STATE OF NEW JERSEY v. JAMES PATRICK KENNEDY

(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NOT FOR PUBLICATION WITHOUT THE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-5059-06T45059-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JAMES PATRICK KENNEDY,

Defendant-Appellant.

_____________________________________

 

Submitted March 25, 2009 - Decided

Before Judges Parrillo and Lihotz.

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 01-12-2923.

Yvonne Smith Segars, Public Defender, attorney for appellant (Andrew P. Slowinski, Designated Counsel, of counsel and on the brief).

John L. Molinelli, Bergen County Prosecutor, attorney for respondent (John J. Scaliti, Senior Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant James Patrick Kennedy appeals from a Law Division order denying his motion for post-conviction relief (PCR). We affirm.

On March 3, 2003, defendant entered a guilty plea pursuant to a plea agreement with the State. In a nine count indictment, defendant was charged with various offenses resulting from the June 6, 2001 deadly beating of his roommate, Chris Hatzfeld. Defendant beat Hatzfeld on the head with a wooden slat after Hatzfeld admitted to having sexual encounters with two of defendant's former girlfriends. Hatzfeld died from his head injuries. The indictment also included charges for the separate offenses of assault of Michael Pelissieor and threats to kill Richard Szabo, a former roommate who had lived with defendant and Hatzfeld.

Defendant pled guilty to aggravated manslaughter (Hatzfeld) along with the third-degree offenses of aggravated assault (Pelissieor), and terroristic threats (Szabo). In accordance with the plea agreement, defendant was sentenced to an aggregate term of imprisonment of twenty years, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and five years of parole supervision upon release. Two five-year terms, to run concurrently with the first degree sentence, were imposed for the third-degree offenses. Applicable penalties were assessed. The remaining charges of the indictment were dismissed.

Defendant appealed his sentence, which was affirmed on an excessive sentencing oral argument calendar. State v. Kennedy, No. A-6237-02 (App. Div. Jan. 30, 2004). Defendant's petition for certification was denied. State v. Kennedy, 180 N.J. 457 (2004).

Defendant filed a pro se application for PCR relief in April 2004. Counsel was appointed and an amended petition asserting additional bases of relief was filed in April 2006. Defendant also filed a supplemental application for PCR relief in November 2006.

Judge Carroll heard argument and, in a thirteen-page written opinion, denied defendant's petition and request for an evidentiary hearing. On appeal, defendant argues:

POINT I:

DEFENDANT'S CONVICTION SHOULD BE VACATED BECAUSE HIS GUILTY PLEA WAS A RESULT OF COERCION ARISING FROM THE CONDITIONS OF HIS PRE-TRIAL INCARCERATION.

POINT II:

DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL IN PROCEEDINGS BEFORE THE TRIAL COURT. (U.S. CONST., AMEND. VI, XIV; N.J. CONST. (1947), ART. I, PAR. 10).

A. Defendant's Trial Counsel Failed to Conduct an Adequate Investigation of the Facts and Law Applicable to Defendant's Case.

B. Defendant's Trial Counsel Failed to Move for Dismissal of the Indictment in its Entirety.

C. Defendant's Trial Counsel Failed to Contest the Violation of Defendant's Fundamental Right to Due Process of Law.

D. Defendant Was Prejudiced by Ineffective Assistance During the Plea Negotiation Process.

POINT III:

THE PCR COURT ERRED BY RESOLVING [A] DISPUTED ISSUE OF FACT AGAINST DEFENDANT AND DENYING DEFENDANT'S REQUEST FOR A HEARING ON HIS PCR PETITION.

POINT IV:

DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL WAS VIOLATED AS A RESULT OF THE CUMULATIVE ERRORS AND OMISSIONS OF HIS TRIAL COUNSEL IN FAILING TO PREPARE DEFENDANT'S CASE FOR TRIAL, LEAVING DEFENDANT WITH NO OTHER OPTION THAN TO ACCEPT THE STATE'S PLEA OFFER.

POINT V:

DEFENDANT WAS DEPRIVED OF EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL.

POINT VI:

THIS MATTER SHOULD BE REMANDED TO THE PCR COURT BECAUSE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL ON HIS MIRANDA ARGUMENTS ON HIS PETITION FOR PCR (Not Raised Below).

POINT VII:

DEFENDANT'S SENTENCE SHOULD BE VACATED AND THIS MATTER REMANDED TO THE TRIAL COURT FOR RE-SENTENCING IN ACCORD WITH STATE V. NATALE.

We have thoroughly reviewed the record in consideration of the arguments raised on appeal. In light of our standard of review and the applicable law, we reject defendant's arguments and affirm substantially for the reasons expressed in Judge Carroll's opinion. We add these additional comments.

A defendant must establish he is entitled to PCR by a preponderance of the credible evidence. State v. Williams, 284 N.J. Super. 142, 149 (Law Div. 1995); State v. Zold, 105 N.J. Super. 194, 203 (Law Div. 1969), aff'd, 110 N.J. Super. 33 (App. Div.), certif. denied, 57 N.J. 131 (1970). Specific facts must be alleged and articulated, which, if believed, would provide the court with an adequate basis on which to rest its decision. Defendant has failed to do so.

PCR applications provide the means to challenge issues impacting the legality of a conviction, which cannot be raised on direct appeal. R. 3:22-3. A PCR petition may not be used "to challenge the sufficiency of evidence used to convict a defendant." State v. McQuaid, 147 N.J. 464, 483 (1997). Such relief should be pursued on direct appeal. Thus, a defendant "may not use post-conviction relief to assert a new claim that could have been raised on direct appeal." Ibid.; R. 3:22-4.

This procedural bar precludes post-conviction review of the issue raised by defendant in Point I, which argues his guilty plea should be set aside. This issue should have been presented on appeal, however, defendant's direct appeal, which was denied, challenged only the excessiveness of his sentence. The policy undergirding the Rule was succinctly stated by the Court in the passage of State v. Mitchell, 126 N.J. 565 (1992):

The State has a strong interest in achieving finality. Without procedural rules requir-ing the consolidation of issues, litigation would continue indefinitely in a dis-connected and piecemeal fashion. Each time a petitioner brought forward a new issue, attorneys and courts would waste their limited resources acquainting themselves with all of the complex details necessary to adjudicate it. When the grounds for challenging a conviction are consolidated, that investment need occur only once, and judicial resources can be more efficiently used to decide cases in a timely fashion. Moreover, relevant issues in a case are often interrelated. Adjudicating them separately would impair a court's ability to reach a result that fairly synthesizes all of the relevant factors into a just and reasoned outcome.

[Id. at 584.]

Although the rule includes exceptions, warranting the bar's lifting, defendant's petition fails to present any basis to support such an exception. Defendant couches his argument as an infringement of constitutional rights, but presents no evidence to support a conclusion his will was overborne and he pled guilty due to coercive pre-trial confinement.

In Points II, IV, V and VI, defendant contends his trial, appellate, and PCR counsel provided ineffective assistance. He also maintains an evidentiary hearing was necessary to review these claims (Point III). We disagree.

To establish a claim of ineffective assistance of counsel, a defendant must satisfy the two-prong test formulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). First, he must show "'that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed . . . by the Sixth Amendment.'" Id. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). Second, a defendant must prove that he suffered prejudice due to counsel's deficient performance. Strickland, supra, 466 U.S. at 691-92, 104 S. Ct. at 2066-67, 80 L. Ed. 2d at 696. Defendant must show by a "reasonable probability" the deficient performance affected the outcome. Fritz, supra, 105 N.J. at 58.

The standard for assessing PCR counsel's performance is informed by Rule 3:22-6(d), which requires counsel to present all claims advanced by a defendant in his pro se petition, including those that lack merit. See also State v. Rue, 175 N.J. 1, 19 (2002) (holding PCR "counsel must advance the claims the client desires to forward in a petition and brief and make the best available arguments in support of them"). PCR counsel must also "communicate with the client . . . determine whether there are additional claims that should be brought forward[,] . . . [and] advance all of the legitimate arguments that the record will support." State v. Webster, 187 N.J. 254, 257 (2006). However, when communication and investigation have yielded no support for those claims, counsel is not required to do more than advance defendant's points as enunciated in his pro se brief or petition. Id. at 256-57; Rue, supra, 175 N.J. at 19.

"Once a defendant has established a prime facie showing of ineffective assistance of counsel, he is entitled to an evidentiary hearing to determine whether 'the result of the proceeding would have been different . . . .'" State v. Rountree, 388 N.J. Super. 190, 206 (App. Div. 2006) (quoting State v. Russo, 333 N.J. Super. 119, 140 (App. Div. 2000)), certif. denied, 192 N.J. 66 (2007). In order to establish a prima facie case, a defendant must "do more than make bald assertions that he was denied the effective assistance of counsel." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). An evidentiary hearing is required only if "the facts supporting the claim are outside the trial record." Ibid. (citing State v. Preciose, 129 N.J. 451, 462 (1992)). Measured by this standard, defendant fails to establish a prima facie case of ineffective assistance of trial, appellate, or PCR counsel.

As we previously noted, defendant's pleadings include broad claims of ineffective assistance, unsupported by a factual affidavit or other evidence. Defendant first suggests trial counsel "failed to locate and interview witnesses" and "retain an expert witness to independently review the cause of [Hatzfeld's] death." Yet he fails to discuss the anticipated testimony of the witnesses and how the evidence might have affected the outcome of the proceeding. In fact, defendant does not even identify a single fact witness whom trial counsel should have interviewed. Cummings, supra, 321 N.J. Super. at 170.

Next, defendant states trial counsel should have moved to dismiss the murder indictment. Defendant argues that on the night he beat Hatzfeld to death, he was so intoxicated he was not able to form the requisite intent for murder. Giving every reasonable inference to the State, as we are required, State v. Fleischman, 383 N.J. Super. 396, 398-99 (App. Div. 2006), aff'd, 189 N.J. 539 (2007), we conclude the evidence presented to the grand jury was adequate to sustain the murder indictment. Even if we assume counsel should have filed a motion to dismiss, the error does not warrant setting aside defendant's conviction. State v. Lee, 211 N.J. Super. 590, 602 (App. Div. 1986), certif. denied, 108 N.J. 648 (1987). It is not that counsel committed an error in professional judgment that warrants setting aside the criminal conviction. Rather, the question is whether there is a reasonable probability, absent the error, defendant "would have not pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 56, 59, 106 S. Ct. 366, 369-70, 88 L. Ed. 2d 203, 208-10 (1985). In this matter, overwhelming evidence of aggravated manslaughter, the offense to which defendant pled was presented, and defendant has not shown the alleged error would have altered his decision to accept the plea agreement. Thus, defendant's contention of ineffective assistance of counsel is meritless. Lee, supra, 211 N.J. Super. at 602.

As with several of defendant's contentions, the challenges stating trial counsel was ineffective because "he failed to investigate the factual basis of the State's case" or "assert all procedural defenses that may be available" are flawed. Defendant's petition omits any evidence of how counsel's failures gave rise to a "reasonable probability" the deficient performance affected the outcome. Fritz, supra, 105 N.J. at 58. Additionally, defendant's claim that he was pressured to plead guilty because counsel had not prepared for trial is unsupported by the record and no new evidence was supplied for review.

We are satisfied Judge Carroll's factual finding that defendant failed to establish a prima facie claim of ineffective assistance of trial counsel is amply supported by sufficient credible evidence, which we have no occasion to disturb. State v. Johnson, 42 N.J. 142, 162 (1964).

Defendant's arguments suggesting appellate and PCR counsel were ineffective are equally unavailing. He contends appellate counsel did not consult with him regarding the merits of filing an appeal and PCR counsel failed to investigate arguments challenging alleged Miranda violations. We acknowledge counsel's failure to pursue an appeal may serve as a basis of PCR. See Roe v. Flores-Ortega, 528 U.S. 470, 480, 120 S. Ct. 1029, 1036, 145 L. Ed. 2d 985, 997 (2000) ("counsel has a constitutionally imposed duty to consult with the defendant about an appeal when there is reason to think either" defendant would want to appeal because there are nonfrivolous grounds for appeal or defendant demonstrated an interest in appealing). Also, PCR counsel has a duty to inspect the trial record and raise constitutional error that may have affected the criminal conviction. Rue, supra, 175 N.J. at 18; Webster, supra, 187 N.J. at 257. However, defendant has not submitted an affidavit or other evidence detailing the factual basis of these contentions with his pro se PRC petition or in the amended and supplemental petitions for relief. Accordingly, the unsub-stantiated claims are without sufficient merit to warrant further discussion in this opinion. R. 2:11-3(e)(2).

Based upon what we have said, we find no cumulative error resulting in a deprivation of defendant's fundamental rights. Further, there is no need to remand the matter to the trial court for an evidentiary hearing.

Finally we address defendant's challenge to his sentence, which seeks a remand based on State v. Natale, 184 N.J. 458 (2005). In Natale, the Court eliminated the use of presumptive terms and stated, "[a] sentence above the presumptive statutory term based solely on a judicial finding of aggravating factors, other than a prior criminal conviction violates defendant's Sixth Amendment jury trial guarantee." Id. at 466. The Court expressly limited the application of its holding to cases in the appellate pipeline as of the date of its opinion. Id. at 494.

Here, defendant's sentence was neither above the presumptive term nor in the pipeline. Therefore, the sentence, which was affirmed on appeal, will not be disturbed.

Affirmed.

 

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

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A-5059-06T4

June 22, 2009