STATE OF NEW JERSEY v. CARL ESPERANCE

(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NOT FOR PUBLICATION WITHOUT THE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-3105-06T43105-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CARL ESPERANCE, a/k/a JAHLIL MOORE,

a/k/a MOSES JOHNSON,

Defendant-Appellant.

________________________________

 

Submitted March 17, 2009 - Decided

Before Judges Wefing and LeWinn.

On appeal from Superior Court of New Jersey,

Law Division, Essex County, No. I-99-07-2592.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Mark Zavotsky, Designated Counsel,

on the brief).

Paula T. Dow, Essex County Prosecutor, attorney

for respondent (Jennifer C. Fetterman, Assistant

Prosecutor, of counsel and on the brief).

PER CURIAM

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

Indictment No. 1999-07-2592 charged defendant with second-degree burglary, N.J.S.A. 2C:18-2; first-degree kidnapping, N.J.S.A. 2C:13-1(b)(1); third-degree terroristic threats, N.J.S.A. 2C:12-3(b); two counts of unlawful possession of a weapon, one in the fourth degree and one in the third degree, N.J.S.A. 2C:39-5(d), -5(b); two counts of second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1), and one count of fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(4); two 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 possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d); one count of third-degree receiving stolen property, N.J.S.A. 2C:20-7; and one count of second-degree eluding, N.J.S.A. 2C:29-2(b).

Defendant was tried to a jury. During trial, the court dismissed one count each of second-degree assault and second-degree possession of a weapon for an unlawful purpose and dismissed the sole receiving stolen property count. The jury found defendant guilty of burglary, kidnapping, terroristic threats, fourth-degree unlawful possession of a weapon, third-degree possession of that weapon for an unlawful purpose, and eluding. They found defendant not guilty of the balance of the charges.

The trial court sentenced defendant to fifteen years in prison for kidnapping, subject to the 85% parole ineligibility provisions of the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2. All other terms were made concurrent. Defendant appealed his convictions and sentence and we affirmed in an unpublished opinion. State v. Esperance, No. A-1048-00 (App. Div. Oct. 25, 2001). The Supreme Court denied defendant's petition for certification. State v. Esperance, 171 N.J. 337 (2002).

Defendant thereafter filed a petition for post-conviction relief. Counsel assigned to represent defendant prepared a brief on his behalf and orally argued that defendant was entitled to relief because his trial attorney had been ineffective. The trial court denied defendant's petition and this appeal followed. On appeal, defendant raises the following arguments for our consideration:

POINT I TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO OBJECT TO THE JURY CHARGE ON KIDNAPPING WHICH INCLUDED A THEORY FOR THE CRIME WHICH WAS NOT PART OF THE INDICTMENT.

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

POINT III DEFENDANT HAS SET FORTH A PRIMA FACIE CASE WHICH MANDATES REMAND FOR AN EVIDENTIARY HEARING.

The following principles guide our analysis of defendant's claim. 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, 653-58, 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).

N.J.S.A. 2C:13-1 defines the crime of kidnapping. It is divided into two subsections, the first of which, subsection (a), deals with holding a person for ransom or reward and is not material to this appeal. Subsection (b) sets forth four other forms of kidnapping.

A person is guilty of kidnapping if he unlawfully removes another from his place of residence or business, or a substantial distance from the vicinity where he is found, or if he unlawfully confines another for a substantial period, with any of the following purposes:

(1) To facilitate commission of any crime or flight thereafter;

(2) To inflict bodily injury on or to terrorize the victim or another;

(3) To interfere with the performance of any governmental or political function; or

(4) To permanently deprive a parent, guardian or other lawful custodian of custody of the victim.

[N.J.S.A. 2C:13-1(b).]

The indictment returned against defendant alleged that defendant committed the crime of kidnapping when he "did unlawfully remove and confine Joseph Copeland for the purpose of facilitating the commission of Eluding but the defendant did not release the victim unharmed and/or in a safe place prior to apprehension." It specifically recited that defendant was charged under N.J.S.A. 2C:13-1(b)(1). The indictment did not mention any other portion of N.J.S.A. 2C:13-1(b).

The trial court, however, in its charge to the jury, defined the crime of kidnapping in the following manner:

Now the statute [insofar] as it's relevant to this case reads as follows: []a person is guilty of kidnapping if he unlawfully confines another for a substantial period with any of the following purposes: One, to facilitate the commission of any crime or flight thereafter or to inflict bodily injury on or to terrorize the victim. So these are the elements that you have to find for kidnapping. One, that the defendant unlawfully confined Joseph Copeland for a substantial period and that the confinement was with one of the following purposes: either to facilitate the commission of any crime or flight thereafter or inflict bodily injury on or to terrorize Mr. Copeland.

. . . .

Now, the second element would be that one of the two, that the confinement was with the purpose to facilitate the commission of any crime or flight thereafter and that would mean to aid in committing a crime or fleeing afterwards and here the State has alleged[sic] in the indictment that the crime that was being facilitated or flight therefrom was eluding or inflicting--well, was eluding.

The crime of eluding is one that I will be telling you about later.

Now, the second portion would be to inflict bodily injury or to terrorize the victim and I think that part I don't need to elaborate on for you.

Now, I have told you that this has to be--the person has to have--the defendant has to have a separate purpose to do one of these two things.

The trial court thus erroneously included in its charge kidnapping under N.J.S.A. 2C:13-1(b)(2), although defendant had never been indicted under that section of the statute. The State presented evidence during its case that, if accepted, would support a conviction under N.J.S.A. 2C:13-1(b)(2). The trial court told the jury that defendant would be guilty of kidnapping if the State had proven either prong beyond a reasonable doubt. The trial court did not tell the jury that it had to decide unanimously on which theory they found defendant guilty. The verdict sheet, moreover, simply asked the jury whether defendant was guilty of the crime of kidnapping in the first degree and did not inquire as to the basis of the finding of guilt. Defendant's attorney made no objection to this charge.

Defendant contends that his attorney was ineffective for not raising this issue before the trial court and that his appellate attorney was ineffective for not explicitly raising the issue on direct appeal. The State contends that defendant is procedurally barred under Rule 3:2-4 from raising this argument and that the argument in any event lacks merit. As did the trial court, we elect to deal with the merits of defendant's argument.

There can be no dispute that the charge given by the trial court was incorrect. The State, in arguing that the trial court's order should be affirmed, adopts one of the reasons stated by the trial court in its oral opinion, that counsel's failure to object represented a decision of trial strategy. There is, however, no record on the issue which would support such a conclusion. Nor is there any record which would indicate that it would be a defensible strategy to permit the jury to deliberate upon an offense for which a defendant had not been indicted.

The trial court also concluded that defendant was not entitled to relief because the erroneous charge did not affect the outcome of the case. It noted, as the State does on appeal, that the record was sufficient to convict defendant of kidnapping for the purpose of facilitating the commission of the crime of eluding. That, however, begs the question. We simply do not know whether the jury convicted defendant under the "facilitating" prong of the statute or the "terrorize" prong of the statute.

Finally, the trial court noted that this court, on direct appeal, found no plain error in the trial court's instructions. It does not appear from that opinion that counsel on direct appeal challenged this particular aspect of the court's instructions. Indeed, we are confident he could not have raised the issue; if he had, we could not have concluded that there was no plain error in the charge.

The order under review is reversed and the matter is remanded to the trial court for an evidentiary hearing with respect to defendant's petition for post-conviction relief.

 
Reversed and remanded.

(continued)

(continued)

9

A-3105-06T4

April 30, 2009