STATE OF NEW JERSEY v. DAVID SESSOMS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3378-07T43378-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DAVID SESSOMS, a/k/a DAVID FISHER,

Defendant-Appellant.

_____________________________________________

 

Submitted May 11, 2009 - Decided

Before Judges R. B. Coleman and Sabatino.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 01-02-0963.

Yvonne Smith Segars, Public Defender, attorney for appellant (Sharon A. Quinn, Designated Counsel, on the brief).

Paula T. Dow, Essex County Prosecutor, attorney for respondent (Luanh L. Lloyd, Assistant Prosecutor, of counsel and on the brief).

The opinion of this court was delivered by

R. B. COLEMAN, J.A.D.

Defendant, David Sessoms a/k/a David Fisher, appeals the Law Division's denial of his petition for post-conviction relief (PCR). Defendant argues that (1) he was denied his right to counsel because his waiver of his right to counsel was not made knowingly and intelligently, and (2) he was denied the effective assistance of counsel because his attorney failed to make a motion to suppress and failed to raise the issue of defendant's competency before defendant waived his right to counsel. We affirm.

On October 20, 2000, two police officers with the Newark Police Department's Narcotics Squad observed defendant standing on a corner identified by police as a drug distribution area with several other individuals. The officers asked the individuals to leave the area and the crowd dispersed. When the officers returned approximately fifteen minutes later, defendant was again standing on the same corner, but he ran into a public housing project when he saw the police.

The officers immediately set up a covert surveillance operation near the corner. With the aid of binoculars, the officers viewed defendant pacing back and forth on the corner and looking over his shoulder, until a vehicle pulled up near defendant. The officers then observed defendant walk up to the vehicle and, after a brief conversation with a person inside, take out a small object from the right side of his pants and exchange it for an unknown sum of money. Two to three minutes later, the officers observed three individuals approach defendant on foot and hand him money. Defendant retrieved several objects from his pocket and handed them to each of the individuals in exchange.

When one of the officers, Officer Gene Collins, approached defendant on foot, defendant began to flee. Officer John Lebron cut off defendant's path with his police vehicle, jumped out, and apprehended defendant. Officer Collins arrived seconds later and saw a section of a transparent plastic bag sticking out of the front zipper of defendant's pants. Officer Collins told defendant to remove the bag. Defendant complied. The bag contained approximately fifty individually packaged bags of marijuana. Officer Collins then patted down the outside of defendant's pants and felt what he suspected was more drugs. Officer Collins reached into defendant's pocket and removed another bag containing sixty-one individually packaged bags of marijuana. The officers also retrieved twenty-four dollars in cash from defendant's pocket.

Defendant was arrested and charged by the Essex County Grand Jury on Indictment No. 01-02-0963 with fourth-degree possession of marijuana, N.J.S.A. 2C:35-10(a)(3) (count one); third-degree possession of marijuana with an intent to distribute, N.J.S.A. 2C:35-5(b)(11) (count two); third-degree possession of marijuana with intent to distribute within 1000 feet of a school, N.J.S.A. 2C:35-7(a) (count three); second-degree possession of marijuana with intent to distribute within 500 feet of a public housing facility, N.J.S.A. 2C:35-7.1 (count four).

On January 7, 2002, the judge entertained several motions, including defendant's motion to represent himself pro se. A Deputy Public Defender was assigned to represent defendant, but defendant found himself in disagreement with counsel about defense strategy. The court asked defendant a battery of questions to gauge whether his waiver of assigned counsel was being made knowingly, voluntarily, and intelligently. The court asked defendant about his level of education; whether and to what extent he had undertaken informal or formal legal studies; whether defendant had previously assisted others in legal matters; whether defendant had previously represented himself or anyone else in a criminal trial, observed a criminal trial, or been a witness in a criminal trial; whether defendant understood the offenses with which he had been charged and the penalties to which he could be subjected if found guilty; whether he understood the concept of consecutive sentences and that he could be subject to consecutive sentences; whether defendant understood the elements of the crimes with which he had been charged, the proofs needed to establish each element, and that the State could use direct or circumstantial evidence to do so; whether defendant had a grasp of the New Jersey Rules of Evidence and understood that they would control what could be introduced at trial; whether defendant understood that, due to his dual role as a defendant and attorney, he would be required to ask himself specific questions if he were to testify as a witness and that his dual role could work to his disadvantage; whether defendant was aware of any defenses to the charges against him; and, most importantly, whether his decision to represent himself was entirely voluntary and whether he understood that he would be entirely on his own and responsible for his own mistakes as an attorney. Though at one point, defendant indicated that he did not wish to proceed pro se, he later unequivocally stated that he wished to proceed pro se. The trial court deemed defendant's answers satisfactory and allowed him to proceed pro se, with assigned counsel acting in a standby capacity.

The trial court thereafter heard defendant's pro se pretrial motions. Defendant made a motion to dismiss the charges against him due to lack of prosecution. The trial court denied that motion. Defendant made a motion to suppress evidence based on a violation of Miranda. The trial court denied that motion because the State was not seeking to introduce any out-of-court testimony. Defendant then made a motion to suppress all the marijuana allegedly found in his possession on the theory that the search was conducted without probable cause, in violation of his Fourth Amendment rights. Defendant told the court that the police officers detained him, ordered him to sit on the ground, found the bags of marijuana somewhere outside his field of vision, and then fabricated the story that he had been carrying the marijuana in his pants. Though the trial court noted that defendant's motion had been made out of time, it resolved to conduct a Rule 104 hearing the following day in which it would compare the defendant's account of the search to that of the police officers who effectuated the search, and then rule on its legality. See N.J.R.E. 104.

On January 8, 2002, the trial court conducted the suppression hearing in which defendant continued to represent himself pro se. Out of the presence of the jury, the State elicited testimony from Officer Collins explaining that he watched defendant make what he believed to be four drug deals, chased defendant on foot and found him with a section of a plastic bag protruding from his front zipper, asked defendant to remove the bag, found that it contained marijuana, and then conducted a pat down of defendant and found the rest of the marijuana. Defendant cross-examined Officer Collins and then argued, albeit in somewhat rambling fashion, that the officers had no probable cause to make an arrest and that Officer Collins's credibility should be discounted because he did not arrest any of the four people who allegedly purchased marijuana from defendant.

The trial court denied defendant's motion to suppress the marijuana, finding that defendant was found in possession of the drugs after a lawful arrest supported by probable cause, and that the bag containing the drugs was also in plain view of the arresting officer. After defendant's motion was denied, assigned counsel expressed her concern that, based upon his performance during the suppression hearing, defendant was clearly incapable of representing himself. Defendant elected to proceed with assigned counsel representing him, and she continued to represent him from that point through the conclusion of trial.

Trial commenced on January 9 and 10, 2002, and on the latter date, the jury found defendant guilty on all counts. The trial court denied defendant's motion for a new trial and sentenced him to seven years incarceration with a three-year period of parole ineligibility. Defendant's direct appeal to this court was denied, State v. Sessoms, No. A-6361-01T5 (App. Div. October 14, 2003), as was his petition for certification to the New Jersey Supreme Court, 178 N.J. 453 (2004).

On February 7, 2007, defendant filed a pro se petition for PCR. The same judge presided over defendant's PCR hearing on October 23, 2007. In an oral decision, the judge denied defendant's petition. Defendant filed the present appeal on March 18, 2008.

Defendant raises the following issues on appeal:

POINT I: THE DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF SHOULD BE GRANTED.

POINT II: THE TRIAL COURT'S DECISION TO PERMIT THE DEFENDANT TO REPRESENT HIMSELF DURING PRE-TRIAL PROCEEDINGS AND PARTICULARLY DURING THE SUPPRESSION HEARING RESULTED IN A DENIAL OF DEFENDANT'S CONSTITUTIONAL RIGHTS.

POINT III: THE DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO EFFECTIVE COUNSEL.

I.

Post-conviction relief is New Jersey's analog to federal habeas corpus review. State v. Preciose, 129 N.J. 451, 459 (1992). PCR allows a person convicted of a crime to petition for relief on the ground that the person (a) was substantially denied federal or state constitutional rights during conviction proceedings, (b) was sentenced by a court lacking jurisdiction, (c) was unlawfully sentenced, or (d) is entitled to relief upon a ground "heretofore available as a basis for collateral attack upon a conviction by habeas corpus or any other common-law or statutory remedy." R. 3:22-2. A petitioner bears the burden of establishing a right to relief by a preponderance of the evidence. Preciose, supra, 129 N.J. at 459.

A petition for PCR is an additional, limited safeguard to prevent the unjust conviction of defendants, not to be used as a substitute for an appeal or to revisit claims already made on appeal. State v. McQuaid, 147 N.J. 464, 482-83 (1997). Two procedural bars help preserve the limited nature of the rule. Pursuant to Rule 3:22-4, a defendant may not assert a claim on PCR that could have been made on direct appeal. Pursuant to Rule 3:22-5, a defendant may not assert a claim already considered by a court and decided on the merits in a prior proceeding.

An appellate court sitting in review of an application for post-conviction relief "'should give deference to those findings of the trial judge which are substantially influenced by his opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy.'" State v. Taccetta, 200 N.J. 183, 194 (2009) (quoting State v. Johnson, 42 N.J. 146, 161 (1964)). An appellate court is not required to provide deference to legal conclusions reached by a PCR court sitting below. Id. at 195.

II.

First, we address defendant's argument that he was denied his Sixth Amendment right to counsel because he neither voluntarily nor intelligently elected to proceed without an attorney, as required by State v. DuBois, 189 N.J. 454, 465-66 (2007). Defendant claims that even though the trial court provided an adequate explanation of the consequences of waiver of counsel and generally asked appropriate questions of defendant to determine whether his waiver of counsel was knowing and voluntary, defendant's responses demonstrated that he was incapable of making a knowing and voluntary waiver. Defendant contends that the trial court committed reversible error by permitting him to proceed pro se when he was incapable of knowingly and voluntarily waiving his right to counsel. The PCR court found that defendant's claim that he did not knowingly or intelligently waive his right to counsel was barred by Rule 3:22-4 because it could have been raised on direct appeal. We agree.

Pursuant to Rule 3:22-4, "[a]ny ground for relief not raised . . . in the proceedings resulting in the conviction . . . or in any appeal taken in any such proceedings" is barred unless (a) it "could not reasonably have been raised in any prior proceeding," (b) it would "result in a fundamental injustice" or, (c) or where "denial of relief would be contrary to the Constitution of the United States or the State of New Jersey." R. 3:22-4.

First, defendant's claim that he never made a knowing, intelligent waiver of counsel could have been brought on direct appeal and defendant has not proven otherwise. In past cases, such claims have been made on direct appeal. In DuBois, for example, the defendant waived his right to counsel and the trial court permitted him to proceed pro se; the defendant challenged the trial court's ruling on direct appeal, asserting that his waiver of his Sixth Amendment right to counsel was not made knowingly and intelligently. Supra, 189 N.J. at 459; see also State v. Crisafi, 128 N.J. 499, 503 (1992). Defendant's brief does not assert any reasons why his challenge to the trial court's ruling permitting him to proceed pro se could not have been made on direct appeal.

Second, defendant cannot show that the exceptions set forth in subsections (b) or (c) of Rule 3:22-4 have been met because defendant's claim alleging that the trial court erred in granting his motion to proceed pro se lacks substantive merit. Rather, the record supports the PCR court's conclusion that defendant's waiver of counsel was made knowingly and voluntarily.

The Sixth Amendment to the United States Constitution, applicable to the states through the Fourteenth Amendment, guarantees criminal defendants in New Jersey a right to counsel and a corresponding right to "dispense with counsel and proceed pro se." Crisafi, supra, 128 N.J. at 509 (citing Faretta v. California, 422 U.S. 806, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975)). However, in order to invoke the right to proceed pro se, a defendant must first "'knowingly and intelligently'" waive his right to counsel. DuBois, supra, 189 N.J. at 455-56 (quoting Faretta, supra, 422 U.S. at 835, 95 S. Ct. at 2541, 45 L. Ed. 2d at 581). "It is for the court to determine whether an accused has knowingly and intelligently waived that right and to establish the waiver on the record." Crisafi, supra, 128 N.J. at 509.

In Crisafi, id. at 510, the Court ruled that before a court permits a defendant to waive his right to counsel, the court must first inform the defendant of:

(1) the nature of the charges, statutory defenses, and possible range of punishment; (2) the technical problems associated with self-representation and the risks if the defense is unsuccessful; (3) the necessity that defendant comply with the rules of criminal procedure and the rules of evidence; (4) the fact that the lack of knowledge of the law may impair defendant's ability to defend himself or herself; (5) the impact that the dual role of counsel and defendant may have; and (6) the reality that it would be unwise not to accept the assistance of counsel.

[DuBois, supra, 189 N.J. at 467 (citing Crisafi, supra, 128 N.J. at 511-12).]

Subsequent to the defendant's trial in the case at bar, the Court, in State v. Reddish, 181 N.J. 553, 594-95 (2004), added three additional safeguards to those enunciated in Crisafi. Reddish demands that:

(1) the discussions [between defendants and the court] should be open-ended for defendants to express their understanding in their own words; (2) defendants should be informed that if they proceed pro se, they will be unable to claim they provided ineffective assistance of counsel; and (3) defendants should be advised of the effect that self-representation may have on the right to remain silent and the privilege against self-incrimination.

[DuBois, 189 N.J. at 468 (citing Reddish, supra, 181 N.J. at 594-95).]

In determining whether a defendant has waived the right to counsel, a court must "indulge in every reasonable presumption against waiver of so fundamental a right as the right to counsel[.]" State v. Kordower, 229 N.J Super. 566, 577 (App. Div. 1989). However, because the trial court is in the best position to evaluate whether a defendant's decision to proceed pro se was made knowingly and intelligently, an appellate court sitting in review may only reverse if it finds that the trial court abused its discretion. DuBois, supra, 189 N.J. at 475.

On appeal from the denial of PCR, defendant does not argue that the trial court failed to comply with any of the Crisafi requirements, and instead argues that defendant's answers to the questions posed were "universally inadequate" and "demonstrated that his waiver of representation was not knowing, intelligent, or voluntary." Though defendant argues that the trial court did not comply with the additional requirements set forth in Reddish, those requirements had not yet been announced by the Supreme Court and therefore were not yet binding upon the trial court at the time of defendant's trial.

We agree with the PCR court's finding that the trial court did not abuse its discretion when it granted defendant's motion to proceed pro se. It is uncontested that all of the Crisafi requirements were covered by the trial court. The trial court several times explained to defendant the difficulties he would face acting as his own attorney, including that he would be unable to seek advice from the court or have his stand-by counsel participate in the trial other than as a passive advisor. Defendant was also told that he would be bound by the rules of evidence, and indicated that he understood that they would control what could be presented to the court. Although defendant was not facile with legal parlance, he demonstrated at least some knowledge of criminal law, including a passable understanding of the charges against him and the defenses available to him.

Critically, the judge told defendant that it was unwise to refuse the assistance of legal counsel and that his attorney would do a better job representing him than he could do himself. Even though he at one point vacillated about waiving his right to counsel, when defendant finally made his decision to proceed pro se, defendant clearly and obstinately asserted that he wished to represent himself, whatever the risks. A defendant asserting his right to proceed pro se need not "have the skill and experience of a lawyer in order to competently and intelligently choose self-representation." Faretta, supra, 422 U.S. at 835, 95 S. Ct. at 2541, 45 L. Ed. 2d at 582-83. It is sufficient that he has been "made aware of the dangers and disadvantages of self-representation," such that "he knows what he is doing and his choice is made with eyes open." Faretta, supra, 422 U.S. at 835, 95 S. Ct. at 2541, 45 L. Ed. 2d at 583 (internal quotation omitted). We are convinced that defendant understood what he was giving up when he elected to waive his right to counsel. We cannot say that the trial court committed an abuse of discretion in permitting defendant to proceed pro se or that the PCR court erred in dismissing defendant's petition on the waiver issue.

We need only briefly address defendant's additional argument that the trial court erred by ignoring evidence suggesting that defendant was psychologically unstable and therefore incapable of waiving his right to counsel. We reject it for the reasons enunciated by the PCR court. First, as noted by the PCR court, when defendant's mother addressed the trial court during defendant's motion to proceed pro se, she identified herself not as his guardian ad litem, but only as his mother, and she primarily expressed her opinion that defendant would be better off with a trained attorney than on his own. Though she stated that defendant "goes to therapy on the outside, therapy treatment" and that she did not "know if he's taking his medication" in prison, defendant's mother never asserted that defendant was mentally incapable of waiving his right to counsel; she appeared merely to be expressing her disagreement with his "hard headed" decision.

Second, the PCR court noted that while it signed an order and allowed an adjournment to provide defendant with an opportunity to obtain an evaluation about his mental capacity at the time of his waiver of counsel, he failed to produce any additional evidence of incompetency or diminished capacity. As a result, the PCR court deemed the defendant's mother's vague statements and the mere fact that defendant had been previously treated and prescribed medications for psychological problems insufficient to prove mental incapacity at the time of his hearing. The PCR court concluded that the record both at the time of trial and on PCR did not establish that defendant was mentally incapable of waiving his right to counsel. We agree.

III.

Defendant argues that his counsel was ineffective for failing to file a motion to suppress the marijuana evidence and for failing to raise the issue of defendant's competency. According to defendant, "[a] hearing on [the competency] issue would have revealed the prior history and extent of her client's mental illness and the defendant's inability to represent himself." Because in our written decision dismissing defendant's direct appeal, we specifically preserved defendant's right to assert his ineffective assistance of counsel claim in a petition for PCR, we find that Rule 3:22-4 and 3:22-5 procedural bars are inapplicable. We will therefore entertain defendant's claim on the merits.

In order to establish a prima facie case of ineffective assistance of counsel, a defendant bears the burden of producing facts that demonstrate a reasonable likelihood of succeeding under the two-prong test in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland test in New Jersey); see also Preciose, supra, 129 N.J at 463 (applying the Strickland test to a claim of ineffective assistance of counsel asserted in a petition for PCR).

Under the first prong of the analysis, the defendant must establish that counsel's performance was, in fact, deficient. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. This requires a showing that the errors made by the attorney were of such magnitude that he or she was not functioning as "counsel" as afforded a defendant by the Sixth Amendment. Ibid. Adequate assistance of counsel is measured by a standard of "reasonable competence." Fritz, supra, 105 N.J. at 60. "[T]he defendant must overcome a 'strong presumption' that counsel exercised 'reasonable professional' judgment and 'sound trial strategy' in fulfilling his responsibilities." State v. Loftin, 191 N.J. 172, 198 (2007) (quoting State v. Castagna, 187 N.J. 293, 314 (2006)). Strategic decisions of trial counsel made after a thorough investigation are "virtually unchallengeable." Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695.

Under the second prong, the defendant must demonstrate that counsel's deficient performance prejudiced the defense. The defendant "must show that there is 'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698). "Reasonable probability" means "'a probability sufficient to undermine confidence in the outcome.'" Ibid.

In State v. Cummings, we set forth the minimum level of proof necessary to sustain a finding of ineffective assistance of counsel under the Strickland test. 321 N.J. Super. 154, 170 (App. Div. 1990), certif. denied, 162 N.J. 199 (1999). Under the rule in Cummings, a petitioner for post-conviction relief cannot satisfy the Strickland test unless he makes "more than . . . bald assertions that he was denied the effective assistance of counsel. He must allege facts sufficient to demonstrate counsel's substandard performance." Ibid.

Because the petitioner must prove both prongs of the Strickland test, a court deciding an ineffective assistance of counsel claim need not address both prongs if it finds that one has not been met. Taccetta, supra, 200 N.J. at 195. A demonstration that petitioner failed to prove one of the prongs ends the inquiry. Ibid.

Defendant has not established that his attorney's decision not to make a motion to suppress the marijuana evidence constituted ineffective assistance of counsel under the Strickland test. First, counsel's decision not to make such a motion would have been a strategic decision, and therefore is "virtually unchallengeable." Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. Defendant has not shown counsel's decision not to file an earlier motion to suppress to have been anything but an exercise of trial strategy. Second, defendant cannot demonstrate any prejudice flowing from counsel's decision not to file an earlier motion to suppress because defendant was provided with a plenary hearing in which he argued for the suppression of the marijuana. Defendant has not shown that the failure to file an earlier challenge to the marijuana evidence in any way impacted his ability to challenge it on the eve of trial.

Defendant has also failed to demonstrate that his attorney's purported failure to request a competency hearing constituted ineffective assistance of counsel under the Strickland test. Though defendant claims that a competency hearing "would have provided additional illumination as to the defendant's ability to represent himself[,]" he squandered an opportunity to present evidence that he was, in fact, mentally incompetent at the time he waived his right to counsel. Because defendant's assertion of his own incompetency is unsupported by fact, his allegation that his attorney was ineffective for not raising the issue of his competency is likewise unsupported by fact. Such a "bald assertion" of ineffective assistance of counsel does not satisfy an aggrieved defendant's burden under the Strickland test. Cummings, supra, 321 N.J. Super. at 170.

Affirmed.

 

Defendant first indicated that he wished to hire a different attorney, but because the trial was scheduled to begin the following day and because defendant had ample time to substitute his attorney but had not done so, the trial court ruled that it would not postpone the trial date or pretrial motions to allow defendant to seek a new attorney. Defendant then agreed that he would find a private attorney by the next day and that assigned counsel would represent him until then, but that if he could not retain a new lawyer, assigned counsel would remain his attorney. But when assigned counsel commenced her representation of defendant, he again changed his mind and determined that he did not "have a winning chance" with assigned counsel and would "rather take the chance of representing [him]self."

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

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A-3378-07T4

May 17, 2010