STATE OF NEW JERSEY v. RAVON FREEMAN

 
(NOTE: The status of this decision is Published.)

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RAVON FREEMAN,

Defendant-Appellant.

_____________________________

January 7, 2014

 

Submitted October 23, 2013 Decided

 

Before Judges Grall and Waugh.

 

On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 04-09-1268.

 

Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel; on the brief).

 

Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Marc A. Festa, Senior Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Ravon Freeman appeals the denial of his petition for post-conviction relief. He was tried to a jury on a three-count indictment. The jury found him guilty of receiving stolen property, N.J.S.A. 2C:20-7 (count one), and resisting arrest, N.J.S.A. 2C:29-2a(2) (count three), but was unable to reach a verdict on count two, which charged eluding, N.J.S.A. 2C:29-2b. The judge granted the State's motion to sentence defendant as a persistent offender pursuant to N.J.S.A. 2C:44-3a. The judge then imposed an extended term of incarceration for eight years for the third-degree crime of receiving stolen property and a consecutive term of fifteen months for the fourth-degree crime of resisting arrest. The appropriate financial penalties and assessments were also imposed.

Defendant appealed the judgment and raised five issues:

I. THE TRIAL COURT ERRED BY PERMITTING THE

STATE TO ELICIT TESTIMONY FROM THE STEPFATHER OF THE OWNER OF THE VEHICLE IN QUESTION INDICATING THE DEFENDANT TOOK THE VEHICLE WITHOUT PERMISSION, AND THAT HE THEN REPORTED IT STOLEN TO THE POLICE AFTER SPEAKING WITH THE OWNER AND THE OWNER'S MOTHER. (PARTIALLY RAISED BELOW).

 

II. THE TRIAL COURT ERRED IN DENYING

DEFENSE COUNSEL'S MOTION FOR A JUDGMENT OF ACQUITTAL REGARDING THE CHARGE OF RECEIVING STOLEN PROPERTY AND THEFT.

 

III. THE TRIAL COURT ERRED IN RULING THAT

ALL OF THE DEFENDANT'S PRIOR CONVICTIONS WERE ADMISSIBLE TO ATTACK CREDIBILITY.

 

IV. THE SENTENCE IMPOSED WAS MANIFESTLY

EXCESSIVE.

 

V. ASSUMING THE COURT DOES NOT CONCLUDE

THAT THE DEFENDANT'S SENTENCE WAS MANIFESTLY EXCESSIVE BASED UPON A REVIEW OF THE APPLICABLE AGGRAVATING AND MITIGATING FACTORS SUPPORTED BY THE RECORD, THE DEFENDANT IS ENTITLED TO A REMAND PURSUANT TO STATE V. NATALE.

Although this court rejected the arguments defendant offered in support of Points II, III and IV, we reversed his conviction for receiving stolen property because of the erroneous admission of hearsay raised in Point I of his brief on that appeal. State v. Freeman, No. A-0797-05 (App. Div. Feb. 26, 2007) (slip op. at 11). In addition, accepting defendant's argument in Point V, we remanded for resentencing on count three in conformity with the Supreme Court's decision in State v. Natale, 184 N.J. 458, 495-96 (2005). Id. at 12.

Defendant was never retried on the conviction we reversed on direct appeal receiving stolen property (count one). In July 2009, the trial court dismissed that charge on the State's motion.

Between defendant's initial sentence and the issuance of this court's decision on his appeal, defendant was retried on the eluding charge the charge on which the first jury was unable to reach a verdict. The second jury to consider the evidence on that charge found defendant guilty. On December 2, 2005, the judge sentenced defendant to a term of imprisonment for nine and one-half years for eluding to run concurrent with the sentence of imprisonment previously imposed on counts one and three. Because of the July 2009 dismissal of the receiving stolen property count reversed on appeal, defendant's sentences on counts two and three are fully concurrent.

Defendant appealed the judgment entered after the second trial and raised four issues:

POINT I.

THE TRIAL COURT ERRED IN PERMITTING THE STATE TO ELICIT INADMISSIBLE AND HIGHLY PREJUDICIAL TESTIMONY UNDER THE GUISE OF N.J.R.E. 404(b).

 

POINT II.

THE PROSECUTOR'S SUMMATION EXCEEDED THE BOUNDS OF PROPRIETY BY INFERENTIALLY COMMENTING UPON THE DEFENDANT'S FIFTH AMENDMENT PRIVILEGE.

 

POINT III.

THE TRIAL COURT ERRED IN RULING THAT ALL OF THE DEFENDANT'S PRIOR CONVICTIONS WERE ADMISSIBLE TO ATTACK CREDIBILITY.

 

POINT IV.

THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.

We discussed and rejected the arguments defendant presented in support of each of the foregoing claims of error, and the Supreme Court denied defendant's petition for certification. State v. Freeman, No. A-3067-05 (App. Div. Feb. 27, 2007), certif. denied, 190 N.J. 396 (2007).

Defendant filed this petition for post-conviction relief on June 9, 2008. In his initial petition he stated that claims for relief were a "challenge [of] an alleged erroneous sentence" and "retroactivity of decisional law," presumably a reference to Natale. And on March 16, 2011, defendant filed a certification referencing and supplementing his June 2008 petition as follows:

4. The sentence imposed was manifestly excessive.

 

5. The trial court clearly erred in ruling the convictions occurring in "1993" to be admissible.

 

6. The trial court erred in ruling that all of the defendant's prior convictions were admissible to all credibility.

 

7. The trial court erred when it elevated the presumptive extended base term due to the defendant's prior record.

 

8. Assuming the court does not conclude that the defendant's sentence was manifestly excessive based upon review of the applicable aggravating and mitigating factors supported by the record, the defendant is warranted to a remand pursuant to State v. Natale.

 

9. The prosecutor's summation exceeded the bounds of propriety by inferentially commenting upon the defendant's Fifth Amendment privilege.

 

10. I was entitled to Gap-Time credits of 255 days, Sentence between two sentences.

 

11. I was entitled to jail credits opposed to prior service credits.

 

12. Double counting on my sentence as to aggravating factors 3, 6 and 9.

 

13. The sentence on Count III as consecutive rather than concurrent in nature.

 

14. The court must consider all of the Yarbough guidelines.

 

15. N.J.S.A. 2C:44-1(a)(3),(6) and (9) were warranted to a modification resentencing pursuant to Natale.

 

16. N.J.S.A. 2C:44-1(b)(1) and (2) were clearly applicable mitigating factors. The trial court erred in ruling that no mitigating factors existed.

 

17. N.J.S.A. 2C:44-1(f)(1) provided for a presumptive sentence of (9) months for a fourth degree offense such as resisting arrest (count III) entitled to a remand for modification.

Counsel appointed to represent defendant on the petition filed a brief in support of his amended petition arguing:

I. THE DEFENDANT'S CLAIMS ARE NOT BARRED BY

THE PROVISIONS OF R. 3:22 AS THEY ASSERT CONSTITUTIONAL ISSUES ARISING UNDER THE STATE AND FEDERAL CONSTITUTIONS.

In the text of the brief, counsel recites the procedural history, incorporates by reference a pro se motion to revoke the fines imposed based on changed circumstances pursuant to N.J.S.A. 2C:46-3,1 and sets forth the points raised in defendant's certification recited above. Counsel also noted that "petitioners are rarely barred from raising ineffective assistance of counsel claims on post-conviction review," but counsel did not identify any action or omission of trial or appellate counsel that was claimed to be deficient.

The trial court denied the petition. Because the claims raised in paragraphs 4, 5, 6, 7, 8, 9, 12, 14, 16 and 17 of defendant's certification were addressed on direct appeal, the trial court concluded they were barred by Rule 3:22-5.

The court denied relief on the denial of gap time and jail credits addressed in paragraphs 10 and 11 of defendant's certification as lacking in merit. In the court's view gap time credits, which are available pursuant to N.J.S.A. 2C:44-5b(2) when a defendant is sentenced on different dates for multiple crimes committed prior to the first sentencing, were inappropriate. With respect to jail credits, the judge denied relief on the ground that another judge had awarded defendant the credits "he requested" post-judgment.

The trial court did not address the objection defendant raised to consecutive sentences in paragraph 13 of his certification because the claim as stated by defendant was not clear. In fact, by the time argument on the petition was heard, defendant's claims related to consecutive sentences raised in paragraphs 13 and 14 of his certification had been mooted by the reversal and subsequent dismissal of the receiving stolen property charge.

The trial court declined to address the claim of entitlement to a remand for relief in conformity with Natale, which was raised in paragraph 15 of defendant's certification. The trial court was uncertain as to what relief defendant sought, and defendant's attorney was also unable to clarify that claim. The uncertainty about this claim was well warranted, because this court addressed relief under Natale in its decisions on defendant's two direct appeals.

Finally, giving a liberal reading to the brief submitted by defendant's appointed counsel on the petition, the trial court determined that counsel had raised a claim of ineffective assistance of counsel. The trial court denied relief on that ground, however, because neither defendant nor his attorney had pointed to any error related to the performance of trial counsel.

I

On appeal defendant argues:

I. THE PCR COURT MISAPPLIED ITS DISCRETION

IN APPLYING THE PROCEDURAL BAR OF R. 3:22-5 BECAUSE ISSUES CONCERNING ERROR DURING THE TRIAL AND SENTENCING PROCEEDINGS THAT WERE INCLUDED IN THE DEFENDANT'S CERTIFICATION WERE RAISED IN THE CONTEXT OF A VIOLATION OF DEFENDANT'S FOURTEENTH AMENDMENT DUE PROCESS RIGHTS TO A FAIR TRIAL AND SENTENCING PROCEEDING, AND TO EFFECTIVE ASSISTANCE OF COUNSEL.

 

II. THE ORDER DENYING POST-CONVICTION

RELIEF SHOULD BE REVERSED AND THE MATTER REMANDED FOR A FULL EVIDENTIARY HEARING BECAUSE THE DEFENDANT MADE A PRIMA FACIE SHOWING OF INEFFECTIVE ASSISTANCE OF COUNSEL UNDER THE STRICKLAND/FRITZ TEST.

 

III. THE COURT'S ORDER DENYING POST-

CONVICTION RELIEF VIOLATED DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.

 

IV. THE FINES IMPOSED AGAINST DEFENDANT

SHOULD BE VACATED.

 

We have considered these arguments in light of the record presented on appeal and determined that the issues raised in Points I through IV have insufficient merit to warrant any discussion beyond the brief comments that follow in section A. R. 2:11-3(e)(2). We discuss the issue raised in Point V in section B of this opinion.

A

Rule 3:22-5 bars re-litigation of questions resolved on appeal, and for that reason defendant was not entitled to relief on the claims raised in paragraphs 4, 5, 6, 7, 8, 9, 12, 13, 14, 15 and 17. A defendant cannot escape the bar against re-litigation by re-casting arguments previously presented in constitutional terms. State v. Mitchell, 126 N.J. 565, 586-87 (1992). In that regard, a claim of ineffective assistance pertinent to trial error is different because it asserts a separate claim of constitutional error. Thus, the trial court correctly concluded that these claims were barred by Rule 3:22-5.

There is an additional procedural bar applicable to defendant's sentencing claims. A claim that a sentence within the range provided by law is excessive is not cognizable on a petition for post-conviction relief. R. 3:22-2(c); State v Hess, 207 N.J. 123, 145 (2011). Accordingly, relief was properly denied on the issues defendant raised in paragraphs 4, 5, 6, 7, 8, 9, 15, 16 and 17 of his certification.

We reject defendant's objections to credits against his sentence for confinement prior to sentencing, because defendant has not included the judgments of conviction necessary to review the claims. For that reason, we are in no position to conclude that there was error related to jail or gap time credits. Accordingly, we affirm the denial of relief sought in paragraphs 10 and 11 of defendant's certification.

Finally, the trial court properly denied relief on defendant's assertion of ineffective assistance of counsel. To obtain relief on that basis, a defendant must "identify specific acts or omissions that are outside the 'wide range of reasonable professional assistance' and . . . show prejudice by demonstrating 'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" State v. Jack, 144 N.J. 240, 249 (1996) (emphasis added) (quoting Strickland v. Washington, 466 U.S. 668, 689, 694, 104 S. Ct. 2052, 2065, 2068, 80 L. Ed. 2d 674, 694, 698 (1984)). We agree with the trial court that defendant, who failed to point to any deficiency in counsel's representation, did not establish a prima facie showing of ineffective assistance.

B

The trial court overlooked one issue that is raised on this appeal. The court did not address defendant's motion for revocation on his fines pursuant to N.J.S.A. 2C:46-3. That issue was incorporated by reference in the brief defendant's appointed counsel submitted to the trial court on defendant's petition. Because the motion was not addressed, we remand so that the trial court can decide it. Our decision to remand for disposition of that motion should not be understood to express any opinion on the merits.

Affirmed in part and remanded for the limited purpose of addressing the motion for revocation of fines dated February 2, 2009. We do not retain jurisdiction.

1 The brief counsel submitted in the trial court refers to two pro se motions, but the record we have includes only the motion to revoke the fines.