STATE OF NEW JERSEY v. SHYRONE STEED

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5318-03T45318-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SHYRONE STEED,

Defendant-Appellant.

____________________________________

 

Submitted November 29, 2005 - Decided January 26, 2006

Before Judges Skillman and Miniman.

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 1880-10-96.

Yvonne Smith Segars, Public Defender, attorney for appellant (Jean M. Hartmann, Designated Counsel, of counsel and on the brief).

Edward J. DeFazio, Hudson County Prosecutor, attorney for respondent (Gregory R. Gonzalez, Assistant Prosecutor, on the brief).

Appellant submitted a pro se supplemental brief.

PER CURIAM

On May 22, 1996, just three weeks before his eighteenth birthday, defendant was charged in the Family Part with various acts of juvenile delinquency allegedly committed on April 28, 1996, including murder, attempted murder and aggravated assault. On September 6, 1996, defendant consented to a waiver of jurisdiction to the Law Division for prosecution as an adult.

On October 7, 1996, defendant was indicted for purposeful or knowing murder, in violation of N.J.S.A. 2C:11-3a(1) or N.J.S.A. 2C:11-3a(2); two counts of attempted murder, in violation of N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3; four counts of aggravated assault, in violation of N.J.S.A. 2C:12-1b(1) or N.J.S.A. 2C:12-1b(2); unlawful possession of a weapon, in violation of N.J.S.A. 2C:39-5b; and possession of a handgun for an unlawful purpose, in violation of N.J.S.A. 2C:39-4a.

A jury acquitted defendant of murder, but found him guilty of the lesser included offense of aggravated manslaughter, in violation of N.J.S.A. 2C:11-4(a). The jury also acquitted defendant of the two counts of attempted murder and one count of aggravated assault. The jury found defendant guilty of the remaining charges.

The trial court sentenced defendant to a thirty-year term of imprisonment, with fifteen years of parole ineligibility, for the aggravated manslaughter, and consecutive terms of ten years imprisonment, with five years of parole ineligibility, and five years imprisonment, with three years of parole ineligibility, for two of the aggravated assaults. The court also imposed a consecutive five-year term, with two-and-a-half years of parole ineligibility, for unlawful possession of a weapon. The court merged defendant's other convictions. Thus, defendant's aggregate custodial sentence is fifty years imprisonment, with twenty-five and one-half years of parole ineligibility.

On appeal, we affirmed defendant's convictions and sentence. State v. Steed, A-4802-97T4 (Nov. 23, 1999). The Supreme Court denied defendant's petition for certification. 163 N.J. 79 (2000).

Defendant filed a petition for post-conviction relief based primarily on claims of ineffective assistance of trial counsel. Specifically, defendant alleged that his trial counsel had been ineffective in failing to properly advise him regarding whether to oppose waiver of jurisdiction from the Family Part to the Law Division, failing to inform him until the middle of trial that he had previously represented one of the State's potential witnesses, and failing to move for suppression of the statement defendant gave to the police.

The trial court concluded, in an oral opinion rendered on March 4, 2004, that defendant's petition and supporting papers did not present a prima facie case of ineffective assistance of trial counsel. Therefore, the court denied the petition.

On appeal, the Public Defender has submitted a brief on defendant's behalf which presents the following arguments:

I. THE PCR COURT ERRED IN DENYING DEFENDANT AN EVIDENTIARY HEARING (U.S. Const. Amend. IV, V, VI, XIV; N.J. Const. Art. I, Pars. 1, 7, and 10).

A. DEFENDANT SUBMITTED PRIMA FACIE PROOF THAT FAMILY COURT COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL DUE TO HER FAILURE TO PROPERLY ADVISE DEFENDANT AND PRESENT A DEFENSE TO THE STATE'S WAIVER MOTION (U.S. Const. Amends. VI, XIV; N.J. Const. (1947), Art. I, Pars. 1 and 10).

A. Defendant submitted prima facie proof that family court counsel rendered ineffective assistance of counsel due to her failure to properly advise defendant and present a defense to the State's waiver motion (U.S. Const. Amends. VI, XIV; N.J. Const. (1947), Art. I, Pars. 1 and 10).

B. Defendant submitted prima facie proof that trial counsel rendered ineffective assistance of counsel due to the conflict of interest caused by his prior representation of an eyewitness (U.S. Const. Amends. IV, VI, XIV; N.J. Const. (1947), Art. I, Pars. 1 and 10).

C. Defendant submitted prima facie proof that trial counsel rendered ineffective assistance of counsel due to his failure to move to suppress defendant's statement, obtained in violation of the Fourth and Fifth Amendments (U.S. Const. Amends. IV, V, VI, XIV; N.J. Const. (1947), Art. I, Pars. 1, 7, and 10).

II. THE CUMULATIVE EFFECT OF THE ERRORS RAISED HEREIN DENIED DEFENDANT HIS CONSTITUTIONAL RIGHT TO A FAIR TRIAL, THEREFORE HIS CONVICTIONS MUST BE REVERSED.

III. DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHTS TO TRIAL BY JURY AND FINDINGS BASED UPON PROOF BEYOND A REASONABLE DOUBT WHEN THE TRIAL COURT SENTENCED HIM TO MAXIMUM, NOT PRESUMPTIVE, CONSECUTIVE SENTENCES WITH MAXIMUM PERIODS OF PAROLE INELIGIBILITY BASED ON ITS FINDING OF STATUTORY AGGRAVATING FACTORS (U.S. Const. Amend. VI, XIV; N.J. Const. Art. I, Pars. 8, 9, 10, 11) (Not Raised Below).

In addition, defendant has submitted a supplemental pro se brief which presents the following argument:

THE PCR COURT'S ASSESSMENT OF DEFENDANT'S INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL CLAIM IS ERRONEOUS AS THE FACTS CONTAINED IN DEFENDANT'S PRO SE BRIEF IN SUPPORT OF HIS PCR PETITION ESTABLISHED A PRIMA FACIE CASE OF HIS CLAIMS FOR RELIEF.

We reject these arguments and affirm the denial of defendant's petition for post-conviction relief substantially for the reasons set forth in the trial court's oral opinion of March 4, 2004. We add the following supplemental comments.

Defendant's claim that he received ineffective assistance of counsel in connection with his consent to the waiver of jurisdiction from the Family Part to the Law Division is based on defendant's allegation that his attorney did not inform him that the psychologist who interviewed and evaluated him, Dr. Ronald S. Silikovitz, had issued a report which concluded that defendant was capable of rehabilitation prior to reaching the age of nineteen. Defendant asserts that if he had been aware of this report, he would not have consented to the waiver.

Defendant consented to the waiver on the date of the scheduled waiver hearing. During colloquy with the trial court regarding this consent, defendant acknowledged his understanding that "[defense counsel] was prepared to submit evidence on the question of rehabilitation at this hearing today[,]" and that as a result of his consent to the waiver, "you [defendant] will not have the opportunity to prove to me [the trial court] that you could be rehabilitated by the time you reach 19." In addition, defense counsel informed the court that she had thoroughly discussed the decision to consent to the waiver with both defendant and his mother:

We've discussed the waiver motion on several occasions before, and we just spent, I don't know, somewhere in the vicinity of 20 to 25 minutes discussing it further. And having explained it fully, I gave Mr. Steed an opportunity to think about it and make his decision whether he wanted to go forward with the motion this afternoon or he voluntarily waived.

I've also had an opportunity to explain it to his mother even though he is 18. She's been very attentive through this whole process, and I wanted to make sure she completely understood.

However, neither the trial court nor defense counsel expressly referred to Dr. Silikovitz's report. Despite the omission of any reference to this report on the record, we agree with the trial court's conclusion that there is no need for an evidentiary hearing on defendant's ineffective assistance claim regarding the waiver to the Law Division.

To establish a claim of ineffective assistance of counsel, a defendant must show not only that "counsel's performance was deficient[,]" but also that "the deficient performance prejudiced the defense." State v. Fritz, 105 N.J. 42, 52 (1987) (quoting Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984)). "If a prima facie showing of ineffective assistance of counsel is shown, a hearing may be required to assess the two aspects of such a claim, ineffectiveness and prejudice." State v. Jack, 144 N.J. 240, 254 (1996). To make a prima facie showing, a defendant must demonstrate a reasonable likelihood of succeeding under the Strickland tests. State v. Preciose, 129 N.J. 451, 463 (1992). "[C]ourts should view the facts in the light most favorable to a defendant to determine whether a defendant has established a prima facie claim" that requires an evidentiary hearing. Id. at 462-63. Consequently, "a juvenile claiming the ineffective assistance of waiver counsel must show that expert or otherwise qualified testimony was available to establish a specific plan of rehabilitation such that there was 'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different.'" Jack, supra, 144 N.J. at 254 (quoting Fritz, supra, 105 N.J. at 60-61).

At the time of defendant's offenses, N.J.S.A. 2A:4A-26 provided in pertinent part:

On motion of the prosecutor, the court shall, without the consent of the juvenile, waive jurisdiction over a case and refer that case from the Superior Court, Chancery Division, Family Part, to [the Law Division] if it finds, after hearing, that:

(1) The juvenile was 14 years of age or older at the time of the charged delinquent act; and

(2) There is probable cause to believe that the juvenile committed a delinquent act or acts which if committed by an adult would constitute:

(a) Criminal homicide . . . .

In addition, N.J.S.A. 2A:4A-26a(3) then provided in pertinent part:

However, if in any case the juvenile can show that the probability of his rehabilitation by the use of the procedures, services and facilities available to the court prior to the juvenile reaching the age of 19 substantially outweighs the reasons for waiver, waiver shall not be granted.

Under this provision, there was a strong presumption of waiver of any "Chart 1" offense, such as murder, from the Family Part to the Law Division. State v. R.G.D., 108 N.J. 1, 11-12 (1987); State in the Interest of A.B., 214 N.J. Super. 558, 566-67 (App. Div. 1987), aff'd, 109 N.J. 195 (1988).

In view of this presumption of waiver to the Law Division of a charge of murder, we are satisfied that there was no realistic possibility that a waiver hearing could have resulted in a denial of the State's motion to transfer this case to the Law Division. Consequently, even if defense counsel failed to inform defendant of the results of the Silikovitz report, that failure did not prejudice the defense.

Dr. Silikovitz's report was highly conclusionary, simply stating:

[I]t is this psychologist's professional opinion, within a reasonable degree of psychological certainty, that Mr. Steed, although now eighteen years old, is capable of rehabilitation prior to age nineteen.

Mr. Steed is fully aware that his age, his prior criminal history and the serious nature of the current charges may tend to shed doubt on the likelihood of his rehabilitation prior to age nineteen. In this psychologist's view, Mr. Steed's apparent sincerity, his cooperation with this psychologist, his manifestations of guilt and remorse, his determination to seek help and his willingness to enter and complete a fields program are more significant. Mr. Steed also points out that he did complete the requirements of probation and was within five months of completing the requirements of parole when he was arrested on the current charges.

Dr. Silikovitz did not further explain the basis upon which he concluded that there was a probability defendant could be rehabilitated prior to age nineteen, notwithstanding that defendant was then eighteen years and three months old, had not responded to prior efforts at rehabilitation, and had committed numerous offenses of escalating seriousness. Therefore, we do not believe this report could be found to support even a prima facie showing that defendant was capable of rehabilitation before reaching the age of nineteen.

Moreover, even if the opinions set forth in Dr. Silikovitz's report were considered sufficient to support a finding that defendant could be rehabilitated by age nineteen, there is no realistic likelihood that the Family Court would have found the "probability of [defendant's] rehabilitation

. . . prior to . . . reaching the age of 19 [to] substantially outweigh[] the reasons for waiver." N.J.S.A. 2A:4A-26(a)(3). Defendant was charged with the most serious offense proscribed by the Criminal Code, murder. Furthermore, he had an extremely serious record of prior juvenile offenses, including aggravated assaults, possession of a weapon, two incidents of resisting arrest, and aggravated assault with a firearm. The aggravated assault with a firearm resulted in an eighteen-month sentence to the New Jersey Training School for Boys at Jamesburg, from which defendant was paroled only two months before the April 28, 1996 incident upon which the murder and other charges against him were based. Consequently, even if defendant had not consented to waiver of the charges to the Law Division and had presented Dr. Silikovitz's testimony at a waiver hearing, the waiver still would have been a foregone conclusion. Therefore, it is clear from the undisputed facts that defendant was not prejudiced by any deficiencies in his trial counsel's performance relating to the consent to the waiver to the Law Division.

Defendant's claim that his trial counsel was ineffective in failing to disclose his prior representation of a potential witness for the State is frivolous. This potential witness, Michael Cobb, the cousin of the homicide victim, apparently could have placed defendant at the scene of the crime. However, the State did not call Cobb as a witness, and there is no indication that Cobb could have given testimony favorable to defendant. Therefore, even if defense counsel previously represented Cobb, there is no foundation for a finding that that prior representation could have prejudiced defendant.

Regarding his third ineffective assistance claim, defendant acknowledged in the certification in support of his petition for post-conviction relief that his trial counsel decided not to move to suppress his statement to the police for strategic reasons. Moreover, a review of that statement and defendant's trial testimony shows that they are consistent in most material respects. The prosecutor made only passing reference in his cross-examination to alleged inconsistencies between defendant's trial testimony and the statement, which was supportive of defendant's claim that his actions were taken in self-defense and certainly did not constitute purposeful or knowing murder. Also, the jury apparently credited defendant's version of his confrontation with the victims, at least in part, because it acquitted him of the murder charge.

In reviewing an ineffective assistance of counsel claim, "a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'" Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694-95 (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S. Ct. 158, 164, 100 L. Ed. 83, 93 (1955)). Defendant has not overcome this presumption with respect to trial counsel's decision not to move for suppression of his statement. Furthermore, defendant has not shown a reasonable likelihood that the exclusion of that statement could have affected the outcome of the trial.

Finally, we reject defendant's argument that he had a federal constitutional right to a trial by jury regarding the aggravating factors the trial court identified in sentencing him to terms of imprisonment in excess of the presumptive terms. In State v. Natale, 184 N.J. 458, 466 (2005), the Court held that under Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), Blakeley v. Washington, 542 U.S. 296, 124 S. Ct. 1531, 159 L. Ed. 2d 403 (2004) and other recent decisions of the Supreme Court of the United States, "a sentence above the presumptive statutory term based solely on a judicial finding of aggravating factors, other than a prior criminal conviction, violates a defendant's Sixth Amendment jury trial guarantee." The Court further held that "[t]o bring the Code [of Criminal Justice] into compliance with the Sixth Amendment in a way that the Legislature would have intended, . . . presumptive terms [must be eliminated] from the sentencing process." Ibid. Therefore, under Natale, a trial court is now required to sentence a defendant within the statutory range, after identifying and weighing applicable mitigating and aggravating factors, "without reference to presumptive terms." Ibid. However, this holding applies only "to defendants with cases on direct appeal as of the date of this decision and to those defendants who raised Blakely claims at trial or on direct appeal." Id. at 494. Defendant's claim under Blakely is presented for the first time on appeal from the denial of his petition for post-conviction relief, not on a direct appeal. Therefore, he is not entitled to a remand for resentencing without reference to presumptive terms in accordance with Natale.

 
Affirmed.

By a 1999 amendment to N.J.S.A. 2A:4A-26, this provision was eliminated with respect to any juvenile sixteen years or older who is charged with certain serious offenses, including murder. L. 1999, c. 373, 1. However, the former version of N.J.S.A. 2A:4A-26 applied to defendant's case because the offenses for which he was convicted were committed in 1996.

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A-5318-03T4

January 26, 2006