July 12, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
JERMAINE GILKES, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 30, 2013.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 04-09-2964.
Joseph E. Krakora, Public Defender, attorney for appellant (Robert D. Van Pelt, Designated Counsel, on the brief).
Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Magdalen Czykier, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
Before Judges Messano and Lihotz.
Defendant Jermaine Gilkes appeals from the denial of his petition for post-conviction relief (PCR) without an evidentiary hearing. On April 28, 2006, defendant pled guilty to second- degree conspiracy to commit robbery, N.J.S.A. 2C:5-1 and 15-1; first-degree robbery, N.J.S.A. 2C:15-1; third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b; second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4a; and third-degree possession of an unlawful weapon, an assault firearm, N.J.S.A. 2C:39-5f. Pursuant to the plea bargain, the State agreed to dismiss the remaining counts of the indictment and recommend an aggregate sentence of ten years imprisonment with an eighty-five percent parole disqualifier pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant also agreed to provide "truthful testimony" against his co-defendants and to re-affirm statements he previously provided to law enforcement.
Prior to sentencing, defendant filed a pro se motion to withdraw his guilty pleas. The judge conducted a hearing at which, now represented by successor trial counsel, defendant testified; original trial counsel also testified. The judge denied the motion, finding there was "no basis in fact" to vacate the guilty pleas, and that defendant, who was an "articulate and educated individual, " entered his plea "freely and voluntarily" with the full advice of counsel.
On February 1, 2007, defendant was sentenced in accordance with the plea bargain. Defendant's appeal was limited to the excessiveness of his sentence. We affirmed. State v. Gilkes, A-4228-06 (App. Div. Apr. 29, 2008). Defendant's petition for certification was denied. State v. Gilkes, 196 N.J. 598 (2008).
On August 27, 2009, defendant filed a pro se petition for PCR. Defendant asserted that police conducted an illegal search of his apartment after coercing the consent of his "girlfriend, Renarta Shreeves, " and he was interrogated in violation of his Miranda rights. Defendant also claimed trial counsel provided ineffective assistance, specifically that he: failed to provide defendant with pre-trial discovery, in particular, grand jury minutes and the photo array used by law enforcement for identification purposes; failed to properly investigate the State's case; and failed to file a motion to suppress evidence seized during the warrantless search. Defendant also asserted that police "videotaped" the search and, despite repeated requests, the State never produced the videotape. Lastly, defendant asserted that his sentence was illegal because it imposed "parole supervision provisions" in violation of the Federal and State constitutional guarantees against "double jeopardy."
PCR counsel was appointed and, at oral argument on February 18, 2011, he essentially reaffirmed the arguments made in his and defendant's pro se brief. After considering argument, the PCR judge, who was also the trial judge, denied the petition. He concluded that defendant failed to "establish any type of a prima facie showing that there [was] merit to his claim." The judge entered a conforming order on February 22, and this appeal ensued.
Before us, defendant raises the following points:
DEFENDANT'S CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL WAS NOT BARRED BY RULE 3:22 AND HE WAS ENTITLED TO AN EVIDENTIARY HEARING AS TO EACH OF THE CLAIMS, PURSUANT TO RULE 3:22-10 ON THE BASIS THAT HE PRESENTED PRIMA FACIE CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL.
THE TRIAL COURT DID NOT ADDRESS WHETHER THE DEFENDANT HAD MADE A COLORABLE CLAIM OF INNOCENCE.
THE COURT ERRED IN DENYING THE PETITION FOR POST CONVICTION RELIEF BECAUSE THE DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
THE SENTENCING COURT ERRED BY ALLOWING PREJUDICIAL INCEDIARY [SIC] AND NON-PROBATIVE VICTIM STATEMENTS AT SENTENCING.
THE SENTENCE IMPOSED BY THE COURT WAS MANIFESTLY EXCESSIVE.
THE DEFENDANT WAS DENIED [THE] EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL.
We have considered these claims in light of the record and applicable legal standards. We affirm.
To establish a claim of ineffective assistance of counsel, a defendant must satisfy the two-prong test formulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). First, he must show "'that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed . . . by the Sixth Amendment.'" Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693). Second, a defendant must prove that he suffered prejudice due to counsel's deficient performance. Strickland, supra, 466 U.S. at 691-92, 104 S.Ct. at 2066-67, 80 L.Ed.2d at 696. A defendant must show by a "reasonable probability" that the deficient performance affected the outcome. Fritz, supra, 105 N.J. at 58. In the context of a guilty plea, the standard to establish ineffective assistance of counsel is somewhat modified:
[T]o set aside a guilty plea based on ineffective assistance of counsel, a defendant must show that (i) counsel's assistance was not "within the range of competence demanded of attorneys in criminal cases"; and (ii) "that there is a reasonable probability that, but for counsel's errors, [the defendant] would not have pled guilty and would have insisted on going to trial."
[State v. Nuñez-Valdéz, 200 N.J. 129, 139 (2009) (quoting State v. DiFrisco, 137 N.J. 434, 457 (1994)) (citations omitted) (second alteration in original).]
"A defendant shall be entitled to an evidentiary hearing only upon the establishment of a prima facie case in support of post-conviction relief . . . ." R. 3:22-10(b). The court "shall not grant an evidentiary hearing . . . if the defendant's allegations are too vague, conclusory or speculative." R. 3:22-10(e)(2); see also State v. Cummings, 321 N.J.Super. 154, 170 (App. Div.) (emphasis omitted) ("[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."), certif. denied, 162 N.J. 199 (1999). "To establish a prima facie case, defendant must demonstrate a reasonable likelihood that his or her claim, viewing the facts alleged in the light most favorable to the defendant, will ultimately succeed on the merits." R. 3:22-10(b); see also State v. Russo, 333 N.J.Super. 119, 138 (App. Div. 2000) (citations and emphasis omitted) ("To establish a prima facie case, defendant must demonstrate a reasonable likelihood that his or her claim will ultimately succeed on the merits."). It remains within the court's discretion whether such a hearing is necessary. State v. Preciose, 129 N.J. 451, 462 (1992).
Additionally, Rules 3:22-4 and -5 establish procedural bars to PCR relief in certain circumstances. The first rule provides, in relevant part:
Any ground for relief not raised in the proceedings resulting in the conviction, . . . or in any appeal taken in any such proceedings is barred from assertion in a proceeding under this rule unless the court on motion or at the hearing finds:
(1) that the ground for relief not previously asserted could not reasonably have been raised in any prior proceeding; or
(2) that enforcement of the bar to preclude claims, including one for ineffective assistance of counsel, would result in fundamental injustice; or
(3) that denial of relief would be contrary to a new rule of constitutional law under either the Constitution of the United States or the State of New Jersey.
Rule 3:22-5 provides: "A prior adjudication upon the merits of any ground for relief is conclusive whether made in the proceedings resulting in the conviction . . . or in any appeal taken from such proceedings."
Applying these general standards to the specific points raised by defendant, it is clear that the arguments made in Points II, IV and V are procedurally barred. Whether the trial judge erred in denying defendant's motion to withdraw his guilty plea (Point II), and whether the judge erred in admitting certain victim impact statements at sentencing (Point IV), are arguments that could have been presented on direct appeal but were not. They are barred by Rule 3:22-4(a). The argument raised in Point V -- that defendant's sentence was excessive --was fully adjudicated on direct appeal, and Rule 3:22-5 bars further review.
We turn to defendant's claim that trial counsel provided ineffective assistance. In this regard, defendant specifically argues that trial counsel failed to move to suppress evidence seized during the warrantless search of his apartment, to suppress the statement he gave to law enforcement which, he contends, was provided in violation of his Miranda rights and to adequately investigate the case.
Defendant's claims as set forth in the actual PCR petition are "bald assertions" unsupported by any other evidence in the record. Cummings, supra, 321 N.J.Super. at 170. However, relying on the testimony provided during the hearing held to consider defendant's request to withdraw his guilty pleas, we find that defendant's assertions and trial counsel's rebuttal were fully explored and assessed by the judge.
As to the warrantless search of his apartment, defendant did not assert this as an issue during his testimony on the motion to withdraw his guilty pleas. However, in the affidavit he filed in support of his PCR petition, defendant claimed that police officers "'stormed in[to]'" his apartment, "physically and painfully" restrained his girlfriend, who also occupied the apartment, and "improperly obtained" consent to search. There is no certification from Shreeves; indeed, the record does not contain any police reports or the consent forms defendant admittedly signed, although under claimed compulsion.
Regarding the statements he provided to law enforcement, during the plea proceedings, under oath, defendant acknowledged that both statements were truthful and voluntarily made after receiving Miranda warnings. However, in his supporting affidavit, defendant claimed that he was not informed of his Miranda rights until after he "had surrendered information regarding the alleged criminal acts." Defendant further stated that as to a second statement, he asked for counsel "during the course of his interrogation, " "for which the interrogation was briefly halted, but on the next day" the interrogation continued without counsel. Defendant also claimed he was "threatened by an investigating detective with a weapon and physically assaulted . . . during the interrogation." We have not been provided with any of the statements defendant gave to law enforcement, any of the police reports or the Miranda waiver forms that defendant admittedly signed.
On this issue, we essentially have the benefit of an evidentiary hearing because, at the hearing on his motion to withdraw his guilty pleas, defendant testified in a fashion consistent to the claims made in his affidavit supporting his PCR petition. Trial counsel, however, testified that he was never made aware of any allegations of physical or psychological threats against defendant or Shreeves, or that defendant's request for an attorney during questioning went unheeded. Trial counsel further testified that defendant only sought to withdraw his guilty plea after having testified as a State's witness at a co-defendant's trial that resulted in acquittal.
We have the benefit of the motion judge's assessment of defendant's and trial counsel's credibility. He found defendant was "totally incredible, " and defense counsel was credible. We accord those findings substantial deference. State v. Locurto, 157 N.J. 463, 472-74 (1999).
Defendant's claims of inadequate investigation relate to trial counsel's alleged failure to interview defendant's landlady, who directed police to his apartment, and defendant's girlfriend; to ascertain the actual existence of an arrest warrant; and to request a Wade hearing. At the hearing on the motion to withdraw, neither defendant nor trial counsel testified regarding the witnesses' potential testimony, and there is nothing in the record to demonstrate the landlady even witnessed the events surrounding the search of defendant's apartment. During the plea proceedings, trial counsel stated on the record that he was aware of the existence of an arrest warrant for defendant, which police were trying to execute when they arrived at his apartment. There is nothing in the record supporting the conclusion that a Wade hearing, if requested, would have been granted. Moreover, at the motion hearing, trial counsel provided a detailed explanation of the factors he weighed in counseling defendant regarding his guilty pleas.
Defendant also argues that trial counsel failed to advise him of the immigration consequences of his guilty plea. But the record fails to reveal any actual immigration consequences resulted from defendant's conviction. The plea form indicates that defendant answered affirmatively to question #17, i.e., "Do you understand that if you are not a United States citizen or national, you may be deported by virtue of your plea of guilty?" Defendant acknowledged having discussed all the questions with his attorney and providing truthful answers on the form. Defendant never asserted this claim in his PCR petition or his pro se brief, and the issue was not raised before the judge.
Lastly, defendant contends that successor trial counsel failed to "adequately argue the motion to withdraw his guilty plea." In particular, defendant argues that pursuant to State v. Slater, 198 N.J. 145, 158-62 (2009), he demonstrated a "colorable claim of innocence, " had meritorious reasons for seeking withdrawal, and the State would not be prejudiced.
Slater was decided after the hearing held on defendant's motion to withdraw; so the primary claim now asserted, i.e., "[h]ad defense counsel argued the . . . Slater factors" the motion would have been granted, lacks any merit. Nonetheless, we consider the argument through the Slater prism. Defendant's colorable claim of innocence was premised upon allegations of impropriety in the search; his meritorious reasons for withdrawal were based upon a claim specifically rejected by the judge, i.e., trial counsel coerced him to plead guilty without defendant having knowledge of the full consequences of his plea. In presenting these contentions, successor trial counsel did his part, but the judge rejected defendant's testimony. In short, defendant failed to demonstrate successor trial counsel provided ineffective assistance.
Defendant argues appellate counsel provided ineffective assistance by failing to raise all the arguments now raised. We apply the same Strickland/Fritz standards to the claim. State v. Gaither, 396 N.J.Super. 508, 513 (App. Div. 2007) (citing State v. Morrison, 215 N.J.Super. 540, 546 (App. Div. 1987)).
Having rejected all of defendant's claims regarding trial counsel's ineffective assistance, we need not address further appellate counsel's failure to present them on direct appeal. We also need not address further defendant's claim that appellate counsel should have argued that the judge erred in denying defendant's motion to withdraw his guilty pleas. As noted, the judge properly decided the motion based upon the actual testimony adduced at the hearing.
We also reject any claim that appellate counsel provided ineffective assistance by failing to raise on appeal alleged error regarding certain victim impact statements at sentencing. As noted above, as part of the plea bargain, although he was not charged with homicide, defendant agreed to testify as a State's witness at trial. The judge described defendant's role in that case:
We had a group who set out to commit robberies in various locations . . . armed with assault weapons, and other weapons. And [defendant] was the one who apparently kept the weapons, and . . . on the day the robbery of Sean Brooks occurred, [defendant] was not a part of that. But the weapons that he was holding were a part of that, and his codefendants in these robberies were part of that, and the robbery of Sean Brooks turned into a murder of Sean Brooks, a murder that was done in front of his . . . two or three-day-old son.
At sentencing Brooks's mother was permitted without objection to address the judge She described the impact of the loss of her son.
However the judge made it clear that he was not considering defendant's conduct regarding the homicide in imposing sentence: "But [defendant] is not charged in that [homicide] and the sentence does not reflect my trying to accuse him of that offense" The judge sentenced defendant in accordance with the plea bargain In short even if the issue had been raised on appeal it lacked merit.