection process. The judge pointed out that subsequent to defendant's conviction, our Supreme Court held that ordinarily, if he requests, a defendant has a right to be present at sidebar conferences. State v. W.A., 184 N.J. 45, 48 (2005). This procedure of having defendant physically present at sidebar was given purely prospective application. State v. Colbert, 190 N.J. 14, 19-24 (2007). ("[S]o long as a defendant who was tried prior to W.A. was afforded an effective opportunity to participate in voir dire, (albeit not in strict conformity with the hierarchical procedure set forth in W.A.), his constitutional right of presence was not impaired." Id. at 24). The judge noted that the transcript of the jury selection, which disclosed numerous instances where defense counsel stated he had consulted with his client about the composition of the jury, demonstrated that defendant fully participated with his attorney in picking the jury:
As an initial matter, at no point during the process did the Defendant or his attorney request direct participation in side bar conferences. Further, the record memorializes a recurrent discourse between trial counsel and the Defendant throughout the voir dire. [For example,] "[Defense Counsel]: Thank you, your honor. I've had a moment to talk to [defendant] and he has stated to me, and I agree with him, that this jury is satisfactory." . . .
Subsequently, upon learning that a potential juror had been a victim of a robbery [twenty-five] years earlier, both the [c]court and trial counsel questioned the juror on this matter. The record reflects that immediately after the side bar, counsel asked for a moment, conferred with the Defendant and stated: "We would like to thank and excuse [a different] juror . . . ."
Accordingly, Judge Armstrong found that, as the record showed defendant's full participation in jury selection, defendant had not established his claim of ineffective assistance of counsel on this issue. The judge also addressed and rejected defendant's other contentions, which are not the subject of this appeal. This appeal followed.
On appeal, defendant raises the following points for our consideration:
POINT ONE: THE FAILURE OF TRIAL COUNSEL TO EXERCISE A PREEMPTORY CHALLENGE TO EXCUSE A JUROR WHO HAD BEEN THE VICTIM OF A ROBBERY, COMBINED WITH COUNSEL'S FAILURE TO INCLUDE DEFENDANT IN THE JURY SELECTION PROCESS, DEPRIVED DEFENDANT OF HIS CONSTITUTIONAL RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL AND APPELLATE COUNSEL WAS INEFFECTIVE FOR FAILING TO RAISE THE ISSUE ON DIRECT APPEAL.
POINT TWO: THE PCR COURT ERRED WHEN IT FAILED TO GRANT DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING.
POINT THREE: THE PROCEDURAL BAR OF R[ULE] 3:22-3 SHOULD NOT BE APPLIED TO DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF.
We begin with a review of the relevant well-settled principles governing PCR. Post-conviction relief constitutes "New Jersey's analogue to the federal writ of habeas corpus." State v. Preciose, 129 N.J. 451, 459 (1992). A person making a prima facie showing of entitlement to such relief, by demonstrating a reasonable likelihood that his or her claim will ultimately succeed on the merits, is generally entitled to an evidentiary hearing. Id. at 463. Without such a showing, no evidentiary hearing is required. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).
We consider a defendant's claim of ineffective assistance of counsel under the standards established in Strickland, supra, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674, which were adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). In order to prevail on such a claim, defendant must first show that his attorney's performance was deficient. Id. at 52 (citing Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). Next, defendant must show that his attorney's deficient performance prejudiced his defense. Ibid.
To meet the first prong of the Strickland test a defendant must show that his attorney failed to provide representation "'within the range of competence demanded of attorneys in criminal cases.'" Strickland, supra, 466 U.S. at 687, 106 S. Ct. at 369, 88 L. Ed. 2d at 208 (quoting McMann v. Richardson, 397 U.S. 759, 771, 90 S. Ct. 1441, 1449, 25 L. Ed. 2d 763, 773 (1970)). To meet the second prong of the test, 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.'" State v. Allegro, 193 N.J. 352, 366 (2008) (quoting State v. Loftin, 191 N.J. 172, 198 (2007)). This exacting standard requires that the "error committed must be so serious as to undermine the court's confidence in the . . . result reached." Id. at 367 (internal citation omitted).
We have carefully considered defendant's contentions in view of the applicable law and the record, and we conclude that they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). From our review of the entire record, we are satisfied that defendant has not established a prima facie case of ineffective assistance of counsel, as he has not shown his attorneys' performances were deficient or resulted in prejudice to his case. See Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. We affirm substantially for the reasons expressed by Judge Armstrong in his thorough and well-reasoned January 19, 2010 oral opinion.
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