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State of New Jersey v. Anthony Kelly

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


June 26, 2012

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ANTHONY KELLY, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 03-12-1108.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 23, 2012

Before Judges Ashrafi and Fasciale.

Defendant Anthony Kelly appeals from denial of his motion for post conviction relief (PCR) alleging ineffective assistance of counsel. We affirm.

On April 19, 2003, defendant and another man drove to Paterson to buy illegal drugs. At about midnight, defendant got out of their car, a burgundy Buick with a white top, and he asked a pedestrian for change. He then struck the man and robbed him at gunpoint, taking his black leather jacket, an athletic jersey, and a gold chain. Defendant thought he could trade those items for drugs. Within minutes, the police had a description of the robbers and the car. Patrol officers in downtown Paterson saw and stopped the burgundy Buick. Defendant emerged from the passenger seat after attempting to use a black leather jacket to conceal a loaded handgun placed on the front seat. In the car, the police also found an athletic jersey and a gold chain with a distinctive emblem. They brought the victim to the scene, and he identified defendant as the robber who had wielded the gun minutes earlier, and he also identified the car and the items taken from him.

Defendant was indicted in December 2003 on the following charges: (count one) first-degree armed robbery, N.J.S.A. 2C:15-1a(1); (count two) third-degree theft, N.J.S.A. 2C:20-3a; (count three) second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a; (count four) third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b; (count five) fourth-degree possession of a defaced firearm, N.J.S.A. 2C:39-3d; (count six) fourth-degree aggravated assault, N.J.S.A. 2C:12-1b(4); and (count seven) second-degree possession of a firearm by a convicted person, N.J.S.A. 2C:39-7b.

On the eve of trial, defendant pleaded guilty pursuant to a plea agreement to count one, armed robbery, and count seven, possession of a firearm by a convicted person. In accordance with the plea agreement, the prosecution recommended sentences of twenty years imprisonment on the armed robbery charge and ten years imprisonment on the weapons charge, both with mandatory periods of parole ineligibility. The sentences were to run concurrently.

At the sentencing hearing on October 29, 2004, the court referenced defendant's three prior convictions on indictable charges, including a weapons charge and aggravated assault. None of defendant's prior convictions had resulted in terms of incarceration in State prison. The court stated that, this time, a substantial sentence of imprisonment was necessary because of defendant's current and past violent crimes, although not the full twenty years recommended by the State. The court sentenced defendant to an aggregate term of fifteen years in prison with eighty-five percent of the sentences to be served before parole eligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

Defendant's direct appeal was argued on an excessive sentence calendar pursuant to Rule 2:9-11. By order dated March 29, 2007, we affirmed the sentence.

Defendant filed a pro se PCR petition in April 2008. Counsel was appointed to represent defendant and filed a brief in support of PCR, as well as medical records and a certification of defendant's mother to demonstrate that defendant had a history of psychiatric and substance abuse treatment, including in-patient hospitalizations. On March 30, 2010, the trial court heard argument and denied the PCR motion without holding an evidentiary hearing.

On appeal, defendant argues:

POINT I

THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL.

A. Counsel failed to prepare a

diminished capacity defense.

B. Counsel failed to consult with defendant in a meaningful manner.

C. Counsel failed to file a motion to challenge the identification of defendant.

D. Counsel failed to provide effective assistance during plea negotiations.

E. Counsel was ineffective during the pretrial preparation process.

POINT II

THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL. POINT III

THE LOWER COURT ORDER MUST BE REVERSED IN LIGHT OF ADDITIONAL ERRORS.

POINT IV

THE LOWER COURT ERRED IN NOT GRANTING DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING AND THE LOWER COURT ORDER MUST THEREFORE BE REVERSED.

We reject defendant's arguments.

Defendant claims his attorney was ineffective because he failed to prepare and present a diminished capacity defense. Defendant states that he gave his attorney information about his prior psychiatric difficulties and requested that the attorney pursue a defense based on that information. He contends that the attorney did not adequately consult with him or attempt to prepare such a defense. He also asserts that his attorney provided ineffective representation because he did not move to suppress defendant's "show-up" identification by the victim and because he did not devote sufficient time to consult with defendant about the discovery in the case or to negotiate vigorously for a favorable plea agreement. In a pro se brief filed in the trial court, defendant also challenged the legality of the "warrant" for his arrest.

Defendant's claims and arguments do not overcome the presumption that he received the assistance of counsel that is mandated by the Sixth Amendment of the United States Constitution and Article I, Paragraph 10 of the New Jersey Constitution. See Strickland v. Washington, 466 U.S. 668, 689, 694, 104 S. Ct. 2052, 2065, 2068, 80 L. Ed. 2d 674, 694, 698 (1984); State v. Loftin, 191 N.J. 172, 198 (2007). In a PCR motion, the defendant bears the burden of proving that his attorney's assistance was a violation of his constitutional rights. Loftin, supra, 191 N.J. at 198. Here, defendant's allegations did not satisfy both parts of the Strickland test, namely, first that "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment. Second, . . . that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; see State v. Fritz, 105 N.J. 42, 51-52 (1987). Where ineffective assistance is alleged following a guilty plea, the defendant satisfies the second part of the Strickland test by showing "there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 210 (1985) (footnote omitted).

Counsel argued at the time of sentencing that defendant's psychiatric history and substance abuse problems should be considered as mitigation of the court's sentence. Defendant's mother was present at the sentencing hearing, and the court permitted her also to make statements in support of a lenient sentence because of defendant's psychiatric problems. The trial court took those matters into consideration and lowered the term of imprisonment from that permitted by the plea agreement.

Considering that defense counsel made full use of the psychiatric and substance abuse history to mitigate the sentence imposed, we question, but do not decide, whether defendant would have been able to show deficient performance of counsel. Assuming that defendant made a prima facie showing of inadequate pretrial investigation and preparation by his attorney, he failed to establish a prima facie case of the second prong of the Strickland test.

As the trial court ruled, there was no evidence presented on the PCR motion to show that defendant's mental difficulties were sufficiently severe to constitute a potentially successful diminished capacity defense at trial. There was no medical opinion in the PCR presentation that showed defendant was not aware of his actions when he mugged a victim on the street at gunpoint in an effort to obtain items to exchange for illegal drugs. Without at least a proffer of the evidence that defense counsel allegedly failed to gather, defendant has not shown a prima facie case of ineffective assistance of his trial counsel. Cf. State v. Jack, 144 N.J. 240, 254 (1996) (establishing a prima facie case of ineffective assistance of counsel necessitates presenting expert evidence to support contentions).

As to the failure of counsel to move to suppress the "show-up" identification, even if such a motion would have been successful, exclusion from evidence of the out-of-court identification was unlikely to alter the outcome of the prosecution. Defendant was apprehended minutes after the robbery riding in the car that the victim described and in possession of a handgun and distinctive stolen items. The victim's identification of his own stolen property and the car would have been powerful evidence of defendant's participation in the mugging. In fact, at the time of sentencing, defendant stated that he did not intend to take the witness stand at his trial and "lie" about his commission of the crimes.

Defendant has also not shown that a better plea offer might have been made by the prosecution had his attorney negotiated more forcefully on his behalf. The evidence of defendant's commission of the crimes was particularly strong, and defendant had previously been convicted of aggravated assault and weapons offenses on separate occasions. It is unlikely in these circumstances that the prosecution would have deviated from its plea offer of a first-degree conviction and a NERA sentence. Considering the strength of the State's case, defendant did not demonstrate that he would have declined the plea offer and stood trial. Moreover, defendant received the benefit of a sentence substantially lower than his plea agreement.

Finally, defendant's pro se PCR brief mistakenly argued that the warrant for his arrest was obtained unlawfully. Defendant may have been referring to the criminal complaint that was filed upon his arrest, but any procedural impropriety in that regard would not have changed the charges or the State's evidence.

In a PCR appeal, our standard of review is plenary on questions of law, but the factual findings of the trial court are granted deference if they are supported by adequate, substantial, and credible evidence. State v. Harris, 181 N.J. 391, 415-16 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). We find no error in the conclusions of the trial judge that defendant's allegations of ineffective representation were not borne out by the record of his guilty plea and the subsequent submissions on the PCR petition.

We also reject defendant's contention that the PCR court erred in dismissing his petition without holding an evidentiary hearing. An evidentiary hearing may be required where matters beyond the trial record must be examined. See State v. Preciose, 129 N.J. 451, 462 (1992). We review the PCR court's determination to decide the matter without holding an evidentiary hearing under the abuse of discretion standard of review. State v. Marshall, 148 N.J. 89, 157-58, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). Here, an evidentiary hearing was not required without a prima facie showing of both parts of the Strickland test.

Affirmed.

20120626

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