June 20, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JACQUAR STOKES, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 03-07-1043 and 03-04-0561.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 5, 2012
Before Judges Yannotti and Espinosa.
Defendant Jacquar Stokes appeals the denial of his petition for post-conviction relief (PCR). We affirm.
On January 12, 2003, a police officer asked defendant's permission to search him for weapons, after observing defendant react suspiciously upon seeing the officer. Defendant fled but the officer caught him. Defendant was searched and found with a semi-automatic handgun and four bags of crack cocaine.
On February 24, 2003, the Mount Holly police responded to a report of a stabbing at a residence on Grant Street. The officers found the victim, Ernest Greene (Greene), lying on the steps of the residence. Attempts to save Greene's life were unsuccessful. An eyewitnesses told the officers that he saw defendant stab Greene in the neck. Another eyewitness said that he saw defendant argue with Greene before the stabbing.
About fifteen minutes later, the police found defendant. They arrested him and returned him to the crime scene, where the two eyewitnesses identified him as the person who stabbed Greene. The officers transported defendant to the Mt. Holly Police Department. The officers continued their investigation. Four other persons identified defendant as the individual who stabbed Greene.
At the police station, the police informed defendant of his Miranda*fn1 rights. Defendant waived his rights and agreed to give the detectives a statement. He said that, several days before the stabbing, Greene robbed him of $200 and punched him in the face. According to defendant, on the date of the stabbing, he met Greene and Greene boasted about the robbery.
Defendant claimed that he found a knife in the street and picked it up because he had no other means to protect himself. When he walked towards Greene, Greene demanded that defendant hand him the bottle of brandy that defendant was carrying. Defendant said that when Greene approached him, he "shut [his] eyes and let [the knife] go." Defendant was then transported to the county jail where he was found in possession of thirty-five bags of crack cocaine.
Defendant was charged under Indictment No. 03-07-1043-I with murder, N.J.S.A. 2C:11-3(a)(1) and 3(a)(2) (count one); third-degree possession of a controlled dangerous substance (CDS) with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and 5(b)(3) (count two); and third-degree possession of CDS, N.J.S.A. 2C:35-10(a)(1) (count three). Defendant also was charged under Indictment No. 03-04-561-I, with third-degree aggravated assault upon a law enforcement officer, N.J.S.A. 2C:12-1(b)(5)(a) (count one); third-degree resisting arrest, N.J.S.A. 2C:29-2(a)(3) (count two); third-degree possession of CDS, N.J.S.A. 2C:35-10(a)(1) (count three); fourth-degree hindering his apprehension, N.J.S.A. 2C:29-3(b)(1) (count four); fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a)(2) (count five); and fourth-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(e) (count six).
On January 11, 2005, defendant pled guilty to count one of Indictment No. 03-07-1043-I, which was amended to charge first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a)(1); and count two of Indictment No. 03-04-561-I, charging third-degree resisting arrest. The State agreed to dismiss the other charges and recommend an eighteen-year term of incarceration, with a period of parole ineligibility as prescribed by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on the aggravated manslaughter charge, with a concurrent four-year, flat sentence on the resisting arrest charge. Defendant was sentenced on March 11, 2005, and the court imposed the sentence recommended by the State. Defendant did not file a direct appeal.
On September 12, 2008, defendant filed a PCR petition. He alleged that he was denied the effective assistance of counsel. Thereafter, defendant's PCR counsel filed a brief on his behalf.
Defendant asserted that, in the PCR proceeding, he made it clear to his attorney he would only agree to enter a guilty plea if the State were willing to recommend a fifteen-year sentence. He claimed that his attorney allowed his family to persuade him to take the State's offer, with a recommended sentence of eighteen years. He further alleged that he was denied the effective assistance of counsel at sentencing because his attorney failed to bring to the court's attention information regarding his alcohol and drug use, as well as his "extensive" psychiatric history.
The PCR court heard oral argument on the petition on October 29, 2010, and issued a written opinion dated November 16, 2010, denying the application. The court concluded that: 1) defendant's claims are barred by Rule 3:22-4 because they could have been raised on direct appeal; and 2) defendant was not entitled to an evidentiary hearing because he failed to present a prima facie case of ineffective assistance of counsel. The court denied defendant's PCR petition. This appeal followed.
Defendant raises the following arguments for our consideration:
I. THE POST-CONVICTION RELIEF COURT ERRED IN DENYING DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF.
A. THE DEFENDANT'S CLAIMS ARE NOT PROCEDURALLY BARRED BECAUSE THEY COULD NOT HAVE BEEN RAISED IN A PRIOR PROCEEDING OR ON DIRECT APPEAL.
B. THE DEFENDANT DEMONSTRATED A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF PLEA COUNSEL THAT WARRANTS AN EVIDENTIARY HEARING.
1. Plea counsel provided ineffective assistance of counsel when he orchestrated events that led the defendant to accept a plea instead of the defendant's expressed desire to proceed to trial.
2. Plea counsel provided ineffective assistance of counsel when counsel failed to introduce evidence in mitigation.
II. THE ORDER DENYING DEFENDANT'S MOTION FOR POST-CONVICTION RELIEF MUST BE REVERSED BECAUSE THE DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF POST-CONVICTION RELIEF COUNSEL. BUT FOR THAT INEFFECTIVENESS, A DIFFERENT RESULT WOULD HAVE BEEN OBTAINED.
III. THE POST-CONVICTION RELIEF COURT FAILED TO RULE ON DEFENDANT'S ARGUMENT CONTAINED WITHIN HIS PRO SE BRIEF, WARRANTING A REMAND TO THAT COURT FOR CONSIDERATION OF DEFENDANT'S ARGUMENTS.
Defendant has filed a supplemental pro se brief in which he raises the following issue:
THE DEFENDANT'S SENTENCE IS ILLEGAL INSOFAR AS IT VIOLATES THE SEPARATION OF POWERS DOCTRINES [IN] BOTH THE [UNITED STATES] AND [NEW JERSEY] CONSTITUTIONS, AND IS WHOLLY REPUGNANT TO THE SUPREMACY CLAUSE.
In addition, in his pro se reply brief, defendant raises the following issues:
SUMMARY DISMISSAL MUST BE GRANTED IN FAVOR OF APPELLANT WITH RESPECT TO POINT IA OF HIS APPELLATE BRIEF SINCE THE STATE FAILED TO REFUTE THAT DEFENDANT'S CLAIMS WERE RIPE FOR APPEAL.
HAD TRIAL COUNSEL MOVED FOR SUPPRESSION OF [THE] CONFESSION THE OUTCOME WOULD HAVE BEEN DIFFERENT, AS THERE WAS A LIKELIHOOD THAT THE NEGOTIATED PLEA WOULD HAVE BEEN LESS THAN IT WAS AND/OR UNDERMINED THE STATE'S CONFIDENCE IN A TRIAL VICTORY.
EVEN IF TRIAL COUNSEL'S PERFORMANCE WAS EFFECTIVE FOR PLEA PURPOSES, HE STILL MISSED CRITICAL ERRORS WHICH SHOULD HAVE BEEN EXPLOITED. THE DEFENDANT'S SENTENCE IS ILLEGAL SINCE HE WAS NEVER ARRESTED AND AFFORDED DUE PROCESS.
THE STATE FAILED TO INCLUDE THE PROBABLE CAUSE STATEMENT OF DETECTIVE WILLIAM FIELDS IN DISCOVERY.
COUNSEL DID NOT FUNCTION AS THE COUNSEL GUARANTEED BY THE [SIXTH] AMENDMENT, [AND] THE STATE [CANNOT] PROVE OTHERWISE.
We note at the outset that the PCR court erred by finding that defendant's claims were barred by Rule 3:22-4(a). Among other things, that rule bars a defendant from raising in a PCR petition any ground for relief that was not raised in proceedings resulting in the conviction, unless the court finds:
(1) that the ground for relief not previously asserted could not reasonably have been raised in any prior proceeding; or
(2) that enforcement of the bar to preclude claims, including one for ineffective assistance of counsel, would result in fundamental injustice; or
(3) that denial of relief would be contrary to a new rule of constitutional law under either the Constitution of the United States or the State of New Jersey.
[R. 3:22-4(a).] Ibid.
Here, defendant alleged that he was denied the effective assistance of counsel when he entered his plea and at sentencing. Claims of ineffective assistance of counsel are rarely barred on post-conviction relief, even if not raised earlier, because such claims are grounded in the federal and state constitutional right to counsel, and therefore may fall within the exception under Rule 3:22-4(a)(3). State v. Preciose, 129 N.J. 451, 459-60 (1992).
Furthermore, claims of ineffective assistance of counsel "are particularly suited for post-conviction review because they often cannot reasonably be raised in a prior proceeding." Id. at 460. Indeed, the courts "have expressed a general policy against entertaining ineffective-assistance-of-counsel claims on direct appeal because such claims involve allegations and evidence that lie outside the trial record." Ibid.
Because defendant's claim of ineffective assistance of counsel implicates his constitutional right to counsel and was based on allegations and evidence that lie outside the record of the plea and sentencing, his failure to raise these claims in a direct appeal from his judgment of conviction does not bar the assertion of the claims in a PCR petition. Although the PCR court erred in concluding otherwise, the error is harmless because the court addressed the merits of defendant's claims.
Defendant argues that the PCR court erred by finding that he failed to present a prima facie case of ineffective assistance of counsel. We disagree.
Defendant's claim that he was denied the effective assistance of counsel is considered under the standards enunciated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), which have been adopted by our Supreme Court. State v. Fritz, 105 N.J. 42, 58 (1987). To prevail on such a claim, the defendant must 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). The defendant must establish that his counsel's handling of the matter was "outside the wide range of professionally competent assistance." Strickland, supra, 466 U.S. at 690, 140 S. Ct. at 2066, 80 L. Ed. 2d at 695.
The defendant also must show that his attorney's deficient performance prejudiced his defense. Id. at 687, 140 S. Ct. at 2064, 80 L. Ed. 2d at 693. "[A] 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.'" Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698).
A. The Plea
Defendant argues that the PCR court erred by finding that he was not denied the effective assistance of counsel when he entered his plea. As we noted previously, defendant claimed that he told his attorney he would not enter a plea unless the State agreed to recommend a fifteen-year state prison sentence. He asserted that his attorney "orchestrated a meeting between [his] family members and . . . defendant" to "break his will" and "weaken his resolve" so that defendant would accept the State's offer, which included a recommended aggregate sentence of eighteen years of incarceration.
The PCR court found no merit in this contention. The PCR court pointed out that at the plea hearing, the trial judge informed defendant that if he did not accept the State's plea offer and was convicted on all of the charges, he could face a sentence of thirty years to life on the murder charge and other sentences on the other charges. The judge told defendant that he wanted defendant to understand the consequences of refusing to accept the State's offer, and wanted defendant to have sufficient time to consider all of the issues. The judge gave defendant time to discuss the matter with his attorney.
After defendant informed the judge that he wanted to enter the plea, the judge told him that he had no obligation to plead guilty. The judge told defendant he had the right to a jury trial, at which the State must prove the charges beyond a reasonable doubt. The judge explained that defendant had the right to call witnesses and cross-examine the State's witnesses. He also told defendant that he had the right to testify on his own behalf, if he chose to do so. The judge additionally told defendant that the State could not comment on the exercise of his right not to testify.
Among other things, defendant stated that he was pleading guilty of his own free will. The judge asked defendant whether he had the opportunity to speak with his family members, who were present in court, and defendant stated that he had. The judge asked defendant if he was comfortable with his decision.
Defendant said that he was. The judge confirmed that no one had threatened or coerced defendant into pleading guilty.
Thus, the record fully supports the PCR court's finding that defendant was not denied the effective assistance of counsel when he entered his plea. Counsel's handling of the plea was not "outside the wide range of professionally competent assistance." Strickland, supra, 466 U.S. at 690, 140 S. Ct. at 2066, 80 L. Ed. 2d at 695. Moreover, as the PCR court pointed out, defendant was not prejudiced by the plea because he benefited from the reduction of his sentencing exposure as a result of the amendment of the murder charge to aggravated manslaughter.
B. The Sentencing Proceeding.
Defendant also argues that he was denied the effective assistance of counsel at sentencing because his attorney failed to seek findings of mitigating factors three, N.J.S.A. 2C:44-1(b)(3) ("defendant acted under a strong provocation[,]") and four, N.J.S.A. 2C:44-1(b)(4) ("[t]here were substantial grounds tending to excuse or justify the defendant's conduct, though failing to establish a defense[.]") We do not agree.
Defendant contends that his attorney was ineffective because he failed to argue that defendant was provoked by Greene's taunts. Although counsel could have advanced this argument at sentencing, defendant failed to establish that the court probably would have found that defendant acted under a "strong provocation" when he stabbed Greene. Indeed, the fact that Greene may have taunted defendant, boasted of the earlier robbery and demanded defendant's brandy is not the sort of "strong provocation" that would support a finding of mitigating factor three.
Defendant also contends that his attorney erred by failing to emphasize his prior history of mental illness as a basis for excusing or justifying his conduct. Again, we disagree. When interviewed for his pre-sentence report, defendant stated that his mental health was "good." He denied any recent treatment or counseling. Moreover, the information in the pre-sentencing report did not otherwise indicate that defendant was suffering from any mental health issues at the time of the stabbing.
Defendant presented certain mental health records to the PCR court but those records did not support his claim that he was denied the effective assistance of counsel at sentencing. Among other things, the records show that defendant was treated at a psychiatric hospital in 1996, when he was twelve years old, because he was suicidal. He was discharged one week later after he denied any suicidal or homicidal thoughts. Following his arrest in February 2003, defendant was screened. He denied any suicidal or homicidal thinking and it was determined that he was not psychotic. Defendant was apparently prescribed certain anti-depressant and/or anxiety medications.
Even if we assume that defendant's attorney erred by failing to bring these records to the attention of the sentencing court, we are not convinced that the information contained therein would have led to a different result. We are satisfied that the information would not have altered the court's findings of aggravating and mitigating factors or resulted in the imposition of a sentence different from that called for in the plea agreement.
C. Other contentions.
Defendant additionally argues that the PCR court erred by failing to conduct an evidentiary hearing; he was denied the effective assistance of PCR counsel; and the PCR court erred by failing to address a claim asserted by defendant in a pro se submission. We are satisfied that these contentions are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
We note that in his pro se reply brief defendant argues that his sentence is illegal because he was never arrested and afforded due process; his attorney was deficient because he was not provided with a probable cause statement; his attorney was deficient because he failed to file a motion to suppress his statement to the police; and he may have been "delusional" when he entered his plea and was sentenced. We decline to consider these arguments because they have been raised for the first time on appeal. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).