STATE OF NEW JERSEY v. NATHANIEL SIMMONS

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1745-06T41745-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

NATHANIEL SIMMONS,

Defendant-Appellant.

____________________________________________________

 

Submitted May 13, 2009 - Decided

Before Judges Fisher and C.L. Miniman.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 00-06-0600.

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

James F. Avigliano, Passaic County Prosecutor, attorney for respondent (Christopher W. Hsieh, Senior Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant was charged with first-degree murder, N.J.S.A. 2C:11-3a, and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d, as the result of the fatal stabbing of Alberto Perez, following a dice game in Paterson on February 21, 2000. Pursuant to a plea agreement, defendant pled guilty to aggravated manslaughter, N.J.S.A. 2C:11-4.

Prior to sentencing, defendant unsuccessfully moved to retract his guilty plea. On June 9, 2001, the judge sentenced defendant to a twenty-year prison term with an 85% period of parole ineligibility. Defendant appealed, arguing that the sentence was excessive. With the exception of a remand for a clerical correction of the judgment of conviction, we affirmed. State v. Simmons, No. A-5218-01T4 (App. Div. December 30, 2002).

On August 23, 2004, defendant filed a pro se petition for post-conviction relief (PCR), which was later amended and supplemented upon the assignment of counsel, arguing he was denied the effective assistance of counsel because his trial attorney failed to adequately consider the strength of a claim of self-defense and failed to investigate whether someone else stabbed Perez. Defendant also argued that his appellate counsel was ineffective. The PCR judge denied relief, without permitting an evidentiary hearing, for reasons set forth in a written opinion.

Defendant appealed, presenting the following arguments for our consideration:

I. DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL DURING THE PLEA PROCEEDINGS FOR COUNSEL[']S FAILURE TO INVESTIGATE THE FACTS OF THE CASE RELATIVE TO THE AFFIRMATIVE DEFENSE OF SELF PROTECTION.

II. TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO INTERVIEW AVAILABLE WITNESSES WHICH COULD HAVE BROUGHT REASONABLE DOUBT TO THE CRIME FOR WHICH THE DEFENDANT WAS CHARGED.

III. DEFENDANT HAS SUBMITTED PRIMA FACIE EVIDENCE THAT HE RECEIVED INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL.

IV. DEFENDANT HAS SUBMITTED PRIMA FACIE EVIDENCE THAT HE RECEIVED INEFFECTIVE ASSISTANCE FROM TRIAL AND APPELLATE COUNSEL AND IS THEREFORE ENTITLED TO AN EVIDENTIARY HEARING.

We find insufficient merit in these arguments to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add only the following comments regarding Points I and II.

When a defendant claims a deprivation of the effective assistance of counsel, the following test applies:

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.

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

This same test is applied when considering whether an accused has been deprived of the state constitutional promise of the effective assistance of counsel. State v. Fritz, 105 N.J. 42, 59 (1987).

In defining the level of competence required by the federal and state constitutions, it is understood that "[n]o particular set of detailed rules for counsel's conduct can satisfactorily take account of the variety of circumstances faced by defense counsel or the range of legitimate decisions regarding how best to represent a criminal defendant." State v. Castagna, 187 N.J. 293, 314 (2006) (quoting Strickland, supra, 466 U.S. at 688-89, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694). In addition, courts apply "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance," Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694, and to rebut that strong presumption, "a defendant must establish that trial counsel's actions did not equate to 'sound trial strategy,'" Castagna, supra, 187 N.J. at 314 (quoting Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694-95). In adjusting these principles when a defendant has pled guilty, the first prong remains the same and the second prong "focuses on whether counsel's constitutionally ineffective performance affected the outcome of the plea process." Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 210 (1985). To satisfy the second prong's prejudice requirement, "the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Ibid.

Our application of these principles demonstrates that counsel's performance was not ineffective as defined by the Strickland/Fritz test. Defendant's two chief arguments relate to his trial counsel's advice regarding self-defense and counsel's alleged failure to fully explore information that suggested another person stabbed Perez.

Obviously, had defendant gone to trial, he would not have been able to credibly argue simultaneously that he did not stab Perez but, if he did, he acted in self-defense. Eventually, defendant would have had to choose one or the other theory. Nevertheless, we consider these two contentions separately and conclude that defendant failed to demonstrate his trial counsel's ineffectiveness on either point.

As for the argument that trial counsel did not adequately investigate whether someone else fatally stabbed Perez, defendant did not come forward with affidavits or certifications to support that claim -- a failure that precluded his right to an evidentiary hearing on this point. See State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Moreover, this argument runs counter to defendant's custodial statement, in which he acknowledged that he stabbed Perez.

With regard to self-defense, we examine defendant's argument in light of the accepted notion that a defendant is not criminally liable when acting out of self-preservation. State v. Jenewicz, 193 N.J. 440, 450 (2008). Our criminal code recognizes that the use of force may be found justifiable "when the actor reasonably believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion." N.J.S.A. 2C:3-4a. And the use of deadly force is justifiable only if "the actor reasonably believes that such force is necessary to protect himself against death or serious bodily injury . . . and [t]he actor knows that he can[not] avoid the necessity of using such force with complete safety by retreating." N.J.S.A. 2C:3-4b(2).

The statement defendant gave to police described a verbal dispute, which escalated when Perez "picked up a bottle and threw it at" defendant. Then, after a period of time, Perez again "walk[ed] towards [defendant] and picked up a broken bottle from the ground" and "threw [it] at" him. As Perez continued to "com[e] at" him, defendant "pulled out a knife from [his] back pocket and stabbed [Perez] two or three times." In addition, after Perez ran away, defendant "started chasing him" until someone intervened and took the knife away. Undaunted, defendant "grabbed a shovel and was looking down the street to see where [Perez] was going," but eventually left the area.

These facts do not comfortably fit the circumstances that justify the use of deadly force. That, however, is not exactly the point we consider. Instead, the question is whether defendant's trial attorney provided competent advice regarding the sufficiency of self-defense prior to the entry of a guilty plea. In that regard, we have defendant's own words; when examined during the plea colloquy, which was the culmination of many meetings between counsel and client, defendant provided the following sworn testimony:

Q. Okay. And you understand by presenting a case to a jury it's up to the jury to decide what verdict; they could find you not guilty or they could find you guilty of murder or any charge in between. Do you understand that?

A. Yes.

Q. Okay. Now, one of the potential issues here that we discussed was the issue of self protection or what is commonly called self defense. Is that correct?

A. Yes.

Q. And I told you under the law that you can't assert a defense of self defense if you, number one, use excessive force, all right, or number two, you had an opportunity to retreat without being injured, is that correct?

A. Yes.

Q. All right. And there is an issue here of, number one, excessive force and there is an issue here of whether or not you could have retreated, is that correct? Whether or not you could have run away rather than going after him and stabbing him, is that correct?

A. Yes.

Q. Those issues would have had to be decided by a jury. They could be decided in your favor, they could be decided against you. Do you understand what I'm saying?

A. Yes.

The judge also questioned defendant regarding the advice given by his counsel:

THE COURT: Did your lawyer answer any questions you may have about this case?

THE DEFENDANT: Yes.

THE COURT: He answered all your questions?

THE DEFENDANT: Yes.

Following a thorough examination into whether defendant was freely and voluntarily proceeding, defendant pled guilty.

The record does not provide evidence supportive of defendant's contention that his trial counsel rendered unsound advice. To the contrary, the record reflects that counsel met with defendant on numerous occasions and discussed defendant's use of force and whether it could result in an acquittal or a conviction on a lesser offense if defendant went to trial. In light of defendant's own custodial statement, the success of a theory based on self-defense was questionable at best. Accordingly, we agree with the PCR judge that defendant failed to present a prima facie entitlement to post-conviction relief.

As mentioned earlier, we find insufficient merit in defendant's other arguments to warrant discussion in a written opinion. R. 2:11-3(e)(2).

 
Affirmed.

Defendant acknowledged during the plea hearing that counsel had met with him on nine separate occasions.

(continued)

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A-1745-06T4

June 1, 2009