STATE OF NEW JERSEY v. STEVEN WILLIAMSON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0706-06T40706-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

STEVEN WILLIAMSON,

Defendant-Appellant.

__________________________________________

 

Submitted January 14, 2009 - Decided

Before Judges Rodr guez, Payne and Lyons.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 01-06-0700.

Yvonne Smith Segars, Public Defender, attorney for appellant (David A. Gies, Designated Counsel, of counsel and on the brief).

Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Meredith L. Balo, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Steven Williamson appeals from the denial of his petition for post conviction relief (PCR). We affirm.

These are the salient facts. On February 15, 2001, defendant and co-defendant Herbert Behlin went inside a BP-Amoco gas station in Elizabeth. Behlin displayed an unlicensed, loaded handgun and pointed it at several BP-Amoco employees. The entire event was recorded by a security camera. The police arrived soon thereafter. They attempted to place defendant and Behlin under arrest. Defendant resisted with physical force. Eventually, he was subdued and both men were arrested.

At defendant's trial, after a jury had been sworn, Behlin was preliminarily called by defendant to offer exculpatory testimony. Behlin invoked his Fifth Amendment privilege against self-incrimination. Thereafter, on the advice of counsel, and after conferring with his sister-in-law Stephanie Chambers, defendant pled to an open indictment. Defendant gave the following factual basis under oath:

[COURT]: And we're going to deal with all these charges kind of at the same time. And on that same date, February 15th, 2001, were you with Herbert Behlin?

[DEFENDANT:] Yes.

Q. The two of you entered into an AMOCO gas station?

A. Yes.

Q. While in that gas station did Mr. Behlin pull out a handgun, a live, real handgun that's operable?

A. Yes.

Q. And in fact he displayed that gun, pointed the gun at the people who were working in the AMOCO station, the attendants, is that right?

A. Yes.

Q. And you were there?

A. Yes, I was there.

Q. And you shared the purpose that that gun be displayed and pointed at them?

A. Yes.

Q. And in fact he didn't have a permit to carry that handgun that you were aware of, correct?

A. Not that I'm aware of.

Q. You didn't have a permit to carry it, right?

A. Not that I'm aware of.

Q. And the purpose of taking that gun was to threaten those two men in that store so they would give the monies and property over belonging to the AMOCO station. In other words, to commit the robbery, is that accurate?

A. Yes.

Q. Again, you shared that purpose with Mr. Behlin to do that, correct?

A. Yes.

Q. And in fact the firearm was pointed at the two gentlemen who were in the store at the time?

A. Yes.

. . .

Q. Now, eventually on the same date did police officers attempt to place you under arrest?

A. Yes.

Q. Did you know they were police officers?

A. Yes, I knew.

Q. And did you use physical force - what is the basis of the resisting, Miss Carpenter?

[DEFENSE COUNSEL]: There was a struggle and my client struggled a little bit.

[THE COURT]: You were pulling away, thrashing your arms, striking the police officer while he was trying to place you under arrest and using that as physical force to get away from the officer?

[DEFENSE COUNSEL]: Yes as -

Q. Is that accurate?

[DEFENDANT]: I didn't strike anyone.

[DEFENSE COUNSEL]: Did you struggle with the cop when he had you on the floor?

[DEFENDANT]: Yes.

[THE COURT]: You were struggling with him and using force to try and get away to prevent him from arresting you, is that accurate?

[DEFENDANT]: Yes.

Thus, defendant was convicted of fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(4) (count one); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count two); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count three); first-degree robbery, N.J.S.A. 2C:15-1 (count four); and third-degree resisting arrest, N.J.S.A. 2C:29-2(a) (count five).

Judge Walter R. Barisonek merged counts one, two and three into count four and imposed a fifteen-year term with a NERA parole disqualifier on count four. A concurrent four-year term was imposed on count five. Defendant appealed. At an Excessive Sentence Oral Argument (ESOA) hearing, we affirmed. State v. Williamson, No. A-3601-02T4 (App. Div. Jan. 30, 2004), certif. denied, 180 N.J. 152 (2004).

Defendant filed pro se a first PCR petition, alleging among other things, that his trial counsel provided constitutionally inadequate representation because she exerted undue influence over him to plead guilty in spite of his protestation of innocence. Judge Barisonek determined that defendant was entitled to an evidentiary hearing. Defendant, Chambers and trial counsel testified at the PCR hearing. In addition, the parties agreed to admit into evidence an unsigned certification by Lewis Terry, a person who was confined at the East Jersey State Prison with Behlin. The parties agreed that Terry would have testified that Behlin told him that defendant did not know of the robbery beforehand and did not know Behlin possessed a weapon.

According to defendant's testimony, once Behlin exercised his Fifth Amendment privilege, trial counsel pressured him to plead guilty, although he proclaimed he was innocent of the crime. He alleges to have previously communicated his innocence to trial counsel and discussed the possibility of putting forth an intoxication defense, given the fact that he was "really high" on the day the crime was committed. He agreed to plead guilty only because he was facing a thirty-year prison sentence.

Chambers testified that she spoke with trial counsel in the hallway prior to defendant's plea, and they discussed the overwhelming evidence on the State's side and defendant's sentence exposure. She admitted to briefly conferring with defendant on trial counsel's advice. Chambers told defendant to plead guilty, which she alleged he reluctantly agreed to do.

Trial counsel conducted a pretrial investigation, reviewing the statements given to police by the three eyewitnesses (a priest and two gas station attendants). She also reviewed, with defendant, the surveillance videotape from the BP-Amoco gas station, which had recorded the robbery and caught defendant on camera. Then, at defendant's behest, she agreed to subpoena Behlin to testify, based upon defendant's insistence that Behlin would be able to provide the court with exculpatory evidence on his behalf. After Behlin invoked his Fifth Amendment privilege, and given the quantity and quality of the State's evidence, trial counsel advised defendant that it would be in his best interest to plead to an open indictment rather than proceed to trial. Trial counsel reiterated to defendant that he had no other defense witnesses.

When trial counsel testified whether she had any recollection of defendant telling her that he was innocent of the charges, she initially stated, "I don't recall," but later, after refreshing her memory with a brief review of the trial file, unequivocally stated he had not. Trial counsel also testified that, even though defendant claimed he was intoxicated at the time of his arrest, the jail's medical records yielded no corroborating evidence that defendant had been treated for withdrawal symptoms while in custody. Finally, although trial counsel admitted that she spoke with Chambers about defendant's case and tried to explain to her that he should plead guilty, she flatly denied that they ever spoke about the fact that he was innocent of the charges. As to the allegation that she was somehow ineffective for failing to interview Behlin prior to his scheduled testimony, trial counsel asserted that she subpoenaed him, which was all she could do.

At the conclusion of the testimony, the judge found that "the defendant did admit his guilt [in] . . . Court, never indicat[ing] he was innocent . . . ." Moreover, the trial court stated:

I find that while maybe [defendant] did not give every factual detail to [trial counsel] concerning his involvement, he knew what that videotape showed, he knew in fact that he was a participant, albeit he believed that he may not be convicted because he didn't have the gun in his hand, but once he admitted to me on the record that in fact his codefendant had the gun, that he was in the store with the codefendant and they shared the same purpose, that is an admission of guilt and that is not innocence.

While there may have been conversation between the two as to the extent of his involvement, it is quite clear that in fact he was not innocent in the sense that he acted as an accomplice. In terms of a primary mover and the person with the gun, perhaps that's what he was trying to express but that's not what he told me on this record.

. . . .

I find in fact the plea was knowingly and voluntarily entered into. I find that there was no ineffective assistance. I find that [trial counsel] did not force the plea upon him and that once [trial counsel] explained to him what he faced by way of sentencing [and] . . . that he was better off to take the plea agreement than take the risk and go to trial[,] . . . he did so[,] . . . knowingly and voluntarily.

On appeal defendant contends:

THE PCR COURT ERRED WHERE IT PRECLUDED THE DEFENDANT FROM TESTIFYING AS TO WHY HE WAS NOT AN ACCOMPLICE IN THE ROBBERY DESPITE THE FACT IT RELIED ON HIS FAILURE TO PROVE HIS INNOCENCE IN REJECTING HIS PETITION.

We disagree.

It is well settled that to prevail on an ineffective assistance of counsel claim, the defendant must satisfy a two-pronged test articulated by the Supreme Court in Strickland and later adopted by the New Jersey Supreme Court in Fritz. This standard requires that the defendant put forth affirmative proof, and not simply make bare assertions, showing that counsel's representation deviated from widely-accepted legal standards, and that counsel's shortcomings resulted in prejudice to defendant. Strickland, supra, 466 U.S. at 690, 692, 104 S. Ct. at 2066, 2067, 80 L. Ed. 2d at 695, 696. It is not merely "enough for the defendant to show that the error or errors had some conceivable effect on the outcome of the trial." State v. Sheika, 337 N.J. Super. 228, 242 (App. Div.), certif. denied, 169 N.J. 609 (2001). Rather, the defendant must show "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 60-61.

Here, pursuant to the Strickland/Fritz standard, the judge found that defendant's plea of guilty was voluntary and true despite his prior protestations of innocence. Moreover, the videotape and the eyewitnesses' testimony overwhelmingly demonstrated defendant's guilt. Finally, identification was not an issue because defendant was arrested at the scene. We conclude that the judge's findings are rational and supported by the evidence. Therefore, defendant failed the second Strickland/Fritz prong. He suffered no harm. When he was before Judge Barisonek reciting the factual basis to support his guilty plea, he never invoked his innocence while under oath. As the judge found, the video clearly showed that defendant was not innocent of the crime.

Defendant also contends:

THE DEFENDANT'S TRIAL ATTORNEY WAS CONSTITUTIONALLY INEFFECTIVE WHERE HER UNTIMELY EVALUATION OF THE STATE'S CASE IN TERMS OF A CO-DEFENDANT'S UNSUSPECTED INVOCATION OF THE PRIVILEGE AGAINST SELF-INCRIMINATION INDUCED HER TO PRESSURE THE DEFENDANT INTO A GUILTY PLEA ON THE DAY OF TRIAL AFTER A JURY WAS SWORN.

This argument has no merit.

It is axiomatic that an attorney has an ethical obligation to abstain from communicating with "a person the lawyer knows, or by the exercise of reasonable diligence should know, to be represented by another lawyer in the matter, . . . unless the lawyer has the consent of the other lawyer, or is authorized by law or court order to do so . . . ." RPC 4.2. In the criminal context, RPC 4.2 becomes operable "only after adversarial proceedings have begun by arrest, complaint or indictment on the charges which are the subject of the communication." State v. Bisaccia, 319 N.J. Super. 1, 22 (App. Div. 1999). Therefore, trial counsel could not interview Behlin.

Moreover, the fact that trial counsel urged her client to accept a plea rather than expose himself to more jail time, is in no way remarkable. More importantly, a cogent argument, which suggests that a plea is the best course of action for a client, does not amount to the use of force, especially under these circumstances. Indeed, even if Behlin had managed to testify on defendant's behalf, it is unlikely that such testimony would have been credited by the jury. This is so because the objective video evidence depicts defendant as a willing participant, coupled with the testimony of the two gas station attendants, who stated that they were threatened with physical harm by both defendant and Behlin.

Defendant also contends:

NERA IS NOT APPLICABLE WHERE A DEFENDANT DOES NOT SHARE WITH THE PRINCIPAL THE SAME MENTAL STATE REGARDING THE USE OF THE WEAPON (Partially Raised Below).

We disagree because defendant admitted at the plea hearing that he shared the same intent and state of mind.

Defendant also argues:

CONSTITUTIONAL DUE PROCESS REQUIRES THE GRANT OF IMMUNITY TO A DEFENSE WITNESS WHERE THE DEFENDANT IS PREVENTED FROM PRESENTING EXCULPATORY EVIDENCE CRUCIAL TO THE DEFENSE (Not Raised at Trial).

AN INDICTMENT CANNOT SURVIVE WHERE THE WITNESS IS A STRANGER TO THE EVENT AND CAN TELL THE INQUEST NOTHING ABOUT IT.

These contentions are clearly without merit and do not warrant discussion in a written opinion. R. 2:11-3(e)(2). We merely note that there is no legal support for the contention that Behlin should have been granted immunity. Moreover, this relief was not raised before the PCR judge. As for the alleged deficiency in the indictment, that issue was waived as a result of the guilty plea.

 
Affirmed.

No Early Release Act, N.J.S.A. 2C:43-7.2.

Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984).

State v. Fritz, 105 N.J. 42, 60-61 (1987).

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A-0706-06T4

July 15, 2009