On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 02-10-1347.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 12, 2012 -
Before Judges Simonelli and Lisa.
Defendant appeals from an order denying his post-conviction relief (PCR) petition, and denying his request for an evidentiary hearing. For the reasons that follow, we affirm, subject to modification on one issue.
Defendant was charged in a multi-count indictment with:
(1) first-degree murder of James Anderson, N.J.S.A. 2C:11-3a(1) or (2) and N.J.S.A. 2C:2-6 (count one); (2) second-degree possession of a handgun with the purpose to use it unlawfully against Anderson, Victor Sanders, and Romaine York, N.J.S.A. 2C:39-4a (counts two, five and seven);*fn1 (3) third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b (count three); and
(4) first-degree attempted murder of Sanders and York, N.J.S.A. 2C:5-1, N.J.S.A. 2C:11-3 and N.J.S.A. 2C:2-6 (counts four and six). After a ten-day trial, the jury found defendant guilty on count one of the lesser included offense of first-degree aggravated manslaughter, N.J.S.A. 2C:11-4a. The jury also convicted defendant on counts two and three, but acquitted him of the attempted murder charges in counts four and six.
After merging counts two and three with count one, Judge Edward V. Gannon sentenced defendant to twenty years imprisonment subject to an eighty-five percent parole disqualifier and five years parole supervision pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. The judge also ordered that defendant pay $25,000 in restitution to Anderson's children, to be paid jointly and severally with his co-defendant, Jonathan Wheeler, who was also convicted at the same trial of the same charges as defendant.*fn2
Defendant filed a direct appeal with this court. He challenged the denial of his motion to dismiss the indictment, the propriety of certain testimony, comments made by the prosecutor in summation, and his sentence that was imposed. State v. Briston, No. A-3395-06 (App. Div. June 20, 2008) (slip op. at 2-3). We affirmed defendant's conviction but remanded for reconsideration of his sentence. Id. at 3-4. The Supreme Court denied defendant's petition for certification. State v. Briston, 196 N.J. 596 (2008).
The matter again came before Judge Gannon for reconsideration of sentence on December 12, 2008. At that proceeding, defendant was represented by Margaret Anne Kean, a member of the Office of the Public Defender, the same attorney who had represented him at trial (but who had not handled his appeal). After conducting an ability-to-pay hearing and making findings regarding aggravating and mitigating factors, Judge Gannon imposed the same sentence as he had previously imposed.
Judge Gannon informed defendant of his right to appeal within forty-five days. No such appeal has been filed.
On April 20, 2010, defendant filed his PCR petition. He sought vacation of his conviction, asserting that the representation by his trial counsel was constitutionally deficient, and that a reasonable probability existed that, but for her unprofessional errors, the result of the proceeding would have been different.
The main thrust of his petition was that trial counsel failed to properly advise him of the implications of her past representation of a critical witness against him, namely York. He contended that his trial counsel failed to effectively present a third-party guilt defense with respect to York. He further contended that his conviction should be vacated because the prior representation of York by his trial counsel created an appearance of impropriety.
Defendant made an additional argument of ineffective assistance based upon failure to investigate information pertaining to slugs recovered at the crime scene. Finally, he requested permission to file a late notice of appeal from his resentencing, contending that he requested that his attorney file such an appeal, but she failed to do so. Defendant requested an evidentiary hearing on the allegations raised in his petition.
On February 4, 2011, Judge Joseph A. Portelli considered the PCR petition. He concluded that all of the information needed to decide the issues raised by defendant was contained in the trial record. Accordingly, he denied defendant's request for an evidentiary hearing.
Judge Portelli found that defendant failed to meet the two-prong Strickland*fn3 test because he failed to show that Kean's performance was deficient or that she "could have done more with her prior client [York] than she did." The judge found that Kean provided defendant with excellent representation, noting defendant was acquitted of the most serious charge of the murder of Anderson as well as two counts of attempted murder of Sanders and York. Accordingly, the judge issued an order on February 4, 2011 denying defendant's petition without an evidentiary hearing.
Defendant then filed this appeal, in which he raises the following arguments:
I. THE COURT ERRED IN DENYING BRISTON'S PETITION TO VACATE THE CONVICTION.
a. Briston was entitled to conflict-free representation.
b. Briston did not receive conflict-free representation.
1. The prior representation was not brief or insignificant.
2. The previous client was a key witness against Briston.
3. There is a strong third-party guilt defense.
4. Briston was never properly advised of the potential problems raised by the conflict and thus his waiver of the right to conflict-free representation was uninformed and invalid.
c. Briston was prejudiced by the prior representation in that the third[-]party [guilt] defense was not effectively presented at trial.
II. EVEN WITHOUT A CONFLICT OF INTEREST, BRISTON WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL BECAUSE COUNSEL FAILED TO EFFECTIVELY ...