July 15, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
CARL BOYD, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 22, 2013
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 06-02-0434.
Joseph E. Krakora, Public Defender, attorney for appellant (Lee March Grayson, Designated Counsel, on the brief).
Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Sara A. Friedman, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
Before Judges Graves and Ashrafi.
Defendant Carl Boyd appeals from the denial of his petition for post-conviction relief (PCR) alleging ineffective assistance of counsel. We affirm.
On direct appeal of defendant's conviction, we recounted the facts and procedural history of the case, State v. Boyd, A-4819-06 (App. Div. Aug. 7, 2009) (slip op. at 1-4), certif. denied, 200 N.J. 504 (2009), and we need only summarize them here. Defendant was tried before a jury on an eight-count indictment charging drug offenses. The jury found him guilty on two counts: third-degree distribution of heroin, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3), and third-degree distribution of the same heroin within a school zone, N.J.S.A. 2C:35-7. Id. at 2. The record suggests that the jury credited the testimony of a narcotics officer who observed a street sale from defendant to a woman. The woman was then arrested in possession of a glassine envelope of heroin. The jury convicted defendant of counts seven and eight of the indictment based on the street sale. The jury acquitted defendant of six other counts that were based on discovery by the police of an additional stash of cocaine and heroin near the location of the street sale. Id. at 3-4. As a repeat drug offender, defendant was sentenced to a mandatory extended term, under N.J.S.A. 2C:43-6(f), of ten years imprisonment with five years of parole ineligibility. Id . at 2, 6.
On direct appeal, defendant raised the following arguments:
THE JUDGMENT OF CONVICTION IS VOID ON ITS FACE AS INCONSISTENT WITH THE INDICTMENT AND JURY VERDICT.
COUNT 8 SHOULD HAVE BEEN DISMISSED BEFORE TRIAL FOR FAILURE TO ADEQUATELY DESCRIBE THE ELEMENTS OF THE CRIME [NOT RAISED BELOW].
THE CHARGES BY THE TRIAL JUDGE WERE INCORRECT AND HIS LATER ANSWERS TO THE JURORS' QUESTIONS WERE HOPELESSLY CONFUSING THEREBY DENYING DEFENDANT DUE PROCESS AND A FAIR TRIAL [NOT RAISED BELOW].
THE VERDICT SHEET WAS FLAWED [NOT RAISED BELOW].
THE CUMULATIVE EFFECT OF THESE ERRORS WARRANTS A REVERSAL AND NEW TRIAL.
THE TRIAL COURT ERRED IN DENYING AN
ADJOURNMENT ON HEARING OF DEFENDANT'S MOTION FOR [ACQUITTAL] AND THE MOTION ITSELF, PARTICULARLY WHERE DEFENSE COUNSEL'S LACK OF PREPARATION WAS ADMITTED ON THE RECORD.
IMPOSITION OF THE MAXIMUM SENTENCE WAS MANIFESTLY EXCESSIVE AND AN ABUSE OF DISCRETION.
We rejected all these arguments, finding that the points alleging error at defendant's trial were without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). State v. Boyd, supra, slip op. at 5. On November 9, 2009, the Supreme Court denied defendant's petition for certification. State v. Boyd, supra, 200 N.J. 504.
Barely six weeks after the conclusion of his direct appeal, defendant filed a pro se petition for PCR. As developed and presented by appointed counsel, defendant's petition was a repetition of his direct appeal, but this time couching his claims in terms of ineffective assistance of counsel rather than as direct claims of trial error. The trial court heard argument and denied defendant's petition. The court issued a written decision on April 8, 2011, concluding that defendant's points of error had already been presented on direct appeal and rejected by this court. The court also indicated there was no merit to defendant's contentions in the PCR petition even if they were not procedurally barred.
On the current appeal of denial of his PCR petition, defendant argues:
BECAUSE TRIAL COUNSEL DID NOT OBJECT TO THE JURY INSTRUCTIONS, WHICH WERE CONFUSING AND MISLEADING, THE DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF THE UNITED STATES AND NEW JERSEY CONSTITUTIONS.
TRIAL COUNSEL WAS INEFFECTIVE IN FAILING TO CHALLENGE THE COURT'S RESPONSES TO NUMEROUS JURY QUESTIONS.
TRIAL COUNSEL WAS INEFFECTIVE BECAUSE HE DID NOT FILE A MOTION FOR ACQUITTAL NOTWITHSTANDING THE VERDICT AND WAS NOT PREPARED TO ARGUE THE PRO SE MOTION THAT WAS FILED BY THE DEFENDANT. (Partially Raised Below).
TRIAL COUNSEL WAS INEFFECTIVE BECAUSE HE FAILED TO FILE A MOTION TO DISMISS COUNT EIGHT OF THE INDICTMENT PRIOR TO TRIAL. (Partially Raised Below).
TRIAL COUNSEL WAS INEFFECTIVE BY NOT CHALLENGING THE JURY VERDICT SHEET.
BECAUSE THIS CASE INVOLVES FACTS THAT LIE OUTSIDE OF THE RECORD, THE PCR COURT SHOULD HAVE GRANTED DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING AND THE FAILURE TO DO SO HAS RESULTED IN FUNDAMENTAL INJUSTICE.
BECAUSE THE SAME JUDGE WHO PRESIDED OVER THE DEFENDANT'S TRIAL AND SENTENCING, WHICH INCLUDED THE IMPOSITION OF THE MAXIMUM EXTENDED-TERM SENTENCE AND PERIOD OF PAROLE INELIGIBILITY, ALSO OFFICIATED OVER THE PCR APPLICATION, THE DEFENDANT'S CASE SHOULD BE REMANDED FOR A NEW PCR PROCEEDING BECAUSE THE JUDGE'S ABILITY TO BE IMPARTIAL WAS COMPROMISED. (Not Raised Below).
REVERSAL IS REQUIRED IN THIS CASE BECAUSE OF THE CUMULATIVE EFFECTS OF THE ERRORS DURING THE TRIAL AND SUBSEQUENT PROCEEDINGS AND THE INEFFECTIVENESS OF TRIAL COUNSEL.
We agree with the trial judge that the issues raised on the PCR appeal were previously considered and rejected on direct appeal and may not be raised again as grounds for vacating the conviction by way of PCR.
Rule 3:22-5 bars from further litigation through a PCR petition claims that were actually considered and decided in a prior proceeding. State v. Marshall, 173 N.J. 343, 350-53 (2002); State v. McQuaid, 147 N.J. 464, 484 (1997). Here, Points I and II of defendant's current appeal are based on the same allegations of error as Point III on the direct appeal. Point III on the current appeal is based on the same allegations as Point VI on the direct appeal. Point IV in the current appeal is the same as the previous Point II, and Point V is the same as the previous Point IV. Although the arguments have been re-ordered and stated in terms of ineffective assistance of counsel instead of directly as trial error, they are the essentially identical insofar as they allege the same trial events and rulings as those considered by us and rejected on the direct appeal. The remaining argument points on the current appeal do not raise specific allegations of error that defendant claims tainted his trial.
In Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984), the United States Supreme Court established a two-part test for evaluating claims of ineffective assistance of counsel:
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.
To satisfy the second part of the Strickland test, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. at 2068 80 L.Ed.2d at 698 The Strickland standard was adopted by the New Jersey Supreme Court in State v. Fritz, 105 N.J. 42 (1987).
Our decision on direct appeal concluded that the points of trial error defendant raised did not warrant reversal of his conviction Consequently the same points do not satisfy the second part of the Strickland test even if counsel had objected or made arguments that he did not make at the time of trial There is no reasonable probability that counsel's objecting or raising the issues would have changed the result of the trial Without proving both parts of the Strickland test defendant cannot prevail on a PCR petition Because our prior opinion considered and rejected defendant's contentions of trial error his attorney was not ineffective for failing to raise the same issues at the time of trial
Finally the court did not abuse its discretion in deciding the PCR petition without holding an evidentiary hearing See State v Marshall. 148 N.J. 89 157-58 cert. denied, 522 U.S. 850 118 S.Ct. 140, 139 L.Ed.2d 88 (1997); State v. Preciose, 129 N.J. 451, 462 (1992).