July 16, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
RICHARD HILL, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 27, 2013
On appeal from the Superior Court of New Jersey,  Law Division, Camden County, Indictment No. 01-12-3809.
Joseph E. Krakora, Public Defender, attorney for appellant (Philip Lago, Designated Counsel, on the briefs).
Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Jason Magid, Assistant Prosecutor, of counsel and on the brief).
Before Judges Simonelli and Accurso.
Defendant Richard Hill appeals from the August 30, 2010, Law Division order, which denied his motion for post-conviction relief (PCR) grounded on the ineffective assistance of trial and appellate counsel. We affirm.
A grand jury indicted defendant and co-defendant Ryan Shavitz (Shavitz) for first-degree kidnapping by unlawfully removing the victim, N.J.S.A. 2C:13-1b(1) and (2) (count one); first-degree kidnapping by unlawfully confining the victim, N.J.S.A. 2C:13-1b(1) (count two); three counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(3) (counts three, four and five); three counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(4) (counts six, seven and eight); three counts of first-degree sexual assault, N.J.S.A. 2C:14-2a(5) (counts nine, ten and eleven); first-degree attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3a (count twelve); two counts of third-degree aggravated assault, N.J.S.A. 2C:12-1b(2) and (7) (counts thirteen and fourteen); third-degree terroristic threats, N.J.S.A. 2C:12-3a (count fifteen); two counts of third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d (counts sixteen and seventeen); and second-degree conspiracy to commit first-degree kidnapping and/or aggravated sexual assault, N.J.S.A. 2C:13-1b and N.J.S.A. 2C:14-2a (count eighteen).
Following a jury trial in May 2004, defendant was convicted of two counts of first-degree kidnapping (counts one and two); three counts of first-degree aggravated sexual assault (counts three, six and nine); the lesser-included offense of simple assault (count thirteen); third-degree terroristic threats (count fifteen); an amended charge of third-degree possession of a weapon for an unlawful purpose (count sixteen); and second-degree conspiracy to commit first-degree kidnapping and/or aggravated sexual assault (count eighteen). On August 27, 2004, the trial judge denied defendant's motion for a new trial.
At sentencing on September 16, 2004, the judge merged count two with count one and sentenced defendant on count one to a twenty-year term of imprisonment with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The judge merged counts three and nine with count six and sentenced defendant on count six to a consecutive fifteen-year term of imprisonment subject to NERA.The judge also imposed a five-year period of parole on each of counts one and six, for an aggregate ten-year period of parole supervision. On October 22, 2004, the trial court denied defendant's motion for reconsideration of the sentence.
Defendant appealed his conviction and sentence. We affirmed, our Supreme Court denied certification, and the Supreme Court of the United State denied certiorari. State v. Hill, No. A-1044-04 (App. Div. July 13, 2006), certif. denied, 192 N.J. 70 (2007), cert. denied, 552 U.S. 1113, 128 S.Ct. 905, 169 L.Ed.2d 753 (2008).
Defendant filed a timely pro se PCR petition, contending that trial counsel rendered ineffective assistance by failing to (1) properly advise defendant during plea negotiations of his potential sentencing exposure, particularly, the applicability of NERA and potential consecutive sentences for aggravated assault and kidnapping; (2) file a motion to dismiss and/or consolidate the kidnapping charges in counts one and two; (3) object to Shavitz, a State witness, testifying in prison garb; and (4) object to the imposition of consecutive parole supervision terms, which constituted an illegal sentence. Defendant also contended that appellate counsel rendered ineffective assistance by failing to raise trial counsel's deficiencies on direct appeal.
In an August 27, 2010, oral decision, the PCR judge reserved decision on defendant's contention that his sentence was illegal pending the Court's opinion in State v. Friedman, 209 N.J. 102 (2012). The judge denied the petition in all other respects. The judge found that the defendant signed a pretrial memorandum acknowledging that NERA would apply to any sentence imposed and, if convicted, he faced a maximum sentence of one hundred and twenty years and a maximum parole ineligibility period of sixty years. The judge thus concluded that defendant was fully aware of his potential sentencing exposure.
The judge determined there was no legal authority prohibiting the charges of kidnapping in counts one and two under the separate theories of unlawful removal and unlawful confinement. The judge also found that the jury was properly charged on the elements of the two separate theories of guilt and was free to convict or acquit on either or both theories. The judge also found there was no prejudice because defendant was only sentenced on count one.
The judge further found there was no legal authority prohibiting a prosecution witness from testifying in prison garb, and Shavitz's appearance in prison garb benefitted defendant's strategy to discredit him. This appeal followed.
On appeal, defendant raises the following arguments:
POINT I THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
A. Trial counsel failed to properly advise defendant concerning the plea offer.
B. Trial counsel failed to move to dismiss and/or consolidate counts one and two.
C. Trial counsel failed to object to the co-defendant testifying in prison garb.
POINT II THE LOWER COURT ORDER DENYING THE [PCR] PETITION MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL.
POINT III NOTWITHSTANDING THE SUPREME COURT'S OPINION IN STATE v. FRIEDMAN DEFENDANT CLAIMS THAT THE SENTENCE WAS ILLEGAL.
POINT IV THE LOWER COURT ERRED IN NOT GRANTING DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING AND THE LOWER COURT ORDER MUST THEREFORE BE REVERSED.
We defer to a PCR court's factual findings that are supported by sufficient credible evidence in the record. State v. Nash, 212 N.J. 518, 540 (2013). However, "we need not defer to a PCR court's interpretation of the law; a legal conclusion is reviewed de novo." Id. at 540-41 (citations omitted).
When petitioning for PCR, the defendant must establish, by a preponderance of the credible evidence, that he or she is entitled to the requested relief. Id. at 541; State v. Preciose, 129 N.J. 451, 459 (1992). To sustain that burden, the defendant must allege and articulate specific facts, which "provide the court with an adequate basis on which to rest its decision." State v. Mitchell, 126 N.J. 565, 579 (1992).
The mere raising of a claim for PCR does not entitle the 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 only if the defendant has presented a prima facie claim of ineffective assistance. Preciose, supra, 129 N.J. at 462-63. To establish a prima facie claim of ineffective assistance of counsel, the defendant must demonstrate a reasonable likelihood of success under the test set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984). Nash, supra, 212 N.J. 542. That is, the defendant must show: (1) the deficiency of his counsel's performance and (2) prejudice to his defense. Ibid.
There is a strong presumption that counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, supra, 466 U.S. at 690, 104 S.Ct. at 2066, 80 L.Ed.2d at 695. Further, because prejudice is not presumed, State v. Fritz, 105 N.J. 42, 52 (1987), the 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). Moreover, such acts or omissions of counsel must amount to more than mere tactical strategy. Strickland, supra, 466 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed.2d at 694-95.
Applying the above standards, we discern no reason for an evidentiary hearing. Defendant failed to make a prima facie showing that trial or appellate counsel rendered ineffective assistance. The pre-trial memorandum defendant signed confirms that the State offered him a plea agreement of an eighteen-year term of imprisonment subject to NERA on counts one and six, and that defendant acknowledged that NERA applied and, if convicted, he faced a maximum sentence of one hundred and twenty years and a maximum parole ineligibility period of sixty years. Thus, we agree with the PCR judge that defendant was well-aware of his potential sentence and NERA exposure if convicted.
Defendant cites no authority prohibiting a kidnapping charge in separate counts with separate theories of guilt. Thus, a motion to dismiss and/or consolidate counts one and two 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.
At the time of defendant's trial in 2004, there was no prohibition against a prosecution witness testifying in prison garb. State v. Kuchera, 198 N.J. 482 (2009) does not apply retroactively. In addition, as in Kuchera, defense counsel "sought to capitalize on [the witness's prison garb] and what it represented." Id. at 502. We agree with the judge that counsel's choice did not rise to the level of ineffective assistance and defendant did not demonstrate prejudice.
Because trial counsel was not ineffective, there is no merit to defendant's argument that appellate counsel rendered ineffective assistance by failing to raise trial counsel's deficiencies. In addition, defendant showed no prejudice by appellate counsel's alleged failure provide the trial transcripts.
Finally, we reject defendant's argument that his sentence is still illegal because there is nothing in Friedman to suggest that consecutive periods of parole supervision in NERA sentences are to be applied retroactively to defendants who had been sentenced prior to the Court's decision. Under New Jersey retroactivity jurisprudence, "the threshold inquiry [is] whether the rule at issue is a 'new rule of law' for purposes of retroactivity analysis." State v. Alfanador, 151 N.J. 51, 57 (1997). If not, "the retroactivity question never arises and our power to limit the retroactive effect of a decision is not implicated." Ibid. For a decision to be deemed a new rule of law for retroactivity purposes there must be a "sudden and generally unanticipated repudiation of a long-standing practice." Alfanador, supra, 151 N.J. at 58 (quoting State v. Cupe, 289 N.J.Super. 1, 12 (App. Div. 1996). That is, there must be some "appreciable past from which the [new] rule departs." Ibid.
The Court's decision in Friedman was not a new rule of law, but rather a question of statutory interpretation. See Friedman, supra, 209 N.J. at 117. As we acknowledged in State v. Friedman, 413 N.J.Super. 480, 483 (App. Div. 2010), rev'd, 209 N.J. 102 (2012), the question of whether a defendant who is sentenced to consecutive sentences subject to NERA must serve consecutive or concurrent parole sentences upon release was "[a] narrow question that has not yet been addressed by a published New Jersey decision." Because our interpretation of the applicable statute, N.J.S.A. 2C:43-7.2(c), was a case of first impression, an interpretation with which the Court ultimately disagreed, it cannot be said there was an "appreciable past from which the [new] rule departs" or a "sudden and generally unanticipated repudiation of a long-standing practice" as required by Alfanador. Thus, Friedman put this argument to rest, and the fact that the Court did not specifically address retroactivity has no impact here. Accordingly, the imposition of consecutive NERA parole supervision terms in connection with defendant's consecutive NERA sentences on counts one and six did not render the sentence illegal. A defendant must serve periods of parole supervision consecutively, not concurrently. Friedman, supra, 209 N.J. at 120.