STATE OF NEW JERSEY v. DARNELL DIXON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3194-07T43194-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DARNELL DIXON,

Defendant-Appellant.

____________________________

 

Submitted January 26, 2010 - Decided

Before Judges Wefing, Grall and LeWinn.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 96-10-3394 and 96-10-3395.

Yvonne Smith Segars, Public Defender, attorney for appellant (Philip Lago, Designated Counsel, on the brief).

Robert D. Laurino, Acting Essex County Prosecutor, attorney for respondent (Gary A. Thomas, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant appeals from the November 2, 2007 order of the Criminal Part denying his petition for post-conviction relief (PCR). We affirm.

This case has a somewhat convoluted procedural history, which we summarize as follows.

In 1996, defendant was indicted for first-degree murder, N.J.S.A. 2C:11-3(a)(1) and (2); felony murder, N.J.S.A. 2C:11-3(a)(3); first-degree armed robbery, N.J.S.A. 2C:15-1; second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); and second-degree possession of a weapon with unlawful purpose, N.J.S.A. 2C:39-4(a). A separate indictment charged defendant with second-degree unlawful possession of a handgun in violation of N.J.S.A. 2C:39-7.

Tried to a jury in February 1998, defendant was convicted of the lesser-included offense of second-degree reckless manslaughter, as well as first-degree robbery, second-degree aggravated assault, and the weapons offenses. At sentencing on May 20, 1998, the trial judge granted defendant's motion for a judgment of acquittal on the first-degree robbery charge. The judge then sentenced defendant to an aggregate term of forty years with a twenty-year parole ineligibility period, to be served consecutively to the thirty-year sentence defendant was then serving for a 1997 first-degree manslaughter conviction.

Defendant appealed, and we affirmed his convictions but remanded for re-sentencing. State v. Dixon, No. A-2255-98 (App. Div. June 1, 2000) (slip op. at 8-9). The Supreme Court denied defendant's petition for certification. State v. Dixon, 175 N.J. 76 (2002). On remand, the judge sentenced defendant to an aggregate term of thirty-seven years, with a fifteen-year parole ineligibility period. Defendant appealed his sentence pursuant to Rule 2:9-11, and we affirmed. State v. Dixon, No. A-2028-00 (App. Div. October 15, 2001).

Defendant filed a pro se PCR petition on January 22, 2003, alleging that he was denied his right to the effective assistance of counsel. Defendant thereafter filed a second PCR petition on September 19, 2006. PCR counsel was assigned and filed a supporting brief on March 27, 2007. Counsel asserted the following claims of ineffective assistance: (1) trial counsel's failure to (a) have juror #6 removed from the panel; and (b) object to defendant "being sentenced to multiple extended terms to be served consecutively"; and (2) trial and appellate counsels' failure to (a) "object to the prosecutor vouching for the credibility of her witnesses in her summation"; (b) "provide effective assistance of counsel"; and (c) object to certain errors in the jury instructions.

The PCR judge scheduled oral argument on defendant's petition on November 2, 2007. On the day prior to this hearing, defendant filed a motion seeking to compel PCR counsel to withdraw due to "insurmountable conflicts . . . ." At the outset of the hearing, defendant asserted a "client and attorney breach . . . ." However, the judge announced that he had "a written decision on the case. It doesn't even really require an appearance in court." The judge noted that he considered the petition to be time-barred but, nonetheless, addressed "every issue that counsel briefed[,]" and was prepared to render a decision.

PCR counsel stated that he

met with [defendant] on two occasions by way of video conference - maybe three, actually. I've written numerous letters to [defendant]. I reviewed the complete record of [defendant's] trial and appeal, submitted a voluminous brief on behalf of [defendant] . . . . [M]oreover, I submitted about five or six supplemental briefs, pro se briefs, that [defendant] wanted submitted to the court.

And [defendant] was c.c.'d on all correspondence to the court relative to my submission of his pro se applications. . . .

. . . .

[T]he time-barred issue. It wasn't a direct point of mine; however, I did . . . address it strongly in the procedural history, namely that he was re-sentenced and he filed in 2003. I recognize the court's decision, but I just wanted to put that on the record as well.

Notwithstanding the judge's representation, at the conclusion of the hearing, that he would "give all parties involved a copy of [his] written decision[,]" the judge issued only an order denying PCR on that date. That order states that relief was denied for the reasons "[e]xpressed in the court's written opinion . . . ."

Defendant filed a pro se notice of appeal on February 28, 2008; the Office of the Public Defender was subsequently assigned and filed a notice of appearance on March 27, 2008. Counsel filed a motion for "summary reversal" on August 20, 2008, noting that no written decision had been issued by the trial judge.

On September 18, 2008, we issued the following order:

Appellant's motion for summary reversal is denied. On the court's own motion, . . . the case is temporarily remanded to the trial court for the development of a complete record regarding the timeliness of defendant's petition and findings of fact and conclusions of law regarding both the timeliness of the petition and the merits. We note that although the order denying the petition refers to a written opinion, the parties agree that no written opinion was ever filed. We also note that there may be some confusion regarding a 2002 petition relating to Indictment No. 2287-6-95 and a 2003 petition relating to Indictment Nos. 3394-10-96 and 3395-10-96.

Jurisdiction is retained. The remand shall be completed by November 13, 2008.

On March 5, 2009, the PCR judge filed an opinion with this court. That opinion noted that it was "[d]ecided [on] November 2, 2007[,]" and pertained to Indictment Nos. 96-10-3394 and 96-10-3395.

In his decision, the PCR judge reviewed the procedural and factual history of the case, articulated the legal standards governing PCR decisions, and described defendant's claims of ineffective assistance of trial and appellate counsel. The judge then noted that defendant's judgments of conviction on these two indictments were entered on May 20, 1998, and the PCR petition which is the subject of these proceedings was filed more than eight years later on September 19, 2006. Therefore, the judge denied defendant's petition "as it is time-barred."

Despite this ruling, the judge proceeded to address each of defendant's claims on the merits. Based upon his review, the judge concluded that "defendant's substantive claims of ineffective assistance of counsel are without merit."

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

POINT I

THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL

Trial counsel failed to protect defendant's right to a fair and impartial jury by requesting removal of juror #6.

Trial counsel failed to object when the prosecutor vouched for the credibility of the [S]tate's witnesses.

Trial counsel failed to raise adequate objections to the sentence.

Trial counsel failed to consult with defendant in a meaningful manner.

Trial counsel failed to investigate and present essential witnesses at trial.

Trial counsel failed to file a motion to dismiss the indictment.

Trial counsel was ineffective in regards to the charge to the jury.

Trial counsel failed to adequately attack the credibility of [S]tate witnesses.

POINT II

THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL.

POINT III

THE LOWER COURT ORDER MUST BE REVERSED IN LIGHT OF NUMEROUS ADDITIONAL ERRORS.

POINT IV

THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE CUMULATIVE ERRORS RENDERED THE TRIAL AND APPEAL UNFAIR.

POINT V

DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL ON THE PETITION FOR POST-CONVICTION RELIEF AND THE LOWER COURT ORDER MUST THEREFORE BE REVERSED. [PARTIALLY PRESENTED BELOW]

POINT VI

THE ORDER DENYING THE PETITION SHOULD BE REVERSED SINCE THE COURT'S FINDING THAT DEFENDANT HAD WITHDRAWN HIS PRO SE PCR PETITION HAS NO SUPPORT IN THE RECORD AND THE PETITION WAS THEREFORE TIMELY FILED.

POINT VII

THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT'S CLAIMS ARE NOT PROCEDURALLY BARRED UNDER R. 3:22-5.

POINT VIII

THE LOWER COURT ERRED IN NOT GRANTING DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING AND THE LOWER COURT ORDER MUST THEREFORE BE REVERSED.

Having reviewed these contentions in light of the record and the controlling legal principles, we are convinced that they "are without sufficient merit to warrant discussion in a written opinion," R. 2:11-3(e)(2), beyond the following comments.

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 (citing 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.

Defendant has patently failed to meet this test with respect to any of his ineffective assistance claims. We affirm the rejection of these claims for the reasons stated in the PCR judge's written opinion filed with this court on March 5, 2009.

We also reject as without merit defendant's claim that he received ineffective assistance of PCR counsel. In his motion to "withdraw" PCR counsel, defendant asserted that he asked counsel not to file his supplemental brief for the following reasons:

[T]he brief had the wrong indictment number, the information concerning the attorneys who handled my case were [sic] wrong, there were [sic] information on witnesses and other related information in the above referenced indictment that belonged in Indictment 2287-06-95, and there were issues that I felt were important and wanted them raised before the court and those issues were totally ignored by counsel . . . after I called him which is indicative of counsel's total disrespect for [p]etitioner's wishes. These grievances have created an insurmountable conflict.

While PCR counsel's brief did list an erroneous indictment number on the cover, the substance of that brief was clearly addressed to the indictments on which defendant was tried in 1998. Moreover, defendant never identified issues that he claims "were totally ignored" by PCR counsel.

Regarding whether defendant withdrew his 2003 petition, we note that, while there may have been some confusion on this point, the issues defendant raised in his pro se 2003 petition were all presented to the PCR judge in defendant's amended PCR petition filed on September 19, 2006, and PCR counsel's supplemental brief filed on March 27, 2007. We are satisfied that defendant was in no way prejudiced by any misunderstanding as to the withdrawal of his 2003 PCR petition.

The PCR judge did not rule that defendant's petition was procedurally barred under Rule 3:22-5, as defendant claims. Rather, the judge held that the petition was time-barred under Rule 3:22-12. Nonetheless, as noted, the judge proceeded to address and decide defendant's claims on the merits. Therefore, defendant was not prejudiced by that determination.

Finally, as defendant failed to meet his burden of establishing a prima facie case of ineffective assistance of counsel, he was not entitled to a plenary hearing. See State v. Preciose, 129 N.J. 451, 462 (1992).

 
Affirmed.

(continued)

(continued)

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A-3194-07T4

June 29, 2010