STATE OF NEW JERSEY v. ELI BETHEA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3475-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ELI BETHEA,

Defendant-Appellant.

_________________________________________________

October 28, 2010

Submitted October 20, 2010 - Decided

Before Judges Fisher and Fasciale.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 01-06-0734.

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

Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney for respondent (John P. Boyle, Jr., Assistant Prosecutor, on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

In this appeal of an order denying his petition for post-conviction relief (PCR), defendant argues, among other things, that he was denied the effective assistance of both his trial and PCR counsel, that the PCR judge applied the wrong standard in denying relief, and that the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, is unconstitutional. We find no merit in these arguments and affirm.

At trial, the State sought to prove that defendant Eli Bethea and co-defendant Emanuel Ross kidnapped Jerome Garrison and took him to an abandoned apartment. There, defendant and Ross stripped, tied and gagged Garrison and tortured him over the course of four hours. Water was boiled on a stove and thrown on Garrison. Defendants doused him with bleach and pressed a heated wire hanger against his body. They also took turns terrorizing Garrison by thrusting a handgun into his mouth.

In support of its case, the State relied on photographs taken by defendants that depicted the torture of Garrison in the abandoned apartment, as well as defendant's five-page confession. Based on this and other evidence, the jury convicted defendant of first-degree kidnapping, N.J.S.A. 2C:13-1(b); second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1); third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(2); fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(4); second-degree possession of a firearm for unlawful purposes, N.J.S.A. 2C:39-4(a); third-degree possession of weapons for unlawful purposes, N.J.S.A. 2C:39-4(d); and fourth-degree unlawful possession of weapons, N.J.S.A. 2C:39-5(d). After all appropriate mergers and application of NERA and the Graves Act, N.J.S.A. 2C:43-6, defendant was sentenced to a twenty-five year prison term with an 85% period of parole ineligibility on the first-degree kidnapping conviction, a consecutive eight-year prison term on the second-degree aggravated assault conviction, and a concurrent eighteen-month prison term on the fourth-degree weapons conviction.

In affirming the judgment of conviction by way of an unpublished opinion, we declined to consider the argument then raised by defendant that he was denied the effective assistance of counsel, finding it more appropriately considered on a future application for post-conviction relief. State v. Bethea, No. A-6547-01T3 (App. Div. May 13, 2004) (slip op. at 4).

On October 15, 2002, defendant filed a pro se PCR petition, which was amended in August 2004 and again in August 2006. The petition was ultimately denied on July 31, 2008, by way of the PCR judge's written decision.

In appealing the denial of his PCR petition, defendant argues by way of his counsel's brief:

I. THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE MATTER REMANDED FOR A FULL EVIDENTIARY HEARING BECAUSE THE COURT FAILED TO APPLY APPROPRIATE R. 3:22-2 CRITERIA.

II. THE COURT ERRED IN DENYING POST-CONVICTION RELIEF WITHOUT CONDUCTING A FULL EVIDENTIARY HEARING BECAUSE TRIAL COUNSEL'S FAILURE TO CONSIDER CO-DEFENDANT'S FIFTH AMENDMENT RIGHTS AND FAILURE TO OBJECT TO THE DEFENDANT BEING TRIED FIRST SATISFIED BOTH PRONGS OF THE STRICKLAND/FRITZ[1] TEST FOR INEFFECTIVE ASSISTANCE OF COUNSEL.

III. THE COURT'S RULING DENYING POST-CONVICTION RELIEF VIOLATED THE DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AND THE DEFENDANT'S RIGHT TO CONFRONTATION AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, PARAGRAPHS 9 AND 10 OF THE NEW JERSEY CONSTITUTION.

IV. DEFENDANT REASSERTS ALL OTHER ISSUES RAISED IN DEFENDANT'S PRO SE SUBMISSIONS IN SUPPORT OF POST-CONVICTION RELIEF AND IN PCR COUNSEL'S BRIEF IN SUPPORT OF POST-CONVICTION RELIEF.

Defendant also presents the following arguments by way of a pro se supplemental brief:

I. APPELLANT WAS DENIED EFFECTIVE PCR COUNSEL.

II. THE CUMULATIVE IMPACT OF THE RECORD-PROVEN ERRORS WARRANTS REVERSAL OF THE CONVICTION WITHOUT AN EVIDENTIARY HEARING.

III. BECAUSE THE RECORD-SUPPORTED ERRORS VIOLATE CONSTITUTIONAL NORMS AND CANNOT BE DEEMED HARMLESS BEYOND A REASONABLE DOUBT, REVERSAL IS THE ONLY APPROPRIATE RELIEF; ALTERNATIVELY THE MATTER SHOULD BE REMANDED FOR A FULL EVIDENTIARY HEARING.

IV. BECAUSE APPELLANT WAS GIVEN A DISPARATE SENTENCE, DESPITE BEING SIMILARLY SITUATION WITH THE PRINCIPAL OFFENDER, APPELLANT'S SENTENCE MUST BE CONFORMED, AND ALL COUNSEL FROM TRIAL TO PRESENT SHOULD HAVE RAISED THE RECORD-PROVEN NEED FOR UNIFORMITY.

We find insufficient merit in defendant's arguments to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add only the following comments.

First, we address the assertion that trial counsel was ineffective in failing -- at the time the cases against defendant and Ross were severed or any time prior to the trial of his case -- to argue that the Ross case should have proceeded first because he intended to call Ross as a witness in his case but was thwarted because of Ross's continued right to assert his Fifth Amendment rights. Even if we were to assume that trial counsel should have urged a different ordering of the severed trials, defendant failed to provide to the PCR judge a sworn statement from Ross as to the testimony he would have been willing to provide had he not relied upon his Fifth Amendment right; that failure warranted a rejection of this argument. See State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).

We also reject defendant's argument that the PCR judge misunderstood his function in ruling on the petition. In that regard, defendant argues that his PCR petition was rejected not on its merits but because the PCR judge viewed the State's evidence was "staggering" and "overwhelming." Defendant took the judge's comments out of context. The judge's statement about the weight of the evidence, which was certainly justified in light of the photographs of the crimes and defendant's confession, was intended to explain that, even assuming that trial counsel committed errors, defendant failed to demonstrate the second prong of the Strickland/Fritz test: "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." State v. Allegro, 193 N.J. 352, 366 (2008) (quoting State v. Loftin, 191 N.J. 172, 198 (2007)).

We lastly observe that in his pro se supplemental brief defendant contends his PCR counsel was ineffective. That contention cannot be reviewed on its merits in an appeal of the denial of the PCR petition. We leave that matter to a future PCR application regarding the performance of that attorney.

1Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Fritz, 105 N.J. 42 (1987).