May 21, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
JIHAD SHARRIEFF a/k/a ABDULLAH CHISONE, HAMID CHISONE, ALMEED SHARIEFF, ABDULLAH SHARIF, ABDULLAH SHARIFF, JIHAD SHARRIEED, JIHAD SHARRIEEF, ALMEED SHARRIEFF, ABDULLAH SHARRIF, ABDULLAH SMITH, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 15, 2013
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 00-06-1149 and 00-06-1713.
Joseph E. Krakora, Public Defender, attorney for appellant (Philip Lago, Designated Counsel, on the briefs).
Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Brian Pollock, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).
Before Judges Lihotz and Ostrer.
Defendant Jihad Sharrieff appeals from the denial of his petition seeking post-conviction relief (PCR). Following a jury trial on consolidated indictments, defendant was convicted of two counts of armed robbery, N.J.S.A. 2C:15-1; third-degree unlawful possession of a firearm, N.J.S.A. 2C:39-5b; and second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4a. The jury deadlocked on the remaining charges, and upon retrial, defendant was found guilty of purposeful or knowing murder, N.J.S.A. 2C:11-3a(1) or N.J.S.A. 2C:11-3a(2); third-degree unlawful possession of a firearm, N.J.S.A. 2C:39-5b; and second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4a. The State dismissed or defendant was acquitted of all remaining charges. On October 12, 2001, after the merger of the weapons convictions, the judge imposed a life sentence for the murder conviction, subject to a thirty-year period of parole ineligibility, along with consecutive twenty-year terms of imprisonment for the armed robberies, subject to the parole ineligibility and post-release supervision periods mandated by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
On appeal, we affirmed defendant's convictions and the terms of his sentences, but remanded to correct merger errors and amend the judgment of conviction. State v. Sharrif, No. A- 2956-01 (App. Div. Apr. 8, 2004) (slip op. at 31-32), certif. denied, 182 N.J. 629 (2005).
Defendant pursued federal appeals, and resentencing was ordered for the armed robbery convictions. Sharrieff v. Cathel, 574 F.3d 225, 230 (3d Cir. 2009), cert. denied, Sharrieff v. Ricci, 558 U.S. 1120, 130 S.Ct. 1064, 175 L.Ed.2d 897 (2010). On resentencing, the judge imposed two concurrent fifteen-year terms subject to NERA. Thus, defendant's aggregate sentence was life plus fifteen years, with forty-two years and nine months of parole ineligibility.
Defendant's first PCR petition was filed on March 18, 2010, and denied as procedurally barred. Further, his request for an evidentiary hearing was deemed to be without merit. This appeal ensued. On appeal, defendant presents the following issues for our review:
THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
A. Trial counsel was ineffective during plea negotiations.
B. Trial counsel was ineffective in failing to object or request a curative instruction when a State's witness violated State v. Bankston [, 63 N.J. 263 (1973)].
C. Trial counsel was ineffective in failing to object to hearsay testimony from which it could be inferred that defendant had a prior record.
THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL ON THE DIRECT APPEAL.
THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE THIS COURT SHOULD RECONSIDER THE TRIAL COURT'S RULING.
A. This court should reconsider the trial court's ruling to join the three indictments for trial.
B. This court should reconsider the trial court's instruction to the jury concerning the co-defendant.
THE SENTENCE WAS ILLEGAL AND DEFENDANT MUST BE RESENTENCED.
THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF PCR COUNSEL.
THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT IS ENTITLED TO ALTERNATIVE RELIEF.
THE LOWER COURT ORDER MUST BE REVERSED SINCE THE FIVE-YEAR TIME BAR OF R. 3:22-12 SHOULD NOT BE APPLIED TO BAR DEFENDANT'S CLAIMS.
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 ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT'S CLAIMS ARE NOT PROCEDURALLY BARRED UNDER R. 3:22-5.
THE LOWER COURT ERRED IN NOT GRANTING DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING AND THE LOWER COURT ORDER MUST THEREFORE BE REVERSED.
We have considered defendant's arguments in light of the record and the applicable law. We affirm.
"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" that "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). Bald assertions unaccompanied by evidential support are insufficient.
"The Sixth Amendment to the United States Constitution and Article I, Paragraph 10 of the New Jersey Constitution both guarantee an accused in a criminal prosecution the right to the effective assistance of counsel." State v. Taccetta, 200 N.J. 183, 192-93 (2009). Thus, claims of ineffective assistance of counsel are well-suited for PCR.
To obtain PCR, a defendant must establish a prima facie claim of ineffective assistance of counsel by demonstrating a reasonable likelihood of success under the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674, 698 (1984). Preciose, supra, 129 N.J. at 463. Strickland's test was adopted by New Jersey in State v. Fritz, 105 N.J. 42, 58 (1987).
Under the first prong of the Strickland test, a "defendant must show that counsel's performance was deficient." Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693. To do so, a defendant must overcome "'a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance[.]'" Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed.2d at 694).
Under the second prong, a defendant must demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698. Prejudice is not presumed, and 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).
We note, "[b]ecause post-conviction relief is not a substitute for direct appeal and because of the public policy to promote finality in judicial proceedings, our rules provide various procedural bars." State v. Echols, 199 N.J. 344, 357 (2009) (internal quotation marks and citation omitted). Relief may be barred if "the petitioner could have raised the issue on direct appeal but failed to do so, Rule 3:22-4; the issue was previously decided on direct appeal, Rule 3:22-5; or the petition was filed more than five years after the judgment or sentence that was imposed, Rule 3:22-12." Ibid. These bars preclude any relief sought by defendant.
We reject defendant's assertion in Point VII, noting his claims of ineffective assistance of counsel are untimely. Rule 3:22-12(a)(1) requires generally that "no petition [for PCR] shall be filed . . . more than 5 years after the date of entry . . . of the judgment of conviction that is being challenged[.]" The rule permits relaxation of this bar if a defendant demonstrates "the delay beyond said time was due to defendant's excusable neglect and that there is a reasonable probability that if the defendant's factual assertions were found to be true enforcement of the time bar would result in a fundamental injustice." Ibid.
The judgment of conviction was entered following defendant's sentencing on October 12, 2001. The PCR petition filed almost nine years later is well out of time. Defendant's argument that his late filing is excusable is without merit. A defendant's claimed lack of sophistication with the law and unfamiliarity with court procedure does not constitute excusable neglect. State v. Murray, 162 N.J. 240, 246 (2000). Further, the time taken for conclusion of federal proceedings will not toll the five-year limitations period. State v. Milne, 178 N.J. 486, 494 (2004) (citation omitted). Notwithstanding this general preclusion to relief, we will briefly review the issues presented in each of defendant's arguments.
Point I lists alleged errors by trial counsel. Defendant asserts counsel failed to advise that any sentence for robbery convictions could be consecutive to a sentence for a murder conviction. Consequently, defendant maintains he rejected the State's plea offers, which recommended a more favorable sentence than what was imposed. Point VI alternatively maintains the trial court should have ordered the State's specific performance of the plea agreement. The State asserted there were plea discussions, but no plea offer was extended. In response, and apparently conceding the State's assertion, defendant argues counsel was ineffective for failing to aggressively pursue a favorable plea offer. The State may discuss possible plea offers, see R. 3:9-3(a) (permitting prosecutor and defense counsel to discuss pleas and sentences), but it is under no obligation to present a plea agreement or accept a plea offer. Therefore, the State's determination not to offer a favorable plea agreement, particularly in light of the "overwhelming proof of defendant's guilt, " State v. Sharrif, supra, slip op. at 26, is insufficient to support a claim that counsel was ineffective.
Defendant's allegations implicating Bankston, supra, 63 N.J. at 271 (prohibiting police introduction of informant's hearsay testimony), and counsel's failure to request a curative instruction regarding said inadmissible testimony, were previously presented, thoroughly reviewed, and rejected on appeal. State v. Sharrif, supra, slip op. at 24-27. Further consideration of these claims is barred by Rule 3:22-5. See State v. Marshall, 173 N.J. 343, 350 (2002) (holding Rule 3:22-5 bars a petitioner from asserting as a ground for PCR, any claim previously adjudicated on the merits); State v. McQuaid, 147 N.J. 464, 484 (1997) (stating Rule 3:22-5 bars PCR claims that are "identical or substantially equivalent" to claims raised on direct appeal). New Jersey's public policy aims "'to promote finality in judicial proceedings, '" and, therefore, requires enforcement of the various procedural bars to PCR petitions. State v. Hess, 207 N.J. 123, 171 (2011) (Rivera-Soto, J., dissenting) (quoting Echols, supra, 199 N.J. at 357).
Point II asserts appellate counsel was ineffective for failing to raise on direct appeal the issues he now raises in this PCR petition. Ineffective assistance of appellate counsel claims are also governed by the Strickland standard. State v. Morrison, 215 N.J.Super. 540, 546 (App. Div.), certif. denied, 107 N.J. 642 (1987). As we have rejected the suggestions that trial counsel was ineffective, the same claims lodged against appellate counsel fail for the same reasons.
Point III seeks review of the trial court's order consolidating for trial the charges in three indictments, and the court's jury instructions concerning his co-defendant. Our review is barred by Rule 3:22-5, as these issues have been reviewed and rejected on appeal. State v. Sharrif, supra, slip op. at 14-20.
Point IV, although couched in terms of a challenge to an illegal sentence, actually argues the sentence was excessive because the court imposed consecutive, rather than concurrent, terms for the murder and armed robbery convictions. This claim is not eligible for consideration for PCR. Arguments regarding "consecutive sentences or the absence of reasons for imposition of the consecutive sentences do not relate to the issue of sentence 'legality' and are not cognizable on PCR[.]" State v. Acevedo, 205 N.J. 40, 47 (2011). Also, "mere excessiveness of sentence otherwise within authorized limits, as distinct from illegality by reason of being beyond or not in accordance with legal authorization, is not an appropriate ground for [PCR] and can only be raised on direct appeal from the conviction." Id . at 46 (internal quotation marks and citations omitted). Moreover, the exact concern was examined on appeal, State v. Sharrif, supra, slip op. at 27-31, and is therefore barred. R. 3:22-5.
Point V contends PCR counsel was ineffective because he failed to adequately communicate with defendant, consulted with him only once, and was "intoxicated" when they spoke. PCR counsel must meet constitutional standards of representation, but there is no support for defendant's bald allegations. Even assuming, arguendo, defendant is correct in his claims, his PCR petition must still be denied because of the applicable procedural bars, thereby rendering him unable to demonstrate prejudice under the second prong of the Strickland test. See State v. Gaither, 396 N.J.Super. 508, 513-15 (App. Div. 2007), certif. denied, 194 N.J. 444 (2008).
Points VIII and IX generally urge the rejection of any procedural bars to the consideration of defendant's claims for PCR. Our discussion has addressed the application of the specific bars precluding the asserted claims.
Finally in Point X defendant argues it was error to deny defendant's request for an evidentiary hearing We disagree Merely raising a PCR claim does not 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 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 for cognizable relief Ibid (citing Preciose supra 129 N.J. 462-63) In this matter the decision to deny an evidentiary hearing on defendant's ineffective assistance of counsel claims was well within the trial court's reasoned discretion