June 25, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
KENNETH LEWIS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 03-09-1773.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: June 19, 2012
Before Judges Axelrad and Parrillo.
Defendant Kenneth Lewis appeals from the February 9, 2011 order of the Law Division denying his petition for post-conviction relief (PCR), alleging newly discovered evidence and ineffective assistance of trial counsel, and requesting an evidentiary hearing. We affirm.
The record reflects that Jennifer Cole, the intended victim, had received a notice of approval of a loan for which she had not applied. She determined that an $8900 loan had been approved and Fleet Bank had her name, address, and social security number. She notified both the bank branch and the police department in her municipality of the potential identity theft.
On March 10, 2003, co-defendant Lawanda Slade appeared at the local bank branch to close the loan, representing herself as Cole and producing a driver's license, credit card, and telephone bill in Cole's name. While Slade was engaged by the police inside the bank, defendant was parked outside. Defendant initially denied any involvement with Slade, claiming he had simply driven a friend from New York to the bank in Bergen County at her request; however, he later admitted to police she was the mother of his toddler who was in the car. Defendant advised police the car he was driving belonged to his nephew, who was in the military, and he had been using it for about four months.
Defendant consented to a search of the vehicle, during which police found a phone bill in the name of Sabrina Breed; a legal pad containing various names and addresses, including that of Cole; a piece of paper containing Cole's social security and phone numbers; a piece of an envelope containing the names Jacqueline Labasco and Cole, and their addresses, dates of birth, and phone and social security numbers; and a folder containing two photographs of an unidentified woman, as well as a piece of paper containing the name Ruby Paulson along with other identifiers such as her hair and eye color and date of birth. Defendant denied any knowledge of the documents and claimed they belonged to the woman he drove to the bank.
Slade was arrested and initially told police that defendant merely gave her a ride from New York to New Jersey in his car and had no idea what she was planning. On March 11, 2003, however, Slade gave a statement to the Bergen County Prosecutor's Office in which she provided a detailed description of the scheme and defendant's leading role in it, including that defendant gave her the information on Cole, told her to study it, and drove her to the bank to get the money. Slade also mentioned several other times that defendant provided her with a false identity, which she used to fraudulently obtain money from Fleet Banks.
Defendant and Slade were charged with third-degree attempted theft by deception (count one), third-degree identity theft (count two), fourth-degree exhibition of a false driver's license (count three), third-degree credit card theft (count five), and second-degree endangering the welfare of a child (count six). Defendant was additionally charged with third-degree unlawful sale of a false document, a driver's license, issued by a government agency (count four). Prior to trial, the State dismissed counts four and six.
In May 2004, defendant was tried alone, during which co-defendant invoked her right under the Fifth Amendment and refused to testify on defendant's behalf. The court declined to admit as hearsay a letter Slade wrote in which she claimed to have implicated defendant as the mastermind of the scheme because she feared going to jail for a long period of time. Defendant was convicted by a jury of all the remaining charges. Slade pled guilty to counts one, two, and three on May l7, 2004. On June 11, 2004, defendant was sentenced on counts one, two, and five to concurrent four-year custodial terms, and on count three to a concurrent eighteen-month term, and was ordered to pay monetary penalties.
We affirmed defendant's convictions and sentence. State v.
Lewis, No. A-0049-04 (App. Div. July 25, 2005). On June 13, 2006, the Supreme Court denied defendant's petition for certification. State v. Lewis, 187 N.J. 492 (2006). Defendant unsuccessfully pursued relief in the federal court system, filing petitions for habeas corpus relief. His petition was dismissed for failure to exhaust available state court remedies, Lewis v. Burtt, No. 0:07-458-TLW-GCK (D.S.C., Sept. 25, 2008), which was affirmed, Lewis v. Burtt, 324 F.App'x 223 (4th Cir. 2009). The United States Supreme Court denied defendant's petition for certiorari, Lewis v. Burtt, ___ U.S. ___, 130 S. Ct. 803, 175 L. Ed. 2d 565 (2009), and his petition for rehearing, Lewis v. Burtt, ___ U.S. ___, 130 S. Ct. 1573, 176 L. Ed. 2d 156 (2010).
On April 5, 2010, defendant filed a PCR petition by a pro se submission, supplemented by counsel. Defendant asserted he was entitled to a new trial because of newly discovered evidence, namely, co-defendant's post-trial waiver of her privilege against self-incrimination, affidavit confirming she had written the letter in question, and anticipated proffered testimony if permitted to testify. Defendant also argued ineffective assistance of trial counsel, who failed to conduct an adequate pretrial investigation and interview critical witnesses, specifically Ruby Paulson, a family friend, and Donell Lewis, his nephew, who would have provided an explanation for Paulson's documents found in the car. Defendant further argued the PCR application was not time-barred, though it was filed approximately ten-months beyond the five-year deadline, R. 3:22-12, because as an inmate incarcerated in South Carolina, he was under the misimpression his only alternative was to pursue his federal remedies.
Following oral argument, Judge Edward A. Jerejian issued a written opinion on February 9, 2011, denying defendant's motion for a new trial and rejecting his petition procedurally as time-barred and substantively as without merit. The judge determined that even if Slade's purported exculpatory statement were deemed newly discovered evidence, defendant failed to satisfy the other two prongs of the prevailing standard for a new trial on newly discovered evidence, finding the information was cumulative in nature and not the type of evidence that had a capacity to change the jury's verdict if a new trial were granted. See State v. Ways, 180 N.J. 171, 187 (2004); State v. Carter, 85 N.J. 300, 314 (l981).
Specifically, Judge Jerejian noted that defendant knew of the evidence before trial, Slade pled guilty before his sentencing, and the PCR motion was not made for six more years. Moreover, the present facts were distinguishable from State v. Robinson, 253 N.J. Super. 346 (App. Div.), certif. denied, 130 N.J. 6 (1992), as defendant and Slade did not have a joint trial, defendant's identification was never in question, and the willingness of co-defendant Slade, the mother of defendant's child, to testify six years after trial to exculpate him would lend the belief that the "statement [was] clearly false or merely designed to give an accomplice a second chance for acquittal." Id. at 366-67. The judge also found Slade's statement was cumulative in nature as the jury had already heard from Detective Joseph Soto about Slade's initial statement that defendant had merely given her a ride to the bank.
In addition, the judge was satisfied this was not the type of evidence that probably would change the jury's verdict. As the judge noted, if Slade were to testify that defendant had no knowledge of her intention to commit the crimes at the bank, then the State would have been able to cross-examine her to devastating effect regarding her detailed statement to the police shortly after her arrest regarding the scheme, defendant's role in it, and their prior crimes. As Slade did not testify, the jury was not informed about the statement or that they had tried such a scam before, with Slade pretending to be Breed, whose information was also found in the car.
Defendant had certified as excusable neglect for his tardy filing that shortly after he received notification from the New Jersey Supreme Court of the denial of his certification petition, while incarcerated in South Carolina, he contacted the Bergen County Clerk's Office to find out how he could file for PCR relief. According to defendant, he was told that because he was out-of-state, the New Jersey courts did not have jurisdiction over him so he filed federal appeals, and only after they were finished did he learn he had been given mistaken advice. The judge did not find this argument persuasive in view of defendant's failure to provide the Bergen County letter but, nevertheless, addressed defendant's claim of ineffectiveness of trial counsel on the merits.
Judge Jerejian was satisfied defendant failed to establish ineffective assistance of trial counsel under either of the two prongs of the Strickland/Fritz test. See Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984) (holding that in order to prevail on a claim of ineffective assistance of counsel, a defendant must meet the two-prong test of establishing both that: (1) counsel's performance was deficient and he or she made errors so serious that counsel was not functioning effectively as guaranteed by the Sixth Amendment to the United States Constitution and (2) the defect in performance prejudiced defendant's rights to a fair trial such that there existed a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different"); State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland test in New Jersey). See also State v. Preciose, 129 N.J. 451, 462-63 (l992) (holding that to establish a prima facie claim of ineffectiveness of counsel within the Strickland/Fritz test warranting an evidentiary hearing, a defendant must establish a reasonable likelihood that his or her claim will ultimately succeed on the merits).
Based on his review of the record, the PCR judge found defense counsel's decision not to call witnesses to prove an allegedly innocent explanation for the presence of Paulson's identification information in the vehicle did not amount to objectively deficient performance. See State v. Cusumano, 369 N.J. Super. 305, 310 (App. Div.) ("In determining whether [a petitioner] has met the first prong of the Strickland/Fritz test, an appellate court will not second-guess defense counsel's trial decisions which rest upon strategic or tactical considerations."), certif. denied, 181 N.J. 546 (2004). Even if he satisfied the first prong, however, the judge found defendant failed to demonstrate the second prong, namely, how he was prejudiced by the omission, considering the lack of explanation for Breed's and Labasco's information that was also found in the vehicle, and which was almost identical to that found regarding Cole.
The judge's decision denying defendant's PCR petition was memorialized in an order of the same date. This appeal ensued.
On appeal, defendant renews the arguments made to Judge Jerejian, now asserting error in the PCR judge's denial of his motion for a new trial based on newly discovered evidence; denial of his PCR petition, in part, as time-barred; and denial of his claims of ineffective assistance of trial counsel for failing to investigate and call Paulson as a witness at trial.
Based on our review of the record and applicable law, we are satisfied defendant failed to satisfy the three-prong test for a new trial based on newly discovered evidence, see Ways, supra, 180 N.J. at 187; Carter, supra, 85 N.J. at 314, or make a prima facie showing of ineffectiveness of trial counsel within the Strickland/Fritz test warranting an evidentiary hearing, see Preciose, supra, 129 N.J. at 462-63. Though defendant's PCR petition was time-barred and he failed to demonstrate excusable neglect for his delay in filing, the trial court did not dismiss defendant's petition as procedurally barred. We are further satisfied that all of defendant's arguments raised on PCR are without substantive merit, and his arguments renewed on appeal were more than adequately addressed by the PCR judge and do not warrant additional discussion. R. 2:11-3(e)(2). Accordingly, we affirm substantially for the reasons stated by Judge Jerejian in his comprehensive written decision.
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