STATE OF NEW JERSEY v. ANTHONY ARATER

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0820-03T40820-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ANTHONY ARATER,

Defendant-Appellant.

_________________________________________________

 

Submitted November 29, 2005 - Decided March 1, 2006

Before Judges Skillman and Payne.

On appeal from Superior Court of New

Jersey, Law Division, Ocean County,

97-10-863.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Sharon A.

Quinn, Designated Counsel and on the

brief).

Thomas F. Kelaher, Ocean County Prosecutor,

attorney for respondent (Samuel Marzarella,

Assistant Prosecutor, of counsel and on the

brief).

PER CURIAM

Defendant Anthony Arater, a juvenile charged in Ocean County indictment no. 97-10-863 and tried as an adult following waiver of the Family Part's jurisdiction, was convicted on December 18, 1997 of conspiracy to commit second-degree robbery, N.J.S.A. 2C:15-1 and 2C:5-2, second-degree robbery against Margaret Forfar, N.J.S.A. 2C:15-1, first-degree robbery against William Forfar, N.J.S.A. 2C:15-1, third-degree burglary, N.J.S.A. 2C:18-2, the disorderly persons offenses of simple assault on both Margaret Forfar and William Forfar, N.J.S.A. 2C:12-1a, third-degree possession of a weapon (a knife) for an unlawful purpose, N.J.S.A. 2C:39-4d, and fourth-degree theft by unlawful taking, N.J.S.A. 2C:20-3. He was sentenced on February 27, 1998 to an aggregate twenty-year term of incarceration, with a ten-year period of parole ineligibility. The crimes arose out of a planned home invasion and robbery at knifepoint of an elderly couple by defendant and others, occurring on February 9, 1997. We affirmed defendant's conviction on appeal. State v. Arater, No. A-0736-98T4 (App. Div. July 18, 2000). His petition for certification was denied. State v. Arater, 165 N.J. 679 (2000).

Additionally, on June 23, 1998, defendant was charged in Ocean County indictment no. 98-06-809 with two counts of third-degree aggravated assault, N.J.S.A. 2C:12-1b(7) and one count of third-degree terroristic threats, N.J.S.A. 2C:12-3b, arising out of conduct occurring on February 16, 1997. On July 29, 1998, defendant was also charged in Ocean County indictment no. 98-07-935 with one count of second-degree aggravated assault, N.J.S.A. 2C:12-1b(1), arising out of conduct occurring in the Ocean County Jail. Defendant entered a plea of guilty to amended second-degree charges of attempting to cause serious bodily injury arising under indictment no. 98-07-935, and was sentenced to five years in custody concurrent to the sentence being served for the home invasion. Indictment 98-06-809 and complaints FJ-15-2831-97 and FJ-15-2898-97 were dismissed.

On February 25, 2003, defendant filed a petition for post-conviction relief (PCR) from his convictions pursuant to indictment no. -863 (the home invasion). Following a hearing, the petition was denied. Defendant has appealed from that denial, arguing as follows:

Point One

Defendant's petition for post-conviction Relief should Be Granted.

Point Two

The Trial Attorney's Failure to Fully Inform the Petitioner of the Consequences of a Voluntary Waiver of a Juvenile Matter to the Law Division Constitutes Prima Facie Evidence of Counsel's Ineffective Assistance.

Point Three

Counsel's Failure to Inform Petitioner of His Right to Secure Expert Opinion and Witness Testimony in Asserting His Potential for Rehabilitation as Part of a Waiver Hearing Constitutes Ineffective Assistance of Counsel.

Point Four

The Sentence Imposed Pursuant to the Plea Agreement To Run Concurrently with the Sentence Imposed by the Trial Court Was Illegal and Should Be Corrected.

Point Five

The Sentence Imposed is Illegal Because it violates the Sixth Amendment Rights of the Defendant.

We affirm.

The record discloses that on July 9, 1997, defendant consented through counsel to the waiver of jurisdiction of the Family Part over four matters, including the home invasion, and their transfer to the Law Division for further prosecution pursuant to N.J.S.A. 2A:4A-27 and R. 5:22-1. At the time of the waiver proceeding, defendant (born on June 12, 1979) was eighteen years old; he was four months short of his eighteenth birthday when the home invasion occurred. The circumstances of the waiver form the principal basis for defendant's PCR petition, in which he claimed, through counsel, denial of effective assistance of counsel

in that counsel gave him misinformation and advice, failed to advise him that he had the right to contest the waiver hearing, failed to consult with and retain experts, failed to advise him that he could testify at the waiver hearing, [and] failed to make all appropriate objections and file all appropriate motions.

Because a transcript of the waiver proceeding could not be located, the PCR judge, James N. Citta, ordered a hearing in the matter, at which testimony was given by defendant, defendant's mother, Mercedes Arater, and his privately-retained attorney, Robert Gasser. Following the hearing, the judge, who did not credit defendant's testimony, found that defendant was fully informed of the consequences of waiver; that Gasser's advice not to contest the proceeding and his determination not to produce evidence of defendant's amenability to rehabilitation before the age of nineteen was reasonable given defendant's age, the nature of the crimes, the extent of defendant's juvenile record of between ten and twenty prior adjudications, and the family's limited economic means; and that overwhelming evidence existed that waiver would have occurred, regardless of any contest on Gasser's part. Thus the court found that neither prong of the two-part test to determine whether counsel had been so ineffective as to require a new trial, set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984) and State v. Fritz, 105 N.J. 42, 52 (1987), had been met.

We agree with Judge Citta's conclusions, and affirm substantially on the basis of the comprehensive opinion that he placed on the record on August 1, 2003.

In order to prevail on a claim of ineffective assistance of counsel, defendant is required to prove both that counsel's performance was deficient, and that counsel's deficient performance deprived defendant of a fair trial. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; Fritz, supra, 105 N.J. at 52. Under the first prong, defendant must show that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed by the Sixth Amendment, ibid.; under the second, he must show that there is "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698; Fritz, supra, 105 N.J. at 52.

No such evidential showing was made in this case. The record of the home invasion trial demonstrated that defendant and a companion kicked in the door of the Forfar home after midnight; knocked Ms. Forfar, a victim in her seventies, to the ground; pulled Mr. Forfar, then in his eighties, from his bed and threw him to the floor; rifled the couple's bedroom drawers in a successful search for cash; and, upon leaving, ripped the telephones from the wall, depriving the couple of their means of communication. At the time of trial, defendant was serving a period of juvenile detention for another crime; he had a substantial prior record of adjudications; and he had three other charges pending.

As Judge Citta found, there was no possibility, given these facts, that defendant could have demonstrated that the likelihood of his rehabilitation before the age of nineteen substantially outweighed the reasons for waiver, the statutory standard prior to amendments in 2000. N.J.S.A. 2A:4A-26(a)(3); State v. J.M., 182 N.J. 402, 411 (2005); State v. Scott, 141 N.J. 457, 464 (1995). Therefore, even if requested, a waiver hearing would not have succeeded in its goal of avoiding trial and punishment as an adult, and trial counsel's failure to pursue this futile course of action cannot be found to have constituted ineffective representation.

In his appeal, defendant has also argued that the sentence imposed on February 5, 1999 on Ocean County indictment no. 98-07-935 was based on the wrong charge, and that it was illegal. We find the argument to be without merit. Our examination of the plea form, plea transcript and sentencing transcript satisfies us that defendant pled guilty to second-degree attempt to cause aggravated assault in violation of N.J.S.A. 2C:12-1b(1), and that defendant was given a five-year sentence concurrent to the sentence that he was serving for the home invasion. Aggravating factors three, six and nine were found to exist, N.J.S.A. 2C:44-1(a)(3), (6) and (9), and no mitigating factors were found. The citation to N.J.S.A. 2C:12-1a(1) on the judgment of conviction is an obvious clerical error. Because defendant was sentenced at the bottom of the second-degree range, no possible violation of Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004) exists as to this sentence. Moreover, neither Blakely nor the Supreme Court's decision in State v. Natale, 184 N.J. 458 (2005) applies retroactively to permit any challenge to the sentence imposed on defendant for the home invasion in this appeal from a denial of post-conviction relief. Id. at 494.

Affirmed. The matter is remanded for correction of the charge for which sentence was imposed following defendant's guilty plea to Ocean County indictment no. 98-07-935.

 

However, on appeal, defendant has included arguments that relate to his sentence on indictment no. -935 (the jail assault).

In a pro se submission, defendant also argued that his counsel should have objected to a change in the trial date, researched the issue of attorney-client privilege, called additional witnesses, and objected to comments at trial. PCR counsel briefed these claims, which were denied by the PCR judge. None has been raised on appeal.

(continued)

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9

A-0820-03T4

March 1, 2006