September 7, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
WILLIE A. PETERSON, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 02-08-3082.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 18, 2012 -
Before Judges Lihotz and Waugh.
Defendant Willie A. Peterson appeals from the denial of his petition for post-conviction relief (PCR). On appeal he argues:
THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
A. TRIAL COUNSEL WAS INEFFECTIVE IN FAILING TO FILE A MOTION TO SUPPRESS DEFENDANT'S STATEMENTS AS EXCITED UTTERANCES.
B. COUNSEL FAILED TO PREPARE A DIMINISHED CAPACITY DEFENSE.
C. COUNSEL FAILED TO CONSULT WITH DEFENDANT AND FAILED TO INITIATE PLEA NEGOTIATIONS.
D. COUNSEL WAS INEFFECTIVE DURING SENTENCING.
THE LOWER COURT ORDER MUST BE REVERSED IN LIGHT OF ADDITIONAL ERRORS.
THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT'S CLAIMS ARE NOT PROCEDURALLY BARRED UNDER R. 3:22-5. POINT IV.
THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT'S CLAIMS ARE NOT PROCEDURALLY BARRED UNDER R. 3:22-4. POINT V.
THE LOWER COURT ERRED IN NOT GRANTING DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING AND THE LOWER COURT ORDER MUST THEREFORE BE REVERSED.
Defendant submitted a pro se brief in which he argued:
A. POINT ONE:
DEFENDANT'S PCR ATTORNEY FAILED TO O[B]TAIN EITHER AFFIDAVITS OR CERTIFICATIONS FROM TRIAL COUNSEL . . . STATE'S COUNSEL . . . OR TRIAL JUDGE . . . AS TO WHY THE DEFENDANT WAS NOT ALLOWED TO ALSO BE PRESENT ON 6-27-01 . . . [OR] . . . 11-26-01 . . . DESPITE THERE BEING NO-WAIVER FROM THE DEFENDANT.
B. POINT ONE [SIC]:
DEFENDANT[']S TRIAL ATTORNEY NOT ONLY FAILED TO ADVISE HIM OF THE EXISTENCE OF THE TRIAL MEMORANDUM AND FAILED TO PROCURE DEFENDANT'S PRESENCE DURING THE SIGNING OF THIS CRUCIAL DOCUMENT.
A. POINT TWO [SIC]:
DEFENDANT[']S TRIAL ATTORNEY AND DIRECT APPEAL COUNSEL FAILED TO RAISE THE ISSUE OF UNREASONABLE SEARCHES AND SEIZURES BY THE POLICE KNOWING THAT THE STATE NEVER HAD A SEARCH WARRANT. SEE STATE V. RICHARD CHIPPERO, 2009 N.J. LEXIS 1415 (2009) [SIC].
B. POINT TWO [SIC]:
BOTH TRIAL ATTORNEY AND DIRECT APPEAL COUNSEL FAILED TO REALIZE THAT MY ARREST DATE: 5-29-1999 PUT THE DEFENDANT UNDER THE VERSION OF N.E.R.A. IN POWER FROM 1997 THRU [SIC] 2001 PRIOR TO THE AMENDMENT TO THE ACT.
Finally, defendant submitted a second pro se brief replying to the State's brief, but which fails to set forth separate arguments.
We have reviewed the entire record and considered each of the arguments raised. In light of the applicable law, we affirm.
Following an eight-day jury trial, defendant was convicted of first-degree aggravated manslaughter, third-degree theft, fourth-degree unlawful possession of a weapon, and third-degree possession of a weapon for an unlawful purpose in the stabbing death of his girlfriend. Defendant was acquitted of felony murder.
At sentencing, the court imposed an extended term sentence under N.J.S.A. 2C:43-7.1(b)(2) on the aggravated manslaughter conviction, ordering defendant's incarceration for sixty years, subject to an eighty-five percent period of parole ineligibility on the first thirty years pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The trial judge merged the weapons convictions and imposed a concurrent five-year term of imprisonment. Finally, the court imposed a consecutive five-year term of imprisonment for the third-degree theft conviction.
On appeal, defendant's convictions were affirmed, as was his extended
term sentence for aggravated manslaughter. However, we remanded for
resentencing on the convictions for the
third-degree offenses of theft and weapons possession.*fn1
State v. Peterson, No. A-1930-03 (App. Div. Mar. 6, 2006)
(slip op. at
17). Defendant's petition for certification was denied. State
v. Peterson, 193 N.J. 223 (2007).
Defendant's first PCR petition was filed on November 26, 2007. He sought an evidentiary hearing to review claims of trial counsel's negligent representation and imposition of an unlawful sentence. The PCR judge denied defendant's request for a hearing and, following review of the issues presented, denied relief. Defendant filed a pro se motion for reconsideration. The PCR judge issued a letter opinion denying the motion on January 25, 2011. This appeal of those two orders ensued.
"Post-conviction relief is New Jersey's analogue to the federal writ of habeas corpus." State v. Preciose, 129 N.J. 451, 459 (1992) (citation omitted). Under Rule 3:22-2, there are four grounds for PCR:
(a) Substantial denial in the conviction proceedings of defendant's rights under the Constitution of the United States or the Constitution or laws of the State of New Jersey;
(b) Lack of jurisdiction of the court to impose the judgment rendered upon defendant's conviction;
(c) Imposition of sentence in excess of or otherwise not in accordance with the sentence authorized by law . . . [;]
(d) Any ground heretofore available as a basis for collateral attack upon a conviction by habeas corpus or any other common-law or statutory remedy.
"A petitioner must establish the right to such relief by a preponderance of the credible evidence." Preciose, supra, 129 N.J. at 459 (citations omitted). "To sustain that burden, specific facts" which "provide the court with an adequate basis on which to rest its decision" must be articulated. State v. Mitchell, 126 N.J. 565, 579 (1992).
Claims of ineffective assistance of counsel are well suited for post-conviction review, and petitioners are rarely barred from raising such claims in PCR petitions. R. 3:22-4(a); Preciose, supra, 129 N.J. at 459-60. Merely raising such a claim does not, however, entitle a defendant to an evidentiary hearing. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Rather, the decision to hold an evidentiary hearing on a defendant's ineffective assistance of counsel claim is within the trial court's discretion. Ibid.
Trial courts should grant evidentiary hearings and make a determination on the merits of a defendant's claim only if the defendant has presented a prima facie claim of ineffective assistance. Preciose, supra, 129 N.J. at 462. In determining whether a prima facie claim has been established, the facts should be viewed "in the light most favorable to a defendant." Id. at 462-63.
"To establish a prima facie claim of ineffective assistance of counsel, a defendant must demonstrate [a] reasonable likelihood of succe[ss] under the test set forth in Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984) . . . ." Id. at 463. Under the first prong of the Strickland test, a "defendant must show that [defense] counsel's performance was deficient." Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Under the second prong, a defendant must show prejudice by demonstrating "a reasonable probability 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. The two-part test set forth in Strickland was adopted by this State in State v. Fritz, 105 N.J. 42, 58 (1987).
In demonstrating counsel's deficient performance under the first prong of Strickland, defendant must overcome "'a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.'" Id. at 52 (quoting Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694). Further, because prejudice is not presumed, ibid., a defendant must demonstrate "how specific errors of counsel undermined the reliability" of the proceeding. United States v. Cronic, 466 U.S. 648, 659 n.26, 104 S. Ct. 2039, 2047 n.26, 80 L. Ed. 2d 657, 668 n.26 (1984). Guided by these principles, we review defendant's claims.
In counsel's merits brief on behalf of defendant, as well as defendant's separate pleadings, numerous claims of ineffective assistance of trial, appellate, and PCR counsel are asserted. Defendant also argues his sentence was illegal because the court applied NERA without jury fact-finding and he was not notified of the State's motion for an extended term sentence. He also argues his sentence was illegal, based on an alleged wrongful application of the 2001 amendment to NERA. We have chosen to combine some arguments in our discussion.
A. Pre-Trial Claims
Defendant suggests trial counsel should have attempted to suppress his statements to police and paramedics who responded to the scene after he intentionally drove his car into a road divider the morning following his girlfriend's slaying, in an attempted suicide. Defendant mistakenly argues the statements were inadmissible "excited utterances" and "made without the opportunity to deliberate or fabricate." This argument is meritless. R. 2:11-3(e)(2). See N.J.R.E. 803(c)(2) (allowing admission of an "excited utterance" if the "statement relating to a startling event or condition [is] made while the declarant was under the stress of excitement caused by the event or condition and without opportunity to deliberate or fabricate"). Further, the statements were made to those rendering aid, not in connection with a criminal investigation, and therefore there is no issue regarding whether the statements were voluntary and whether appropriate warnings were given. See N.J.R.E. 803(b)(1) (allowing admission of a party's statements).
Next, defendant maintains trial counsel should have developed a diminished capacity defense based on his attempted suicide and other "bizarre behavior following the killing," including statements to the paramedics that "he didn't want to be treated, he wanted to kill himself, [and] not to patch him up so he can bleed to death." Defendant argues counsel should have examined and investigated whether his mental defects impeded his capacity to stand trial.
Under N.J.S.A. 2C:4-2, a diminished capacity defense is available to negate the formation of the requisite criminal mental state. State v. Nataluk, 316 N.J. Super. 336, 344 (App. Div. 1998). "Not every mental condition qualifies . . . as a disease or defect which would negate a state of mind which is an element of the offense." Ibid. "[M]any mentally disturbed persons are [quite] capable of acting purposefully or knowingly in the minimal senses intended by" the statute. State v. Reyes, 140 N.J. 344, 360 (1995) (internal quotation marks and citations omitted).
Defendant's suicidal behavior does not demonstrate he had a diminished capacity, as turning oneself in to the police, confessing to a crime, and feeling remorse after a murder are not signs of diminished capacity. See State v. Savage, 120 N.J. 594, 614 (1990) (illustrating behaviors entitling a defendant to a diminished capacity defense).
In Savage, supra, the Court held trial counsel may be ineffective for not investigating a "psychiatric defense" when defendant "participated in . . . bizarre conduct, and possibly had a history of mental illness and drug abuse[.]" Ibid. There, the defendant had a history of mental illness and drug abuse, suffered from possible "hallucinations or delusions," used cocaine the night of the murder, and exhibited many symptoms of paranoid schizophrenia. Ibid.
The facts of this matter are easily distinguishable from Savage, as defendant did not have a history of mental illness, did not claim he was under the influence of drugs at the time of the murder, and did not claim he was having psychiatric "hallucinations or delusions." In contrast, defendant tried to commit suicide, said he wanted to die, and confessed to murder. Moreover, defendant offers no evidence showing prior or current psychiatric or mental health history, and proffers no expert opinion of mental defect.
A defendant must provide evidence, such as an opinion from an expert, about his mental capacity at the time of the offense or at the time of trial, as well as the impact of that mental state on his culpability or his ability to enter a knowing or voluntary plea. See State v. Chew, 179 N.J. 186, 215-20 (2004); Savage, supra, 120 N.J. at 618-19. Absent adequate factual support, the assertion must be rejected. Cf. Mitchell, supra, 126 N.J. at 579. Consequently, trial counsel was not deficient for failing to present a diminished capacity defense. Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.
Defendant also asserts trial counsel was negligent because he failed to properly communicate with defendant before and during trial and did not initiate plea negotiations. The specific factual support for these claims includes statements counsel refused to conduct a video conference and did not properly inform defendant of the total sentencing exposure. Defendant states, "Had I known this I would have authorized [trial counsel] to engage in plea negotiations." The latter argument was slightly expanded in defendant's pro se brief, where he asserts: trial counsel did not conduct plea negotiations or provide him with a copy of the trial memorandum, presented at the June 27, 2001 status conference, which he states cut off plea negotiations.
This matter does not demonstrate "an attorney's gross misadvice of sentencing exposure that prevents defendant from making a fair evaluation of a plea offer and induces him to reject a plea agreement he otherwise would likely have accepted[.]" State v. Taccetta, 351 N.J. Super. 196, 200 (App. Div.), certif. denied, 174 N.J. 544 (2002). Rather, defendant expresses general assertions regarding his absence from a status conference. Although defendant asserts he was not present at the pre-trial status hearing,*fn2 during which the trial memorandum was signed by his attorney, he does not state counsel did not review the issues or discuss his plea exposure with him. Defendant does not include the transcript from that court event or offer certifications or other factual support to substantiate his claims of prejudice.
As the PCR judge noted, "[defendant] was not deprived or prejudiced in any way by his absence if indeed he wasn't present [at the pre-trial conference], because plea discussions are not cut off by the signing of a pre-trial memorandum in a homicide case."*fn3 This fact is verified by the pre-trial memorandum, which states a negotiated plea may be accepted by the court with "approval of the Criminal Presiding Judge or his designee."
Finally, the assistant prosecutor's comments during the PCR hearing suggest "informal" plea negotiations were held. Also, defendant's pleadings, vowing he "would have authorized [trial counsel] to engage in plea negotiations" had he known the full scope of his potential sentence, reflect that he had discussed a possible plea with his attorney. The June 27, 2001, pre-trial memorandum shows the State declined to make a plea offer as it reflects "NO OFFER" was being made to defendant. We find no ineffective assistance.
As to the claim alleging failure to communicate, the number of consultations and communications between counsel and a client is not necessarily a determining factor; rather, courts should consider "whether, as a result of [those] consultation[s], counsel was able properly to investigate the case and develop a reasonable defense." Savage, supra, 120 N.J. at 617. Defendant does not present evidence or explain the basis of his allegation of limited consultation, which is required. Cummings, supra, 321 N.J. Super. at 170 (holding a defendant "must do more than make bald assertions that he was denied the effective assistance of counsel"). Following our review, we conclude the denial of PCR on these unsubstantiated contentions was proper.
Next, several arguments, although couched in terms of claims attacking counsel's ineffective assistance, actually challenge the imposed sentence. The first maintains that the right to a trial by jury was violated by the trial judge's imposition of an extended term sentence, without written notice as required by N.J.S.A. 2C:43-7.1. Second, defendant argues that for NERA to apply, the grand jury was required to include a NERA provision in the indictment. Third, defendant claims his sentence was illegal because his arrest date makes him subject to the version of NERA in effect prior to the 2001 amendment.
Initially, we note NERA's application is determined by the trial judge, not the grand jury. See N.J.S.A. 2C:43-7.2 (stating the court at the time sentence is imposed must apply NERA).
Next, the sentence about which defendant complains is not illegal. Consequently, attacks regarding its excessiveness are not properly raised by PCR application. State v. Acevedo, 205 N.J. 40, 47 (2011) (explaining only issues regarding a sentence's legality are cognizable on PCR). Sentences that are allegedly excessive but not illegal cannot be reviewed by way of PCR and are ordinarily remediable only by way of direct appeal. See State v. Clark, 65 N.J. 426, 436-37 (1974); State v. Pierce, 115 N.J. Super. 346 (App. Div.), certif. denied, 59 N.J. 362 (1971).
Moreover, defendant challenged his sentence on direct appeal. Peterson, supra, slip. op. at 17. In our review, we considered the appropriateness and affirmed the imposition of NERA. Therefore, the issue may not again be raised in a petition for PCR. R. 3:22-5.
Also, "'post-conviction proceedings are not a substitute for direct appeal.'" Mitchell, supra, at 126 N.J. 583 (quoting State v. Cerbo, 78 N.J. 595, 605 (1979)). Consequently, any matter not raised on appeal cannot serve as a ground for PCR, unless the claim could not reasonably have been raised before, barring the claim would result in fundamental injustice, or unless denial of relief would be unconstitutional. R. 3:22-4(a); State v. McQuaid, 147 N.J. 464, 483 (1997). None of these exceptions apply to this matter.
Finally, we find unpersuasive defendant's contentions challenging service of the State's motion seeking imposition of an extended term sentencing and application of NERA. N.J.S.A. 2C:43-7.1(d) requires the basis of a request for an extended term sentence to be "established at a hearing after the conviction of the defendant and on written notice to the defendant of the ground proposed." Defendant argues the prison entry logs on the date on which the State asserts it served its motion do not show a messenger making a delivery to him, and therefore, he was not "personally served." Defendant's arguments are meritless.
First, the statute does not require personal service. Second, the State's certification of service reflects the mailing date, which may not be the date defendant received the document. Third, the transcript records show defendant was present and participated in the proceeding; consequently, there could not have been any prejudice. Finally, the trial judge confirmed that defendant and his attorney received the State's motion.
C. Appellate Counsel
Defendant enumerates lapses by trial counsel that should have been raised by appellate counsel, whom defendant claims was ineffective. These include: (1) failure to object to prosecutorial misconduct vouching for witnesses' credibility; (2) failure to retain a blood spatter expert; (3) failure to suppress scientific evidence because DNA testing of the blood was conducted and the State did not produce a blood spatter expert; (4) denial of due process by not communicating with defendant; (5) denial of discovery, such as the trial memorandum; and (6) failure to challenge the State's failure to obtain a search warrant.
We apply the same Strickland/Fritz analysis to a claim of ineffective assistance of appellate counsel. State v. Harris, 181 N.J. 391, 518 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). However, it is impossible to review defendant's claims because they are merely listed, unaccompanied by substantive description or support. A defendant seeking PCR must support his allegations with admissible evidence that addresses both prongs of the Strickland test. See Fritz, supra, 105 N.J. at 64-65. In other words, a defendant must specifically identify what was omitted from trial, explain what would have been revealed, and demonstrate the manner in which the evidence probably would have changed the result. Ibid. (citing United States v. Rodgers, 755 F.2d 533, 541 (7th Cir.), cert. denied, 473 U.S. 907, 105 S. Ct. 3532, 87 L. Ed. 2d 656 (1985); Aldrich v. Wainwright, 777 F.2d 630, 637 (11th Cir. 1985), cert. denied, 479 U.S. 918, 107 S. Ct. 324, 93 L. Ed. 2d 297 (1986)). A defendant cannot rely on simple allegations of inadequate performance to sustain a petition for PCR. See Cummings, supra, 321 N.J. Super. at 170 (holding a mere bald assertion of ineffective assistance of counsel, unsupported by any factual claims or references is insufficient to obtain relief).
Further, because none of the issues regarding trial counsel's performance were found sufficient to demonstrate legal error possibly affecting the outcome of defendant's trial, it follows that appellate counsel was not ineffective for failing to raise the claims. State v. Echols, 199 N.J. 344, 361 (2009).
D. PCR Counsel
Defendant's supplemental pro se brief asserts a claim of negligence by PCR counsel. Defendant contends his PCR attorney failed to obtain affidavits or certificates from trial counsel, State's counsel, or the trial judge as to why he was not present at the June 27, 2001 "Status Conference," which he believes was the basis of the PCR judge's denial of an evidentiary hearing. Also, he contends PCR counsel failed to utilize case law he provided.
Defendant offers no information to satisfy the Strickland/Fritz standard. His unfounded statements provide insufficient grounds to consider PCR. R. 2:11-3(e)(2).
We conclude with a determination that the PCR court did not err in declining to conduct an evidentiary hearing on the basis of these contentions. Evidentiary hearings are not required in all PCR proceedings. 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). Whether to conduct an evidentiary hearing rests in the discretion of the court, R. 3:22-10, and is necessary only when it would "aid the court's analysis of whether the defendant is entitled to post-conviction relief[.]" Marshall, supra, 148 N.J. at 158.
In summation, following our review of the record and applicable law, we conclude defendant failed to present a prima facie case of ineffective assistance by trial, appellate, or PCR counsel, making an evidentiary hearing unwarranted. Preciose, supra, 129 N.J. at 459-64. See also R. 3:22-10(e)(2) (stating a court will not grant an evidentiary hearing "if the defendant's allegations are too vague, conclusory or speculative"). We further conclude all of defendant's arguments raised on PCR and renewed on appeal lack substantive merit to warrant relief.