July 3, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
THOMAS CAMPANELLA, a/k/a THOMAS ANTHONY CAMPANELLA, JR., Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 17, 2013
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 05-03-0658.
Joseph E. Krakora, Public Defender, attorney for appellant (Frank M. Gennaro, Designated Counsel, on the brief).
James P. McClain, Acting Atlantic County Prosecutor, attorney for respondent (Mario C. Formica, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).
Before Judges Simonelli and Accurso.
Defendant Thomas Campanella appeals from the February 21, 2012 Law Division order, which denied his petition for post- conviction relief (PCR) grounded on ineffective assistance of counsel. We affirm.
A grand jury indicted defendant for fourth-degree obstructing the administration of law, N.J.S.A. 2C:29-1 (count one); first-degree aggravated manslaughter, N.J.S.A. 2C:11-4a (count two); second-degree vehicular homicide, N.J.S.A. 2C:11-5 (count three); second-degree aggravated assault, N.J.S.A. 2C:12-1b(1) (count four); and third-degree assault by auto, N.J.S.A. 2C:12-1c (count five). Defendant was also charged with careless driving, N.J.S.A. 39:4-97; and driving while intoxicated (DWI), N.J.S.A. 39:4-50. The charges against defendant stemmed from a fatal motor vehicle accident on November 4, 2004.
The record reveals that defendant struck two vehicles, fled at a very high rate of speed, and then struck a vehicle driven by Mai Nguyen (Nguyen), seriously injuring Nguyen and killing her front-seat passenger, Maianh Thi Nguyen (Maianh). Shortly after the accident, defendant's blood was drawn and tested at the hospital and by the New Jersey State Police. The tests revealed that defendant's blood alcohol content (BAC) was .198 percent and he had Butalbital (a barbiturate), Meprobamate (a muscle relaxer) and marijuana in his system. At the time of the accident, defendant had three prior DWI convictions and was serving a ten year driver's license suspension.
On September 23, 2005, defendant pled guilty to first-degree aggravated manslaughter (count two), second-degree aggravated assault (count four), and the DWI charge in exchange for the State recommending a twelve-year term of imprisonment on count two subject to an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. At the plea hearing, defendant testified, under oath, that he agreed to plead guilty; he understood the sentence would be subject to NERA and that he was eligible for consecutive sentencing; no one forced him to plead guilty; he initialed and voluntarily signed the plea forms and discussed the questions and answers with trial counsel; and he had no questions about the plea.
In establishing a factual basis, defendant admitted he had consumed alcohol, took a muscle relaxer and smoked marijuana on the day of the accident. Although he did not recall what had happened, he accepted the State's discovery, which revealed the following:
[The State's] investigation revealed that on November 4th, 2004 there were two vehicles that were stopped at a red light at the intersection of the Black Horse Pike and Weymouth Road. There's a double intersection at that light. One of the vehicles was driven by a woman from Vineland, [Arwen Ranieri]. As she waited for the light to change green, she was struck in the rear by the vehicle that was being operated by [defendant]. [Defendant's] vehicle bounced off the vehicle driven by [Arwen Ranieri] and struck an individual from Hammonton, [Kerman Perotti]. To [Perotti's] surprise the Defendant then fled the scene where he had struck the two vehicles. [Perotti] then gave chase and headed westbound on the Black Horse Pike. [Perotti] said it was raining at the time and he was doing about sixty or sixty-five miles an hour and in his words, the Defendant was literally disappearing from him. [Perotti] estimated . . . [that defendant's] speed was ninety to a hundred miles an hours. [Perotti] was reluctant to go any faster because of the conditions on the road at the time
The Defendant disappeared from [Perotti's] view for a very brief period as they approached the turn there at Malaga Road and also should add that during the time that [Perotti] was following [defendant], he said that [defendant's] vehicle was going literally from shoulder to shoulder, back and forth across all four lanes of travel. When [Perotti] came around the turn at Malaga Road, he observed the Defendant had struck a vehicle that was being driven by Mai Nguyen. The passenger [Maiahn] Thi Nguyen, was killed. [Mai Nguyen] suffered fractures to both the left tibia and fibula in both of her legs. Left forearm and left wrist were also fractured. Her right ankle was fractured. Her right knee was also fractured.
The autopsy conducted on the body of [Maiahn] Thi Nguyen disclosed that she also had suffered fractures of both her tibia, fibula in both legs, liver lacerated, base of the skull fracture[d] and suffered extensive subarachnoid hemorrhage. The blood drawn at the hospital disclosed that [defendant's] BAC was a .198. As indicated before, it also disclosed presence of barbiturates and cannabis in his system and another analysis that was conducted on that blood by the State Police lab disclosed the presence of a muscle relaxer, specifically Meprobamate.
Defendant also agreed with the following facts:
The Sheriff Officer O'Donahue was actually on the road and [defendant] blew by him and [the officer] was right there when the accident occurred and [the officer's] testimony would be consistent with what the State had and even re-affirms [the] lack of control that [defendant] had at the time this accident occurred and [the officer] was on the scene and actually saw [defendant] in the vehicle, [so] there's no operation issue, there's no identity issue and the facts, as the State has presented them, are accurate.
Defendant further agreed that the facts supported the trial judge's finding that defendant recklessly caused death under circumstances manifesting extreme indifference to human life.
At sentencing on January 6, 2006, the judge found and applied aggravating factor 3, "[t]he risk that the defendant will commit another offense, " N.J.S.A. 2C:44-1a(3); aggravating factor 9, "[t]he need for deterring the defendant and others from violating the law, " N.J.S.A. 2C:44-1a(9); and mitigating factor 7, "[t]he defendant has no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time before the commission of the present offense, " N.J.S.A. 2C:44-1b(7). The judge sentenced defendant to a twelve-year term of imprisonment subject to NERA, and entered a judgment of conviction (JOC) on January 6, 2006.
Defendant appealed his sentence. We heard the appeal on our Excessive Sentence Oral Argument calendar and affirmed. State v. Campanella, A-72-08 (App. Div. Jan. 14, 2010). We specifically rejected defendant's argument that the trial judge should have found and applied the following mitigating factors: factor 6, "[t]he defendant has compensated or will compensate the victim of his conduct for the damage or injury that he sustained, or will participate in a program of community service, " N.J.S.A. 2C:44-1b(6); factor 9, "[t]he character and attitude of the defendant indicate that he is unlikely to commit another offense, " N.J.S.A. 2C:44-1b(9); and factor 11, "[t]he imprisonment of the defendant would entail excessive hardship to himself or his dependents, " N.J.S.A. 2C:44-1b(11). Our Supreme Court denied certification. State v. Campanella, 201 N.J. 499 (2010).
On June 27, 2011, defendant filed a pro se PCR petition. He contended that trial counsel rendered ineffective assistance by failing to file a motion to dismiss that part of the indictment charging first-degree aggravated manslaughter based on lack of evidence indicating a manifest extreme indifference to human life. Defendant also contended that trial counsel did not conduct a proper investigation because he failed to interview Perotti to determine whether Perotti caused defendant to flee the scene of the first two accidents out of fear of being chased and investigate a manufacturer's recall for a mechanical defect in defendant's car.
Defendant also argued that trial counsel rendered ineffective assistance at sentencing by failing to argue in favor of the mitigating factors 6, 9 and 11,  and mitigating factor 2, "[t]he defendant did not contemplate that his conduct would cause or threaten serious harm, " N.J.S.A. 2C:44-1b(2); factor 3, "[t]he defendant acted under a strong provocation, " N.J.S.A. 2C:44-1b(3); factor 4, "[t]here were substantial grounds tending to excuse or justify the defendant's conduct, though failing to establish a defense, " N.J.S.A. 2C:44-1b(4);and factor 10, "[t]he defendant is particularly likely to respond affirmatively to probationary treatment, " N.J.S.A. 2C:44-1b(10).
The judge denied the petition based on Rule 3:22-10, finding it was filed more than five years after the date of the JOC. The judge also denied the petition based on Rule 3:22-5, finding that this court had adjudicated defendant's mitigating factors argument on the merits in defendant's appeal.
Addressing the merits, the judge concluded that a motion to dismiss would have been futile because the record clearly showed that defendant acted with manifest extreme indifference to human life. The judge determined that trial counsel did not fail to conduct a proper investigation. The judge found that defendant did not flee because he was provoked; rather, he fled because he had three prior DWI convictions and was DWI and driving while his license was suspended at the time of the accident. The judge also found that the manufacturer's recall was for a defect in defendant's car that did not cause the accident and probably would have prevented it.
The judge concluded the record did not support any of the mitigating factors defendant sought. The judge found that: defendant had to contemplate his conduct would cause an accident and harm if he drove with a BAC of .198 percent; there was no excuse for defendant to be driving after three DWI convictions and while his license was suspended; community service and probation were not options for a first-degree conviction; defendant had a "horrendous" driving record; it was likely defendant would commit another offense because he had no regard for the motor vehicle laws; and there was no hardship. This appeal followed.
On appeal, defendant raises the following contentions:
POINT ONE – DEFENDANT ESTABLISHED A PRIMA FACIE CLAIM FOR [PCR].
A. Trial Counsel Erred by Insisting that Defendant Plead Guilty to Aggravated Manslaughter. [Not Raised Below].
B. Counsel's Failure to File a Motion to Dismiss.
C. Counsel's Failure to Investigate.
D. Counsel's Performance at Sentencing.
POINT TWO – THE [PCR] JUDGE'S INVOCATION OF THE TIME BAR OF R. 3:22-12 WAS UNWARRANTED.
Our Supreme Court has established the test for ineffective assistance of counsel claims:
To establish constitutional ineffectiveness, a defendant must first show that counsel's performance was deficient. A deficient performance means that counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment. Second, a defendant must show that the deficient performance prejudiced the defense. Prejudice means that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. When a defendant meets both prongs of Strickland, a conviction must be reversed because the ineffective representation constitutes a breakdown in the adversary process that renders the result unreliable.
[State v. Nash, 212 N.J. 518, 542 (2013) (quoting Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984)) (internal quotation marks omitted).]
Here, defendant did not satisfy either of the Strickland prongs.
First, we agree with the trial judge that Rule 3:22-12 bars defendant's petition. We are also satisfied that Rule 3:22-5 bars defendant's argument relating to mitigating factors 6, 9 and 11. In defendant's prior appeal, we found those mitigating factors did not apply. Nonetheless, even if trial counsel had requested all of the mitigating factors defendant seeks, the record supports none of them. State v. Bieniek, 200 N.J. 601, 608 (2010); State v. Dalziel, 182 N.J. 494, 505 (2005); State v. Roth, 95 N.J. 334, 356-64 (1984).
We conclude that Rule 3:22-4(a) bars defendant's argument in Point One A., raised for the first time on appeal, that trial counsel rendered ineffective assistance by permitting him to plead guilty to first-degree aggravated manslaughter without a proper factual basis. State v. Robinson, 200 N.J. 1, 20 (2009); see also R. 3:22-4(a) (holding that "[a]ny ground for relief not raised in . . . a [PCR] proceeding . . . is barred from assertion in a proceeding under this rule."). In any event, the argument lacks merit. An adequate factual basis for a plea can be attained by either the defendant's admission of guilt of the crime or, by acknowledgement of facts constituting the essential elements of the crime. State v. Sainz, 107 N.J. 283, 292-93 (1987); see also State v. T.M., 166 N.J. 319, 335 (2001) (reversing a juvenile's guilty plea to sexual contact because the record failed to reflect that the juvenile acknowledged his guilt or stipulated that the facts were sufficient for a finding of guilt). In the present case, defendant admitted he drove after consuming alcohol and drugs and pled guilty to his fourth DWI. He accepted the State's facts and agreed, as do we, that those facts supported a finding that he recklessly caused death under circumstances manifesting extreme indifference to human life.
We discern no error in trial counsel's failure to file a motion to dismiss that part of the indictment charging first-degree aggravated manslaughter. "Once the grand jury has acted, an indictment should be dismissed only on the clearest and plainest ground and only when the indictment is manifestly deficient or palpably defective." State v. Hogan, 144 N.J. 216, 228-29 (1996) (citation omitted). An indictment should not be dismissed "if there is some evidence establishing each element of the crime to make out a prima facie case." State v. Morrison, 188 N.J. 2, 12 (2006). In reviewing a motion to dismiss an indictment, the State is entitled to every reasonable inference regarding the indictment's factual allegations. State v. Schenkolewski, 301 N.J.Super. 115, 137 (App. Div.), certif. denied, 151 N.J. 77 (1997).
Here, there was an ample factual basis to support the first-degree aggravated manslaughter charge. Accordingly, a motion to dismiss the indictment on that charge would have failed. "The failure to raise unsuccessful legal arguments does not constitute ineffective assistance of counsel." State v. Worlock, 117 N.J. 596, 625 (1990);
Strickland , supra, 466 U.S. at 688, 104 S.Ct. at 2064, 80 L.Ed.2d at 693.
Defendant's remaining argument that trial counsel failed to conduct a proper investigation lacks sufficient merit to warrant discussion beyond these brief comments. To establish that trial counsel inadequately investigated his case, defendant "must assert the facts that an investigation would have revealed, supported by affidavits or certifications based upon the personal knowledge of the affiant or the person making the certification." State v. Cummings, 321 N.J.Super. 154, 170 (App. Div.) (citing R. 1:6-6), certif. denied, 162 N.J. 199 (1999). Defendant must demonstrate how a more thorough investigation would have had the likelihood of changing the outcome. Defendant failed to meet that burden here. He provided no certification to demonstrate the manufacturer's recall was for a defect that caused the accident, or that an interview of Perotti would have had the likelihood of successfully rebutting the State's evidence in this case that defendant recklessly caused Maianh's death under circumstances manifesting extreme indifference to human life.