STATE OF NEW JERSEY v. LEONARD CRUMBS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2264-06T42264-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LEONARD CRUMBS,

Defendant-Appellant.

___________________________________________________________

 

Submitted October 6, 2008 - Decided

Before Judges R. B. Coleman and Sabatino.

On appeal from the Superior Court of New Jersey, Law Division, Morris County, Indictment No. 01-05-0654.

Yvonne Smith Segars, Public Defender, attorney for appellant (Jack Gerber, Designated Counsel, on the brief).

Robert A. Bianchi, Morris County Prosecutor, attorney for respondent (Erin Smith Wisloff, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Leonard Crumbs appeals from the October 10, 2006 order denying his petition for post-conviction relief (PCR) in the Law Division, Morris County. We affirm.

Defendant was charged in Morris County Indictment No. 01-05-0654 with nine counts arising from an armed carjacking that he and co-defendant, Robert Evans, carried out in February 2002.

The nine counts include the following: first-degree carjacking, N.J.S.A. 2C:15-2(a); second-degree conspiracy to commit carjacking, N.J.S.A. 2C:15-2(a); first-degree robbery, N.J.S.A. 2C:15-1; second-degree eluding, N.J.S.A. 2C:29-2(b); second- degree aggravated assault, N.J.S.A. 2C:12-1(b); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); second- degree possession of a weapon for unlawful purpose, N.J.S.A. 2C:394(a); fourth-degree possession of a defaced firearm, N.J.S.A. 2C:39-3(d); and fourth-degree prohibited devices (hollow point bullets), N.J.S.A. 2C:39-3(f). Defendant was tried in February and March 2002, and the jury found him guilty on all nine counts.

On May 3, 2002, the trial court sentenced defendant to an aggregate thirty-year prison term with approximately twenty years of ineligibility for parole. Defendant's challenges to his convictions and sentence were heard on direct appeal in June 2004, and we affirmed in an unpublished opinion dated June 24, 2004. Our Supreme Court denied defendant's petition for certification on September 29, 2004. State v. Crumbs, 181 N.J. 549 (2004). Defendant then sought PCR and his petition for such relief was denied on October 10, 2006. Defendant filed his notice of appeal from the denial of his PCR petition with this court on December 20, 2006.

In this appeal defendant raises a single contention:

POINT I: THE COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF [BECAUSE THE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL AT THE TRIAL LEVEL AND AS SUCH HE WAS DENIED A FAIR TRIAL].

Defendant contends the PCR judge improperly denied the petition as procedurally barred under R. 3:22-5 and urges that the matter should be remanded for a more specific statement of findings of facts and conclusions of law. In its responding brief, the State maintains: (1) that defendant's claims are procedurally barred; (2) that defendant has failed to show ineffective assistance of counsel; and (3) that no evidentiary hearing is required. We agree with the State.

The facts established at the trial in 2002 included the following. In the early hours of December 23, 2000, the defendant, Leonard Crumbs, approached the owner of a Plymouth Neon, Nicholas Amodio, as Amodio was leaving a Dunkin Donuts located in Rockaway Borough. Amodio had just put his keys in the ignition when defendant, using a ruse of asking directions, got in close proximity to Amodio, then produced and pointed a gun at him. Defendant and a co-conspirator, Robert Evans, took possession of the Plymouth Neon and sped away, leaving Amodio in the parking lot. Amodio immediately ran into the store and called the police to report the theft. He reported that he believed four people were involved as he observed another car with two occupants leaving the parking lot within seconds of the thieves speeding away in his car.

Officer Peter Grawehr of the Denville Police Department was in the vicinity of the Dunkin Donuts when he heard a broadcast from the Rockaway Borough dispatcher on the carjacking that had just occurred. Grawehr observed the Plymouth that had just been reported stolen, and he began pursuit. Officer Grawehr chased the Plymouth on Route 46 through Denville, Mountain Lakes and Parsippany, with speeds exceeding 100 m.p.h. at some points. In the Totowa-Paterson area, two state police officers joined the chase which ended when defendant crashed the Plymouth into a concrete barrier on Route 80. Grawehr saw defendant flee the car and pursued him on foot, eventually apprehending him at the bottom of a hill. The passenger, co-defendant Robert Evans, was also apprehended. Evidence retrieved from the car included a nine millimeter handgun, with eight rounds in the magazine and one in the chamber.

In this appeal, defendant alleges that he received ineffective assistance of counsel because his attorney failed to object to comments made by the prosecution, thereby prejudicing defendant and making the outcome of the trial unreliable. The benchmark for any claim of ineffectiveness is a finding that counsel's conduct was so egregious it undermined the adversarial process, making the outcome of the trial unjust. Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2064, 80 L.Ed 2d 674, 692-93 (1984). Courts look to whether there is 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. New Jersey has expressly adopted this two-prong test. State v. Fritz, 105 N.J. 42, 58 (1987).

Thus, to maintain a claim of ineffective assistance of counsel, defendant must demonstrate a reasonable likelihood of succeeding under the two-prong test. First, defendant must establish that counsel's performance was, in fact, deficient. Strickland, supra, 466 U.S. at 687 104 S. Ct. 2064, 80 L.Ed 2d 693. This requires showing that the errors made by counsel were of such magnitude that counsel was not functioning as the "counsel" guaranteed to defendant by the Sixth Amendment. Ibid. Second, the defendant must "show that the deficient performance prejudiced the defense." Ibid. This requires defendant to show that counsel's deficiencies were so deleterious they "deprive[d] the defendant of a fair trial, a trial whose result is reliable." Ibid. Absent meeting both prongs of the Strickland test, defendant cannot establish that his conviction was an unreliable result due to a breakdown in the adversarial process. Ibid.

When evaluating an ineffective assistance claim, "'[j]udicial scrutiny of counsel's performance must be highly deferential,'" and must avoid viewing the performance under the "'distorting effects of hindsight.'" State v. Norman, 151 N.J. 5, 37 (1997) (quoting Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L.Ed 2d at 694). Moreover, 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. Adequate assistance of counsel should be measured by a standard of "reasonable competence." Fritz, supra, 105 N.J. at 60-61. That standard does not require "the best of attorneys," but rather requires that attorneys not be "so ineffective as to make the idea of a fair trial meaningless." State v. Davis, 116 N.J. 341, 351 (1989). Thus, the defendant "must show that there is 'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Fritz supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 694, 104 S.Ct at 2068, 80 at 2068, 80 L.Ed 2d 698). "Reasonable probability" means "'a probability sufficient to undermine confidence in the outcome.'" Ibid. (quoting Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L.Ed 2d at 698).

In the case at bar, the PCR court found that the issue raised by defendant essentially mirrored the issue raised by defendant on direct appeal. There, defendant argued prosecutorial misconduct due to the prosecutor's allegedly improper remarks during summation. Here, defendant alleges ineffective assistance of counsel based on the failure of counsel to object to the prosecutor's allegedly improper remarks during summation. Denying defendant's PCR petition, the trial judge called this "a distinction without a difference." The court found that the issue of whether the prosecutor's comments were improper had been expressly adjudicated on the merits on direct appeal. In fact, the PCR court relied in part on this court's determination that there was no impropriety in the trial prosecutor's comments:

We have reviewed them and find no impropriety, much less plain error. Each of the prosecutor's arguments were in direct response to arguments by defense counsel in his summation. The arguments were all reasonably related to the scope of the evidence presented at trial. The arguments did not stray beyond the bounds of the evidence and the reasonable inferences that could be drawn from that evidence.

[(internal citations omitted).]

Defendant relies on this court's additional comment: "While not dispositive, defense counsel's failure to object to the prosecutor's arguments suggests that they were not perceived as unfair at the time by one who was present throughout the trial." That additional comment, perhaps does "beg the issue" as asserted in defendant's brief on this appeal, but it does not imply that "trial counsel was insufficiently alert to the interjection of comments in the assistant prosecutor's summation," nor does it suggest "inattention on the part of trial counsel." Rather, the comment in our earlier opinion was an observation that the remarks of the prosecutor apparently had not been perceived as improper or prejudicial at the time they were made. It has been observed that this is a reasonable inference generally accepted by our courts. See, e.g., State v. Timmendequas, 161 N.J. 515, 576 (1999); State v. Ramseur, 106 N.J. 123, 323 (1987) ("if no objection was made to the improper remarks, the remarks will not be deemed prejudicial."); State v. Irving, 114 N.J. 427, 444 (1989) ("Failure to make a timely objection indicates that defense counsel did not believe the remarks were prejudicial at the time they were made.") Ibid. "Failure to object also deprives the court of the opportunity to take curative action.").

Judging counsel's performance against the standard of reasonable competence required in the adversarial process, we find no deficiencies that would justify the relief sought by defendant. As we noted in our opinion on direct appeal, the prosecutor's summation contained no improper remarks. Consequently we are satisfied that any objection to them would have failed. Once it is determined that no errors occurred in the prosecutor's summation remarks, failure to object to them cannot be the basis for an assertion of ineffective counsel. State v. Johnson, 216 N.J. Super. 588, 617 (App. Div. 1987). "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 at 2064, 80 L.Ed 2d at 693.

Our Supreme Court has acknowledged that under our case law, "petitioners are rarely barred from raising ineffective-assistance-of-counsel claims on post conviction review." State v. Preciose, 129 N.J. 451, 459-60 (1992). Further, the Court recognized that "[i]neffective-assistance-of-counsel claims are particularly suited for post-conviction relief because they often cannot reasonably be raised in a prior proceeding." Id. at 460. That recognition is premised on the understanding that such claims usually cannot be effectively raised or entertained on direct appeal "because such claims involve allegations and evidence outside the trial record." Ibid. However, where the trial itself provides an adequately developed record upon which to evaluate defendant's claims, appellate courts may consider the issue on direct appeal. State v. Castagna, 187 N.J. 293, 313 (2006). In this instance, the basis for the claim of ineffective assistance, the failure to object to prosecutorial remarks made during summation, was a matter of record.

When an issue such as ineffective assistance of counsel has been raised on direct appeal, "it may be procedurally barred on PCR by Rule 3:22-5." State v. McQuaid, 147 N.J. 464, 484 (1997). Rule 3:22-5 reads:

A prior adjudication upon the merits of any ground for relief is conclusive whether made in the proceedings resulting in the conviction or in any post-conviction proceeding brought pursuant to this rule or prior to the adoption thereof, or in any appeal taken from such proceedings.

[R. 3:22-5.]

"[A] prior adjudication on the merits ordinarily constitutes a procedural bar to the reassertion of the same ground as a basis for post-conviction review." State v. Preciose, supra, 129 N.J. at 475. Claims that differ from those raised in the court below will be heard on PCR. Conversely, courts will preclude claims raised in PCR proceedings if the issue is "identical or substantially equivalent" to that issue previously adjudicated on its merits." McQuaid, supra, 147 N.J. at 484 (quoting Picard v. Connor, 404 U.S. 270, 276-77, 92 S. Ct. 509, 512-13, 30 L.Ed 2d 438, 444 (1971)) (emphasis added). "If the same claim is adjudicated on the merits on direct appeal a court should deny PCR on that issue, thereby encouraging petitioners to raise all meritorious issues on direct appeal." McQuaid, supra, 147 N.J. at 484.

Defendant is barred from asserting this claim as it is identical or substantially equivalent to his claim on direct appeal. We affirm the trial court's conclusion that this claim is a "distinction without a difference."

No evidentiary hearing is required when "[a]ll of defendant's grounds for his ineffective assistance of counsel claim relate to what transpired at trial." State v. Moore, 273 N.J. Super. 118, 127 (App. Div. 1994). Post-conviction relief cannot be a "substitute for a direct appeal, and a defendant who relies upon grounds which could have been raised in a prior proceeding may be barred from post-conviction relief." State v. Preciose, supra, 129 N.J. at 459. Here, there are no facts outside the trial record, and the grounds on which defendant bases his claims have already been found to be without merit by this court in a prior proceeding. Accordingly, no evidentiary hearing needed to be granted. This defendant has been afforded the opportunity to be heard and we now provide a "finality in judicial proceedings." State v. Goodwin, 173 N.J. 583, 593 (2002).

Affirmed.

 

Evans was charged only in count one, first-degree carjacking; count two, second-degree conspiracy to commit carjacking; and count three, first-degree robbery. None of the issues involved in this appeal concern Evans.

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A-2264-06T4

October 31, 2008