STATE OF NEW JERSEY v. WAYMON CHESTER

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1888-07T41888-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

WAYMON CHESTER,

Defendant-Appellant.

_________________________________

 

Submitted March 10, 2009 - Decided

Before Judges Wefing and Parker.

On appeal from Superior Court of New Jersey,

Law Division, Essex County, Nos. I-01-05-2155

and I-01-10-4261.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Steven M. Gilson, Designated

Counsel, of counsel and on the brief).

Paula T. Dow, Essex County Prosecutor,

attorney for respondent (Kenneth P. Ply,

Assistant Prosecutor, of counsel and on the

brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant appeals from a trial court order denying his petition for post-conviction relief. After reviewing the record in light of the contentions advanced on appeal, we affirm.

Two indictments were returned against defendant. Indictment 01-05-2155 charged defendant with fourth-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10(a)(3); third-degree possession of a controlled dangerous substance with intent to distribute, N.J.S.A. 2C:35-5(b)(3); third-degree possession of a controlled dangerous substance with intent to distribute within one thousand feet of school property, N.J.S.A. 2C:35-7; second-degree possession of a controlled dangerous substance with intent to distribute within five hundred feet of a public housing facility, N.J.S.A. 2C:35-7.1; and third-degree resisting arrest, N.J.S.A. 2C:29-2. Defendant was tried to a jury, which found him guilty on the drug charges as charged and guilty of fourth-degree resisting arrest as a lesser-included offense of third-degree resisting arrest. At sentencing, the trial court merged all of the narcotics offenses into the second-degree charge of possession within five hundred feet of a public housing facility and sentenced defendant to ten years in prison, with a three-year period of parole ineligibility. It also sentenced defendant to a concurrent five years in prison for resisting arrest. Defendant appealed his convictions and sentence, and we affirmed his convictions but remanded the matter for re-sentencing in light of the concededly improper sentence for fourth-degree resisting arrest. State v. Chester, No. A-6646-02 (App. Div. Oct. 27, 2005). The Supreme Court denied certification. State v. Chester, 186 N.J. 242 (2006).

Defendant was charged in Indictment 01-10-4261 with second- degree conspiracy, N.J.S.A. 2C:5-2; first-degree carjacking, N.J.S.A. 2C:15-2; three counts of first-degree robbery, N.J.S.A. 2C:15-1; three counts of third-degree criminal restraint, N.J.S.A. 2C:13-2; two counts of third-degree terroristic threats, N.J.S.A. 2C:12-3(b); three counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(3); three counts of second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); and one count of third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b).

Following a trial court order severing the conspiracy and carjacking counts, defendant was tried on the remaining counts in the indictment and convicted on all counts. He was then tried for conspiracy and carjacking. He was acquitted of conspiracy and convicted of carjacking. The trial court sentenced defendant on Indictment 01-10-4261 on the same day it sentenced him under Indictment 01-05-2155. It structured defendant's sentence on Indictment 01-10-4261 to achieve its stated purpose of having defendant serve a combined aggregate sixty-five years in prison, with a forty-five-year period of parole ineligibility under both indictments. Defendant filed separate notices of appeal with respect to his carjacking conviction and the balance of his convictions. We affirmed defendant's conviction and sentence for carjacking. State v. Chester, No. A-6760-03 (App. Div. Oct. 27, 2005). We also affirmed his remaining convictions but remanded one aspect of defendant's sentence. State v. Chester, No. A-6761-03 (App. Div. Oct. 27, 2005). The Supreme Court denied his petitions for certification with respect to both. State v. Chester, 186 N.J. 242 (2006).

Defendant filed a timely petition for post-conviction relief. After reviewing defendant's brief and hearing oral argument, the trial court denied defendant's petition, and this appeal followed. On appeal, defendant raises the following issues for our consideration:

DEFENDANT'S CONVICTIONS MUST BE REVERSED DUE TO INEFFECTIVE ASSISTANCE OF COUNSEL; IN THE ALTERNATIVE, THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE A PRIMA FACIE CASE WAS ESTABLISHED AS TO INEFFECTIVENESS OF COUNSEL

A. Indictment No. 2001-5-2155

B. Indictment No. 2001-10-4261 (Counts One Through Seventeen)

C. Indictment No. 2001-10-4261 (Count Two)

D. Indictment No. 2001-10-4261 (Counts One, Three Through Seventeen)

The standard by which we must measure a defendant's claim that a trial court erred in denying him post-conviction relief is well-known. A defendant who asserts that he is entitled to post-conviction relief because he did not receive the effective assistance of counsel must overcome a presumption that defense counsel's "conduct falls within the wide range of reasonable professional assistance . . . ." Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 2065, 80 L. Ed. 2d 674, 694 (1984). In addition, he must also establish that his attorney's performance was "deficient" and that "the deficient performance prejudiced the defense." Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. See also United States v. Cronic, 466 U.S. 648, 653-57, 104 S. Ct. 2039, 2043-46, 80 L. Ed. 2d 657, 664-67 (1984) (discussing generally the requirement of effective counsel).

A showing that the error complained of had some conceivable effect on the outcome of the trial is insufficient. "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." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. Our Supreme Court has expressly adopted this two-pronged standard to measure claims of ineffective assistance of counsel. State v. Fritz, 105 N.J. 42, 58 (1987).

With respect to Indictment 01-05-2155, defendant asserts his trial attorney was ineffective in two respects, in failing to object to a remark during the prosecutor's opening statement and in advising defendant to testify in his own defense.

In our opinion affirming defendant's convictions we noted that defendant was observed by two Newark police officers engaging in a hand-to-hand transaction. When defendant observed the two officers, he fled, discarding seven glassine envelopes of heroin. When he was apprehended, he was found to have an additional thirty glassine envelopes in his possession. Chester, supra, No. A-6646-02 (slip op. at 3).

In his opening statement the prosecutor said of the defendant:

And he's just not your everyday drug dealer, but -- but a heroin dealer, to boot, an individual making an illegal buck off of an illegal day's work. And if that's not bad enough, where he's selling the drugs is right there in our own neighborhoods, in Newark, in a neighborhood in which we have actually two schools no more than a thousand feet from where he's selling his drugs, a neighborhood where we have a public library not more than 500 feet where he's out there selling his drugs.

We agree with the conclusion of the trial court that even if we were to assume hypothetically that these remarks were in some way improper (a determination we have not made), there is no reasonable prospect that the failure of defendant's trial attorney to interpose an objection led to defendant's conviction. Defendant cannot meet the second prong of the Strickland/Fritz test with respect to his first assertion of ineffective assistance of counsel.

We also agree with the trial court with respect to defendant's second assertion of ineffective assistance of counsel under this indictment. The defense put forth in response to these charges was that defendant possessed the heroin for his own personal use, not with the intent to distribute it. The only way that counsel could argue such a position to the jury was if there were facts in the record to support it; that required defendant to testify. Counsel is not ineffective because the jury was not persuaded by defendant's testimony.

With respect to Indictment 01-10-4261, defendant contends that his attorney was ineffective in three ways, the first of which is that his trial attorney did not properly advise him about his overall sentence exposure in connection with the plea bargain that the State had offered to him. The record does reflect that the State had offered to recommend a sentence not to exceed thirty years if defendant were to plead guilty. Defendant asserts his attorney was ineffective because he was not advised that he faced a maximum sentence in excess of one hundred years if he were to be convicted on all counts. Defendant relies upon State v. Taccetta, 351 N.J. Super. 196 (App. Div.), certif. denied, 174 N.J. 544 (2002). That case, however, is distinguishable. In that case, the defendant's petition was accompanied by the certification of his trial attorney that he had not correctly calculated the potential sentencing consequences when he advised the defendant in connection with plea negotiations. Id. at 199. Defendant did not offer anything comparable to the trial court.

The record before us on this appeal includes the transcripts of the earlier proceedings before the trial court. The transcript of July 19, 2002, reflects that an offer of thirty years had been conveyed to defendant and that defense counsel made a counter-proposal. The transcript does not recite the details of that counter-proposal. The prosecutor indicated that he had to consult with the victim before responding but that he was not optimistic. The trial court then informed defendant that the plea cutoff date was looming and that no extensions of that date would be granted. The trial judge told defendant that whatever decision he was going to make with respect to plea negotiations had to be made before the plea cutoff date, and defendant acknowledged he understood. The trial court then made the following statement to defendant:

Okay. And that involves whatever the offer is, if it's not acceptable to you when (sic) you go forward -- decide you want to go forward to trial, if you change your mind the next day or two days later, it's too late, okay.

So [defense counsel] I'm sure has told you or will tell you again the cumulative amount of time that you're facing on these various counts in these two indictments, against whatever the offer is that they've offered you, and you have to make that decision and weigh the pros and cons.

Defendant gave no indication in response that he did not understand the potential consequences for him if he were to be convicted at trial.

Defendant also contends that his attorney was ineffective in not objecting to the following remark of the prosecutor in summation: "I think what most of you will find you're not going to find a case with more compelling evidence, more evidence than you've seen in this particular case." This remark was not, as defendant maintains, an improper expression of the prosecutor's personal opinion on defendant's guilt but, rather, merely a comment on the strength of the evidence that had been presented at trial. As such, it was entirely proper, and defendant's trial attorney was not ineffective for not interposing an objection.

Defendant also contends that his attorney was ineffective for not objecting to the following passage in the prosecutor's opening statement.

You know, sometimes there are crimes, crimes that are so heinous they're unspeakable. Unfortunately, we're going to have to speak about them.

Sometimes there are acts that are so personal, so intimate that they can't be revealed, but unfortunately they will have to be revealed.

Many people were victimized on the 14th day of May, 2001, here in the City of Newark. And they never dreamed that day when they began that day how their lives will be utterly changed.

A little earlier that day, across town from 55 Halsey Street, a little ways away, at the Gateway Center, Toshia Hall was getting off of work. She worked at Blue Cross Blue Shield in downtown Newark. She was the beautiful daughter of Lenzy Hall, who owns a health food store at 55 Halsey Street. And she was going there to the store to help her father out.

She got off work about five or so that afternoon and walked the several blocks to get to the store. She was going there that afternoon in particular because she said she wanted to console her father. Her father just experienced the loss of two very dear and close friends. So she was there to kind of lend him some moral support, help out in the store, take a little bit of pressure off him, lift the burden from his shoulders.

Lenzy was [a] proud father of his daughter, Toshia, and he was waiting for when she arrived at about 5:20 that afternoon.

[(emphasis added).]

"[A] prosecutor cannot be expected to present the State's case in a manner appropriate to a lecture hall." State v. Wilson, 57 N.J. 39, 50 (1970) (quoting State v. Johnson, 31 N.J. 489, 510-11 (1960)). The silence of defendant's attorney in the face of this descriptive language was not ineffective; an objection would have been properly overruled. Again, defendant cannot satisfy the two-pronged Strickland/Fritz test.

Defendant asserts that his attorney was also ineffective for failing to advise him to testify at this trial. Defendant's attorney, however, had the perspective of seeing how defendant fared as a witness in the trial under Indictment 01-05-2155, at which the jury clearly rejected his testimony. In denying this aspect of defendant's petition, the trial court correctly noted that the decision whether to recommend a client testify involves trial strategy and, further, there was no reasonable prospect that the outcome would have been different if defendant had testified.

We also reject defendant's next assertion, that his attorney was ineffective for not presenting the testimony of a fingerprint expert to counter the expert testimony offered by the State. There are no facts contained within this record which would support an inference that such countervailing testimony either could have been offered or would have significantly strengthened the defense.

 
Defendant has filed a pro se supplemental letter-brief in which he contends that the attorney who represented him in connection with his petition for post-conviction relief was ineffective for not advancing the argument that defendant's trial attorney was ineffective for not moving to dismiss the indictment. Defendant rests his argument upon State v. Webster, 187 N.J. 254, 257-58 (2006), State v. Rue, 175 N.J. 1, 18-19 (2002), and Rule 3:22-6(d), which state that "[c]ounsel should advance any grounds insisted upon by defendant notwithstanding that counsel deems them without merit." Although post-conviction relief counsel should have complied with defendant's request and put this argument before the trial court, his failure in this regard does not entitle defendant to any relief. The omitted contention has no substantive merit and thus again defendant cannot establish the second prong of the Strickland/Fritz test.

Affirmed.

We note, of course, the incongruity in defendant maintaining his attorney was ineffective in the first matter for advising him to testify and ineffective in the second matter for not advising him to testify.

(continued)

(continued)

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A-1888-07T4

April 21, 2009