STATE OF NEW JERSEY v. GREGORY MAPLES

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5227-06T45227-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

GREGORY MAPLES,

Defendant-Appellant.

__________________________

 

Submitted January 13, 2009 - Decided

Before Judges Yannotti and LeWinn.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 02-09-1247.

Yvonne Smith Segars, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief).

Marlene Lynch Ford, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Supervising Assistant County Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant Gregory Maples appeals from the March 9, 2007 order of the trial court denying his petition for post-conviction relief (PCR). We affirm.

Tried to a jury with three co-defendants in May 2004, defendant was convicted of second-degree conspiracy to commit murder, N.J.S.A. 2C:5-2(a)(1); and first-degree murder, N.J.S.A. 2C:11-3. On July 9, 2004, defendant was sentenced to a term of thirty years of incarceration with a thirty-year period of parole ineligibility; the conspiracy charge merged into the murder count. Defendant appealed, raising numerous claims of trial error. We affirmed his conviction in State v. Maples, No. A-6934-03 (App. Div. May 12, 2005). The Supreme Court subsequently denied defendant's petition for certification. State v. Maples, 185 N.J. 295 (2005).

On April 20, 2006, defendant filed a PCR petition, claiming: (1) the trial court "[l]acked [s]ubject-[m]atter . . . and [p]ersonal [j]urisdiction because a [p]olice [o]fficer [s]igned the [jurat] on the [c]omplaint and in fact [i]ssued [a] defective [warrant,] in violation of the 4th and 14th [Amendments of the] U.S. Constitution"; and (2) ineffective assistance of trial counsel. Defendant filed a supporting brief which set forth arguments on ineffective assistance of trial counsel and excessive sentence, but did not address the first issue identified in his petition.

PCR counsel was assigned and attempted to contact one of the co-defendants, Renato Santos, who defendant believed would "cooperate" by exonerating him of the murder. On March 9, 2007, the trial court held a hearing at which PCR counsel stated that Santos' appeal from the conspiracy/murder trial was still pending and his attorney stated that Santos would not "engage in any type of interview with an open case, namely: [a]n open appeal. Therefore, the investigation came to an end and it ha[d] been closed out."

PCR counsel apparently filed a brief on defendant's behalf, but it has not been provided to us. At the hearing, counsel stated that "[t]here [were] several issues in there that [he had] advanced on behalf of [defendant], all of which [defendant] wanted advanced, as well as the independent issues [counsel had] unraveled by looking through the file . . . ." Counsel then rested upon his brief.

The court inquired of defendant if he wished to make any statements, and the following colloquy ensued:

THE DEFENDANT: Myself and Mr. Santos [are] incarcerated at Trenton State Prison. He said the investigator came and spoke to him. But he said that he didn't get in contact with his lawyer and he was going to come back and speak to him in two weeks, so that was it.

And, judge, they got me mixed up in the middle of this case, where they got this guy that they [said] that shot this guy, he [was] trying to say that he shot this guy for me. But, he never told these people that. And they got me mixed up in this case. If he shot this guy, if he did that with this guy, that was of his own accord. I have nothing to do with that.

THE COURT: You understand, Mr. Maples, I'm not here to judge the evidence. That was done at trial by the jury.

THE DEFENDANT: Exactly. I know this.

And there [are] a few witnesses that . . . I have statements for that my lawyer didn't call.

THE COURT: Which lawyer are you talking about?

THE DEFENDANT: My trial lawyer . . . . That's pretty much it.

The court then reviewed defendant's eleven claims of ineffective assistance of trial counsel, and noted that several were procedurally barred because they were, or could have been, "adjudicated on direct appeal under Rule 3:22-5[,]" such as the claim that counsel failed to object to the prosecutor's opening statement.

Defendant's other ineffective assistance allegations were trial counsel's failures to: (1) request a lesser-included passion/provocation charge; (2) obtain a beneficial plea agreement; (3) argue that defendant's arrest warrant was defective; (4) move for severance of co-defendants for trial; (5) argue that the prosecutor shifted the burden of proof to the defense; (6) "aggressively" argue on behalf of defendant at sentencing; (7) ask certain questions on cross-examination; and (8) argue that defendant's Sixth Amendment right to counsel was violated when law enforcement officers spoke to him while incarcerated, a claim defendant also lodged against appellate counsel. In addition, defendant claimed that trial counsel made certain allegedly prejudicial comments, such as that the trial was "a show" and describing defendant as a "fearful man" in his opening.

The trial judge addressed and rejected each of these claims on the merits. Consequently, the judge denied defendant a plenary hearing.

On appeal, defendant raises the following arguments for our consideration:

THE DENIAL OF DEFENDANT'[S] PCR

PETITION MUST BE REVERSED

A. Defendant Should Have Been Afforded An Evidentiary Hearing As to Trial Counsel's Alleged Ineffectiveness For Not Pursuing Plea Negotiations

B. This Matter Must Be Remanded Because PCR Counsel Failed To Advance The Claims In Defendant's Pro Se Brief In Support Of His PCR Petition (Not Raised Below)

C. This Matter Must Be Remanded Because The PCR Court Failed To Address The Merits of Defendant's Claims In His Pro Se Brief In Support Of his PCR Petition (Not Raised Below)

In a pro se supplemental brief, defendant raises the following arguments:

POINT I PETITIONER'S COUNSEL RENDERED INEFFECTIVE [ASSISTANCE OF] COUNSEL IN HIS PCR PETITION

POINT II APPELLATE PCR COUNSEL RENDERED INEFFECTIVE ASSISTANCE WHEN HE FAILED TO RAISE [AN] INEFFECTIVE ASSISTANCE CLAIM AGAINST PETITIONER'S PCR COUNSEL

Having reviewed these contentions in light of the record and the controlling law, we conclude they are all "without sufficient merit to warrant discussion in a written opinion . . . ." R. 2:11-3(e)(2). We affirm substantially for the reasons stated by the PCR court in its decision rendered from the bench at the conclusion of the hearing. We add only the following comments.

The PCR court correctly found that we had previously addressed the merits of defendant's claim about the prosecutor's comments. State v. Maples, supra, slip op. at 4. We further concur with the PCR court's finding that trial counsel addressed the severance issue following the Miranda hearing on co-defendant Santos' statement; however, the trial judge resolved that issue by ordering redaction of Santos' statement to eliminate any inculpatory reference to defendant.

Regarding the failure to seek a lesser-included offense charge, the trial record reflected that it was defendant's choice to forego those charges, apparently against counsel's advice. No evidence of record supported defendant's claim that his Sixth Amendment right to counsel was violated when law enforcement agents spoke to him while incarcerated; moreover, as the PCR court noted, defendant "fail[ed] to address how his rights were violated, or how this in any way affected or caused him prejudice in the trial."

Defendant contends that his trial counsel's failure to pursue plea negotiations was "tantamount to a complete denial of representation." There is no evidence, however, that the State was interested in plea negotiations or was at any time prepared to offer defendant a plea agreement. Defendant's contention that a witness named Steven L. Bennett would have testified that two other individuals were "responsible for the shooting of [the victim]," is not supported in the record; therefore, the claim that counsel was ineffective for failing to call Bennett to testify at trial is without merit.

A defendant's claim of ineffective assistance of counsel is considered under the standards established in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted by our Supreme Court in interpreting our State Constitution. State v. Fritz, 105 N.J. 42, 58 (1987). In order to prevail on such a claim, a defendant first must show that his attorney's performance was deficient. Id. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). Second, the defendant must show that counsel's deficient performance prejudiced his defense. Ibid.

Here, defendant did not present sufficient evidence to raise a prima facie case of ineffective assistance of counsel. For these reasons, we conclude the PCR court did not err in denying defendant a plenary hearing on his claims. State v. Preciose, 129 N.J. 451, 462-63 (1992).

We also reject defendant's arguments in his pro se brief that his PCR, trial and appellate counsel were ineffective for failing to argue to the court issues raised in his pro se petition. At the PCR hearing, the court gave defendant a chance to "add to the argument that's been submitted in writing and by counsel here and at the prior court appearances . . . [.]" The court added: "I'll give you the opportunity since you initiated this application pro se to add any additional verbal argument and presentation on the record at this time." As noted above, defendant's response was to protest his innocence and to state that he had statements of "a few witnesses that . . . [his] lawyer didn't call." Defendant raised no other issues in response to the court's express invitation.

Appellate PCR counsel specifically advised defendant that the issues he sought to raise in this appeal had not been raised in defendant's pro se brief. Therefore, counsel stated, those issues were "procedurally barred on appeal and meritless." Nonetheless, appellate counsel advised defendant of his right to file a pro se brief raising those issues on appeal, which defendant has done.

Defendant claims PCR counsel was ineffective for "never investigat[ing] the case properly, and . . . fail[ing] to raise issues which defendant wanted him to advance in his brief." The record reflects that PCR counsel attempted to interview co-defendant Santos, whom defendant had identified as the person who could exonerate him of the murder charge. Santos' attorney, however, advised PCR counsel that Santos would not speak to him while his appeal was pending. Moreover, the ineffective assistance of trial counsel claims raised in defendant's pro se PCR brief all related to trial errors that were either raised previously or constituted "b[are] assertion[s] that were "unsupported by any evidence[,]" as the PCR court found in denying the petition without a plenary hearing.

In sum, we concur with the PCR court's finding that defendant "failed . . . to meet any of the standards of the Strickland/Fritz test. He cannot show counsel's performance was deficient. . . . He has not shown that any alleged error by counsel materially contributed to his verdict and sentence."

Affirmed.

 

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

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A-5227-06T4

April 6, 2009