August 21, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MARCUS TOLIVER, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 02-08-2753.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted July 18, 2012
Before Judges Espinosa and Koblitz.
Defendant Marcus Toliver appeals from an order dated June 30, 2010, denying his motion for post-conviction relief (PCR) without an evidentiary hearing. Defendant argues that his attorney was ineffective in his presentation to the court at the sentencing hearing after defendant pled guilty to felony murder. N.J.S.A. 2C:11-3(a)(3). After reviewing the record in light of the contentions advanced on appeal, we affirm.
Defendant was charged with co-defendant Ryshaone Thomas in Camden County Indictment No. 02-08-2753 with first-degree murder for killing a young woman by their own conduct, N.J.S.A. 2C:11-3(a)(1) or (2) (count one); first-degree felony murder (count two); first-degree kidnapping, N.J.S.A. 2C:13-1(b)(1) (count three); first-degree robbery, N.J.S.A. 2C:15-1 (count four); second-degree conspiracy to commit murder, kidnapping, robbery, N.J.S.A. 2C:11-3, N.J.S.A. 2C:13-1 and N.J.S.A. 2C:15-1 (count five); third-degree possession of a weapon with the purpose to use it unlawfully, N.J.S.A. 2C:39-4(d) (count six); and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d) (count seven). The State sought the death penalty by serving defendant with a notice of two aggravating factors: the murder was committed to escape detection, N.J.S.A. 2C:11-3(c)(4)(f), and while engaged in the commission of another felony, N.J.S.A. 2C:11-3(c)(4)(g). This procedure of the State designating capital murder charges by serving a notice of aggravating factors was affirmed by the New Jersey Supreme Court. State v. Toliver, 180 N.J. 164, 167-68 (2004).*fn1
Upon arrest, after receiving his Miranda*fn2 warnings, defendant told police the following information. On November 12, 2001, at approximately 8:30 p.m., defendant and Thomas abducted a young woman from the PATCO Speedline*fn3 parking lot near Ferry Station and brought her to a wooded area where they cut, beat and strangled her. They stole her car and valuables.
On March 9, 2005, defendant pled guilty to count two of the indictment. The State agreed to dismiss the remaining counts and recommend a prison term of forty-three years, with an eighty-five percent mandatory period of parole ineligibility pursuant to the No Early Release Act. N.J.S.A. 2C:43-7.2. Defendant agreed to waive his right to appeal. R. 3:9-3(d).
Prior to sentencing, defense counsel submitted to the court a twelve-page, single-spaced mitigation report based on extensive interviews with defendant, his relatives and friends.
The report detailed defendant's dysfunctional family life, which included drug and alcohol abuse, as well as physical abuse and neglect. It included accounts of defendant's military history, lack of criminal record and the negative influence of his co-defendant. Fourteen exhibits totaling 360 pages of additional mitigation material were attached to the report. At the sentencing hearing, counsel represented that his client had lived for fifteen years with his father and had been honorably discharged from the National Guard in 2001. The State presented in-court victim-impact statements from the victim's mother, sister, best friend, aunt and uncle. Her uncle objected to what he perceived to be the leniency of the plea agreement.
Defense counsel did not speak further and defendant did not speak, even after the court informed him:
Mr. Toliver, you always have a right to speak at sentencing and this is your opportunity, if you wish to exercise it to speak to me, to speak to the family through me, as to what transpired in November of '01.
The court observed that defendant showed no remorse when the family members spoke. The court also noted that it had read defendant's mitigation material, but found it did not excuse or explain defendant's "barbaric act." The court found three aggravating factors: the nature and circumstances of the offense and the role defendant played, N.J.S.A. 2C:44-1(a)(1);
the risk that defendant will commit another offense, N.J.S.A. 2C:44-1(a)(3); and the need to deter defendant and others, N.J.S.A. 2C:44-1(a)(9). It also found one mitigating factor, defendant's lack of a prior criminal record. N.J.S.A. 2C:44-1(b)(7). The court found the aggravating factors substantially outweighed the mitigating factor and sentenced defendant to the maximum term under the plea agreement.
Defendant did not file a direct appeal, but filed a PCR on October 6, 2008. He submitted a certification, in which he stated:
I was advised by my counsel to not address the Court at my sentencing on April 29, 2005. I was informed that addressing the Court would only "make things worse."
Despite my desire to address the Court and make a statement of contrition at sentencing, I followed the advice of my attorneys. [(Emphasis in original).]
PCR defense counsel indicated that "an evidentiary hearing would be unnecessary." The judge agreed, stating "there don't appear to have been any fact issues raised by the defendant to establish a prima facie case that would require that evidentiary hearing." The judge then found that defense counsel at the sentencing hearing had provided the court with extensive materials in mitigation and that his advice to defendant not to speak did not constitute ineffective assistance of counsel.
On appeal, defendant raises the following issue:
MR. TOLIVER'S ATTORNEY RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL WHEN HE FAILED TO ARGUE ON HIS BEHALF AT SENTENCING AND WHEN HE TOLD MR. TOLIVER NOT TO SPEAK AT SENTENCING.
In reviewing claims of ineffectiveness, courts apply a strong presumption that defense counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland v. Washington, 466 U.S. 668, 690, 104 S. Ct. 2052, 2066, 80 L. Ed. 2d 674, 695 (1984). "[C]complaints 'merely of matters of trial strategy' will not serve to ground a constitutional claim of inadequacy . . . ." State v. Fritz, 105 N.J. 42, 54 (1987) (quoting State v. Williams, 39 N.J. 471, 489, cert. denied, 374 U.S. 855, 83 S. Ct. 1924, 10 L. Ed. 2d 1075 (1963), overruled in part on other grounds, State v. Czachor, 82 N.J. 392, 402 (1980)); see, e.g., State v. Echols, 199 N.J. 344, 357-59 (2009). "The quality of counsel's performance cannot be fairly assessed by focusing on a handful of issues while ignoring the totality of counsel's performance in the context of the State's evidence of defendant's guilt." State v. Castagna, 187 N.J. 293, 314 (2006) (citing State v. Marshall, 123 N.J. 1, 165 (1991), cert. denied, 507 U.S. 929, 113 S. Ct. 1306, 122 L. Ed. 2d 694 (1993)). "As a general rule, strategic miscalculations or trial mistakes are insufficient to warrant reversal 'except in those rare instances where they are of such magnitude as to thwart the fundamental guarantee of [a] fair trial.'" Id. at 314-15 (quoting State v. Buonadonna, 122 N.J. 22, 42 (1991)).
"'[A]n otherwise valid conviction will not be overturned merely because the defendant is dissatisfied with his or her counsel's exercise of judgment.'" State v. Allegro, 193 N.J. 352, 367 (2008) (quoting Castagna, supra, 187 N.J. at 314).
In his brief, defendant claims that his attorney was ineffective at the sentencing hearing by failing to advocate for him and advising him not to speak. Defendant correctly points out that defense attorneys have an "unfettered right to argue in favor of a lesser sentence than that contemplated by the negotiated plea agreement." State v. Hess, 207 N.J. 123, 152-53 (2011) (quoting State v. Briggs, 349 N.J. Super. 496, 501 (App. Div. 2002)).
He argues that defense counsel should have argued the applicability of mitigating factor 13, that the conduct of a youthful defendant was substantially influenced by another person more mature than the defendant. N.J.S.A. 2C:44-1(b)(13). That topic was covered in the mitigation report offered to the court, although Thomas, the purportedly "more mature" person, was only one year older than defendant.
Defendant also argues that his attorney should have argued that his conduct was the result of circumstances unlikely to recur, N.J.S.A. 2C:44-1(b)(8), because defendant was under the influence of marijuana and alcohol at the time of the murder. As the PCR judge found, the record does not support this mitigating factor. Nor does the record support the final mitigating factor urged by defendant, that defendant's character and attitude indicate that he is unlikely to commit another offense. N.J.S.A. 2C:44-1(b)(9). The callous and brutal nature of the felony murder belies both of these mitigating factors.
We also agree with the PCR judge that advising defendant not to speak at sentencing was a reasonable tactical decision under the circumstances. Defendant was in the presence of the victim's family, who may have negatively influenced the court by reacting unfavorably to defendant's comments, and the court had reviewed an extremely extensive and articulate mitigation packet. The court expressly invited defendant to speak and he was free to ignore his attorney's advice and do so. Defendant presents no reason to believe his sentence would have been any less severe had he chosen to speak on his own behalf.