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State v. West

Superior Court of New Jersey, Appellate Division

September 19, 2013

STATE OF NEW JERSEY, Plaintiff-Respondent,
v.
MITCHELL WEST, Defendant-Appellant.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 11, 2013

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. 05-06-0939.

Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief).

Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Miriam L. Acevedo, Special Deputy Attorney General/ Acting Assistant Prosecutor, on the brief).

Appellant filed a pro se supplemental brief.

Before Judges Waugh and Nugent.

PER CURIAM

Defendant Mitchell West appeals the Law Division's July 15, 2011 order denying his petition for post-conviction relief (PCR). We affirm.

I.

We discern the following facts and procedural history from the record on appeal.

In 2006, West was convicted of first-degree attempted murder, N.J.S.A. 2C:5-1 and 2C:11-3, second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a), and third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b). Because West was a second-time Graves Act offender, N.J.S.A. 2C:43-6(c), he was subject to a mandatory extended-term sentence for the attempted murder. The trial judge imposed a sentence of incarceration for thirty years, subject to the eighty-five percent parole ineligibility period required by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The judge merged the unlawful possession of a weapon conviction into the conviction for possession of a weapon for an unlawful purpose and imposed a concurrent ten-year sentence with five years of parole ineligibility.

In our opinion on West's direct appeal, we summarized the facts underlying West's convictions as follows:

On February 17, 2005, at approximately 5:25 p.m., the Jersey City police responded to a 9-1-1 call from Rashon Ponder, who stated that he had been shot. Ponder was found in his car at the curb in the vicinity of Atlantic and Bergen Avenues. He had been shot multiple times. Detective Kevin Guy asked Ponder if he knew who shot him. Ponder nodded his head yes, but refused to identify the shooter.
Shortly thereafter, paramedics arrived and, after examining Ponder, informed the police that he was likely to die from his wounds. When Ponder was informed of his status, he again refused to disclose the name of the shooter. However, on April 10, 2005, Ponder, who survived, disclosed to the police that his shooter was [West]. Ponder told the police that he had initially refused to identify [West] because he was "afraid of dying, " that he was "still in shock" and that he was "afraid of West." [West] was arrested on April 26, 2005.
One year after the shooting, on February 17, 2006, [West's] former girlfriend, Shamia Henderson, provided the police with additional corroborative evidence of [West's] identity, stating that in mid or late February, 2005, [West] had bragged to her that he had "handled business for his brother." "He shot up the guy or car." Henderson later learned that the victim was Ponder.
An investigation of the scene of the crime disclosed seven nine-millimeter bullet casings next to the passenger side of the car occupied by Ponder. No casings were found on the driver's side. Additionally, the police found four vials containing suspected cocaine in the street next to the passenger door. The police were unable to determine who possessed the vials. While in the emergency room, approximately $1, 500 was found in Ponder's pockets.
Directly in front of the car driven by Ponder, the police found a Plymouth minivan with its engine running. Inside the minivan was a cell phone. At trial, the parties stipulated that the van and phone belonged to [West].
Ponder was surgically treated for eighteen entry and exit gunshot wounds, spending twelve days in the hospital. He remains disabled by his injuries. Ponder received three wounds on the front of his right arm, three on the rear of his right arm, one in the armpit, one in the mid-chest, two in the upper right thigh, two in the lower right thigh, two in the upper left thigh, two in the lower left thigh, and one in the scrotal area. Bullets fractured his upper right arm and his left femur. Analysis determined that all of the bullets were fired from the same semi-automatic pistol.
According to Ponder, the shooting occurred after he became stopped in traffic. [West] got out of his car, which was stopped in front of Ponder's, walked over to the passenger side of Ponder's vehicle, and started shooting through the open window. Ponder testified that he was able to guide his car to the curb, where it was found directly behind the minivan belonging to [West]. He then called 9-1-1, his son's mother and his cousin.
Ponder claimed that he had known [West] for more than ten years. When asked at trial if Ponder knew of any reason [West] would want to shoot him, Ponder replied that a week or a few days before, "[w]e had a little altercation, like, verbal dispute. That's it." [West] told the police that, on March 25, 2005, after the shooting and after Ponder had been released from the hospital, Ponder (known by the street name of "Rock") and Ponder's brother, a person known as "Lemon, " shot at him in a dispute over selling bricks of cocaine.
[State v. West, No. A-3402-06 (App. Div. July 21, 2009) (slip op. at 3-5).]

West appealed, and we affirmed his conviction and the extended-term sentence. We vacated the sentence on the weapons conviction because we determined that the trial judge improperly merged the two weapons offenses. We held that the conviction for possession of a weapon for an unlawful purpose should have been merged with the attempted-murder conviction, with the conviction for unlawful possession of a weapon being the subject of the separate sentence. We remanded for resentencing. [1] The Supreme Court denied West's petition for certification. State v. West, 200 N.J. 475 (2009).

West filed his PCR petition in March 2010. Assigned counsel filed a brief in support of the petition. The PCR judge heard argument on the petition in May 2011, and issued a written decision explaining her reasons for denying relief on July 12. The implementing order was filed on July 15. This appeal followed.

II.

West raises the following appellate issues through his assigned counsel:

POINT I: THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION THAT

HE FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION AT THE TRIAL LEVEL.

A. THE PREVAILING LEGAL PRINCIPLES REGARDING CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL, EVIDENTIARY HEARINGS AND PETITIONS FOR POST CONVICTION RELIEF.
B. THE DEFENDANT DID NOT RECEIVE ADEQUATE LEGAL REPRESENTATION FROM TRIAL COUNSEL AS A RESULT OF TRIAL COUNSEL'S FAILURE TO PURSUE A DIMINISHED CAPACITY DEFENSE ON HER CLIENT'S BEHALF.
C. THE DEFENDANT FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION FROM TRIAL COUNSEL SINCE, AS A RESULT OF COUNSEL'S FAILURE TO ACCURATELY INFORM HIM WITH RESPECT TO THE STATE'S PLEA OFFER, HE PROCEEDED TO TRIAL, SUBSEQUENTLY RECEIVING A SENTENCE SIGNIFICANTLY GREATER THAN THAT EMBODIED IN THE PLEA OFFER.
D. THE DEFENDANT FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION FROM TRIAL COUNSEL AS A RESULT OF COUNSEL'S ADVICE CONVINCING HIM NOT TO TESTIFY.
POINT II: THE TRIAL COURT ERRED IN UTILIZING RULE 3:22-4 AS A BASIS TO PROCEDURALLY DENY THE DEFENDANT'S CONTENTION THAT HE FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION FROM TRIAL COUNSEL WHICH RESULTED IN THE DEFENDANT NOT TESTIFYING [ON] HIS OWN BEHALF.

In addition, West made the following additional arguments in his pro se supplemental brief:

POINT I: Defendant was Deprived of the Effective Assistance of Counsel.

a. Trial Counsel's Failure to Inform Defendant that Defendant was Facing a Mandatory Extended Term Sentence Adversely Affected Defendant's Decision to Reject the State's Favorable Plea Offer.
b. Trial Counsel's Failure to Obtain a Current Report About Defendant's Mental Health Disorders and to Present this Evidence as a Sentence Mitigating Factor Prejudiced Defendant.
c. The Need for an Evidentiary Hearing.

"Post-conviction relief is New Jersey's analogue to the federal writ of habeas corpus." State v. Preciose, 129 N.J. 451, 459 (1992). Under Rule 3:22-2(a), a criminal defendant is entitled to post-conviction relief if there was a "[s]ubstantial 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." "A petitioner must establish the right to such relief by a preponderance of the credible evidence." Preciose, supra, 129 N.J. at 459. "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).

Claims of constitutionally ineffective assistance of counsel are well suited for post-conviction review. R. 3:22-4(a)(2); Preciose, supra, 129 N.J. at 460. In determining whether a defendant is entitled to such relief, New Jersey courts apply the test articulated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674, 698 (1984), and United States v. Cronic, 466 U.S. 648, 658-60, 104 S.Ct. 2039, 2046-47, 80 L.Ed.2d 657, 667-68 (1984). Preciose, supra, 129 N.J. at 463; State v. Fritz, 105 N.J. 42, 58 (1987).

Under the first prong of the Strickland test, a "defendant must show that [defense] counsel's performance was deficient." Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693. 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." Id. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698.

In demonstrating that counsel's performance was deficient under the first prong of Strickland, 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) (internal quotation marks omitted). Further, because prejudice is not presumed, ibid., in satisfying the second prong, a defendant must typically demonstrate "how specific errors of counsel undermined the reliability of the finding of guilt." Cronic, supra, 466 U.S. at 659 n.26, 104 S.Ct. at 2047, 80 L.Ed.2d at 668; see Roe v. Flores-Ortega, 528 U.S. 470, 482, 120 S.Ct. 1029, 1037, 145 L.Ed.2d 985, 998 (2000). There must be "a probability sufficient to undermine confidence in the outcome." Strickland, supra, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698.

We start our analysis with the issue of trial counsel's failure to investigate and present a defense based on diminished capacity. We note that the defense presented by trial counsel was consistent with her client's position at the time that he was not the shooter. In addition, West does not allege that he told his trial counsel that he was under the influence of drugs or alcohol at the time of the shooting or about his prior mental health problems.

However, trial counsel stated at sentencing that she would have handled the case differently had she been aware of issues related to West's mental status that were disclosed in his pre-sentence report (PSR). The report disclosed that there had been concerns about West's mental status in connection with a prior offense, resulting in a psychological evaluation in 2002. Consequently, we will assume for the purposes of our analysis that West has satisfied the first Strickland prong.

The report of Daniel P. Greenfield, M.D., which was submitted by West in support of his PCR petition, concludes that, although he was competent to stand trial, there was a basis for a "hybrid" defense based on intoxication, N.J.S.A. 2C:2-8, and diminished mental capacity, N.J.S.A. 2C:4-2. Both statutes require that the applicable condition negate an element of the offense.

As the PCR judge correctly observed, there is no evidence in the record to support the factual proposition that West was intoxicated at the time of the shooting. In his PCR petition, West asserts only that "in the months leading up to his arrest . . . [he] used PCP on a regular basis." He makes no assertion that he was intoxicated at the time of the shooting. That he may have been intoxicated at other times is not a sufficient basis for purposes of establishing a prima facie case.

On direct appeal, in upholding the trial judge's refusal to apply mitigating factor four, N.J.S.A. 2C:44-1(b)(4) ("substantial grounds tending to excuse or justify the defendant's conduct, though failing to establish a defense"), we determined that the prior mental evaluations contained in the PSR were insufficient to warrant even the application of a mitigating factor applicable to sentencing. Admittedly, Greenfield's report went beyond the findings of the earlier report in terms of opining that there was a potential "hybrid" defense.

Having considered Greenfield's report in light of the underlying facts in the record and the applicable law, we conclude that West has not presented a prima facie case on the issue of the "hybrid" defense under prong two because Greenfield's opinion with respect to the defense is not sufficiently based in facts found in the record. Even taking Greenfield's opinion concerning West's mental capacity as accurate, it does not present a basis for a defense under N.J.S.A. 2C:4-2.

West next argues that trial counsel was constitutionally ineffective because she failed to advise him that he was facing a mandatory, rather than a voluntary, extended term. The State's last plea offer was an eighteen-year sentence subject to NERA. In his PCR petition, West stated that he rejected the State's plea offer because he had been advised by "jailhouse inmates" that his maximum exposure was twenty years, but that he would not have done so had his attorney advised him that the extended term was mandatory. The transcript of the plea-cutoff hearing reflects that defense counsel was under the mistaken impression that the extended term was discretionary rather than mandatory, and that her error was not corrected by the prosecutor or the trial judge. In view of trial counsel's error, we find that West has satisfied the first prong of the Strickland test.

Nevertheless, the trial judge clearly explained to West that he was exposed to a possible life sentence, which would mean sixty-three years in custody without possibility of parole. Faced with that information, West still rejected the plea offer. The actual sentence was thirty years.

A defendant must demonstrate with "'reasonable probability'" that the result would have been different had he received proper advice from his plea attorney. Lafler v. Cooper, 566 U.S.___ at____, 132 S.Ct. 1376, 1384, 182 L.Ed.2d, 398, 406-07 (2012) (quoting Strickland, supra, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698). We see nothing in the record to suggest that West would have pled guilty had he been told that the extended term was mandatory. He was clearly informed that his exposure far exceeded the twenty-year maximum predicted by the "jailhouse inmates, " and he demonstrated no interest in changing his plea. It was West's defense at trial that he was not the shooter. He has not taken a contrary position in his PCR petition. It is clear from the plea-cutoff transcript that, at the time, West anticipated that the victim would not appear at trial. There is nothing in the record to suggest that West would have been willing to enter a plea had he known that the extended term was mandatory. Consequently, we find that West has failed to satisfy the second Strickland prong.

Having reviewed West's remaining arguments in light of the facts in the record and the applicable law, we find them to be without merit and not warranting extended discussion in a written opinion. R. 2:11-3(e)(2). We note only that the trial judge addressed West several times during the trial concerning his right to testify, that the judge advised West that the decision was his and not trial counsel's, that West acknowledged he had discussed the issue with his attorney, and that West has not outlined the nature of his testimony or explained how it would have changed the result.

Finally, West was not entitled to an evidentiary hearing because he did not present a prima facie case of ineffective assistance of counsel. Preciose, supra, 129 N.J. at 462.

Affirmed.


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