May 15, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
MARK A. BOYD, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 1, 2013
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 02-10-3864.
Joseph E. Krakora, Public Defender, attorney for appellant (Philip Lago, Designated Counsel, on the brief).
Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Brian Pollock, Special Deputy Attorney General/ Acting Assistant Prosecutor, on the brief).
Before Judges Axelrad and Haas.
Defendant Mark Boyd appeals from a December 16, 2010 order denying his petition for post-conviction relief (PCR) and the March 7, 2011 decision of the judge to resentence him to an aggregate term of twenty years in prison. We affirm.
Defendant was convicted by a jury of third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b (count two); two counts of second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (counts three and five); attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3 (count four); third-degree possession of cocaine, N.J.S.A. 2C:35-10a(1) (count seven); third-degree receiving stolen property, N.J.S.A. 2C:20-7 (count eight); and third-degree resisting arrest, N.J.S.A. 2C:29-2 (count nine). Defendant was also convicted of second-degree aggravated assault as a lesser-included offense of a second count of attempted murder (count one). He was acquitted of third-degree burglary, N.J.S.A. 2C:18-2 (count six).
The judge sentenced defendant to a term of seven years on count one, with a mandatory eighty-five percent parole ineligibility period pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2; four years on count two; twenty years on count four, with a mandatory seventeen-year period of parole ineligibility under NERA; and four years on count eight. All of these sentences were to run concurrently with each other. The remaining counts were merged for sentencing purposes. The judge imposed the minimum statutory required penalties on each count with the exception of count four for which the judge imposed a $1, 000 VCCB penalty.
Defendant filed a direct appeal and raised the following arguments:
THE JUDGE'S EXPLANATION OF THE REQUISITE MENTAL STATE FOR A CRIMINAL ATTEMPT IMPROPERLY VARIED BETWEEN "PURPOSEFUL" AND "PURPOSEFUL OR KNOWING."
THE TRIAL JUDGE IMPROPERLY PLACED THE BURDEN OF DISPROVING FLIGHT ON DEFENDANT.
THE SENTENCE IMPOSED FOR ATTEMPTED MURDER IS MANIFESTLY EXCESSIVE AS IS THE VIOLENT CRIMES COMPENSATION BOARD PENALTY FOR THAT SAME CRIME.
BECAUSE THE SENTENCING JUDGE RELIED UPON AN AGGRAVATING FACTOR THAT MUST BE FOUND BY A JURY IN IMPOSING A PRISON TERM GREATER THAN THE PRESUMPTIVE, THE SENTENCE IS VIOLATIVE OF HIS SIXTH AMENDMENT RIGHT TO TRIAL BY JURY UNDER BLAKELY V. WASHINGTON, __ U.S.__, 124 S.Ct. 2531, 154 L.Ed. 2D 403 (2004).
[State v. Boyd, No. A-6819-02 (February 14, 2005) (slip op. at 8).]
We affirmed defendant's conviction and his sentence, with the exception of the VCCB penalty imposed under count four, in an unpublished opinion. Id . at 31. We remanded the VCCB penalty to the sentencing judge "for reconsideration of that component of the sentence and for a statement of findings evaluating the factors enumerated in N.J.S.A. 2C:43-3.1[.]" Id. at 31. The Supreme Court denied defendant's petition for certification. State v. Boyd, 183 N.J. 589 (2005).
The essential background facts were set forth in our earlier opinion. On July 9, 2002, three Irvington police officers were dispatched in response to a burglary in progress call. Boyd, supra, slip op. at 3. When they arrived, they observed three individuals, including defendant, walking down the street near the scene of the burglary. Id . at 4. When the officers approached the three men, "two of the men stopped but defendant took off running." Ibid. He refused to stop when ordered to do so by the officers. Ibid.
One of the officers saw defendant reach into his waistband area as he ran. Ibid. The officer removed his service revolver and held it to his side. Ibid. "Defendant said, 'don't shoot, don't shoot.'" Ibid. As the officer crossed the street, defendant pointed a gun at the officer and shot two times. Ibid. The officer dove behind a parked car and broke his ring finger. Ibid.
Another officer drove up in his police car, got out, and told defendant to drop his weapon. Id . at 5. Defendant fired once at the officer and the officer fired back once. Ibid. Defendant then fired a second time and the officer returned fire. Ibid. Defendant "'scream[ed] as if he had been hit, in a painful manner.'" Ibid. However, he continued to run away down the street. Ibid.
The officers pursued defendant through backyards and then into an apartment building. Id . at 6. More officers joined the chase and, eventually, defendant was apprehended on the stairs leading to the roof of the building. Ibid. Defendant had sustained a gunshot wound to the arm and was taken to the hospital. Ibid. He was holding his gun when he was captured. Ibid.
On May 12, 2008, defendant filed a petition for PCR, and his attorney subsequently filed a supplemental brief on his behalf. Defendant asserted his trial counsel was ineffective because his attorney allegedly failed to advise him that he did not need to appear in prison garb on the first day of the trial; failed to advise him of his right to testify in his own defense; and included a "shocking and distasteful" parable from the Bible in his summation. Defendant also alleged he was entitled to a re-sentencing under State v. Natale, 184 N.J. 458 (2005) because the sentencing judge had used a "presumptive term" in his determination of the sentence he imposed.
In a written opinion issued on December 16, 2010, Judge Sherry Hutchins-Henderson denied defendant's petition for PCR. The judge found that the issue of whether defendant could elect not to wear prison garb was specifically addressed with him and defense counsel on the first day of jury selection. Similarly, defendant was extensively questioned concerning his right to testify at the trial. Finally, the judge found that defense counsel's use of the parable in his closing was consistent with the defense's overall strategy and that defendant, who was acquitted of one of the charges and who avoided a conviction on one of the attempted murder charges, failed to demonstrate he was prejudiced in any way by his attorney's remarks.
On March 3, 2011, the judge resentenced defendant in accordance with Natale and without any consideration of a presumptive term. After weighing the facts of this case and making specific findings as to aggravating and mitigating factors, Judge Hutchins-Henderson imposed the same sentence as originally set by the sentencing judge. Consistent with this ruling, a new judgment of conviction was filed on March 7, 2011. This appeal followed.
On appeal, defendant raises the following arguments:
THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
A. Trial counsel was ineffective for failing to advise defendant of his right to wear civilian clothing during the trial.
B. Trial counsel was ineffective since he deprived defendant of his opportunity to testify on his own behalf.
C. Trial counsel was ineffective during summation.
THE LOWER COURT ORDER MUST BE REVERSED IN LIGHT OF ADDITIONAL ERRORS.
THIS MATTER SHOULD BE REMANDED FOR RE-SENTENCING BECAUSE THE SENTENCE IMPOSED IS EXCESSIVE.
A. At the re-sentencing hearing, Judge Hutchins-Henderson improperly attempted to recreate the thought process of Judge Isabella instead of following the dictates of Natale which mandates that the re-sentencing court must impose sentence without reference to the presumptive terms after identifying and weighing applicable mitigating and aggravating factors.
B. The sentence on Count Four, attempted murder, of 20 years with 17 years parole ineligibility is excessive.
C. Both sentencing courts properly found that the term imposed on Count One should be served concurrent with that imposed on Count Four.
THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT'S CLAIMS ARE NOT PROCEDURALLY BARRED UNDER R. 3:22-4.
THE LOWER COURT ERRED IN NOT GRANTING DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING AND THE LOWER COURT ORDER MUST THEREFORE BE REVERSED.
Our review of the record convinces us that the judge acted properly in denying defendant's petition for PCR. We affirm substantially for the reasons set forth by Judge Hutchins-Henderson in her written and oral opinions. We add the following comments.
To establish a deprivation of the Sixth Amendment right to the effective assistance of counsel, a defendant must demonstrate that: (1) counsel's performance "fell below an objective standard of reasonableness, " such that he or she "was not functioning as the 'counsel' guaranteed . . . by the Sixth Amendment, " and (2) "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." State v. Hess, 207 N.J. 123, 146 (2011) (citing Strickland v. Washington, 466 U.S. 668, 687-88, 694, 104 S.Ct. 2052, 2064, 2068, 80 L.Ed.2d 674, 693, 698 (1984)).
Courts, in reviewing such claims, apply a highly deferential standard by adopting the strong presumption that defense counsel exercised "reasonable professional judgment" and sound strategy in fulfilling his or her responsibilities. Hess, supra, 207 N.J. at 147 (citing Strickland, supra, 466 U.S. at 689-90, 104 S.Ct. at 2065-66, 80 L.Ed.2d at 694-95). "[I]n order to establish a prima facie claim, a [defendant] must do more than make bald assertions that he was denied the effective assistance of counsel. He must allege facts sufficient to demonstrate counsel's alleged substandard performance." State v. Cummings, 321 N.J.Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).
On the first day of the trial, defendant wore prison garb and he now alleges that his trial counsel was ineffective because he was not made aware of his right to wear civilian attire at the trial. This argument lacks any factual basis in the record. After reviewing the trial transcript, Judge Hutchins-Henderson found:
[P]rior to jury selection on the first day of the trial and at the request of the prosecutor, the court explained to [defendant] on the record, that people that are tried in front of juries are dressed in civilian clothes . . . The court also explained that the purpose of the civilian clothes is to prevent the jury from making a negative assumption concerning [defendant's] guilt . . . Following this explanation, [defendant] answered "yes", on the record, when asked whether he would like to go along with defense counsel's trial strategy and wear prison clothing . . . Upon the prosecutor's request, the court then asked [defendant] whether he knew that he was entitled to wear street clothes [and he] answered "yes" on the record . . . The court then asked [defendant] whether he had a problem with the jury being aware of the fact that he is in custody [and defendant] answered "no."
As this exchange prior to the trial clearly demonstrates, defendant was made fully aware that he had the right to wear civilian clothing during his trial. Therefore, his argument on this point lacks merit.
In addition, defense counsel explained that his trial strategy was to attempt to show that defendant was an innocent individual, who had been wrongly charged by the police. He also advised the court that defendant would switch to civilian clothes after the jury was selected and prior to any witness attempting to identify him in court. Thus, defendant was fully aware of his attorney's tactical decision.
Defendant's contention that he was not made aware of his right to testify on his own behalf also lacks factual support in the record. The transcript confirms that the trial judge engaged defendant in a lengthy colloquy concerning his right to testify at the trial. In response to the judge's questions, defendant acknowledged he was aware he had the right to testify and the right not to testify. The judge also read him the instruction that would be given to the jury if defendant elected not to testify. After giving defendant the lunch recess to make his decision, defense counsel advised the judge in defendant's presence that defendant was "taking my advice and trusting my judgment, he will not testify." Therefore, defendant's contention that his trial counsel was ineffective and deprived him "of his opportunity to testify on his own behalf" must be rejected.
During his summation, defense counsel told a story based on a parable from the Bible about a lawless group of men who raped and then killed a woman. Defendant alleges his attorney was ineffective because this account was "distasteful" and "shocking." However, the inclusion of this parable must be viewed in context. Defense counsel's overall strategy was that defendant was the victim of police misconduct. Therefore, in his remarks to the jury, he likened the police to the group of lawless men in the parable. This tactical decision does not constitute ineffective assistance of counsel. See State v. Marshall, 123 N.J. 1, 93 (1991) ("except in the most extreme cases, strategic decisions made by defense counsel will not present grounds for reversal on appeal").
Defendant also notes several other instances where he believes his trial counsel's representation was ineffective. He claims his attorney failed to "procure relevant police radio transmissions"; did not present any "'alternative defenses'"; did not request a probable cause hearing; did not file "necessary motions" or "discuss, consider or investigate all defenses"; and did not argue "'appropriate things' at sentencing[.]" Defendant does not allege any facts or analysis in support of any of these contentions, and they were properly rejected by Judge Hutchins-Henderson as nothing more than "bald assertions." Cummings, supra, 321 N.J.Super. at 170.
Defendant next argues that Judge Hutchins-Henderson erred by denying his request for an evidentiary hearing on his petition. Because defendant failed to present a prima facie case of ineffective assistance of counsel, an evidentiary hearing was not required. State v. Preciose, 129 N.J. 451, 462 (1992).
Finally, defendant argues that, although the judge properly decided to resentence him in accordance with Natale, she nevertheless imposed an excessive sentence. We disagree. In performing our review of a sentence, we avoid substituting our judgment for the judgment of the trial court. State v. O'Donnell, 117 N.J. 210, 215 (1989); State v. Roth, 95 N.J. 234, 365 (1984). We are satisfied the judge made independent findings of fact concerning aggravating and mitigating factors that were based on competent and reasonably credible evidence in the record and applied the correct sentencing guidelines enunciated in the Code. The sentence imposed does not constitute a clear error of judgment or shock our judicial conscience. O'Donnell, supra, 117 N.J. at 215-16; State v. Jarbath, 114 N.J. 394, 401 (1989). Accordingly, we discern no basis to second-guess the sentence.