STATE OF NEW JERSEY v. DOMINGO MANN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1491-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DOMINGO MANN,

Defendant-Appellant.

_______________________________

 

Submitted June 23, 2010 - Decided

Before Judges Stern and Fasciale.

On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 91-11-1562.

Domingo Mann, appellant pro se.

Camila M. Valdes, Passaic County Prosecutor, attorney for respondent (Marc A. Festa, Senior Assistant Prosecutor, on the brief).

PER CURIAM

Defendant, Domingo Mann, appeals from an October 7, 2008, order denying his second petition for post-conviction relief (PCR). Thirteen and a half years after his convictions of felony murder, reckless manslaughter, robbery, conspiracy to commit armed robbery, possession of a handgun for an unlawful purpose, and possession of a handgun without a permit, defendant argues that his counsel failed to object to the jury charge on robbery and failed to advise him about his exposure to life in prison. Defendant failed to timely raise these arguments and establish a prima facie claim of ineffective assistance of counsel. We affirm.

I.

On September 24, 1993, after merger of the various convictions, defendant was sentenced to life in prison with a thirty-year period of parole ineligibility for felony murder and other concurrent sentences. We affirmed his convictions and sentence. State v. Mann, No. A-2539-94 (App. Div. March 21, 1997) (Mann I) (slip op. at 14). The Supreme Court denied certification on June 30, 1997. State v. Mann, 151 N.J. 72 (1997). On September 24, 1999, the trial judge denied defendant's first PCR in an unpublished written opinion. We affirmed the denial of his first PCR. State v. Mann, No. A-1254-99 (App. Div. March 22, 2001) (Mann II) (slip op. at 6). On January 26, 2007, defendant filed his second PCR. In an unpublished written opinion, the PCR judge denied defendant's second PCR.

II.

The facts leading to defendant's convictions are set forth in our March 21, 1997, unreported opinion. Mann I, supra, slip op. at 3-10. Defendant convinced codefendants, James Payne and Douglas Wade, to rob his friend, Carlton Holmes. Defendant provided the handgun used during the robbery. During the course of the robbery, Holmes was shot and killed.

Payne and Wade pled guilty and became witnesses for the State. At trial, they testified that defendant was the mastermind of the robbery.

Defendant contended before the second PCR judge that his trial counsel was ineffective because (1) he failed to object to the robbery jury charge, and (2) he failed to advise him that he faced life in prison and that, if he had been so advised, he would have accepted the plea offer. After determining that an evidentiary hearing was unnecessary, the judge concluded that defendant failed to establish a prima facie case of ineffective assistance of counsel. In denying the second PCR, the judge found that the jury instructions, taken as a whole, were sufficient to find that defendant acted with the required mental state to commit the robbery.

III.

In his pro se brief, defendant raises the following points on this appeal:

POINT ONE:

THE POST-CONVICTION RELIEF RULES [3:22-4 AND] 3:22-12 DO NOT BAR THE COURT'S CONSIDERATION OF DEFENDANT'S CLAIM

POINT TWO:

DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL IN VIOLATION OF HIS CONSTITUTIONAL RIGHTS WITH RESPECT TO THE JURY CHARGE AND DURING THE PLEA NEGOTIATIONS

A. Counsel [failed] to object to an erroneous jury instruction that omitted the mens rea of the offense charged

B. Trial counsel failed to properly explain the consequences of the Life Sentence for the Felony Murder

POINT THREE:

THE PCR COURT IMPROPERLY ACCEPTED A LETTER FROM DEFENDANT'S TRIAL COUNSEL AS A BASIS TO DENY HIM AN EVIDENTIARY HEARING

IV.

We begin by addressing the standard of review concerning defendant's claim of ineffective assistance of counsel and the timeliness of such a claim.

Pursuant to the Sixth Amendment of the United States Constitution, every criminal defendant is guaranteed assistance of counsel. Strickland v. Washington, 466 U.S. 668, 685, 104 S. Ct. 2052, 2063, 80 L. Ed. 2d 674, 692 (1984). Whether "retained or appointed," counsel must "ensure that the trial is fair"; therefore, "'the right to counsel is the right to the effective assistance of counsel.'" Id. at 685-86, 104 S. Ct. at 2062-63, 80 L. Ed. 2d at 692 (quoting McMann v. Richardson, 397 U.S. 759, 771 n.14, 90 S. Ct. 1441, 1449 n.14, 25 L. Ed. 2d 763, 773 n.14 (1970)). The New Jersey Constitution affords the same right to counsel. N.J. Const. art. I, 10; State v. Fritz, 105 N.J. 42, 58 (1987).

In order to establish a case of ineffective assistance of counsel, defendant must demonstrate a reasonable likelihood of success under the two-pronged test established by Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. State v. Goodwin, 173 N.J. 583, 596 (2002). First, defendant must show that defense counsel's performance was deficient. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Second, defendant must demonstrate that there exists "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. The precepts of Strickland and its tests have been adopted in New Jersey. Fritz, supra, 105 N.J. at 58.

There is a strong presumption that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694. Further, because prejudice is not presumed, Fritz, supra, 105 N.J. at 61, defendant must demonstrate how specific errors of counsel undermined the reliability of the proceeding, United States v. Cronic, 466 U.S. 648, 659 n.26, 104 S. Ct. 2039, 2047 n.26, 80 L. Ed. 2d 657, 668 n.26 (1984).

An evidentiary hearing is required only when the facts viewed in the light most favorable to defendant would entitle a defendant to PCR. State v. Marshall, 148 N.J. 89, 158, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). Our Supreme Court has noted that there is a "pragmatic dimension" to this inquiry. Ibid. It stated:

If the court perceives that holding an evidentiary hearing will not aid the court's analysis of whether the defendant is entitled to post-conviction relief, or that the defendant's allegations are too vague, conclusory, or speculative to warrant an evidentiary hearing, then an evidentiary hearing need not be granted.

[Ibid. (citations omitted) see also State v. Cummings, 321 N.J. Super. 154 (App. Div. 1999), certif. denied, 162 N.J. 199 (1999).]

To protect against addressing endless issues in piecemeal fashion, certain procedural safeguards exist. For example, a five-year time limitation is imposed by Rule 3:22-12. No PCR, other than to correct an illegal sentence, shall be filed more than five years after "the judgment or sentence sought to be attacked." R. 3:22-12(a). Although the five-year limitation is not absolute, this rule must be viewed in light of its dual purposes. State v. DiFrisco, 187 N.J. 156, 166 (2006). First, to "ensure that the passage of time does not prejudice the State's retrial of a defendant[.]" Ibid. Second, to respect the need for achieving finality. Id. at 167 (quoting State v. Mitchell, 126 N.J. 565, 576 (1992)). Moreover, a PCR is not a substitute for appeal of a conviction, Rule 3:22-3, and any available ground for relief not made in a prior proceeding is barred if it could have been earlier raised, Rule 3:22-4.

V.

Defendant's second PCR, thirteen and a half years after he was sentenced, was filed untimely and raises issues that could have been raised on direct appeal or in his first PCR. Even without the procedural bar, defendant fails to establish a prima facie claim of ineffective assistance of counsel.

(a)

While defendant blames his failure to timely raise the issues in his second PCR on ineffective assistance of counsel, this argument is without merit. A detailed review of defendant's arguments on the direct appeal and first PCR demonstrate that he is now barred by Rule 3:22-4 and Rule 3:22-12. Defendant failed to raise the issues on appeal earlier, and untimely filed his second PCR.

In both the direct appeal and first PCR, defendant raised issues regarding his sentence, but failed to assert that he never knew he faced life in prison. He raised issues regarding the adequacy of certain sections of the jury charge, but failed to include a challenge to the robbery charge. He had the opportunity to raise his arguments on appeal, but failed to do so.

In the direct appeal, he argued that his life sentence in prison was "manifestly excessive and represent[ed] an abuse of discretion by the sentencing court." In his first PCR, he argued that the sentence imposed is invalid because it is "disparate and inconsistent with the sentences imposed on the [codefendants.]" Even though he challenged his sentence, defendant failed to raise the argument that he was not advised about his maximum exposure to life in prison. If defendant was not advised about his exposure to life in prison, he must have known that during the direct appeal and first PCR. He could have included that issue on direct appeal or in his first PCR, but failed to do so and is now barred pursuant to Rule 3:22-4.

In his first PCR, defendant argued that appellate counsel was ineffective for failing to challenge the accomplice liability and felony murder charge. On appeal, he argues that the trial judge omitted the "mens rea" element of robbery in the charge; however, that argument could have been presented either on direct appeal or in his first PCR. He failed to do so and is now barred pursuant to Rule 3:22-4.

Applying the dual purposes of the five-year procedural bar imposed by Rule 3:22-12, we find that the passage of time prejudiced the State and there is a need for achieving finality. The incident occurred nineteen years ago, only two pre-trial transcripts were located, the court's original file can not be located, defense trial counsel has no independent recollection of the trial, and witnesses' memories have faded.

Since defendant could have raised the issues on appeal in either his direct appeal of first PCR, and since he filed his second PCR more than five years after his conviction, he is now barred.

(b)

Even without the procedural bar, defendant fails to demonstrate a prima facie case of ineffective assistance of counsel. Defendant's two arguments on appeal fall short of meeting either prong of Strickland.

(i)

First, defendant asserts that he was denied effective assistance of counsel due to his counsel's failure to object to the robbery charge. At the time of the trial, the model jury charge for robbery in the first degree was, in relevant part, as follows:

In order for you to find the defendant guilty of robbery, the State is required to prove each of the following elements beyond a reasonable doubt:

1. that the defendant was in the course of committing a theft,

2. that while in the course of committing that theft the defendant

. . . .

a. knowingly inflicted bodily injury or used force upon another[; or]

b. threatened another with or purposely put (him/her) in fear of immediate bodily injury[; or]

c. committed or threatened immediately to committed [a first- or second-degree] crime[.]

[Model Jury Charge (Criminal), 2C:15-1 Robbery in the First Degree (April 13, 1992).]

The trial judge selected subsections "a" and "b" from paragraph two of the applicable robbery jury charge. He omitted the word "knowingly" from subsection "a," but included the "mens rea" referenced in subsection "b." No objection was made because the robbery charge was consistent with the State's theory. The victim was "purposely" placed in fear of bodily injury when the gun was pointed at his head "while in the course of the theft." The judge instructed the jury that:

In order for you to find the defendant guilty of robbery, the State is required to prove each of the following elements beyond a reasonable doubt. One, that the defendant was in the course of committing the theft; that while in the course of committing the theft the defendant either inflicted bodily injury or used force on another or threatened another with or purposely put him in fear of immediate bodily injury.

Since the robbery charge was adequate, we cannot say that defense counsel's failure to object was deficient. To the extent defendant challenges the charge, independent of counsel's conduct, we reject the argument. R.3:22-2(a).

Defendant was charged with committing robbery as an accomplice, and the jury was instructed to consider defendant's guilt as an accomplice. In the accomplice liability charge, the trial judge addressed the need to find that defendant acted "purposely" to "promote . . . or facilitate . . . the crime [of robbery]." The following accomplice charge was given:

Therefore, the State must prove beyond a reasonable doubt . . . that the defendant acted purposely to promote, to bring it into being, to advance it or to launch it, or to facilitate and make it easier to accomplish the crime or crimes set forth in the indictment.

Then, purposely was defined as:

Now, one acts purposely with respect to his conduct or a result thereof if it is his conscious object to engage of conduct of that nature or to cause such a result.

Regarding the purposeful mental state requirement for an accomplice that solicits or aids other, the judge instructed the jury as follows:

Now, if you find the defendant purposely solicited or aided another in the commission of a crime or crimes charged, you must consider him as if he committed the crime himself.

Finally, the judge set forth the following on the required "mens rea" of defendant to justify a conviction:

In order for you to convict the defendant as an accomplice of the crime charged, you must find that the defendant had the purpose to participate in that particular crime. . . .

It is not sufficient to prove only that the defendant had knowledge that the co-defendants were going to commit the crime or crimes charged or that the defendant knowingly facilitated that commission of the crimes charged.

The State must prove not only that the defendant acted knowingly, but also that it was the defendant's conscious objective that the specific crime charged was committed.

Strong evidence was introduced that defendant acted with the requisite mental state, as an accomplice, to commit the robbery. He orchestrated the robbery of the victim and recruited Payne and Wade. After supplying the gun during the robbery, defendant used Payne's car, drove to the victim's home, and gave a signal to Payne and Wade to enter the home. When defendant gave the signal, Payne and Wade entered the home with the purpose to steal money and drugs. Wade testified that he threatened the victim with the gun that defendant obtained. During the course of the theft, the victim was shot in the head. Payne and Wade were able to flee, but defendant was caught in the home by the victim's father.

The evidence strongly established that defendant committed the acts charged with the correct mental state. As we have already noted, even though the word "knowingly" was omitted from the robbery charge, the jury instructions, taken as a whole, were sufficient to impart the need to find that while in the course of the theft the gun was employed to threaten the victim "with or purposely put him in fear of immediate bodily injury." State v. Nero, 195 N.J. 397 (2008) (omission of mental state relating to simulated weapon robbery charge was not error because, taken as a whole, the jury instruction properly conveyed the charge).

(ii)

Second, defendant asserts that he was denied effective assistance of counsel because his counsel failed to advise him that he faced life in prison if convicted of felony murder. Defendant failed to demonstrate a reasonable likelihood of success under the two-pronged test established by Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Despite defendant's knowledge of his sentence, the first time he made this argument was thirteen and a half years after his convictions, and following his first PCR.

The record shows that defense counsel had "as many as twenty" conversations with defendant about accepting the State's plea offer. In exchange for a guilty plea to aggravated manslaughter, the State would have recommended that defendant be sentenced to thirty-five years in state prison with seventeen and a half years of parole ineligibility. Defendant knew that he faced a minimum of thirty-years without parole if he was found guilty of the homicide. Defense counsel has no recollection of the details of the case, and only two pre-trial transcripts have been located. Thirteen and a half years after his convictions, defendant failed to demonstrate a reasonable likelihood of success that defense counsel's performance was deficient. Thus, defendant failed to establish prong one of Strickland.

Even if he could show that he was not informed about exposure to life in prison, defendant had no interest in pleading guilty to any offense. During the May 26, 1993, pre-trial proceedings, defendant admitted that he was not "prepared to admit guilt to anything" and that he was "not guilty and never took part in any of the proceedings that led to the death of the victim." State v. Taccetta, 200 N.J. 183 (2009). Even if he was not advised about exposure to life in prison, defendant failed to show that "the result of the proceeding would have been different." He failed to meet prong two of Strickland.

 
Affirmed.

We held that although State v. Bielkiewicz, 267 N.J. Super. 520 (App. Div. 1993), had not been decided, the trial judge gave a charge substantially complying with Bielkiewicz, and that defendant could not have been convicted of felony murder unless he had the requisite intent to commit the crime of robbery. Mann II, supra, slip op. at 4-5.

In his pro se brief, defendant acknowledges that the robbery charge as quoted was read to the jury.

It is undisputed that the quoted accomplice liability charge was given to the jury.

(continued)

(continued)

15

A-1491-08T4

August 30, 2010