STATE OF NEW JERSEY v. SHAYNE NELSON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6541-06T46541-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SHAYNE NELSON,

Defendant-Appellant.

_______________________________________

 

Submitted November 13, 2008 - Decided

Before Judges Rodr guez and Payne.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 01-03-0396.

Yvonne Smith Segars, Public Defender, attorney for appellant (Roger L. Camacho, Designated Counsel, of counsel and on the brief).

Theodore F. L. Housel, Atlantic County Prosecutor, attorney for respondent (Jack R. Martin, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant, Shayne Nelson, appeals from the denial of his petition for post-conviction relief (PCR), alleging ineffective assistance of counsel at several stages in his case. We affirm.

Defendant and William Taylor (co-defendant), were arrested following a carjacking incident in Atlantic City.

On January 6, 2001, defendant and co-defendant met Thomas Russo and Joseph Killian at Club Enigma on South Florida Avenue in Atlantic City. Russo and Killian left the Club in Russo's jeep, with Killian driving. Defendant and co-defendant asked for and received a ride in the jeep. Killian parked in the lot at Stanley Village, where he lived. Defendant pulled out a BB gun, held it to Killian's neck, and he and co-defendant told Killian and Russo to give them "everything," including a gold ring, a cell phone, several dollars in cash, a watch and the jeep.

Killian and Russo flagged down a police car and described both the perpetrators and the jeep. Approximately seven minutes later, the jeep was pulled over by the police. Defendant and co-defendant were arrested. The police found the watch, wallet, ring, money and cellular phone in the jeep, as well as a BB gun on the passenger-side floor, where defendant had been sitting. A subsequent test of the BB gun found it was functional and capable of firing a BB approximately fifteen yards, based on the May 25, 2001 report of Sergeant Pherribo of the Atlantic City Police Department (Operability Report).

Defendant eventually pled guilty to charges of first-degree robbery, N.J.S.A. 2C:15-1, and third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b. He received concurrent sentences aggregating eleven years, with a NERA period of parole ineligibility. Defendant's motion for reconsideration of his sentence was denied.

Defendant appealed his sentence. We initially remanded "for a fact-finding hearing to determine the operability of the weapon." State v. Nelson, No. A-5020-01T4 (App. Div. Feb. 18, 2003). On remand, the judge found that the weapon was operable. Defendant appealed his sentence only. We affirmed the sentence. State v. Nelson, No. A-5817-02T4 (App. Div. Mar. 4, 2004).

Defendant filed a first PCR petition alleging ineffective assistance of trial counsel for failing to challenge the operability of the BB gun prior to the plea hearing and for failing to present the argument that that an unloaded gun did not meet the requirements for a NERA sentence at that time. Defendant also argued that his counsel at the remand hearing did not adequately represent his interests. It is undisputed that trial counsel was not available at this hearing, although another public defender was present on defendant's behalf. This defender informed the judge that defendant was seeking to retain private counsel and wanted the matter to be continued. The judge denied this request and the hearing went forward. The judge admitted the Operability Report as a business record and found that the BB gun was an "operational weapon" within the definition of NERA. Defendant argued in the PCR hearing that trial counsel rendered ineffective assistance in not retaining an expert to challenge the Operability Report. The PCR judge denied the petition.

On appeal, defendant contends:

THE PCR COURT REVERSIBLY ERRED IN FAILING TO GRANT [DEFENDANT] [PCR] BASED UPON THE CLAIMS THAT HIS TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE (1) IN FAILING TO INVESTIGATE AND DEVELOP EXPERT TESTIMONY THAT THE BB GUN WAS INOPERABLE; AND (2) IN FAILING TO INVESTIGATE AND DEVELOP A RECORD BASED ON THE INCONSISTENT POLICE REPORTS THAT CO-DEFENDANT, TAYLOR, WIELDED THE BB GUN; [(3)] IN FAILING TO INVESTIGATE AND DEVELOP A RECORD THAT THE BB GUN WAS UNLOADED AT THE TIME OF THE CRIME; AND [(4)] IN FAILING TO MOVE TO DISMISS THE NERA ASPECTS OF THIS CASE AT HIS PLEA HEARING AND SENTENCING BECAUSE AT THOSE TIMES AN UNLOADED BB GUN SHOULD NOT HAVE BEEN CONSIDERED A DEADLY WEAPON FOR NERA PURPOSES. (U.S. Const. Amends. VI & XIV; N.J. Const. (1947) Art. I, Para. 10).

The PCR judge denied defendant's petition on the grounds that many of defendant's claims were procedurally barred by virtue of the plea agreement, prior adjudication on the merits of the claims, or failure to raise the issue at the appropriate proceedings. The PCR judge also found that defendant had failed to establish either prong of the Strickland test, in that there were no errors so egregious as to amount to abandonment of counsel, and that such failure could not have unduly prejudiced Defendant's claims. The PCR judge noted that the eleven-year sentence was "at the very low end" for a first-degree offense, and found that the public defender who represented defendant at the remand hearing was experienced and had made all the appropriate applications and arguments at the remand hearing.

The two-pronged analysis for determining whether a defendant was rendered ineffective assistance of counsel was set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), and adopted by the New Jersey Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). To prove ineffective assistance, a defendant must show: 1) counsel's performance was deficient; and 2) defendant's case was prejudiced by the deficiency. Ibid.

To avoid "the distorting effects of hindsight," a reviewing court must presume counsel's conduct fell within the range of sound trial strategy. Strickland v. Washington, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694-95 (internal quotations omitted).

Here, judged against the Strickland/Fritz standard, we conclude that defendant's claims of ineffective assistance of counsel are without merit. Defendant asserts both that trial counsel failed to investigate and develop expert testimony on whether the BB gun was inoperable for the purposes of the remand hearing and that, although trial counsel may have received a copy of the Operability Report prior to the remand hearing, defendant was never shown a copy and was unaware of the Operability Report prior to that hearing. Both these contentions relate to defendant's assertion that he was not properly sentenced under NERA.

The PCR judge found defendant was barred from bringing this claim because he had already litigated it on direct appeal and lost. Pursuant to State v. Austin, 335 N.J. Super. 486 (App. Div. 2000), defendant would not be subject to NERA if the BB gun was not mechanically functional.

However, defendant cannot claim counsel was ineffective where defendant has never suggested, through a certification or otherwise, that the gun was inoperable. Moreover, the existence of the Operability Report suggests trial counsel's decision not to further investigate the weapon's operability fell well within the scope of sound trial strategy.

Defendant also asserts counsel was ineffective for failing to develop an inconsistency in the police reports as to whether he or co-defendant wielded the BB gun. However, both eyewitnesses to the crime stated that defendant wielded the BB gun during the carjacking, and defendant stated at the sentencing hearing that he held the BB gun to Killian's neck. Counsel was not deficient in failing to pursue this line of inquiry.

Defendant further argues that counsel was ineffective in failing to challenge whether the gun was loaded at the time of the offense. This claim is predicated on the Law Division holding in State v. Spahle, 343 N.J. Super. 149 (Law. Div. 2001), decided five months before Defendant's plea hearing. In Spahle, the Law Division found that an operable but unloaded BB gun was not a "deadly weapon" under NERA. Id. at 152. By the time defendant was sentenced, we had disapproved this case in State v. Jules, 345 N.J. Super. 185 (App. Div. 2001), certif. denied, 171 N.J. 337 (2002).

Defendant's claim fails because Spahle was not binding on other Law Division courts, and was in contravention of our holding in State v. Austin, supra, 335 N.J. Super. at 486. Further, because Spahle had been overruled at the time of sentencing, there was no legal basis for considering whether the BB gun was loaded for NERA sentencing purposes.

The failure to investigate whether the gun was loaded does not constitute a deficient performance by counsel, nor did it prejudice defendant's case.

Defendant next contends:

[DEFENDANT] WAS RENDERED INEFFECTIVE ASSISTANCE OF PCR COUNSEL WHO FAILED TO RAISE THAT HIS APPELLATE COUNSEL RENDERED INEFFECTIVE ASSISTANCE IN FAILING TO APPEAL THE TRIAL COURT'S ERRONEOUS RULING AT THE REMAND HEARING THAT THE STATE'S OPERABILITY REPORT WAS ADMISSIBLE AS A BUSINESS RECORD WITHOUT A SPONSORING WITNESS THEREBY VIOLATING N.J.R.E. 803(c)(6), N.J.R.E. 808 AND [DEFENDANT'S] FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO CONFRONT WITNESSES AGAINST HIM. (U.S. Const. Amends. VI & XIV; N.J. Const. (1947) Art. I, Para 10).

The Operability Report was admitted at the remand hearing under the business records exception. N.J.R.E. 803(c)(6). Although there may be some merit to the contention that remand counsel should have challenged admissibility, we find no prejudice in such error.

The report was a regular record generated by the police department whenever a weapon is seized. Ideally, the officer who created the report should have been called as an expert witness to testify as to his methods of testing the weapon and his results, and been subject to cross-examination. However, we find the defendant was not prejudiced by this omission where he has never provided any factual basis for his claim the BB gun was inoperable.

Defendant next argues:

THE PCR COURT REVERSIBLY ERRED IN REJECTING [DEFENDANT'S] PETITION FOR [PCR] BECAUSE THE CUMULATIVE EFFECT OF [DEFENDANT'S] GROUNDS FOR [PCR] WARRANTED SUCH RELIEF. (U.S. Const. Amends. VI & XIV; N.J. Const. (1947) Art. I, Para. 10).

With regard to the other points raised on appeal, we find defendant has not met his burden under the Strickland/Fritz test of showing that, alone or in the aggregate, counsel was deficient or that such deficiencies prejudiced his claims. The PCR court did not err in denying defendant PCR based on the cumulative effect of his remaining claims.

Defendant also contends:

AT A MINIMUM, THE PCR COURT REVERSIBLY ERRED IN REJECTING [DEFENDANT'S] REQUEST FOR AN EVIDENTIARY HEARING ON THE ABOVE ISSUES BECAUSE [DEFENDANT] DEMONSTRATED A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF HIS TRIAL [COUNSEL] AND HIS PCR COUNSEL ON THOSE GROUNDS AS DISCRETE ITEMS AND IN THEIR CUMULATIVE EFFECT. (U.S. Const. Amends. VI & XIV; N.J. Const. (1947) Art. I, Para. 10).

A defendant is entitled to an evidentiary hearing where the defendant has made out a prima facie claim for relief: i.e. shown a reasonable likelihood of succeeding under the Strickland/Fritz analysis but factual issues remain. State v. Preciose, 129 N.J. 452, 462-63 (1992).

However, from our careful review of the record, we note that, because defendant has articulated no factual basis for any of his assertions that counsel was deficient, he has not made out a prima facie case as to any of his ineffective assistance of counsel claims and was not entitled to an evidentiary hearing on any of these counts.

 
Affirmed.

No Early Release Act, N.J.S.A. 2C:43-7.2.

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

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A-6541-06T4

August 19, 2009