STATE OF NEW JERSEY v. MARVIN MATHIS

 
(NOTE: The status of this decision is Published.)

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3695-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MARVIN MATHIS,

Defendant-Appellant.

________________________________________________________________

October 12, 2010

 

Submitted September 21, 2010 - Decided

 

Before Judges Wefing, Baxter and Koblitz.

 

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 97-02-0123.

 

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

 

Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Sara B. Liebman, Assistant Prosecutor, of counsel and on the brief).

 

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant Marvin Mathis appeals from a February 29, 2008 Law Division order denying his petition for post-conviction relief (PCR). On appeal, assigned counsel raises the following claims:

I. THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED BECAUSE PCR COUNSEL DEPRIVED DEFENDANT OF HIS RIGHT TO A RUE "HEARING" BY FAILING TO PREPARE A BRIEF ON BEHALF OF THE DEFENDANT.

 

II. THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED BECAUSE THE COURT MISAPPLIED THE PROCEDURAL BARS OF R. 3:22-4 AND R. 3:22-5.

 

III. THE COURT ERRED IN DENYING POST-CONVICTION RELIEF BECAUSE TRIAL COUNSEL'S FAILURE TO PRESENT EVIDENCE THAT THE DEFENDANT WAS DIAGNOSED WITH A PERSONALITY DISORDER AND COGNITIVE LIMITATIONS AND WAS FOUND TO BE FUNCTIONING AT THE BORDERLINE LEVEL OF RETARDATION DURING THE PRETRIAL MIRANDA HEARING, DURING THE TRIAL, AND AT SENTENCING SATISFIED BOTH PRONGS OF THE STRICKLAND/FRITZ TEST FOR INEFFECTIVE ASSISTANCE OF COUNSEL, AND APPELLATE COUNSEL WAS INEFFECTIVE FOR FAILING TO RAISE THESE ISSUES ON APPEAL.

 

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

 

V. DEFENDANT REASSERTS ALL OTHER ISSUES RAISED IN HIS PRO SE PETITION AND BRIEFS IN SUPPORT OF POST-CONVICTION RELIEF.

In a pro se supplemental brief, defendant presents the following additional arguments:

I. THE DEFENDANT['S] RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 10 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY ASSIGNED PCR COUNSEL['S] FAILURE TO COMPLY WITH R. 3:22-6(D) BY NOT ADVANCING THE DEFENDANT'S ARGUMENTS SET FORTH IN HIS FEBRUARY 24, 2005 PRO SE MEMORANDUM OF LAW AND APPENDIX ON PCR.

 

A. PCR Counsel Failed to Investigate, Interview and Secure Affidavits from Three Expert Witnesses, Such Psychological Evidence was Crucial in Advancing Defendant's Competency Claim on PCR, Contrary to the Sixth and Fourteenth Amendment.

 

B. PCR Counsel Failed to Raise on PCR Ineffective Assistance of Appellate Counsel [who] Fail[ed] to Raise on Direct Appeal, Trial Counsel's Failure to Elicit the Aid of an Expert Witness to Illustrate Defendant's Limited Mental Ability and His Status as a Special Education Student, Contrary to the Sixth and Fourteenth Amendment.

We agree with defendant and assigned counsel that PCR counsel rendered ineffective assistance when he failed to prepare a brief on behalf of defendant, or, at a minimum, failed to certify that after reviewing the pro se petition and brief he was satisfied that no further argument or elaboration was required. We reverse the denial of PCR and remand for a new hearing.

I.

After being waived from the Family Part to the Law

Division, defendant was tried as an adult on an indictment charging him with the murder of a shopkeeper in Elizabeth, for which he was sentenced upon conviction to a fifty-five year term of imprisonment with a thirty-year period of parole ineligibility.

On direct appeal, we rejected defendant's claim that: the Family Part's waiver of jurisdiction was error; the improper admission of hearsay evidence denied him a fair trial; the prosecutor's closing argument contained numerous instances of prosecutorial misconduct; and the sentence imposed was excessive. We affirmed defendant's conviction and sentence. State v. Mathis, No. A-3316-98 (App. Div. June 2, 2000) (slip op. at 2). The Supreme Court denied certification. State v. Mathis, 165 N.J. 603 (2000).

On September 25, 2003, defendant filed the PCR petition that is the subject of this appeal. In that pro se petition, defendant argued: perjured testimony had been used to secure his conviction; the petit jury and grand jury were not "made up from a fair cross-section of the community including blacks and Hispanics"; he should have been afforded proportionality review of the waiver decision because Caucasians are less likely to be waived to adult court than African-Americans; the "egregious" and cumulative errors of trial counsel denied him effective assistance; and appellate counsel rendered ineffective assistance on a number of issues, including his failure to effectively challenge the admission in evidence of the statement defendant gave to police.

In his February 24, 2005 pro se memorandum of law in support of his PCR petition, defendant argued:

I. Defendant's state constitutional right to indictment by grand jury was violated when the facts required to be found before defendant could be tried as an adult were not charged in the indictment. Furthermore, defendant's federal and state constitutional rights to trial by jury were violated when a judge made the findings that resulted in defendant being tried as an adult, and not as a juvenile.

 

II. Defendant's federal and state constitutional right to a jury trial were violated when the trial judge found the aggravating factors used to increase defendant's sentence for murder beyond the prescribed maximum. Furthermore, defendant's (state constitutional) right to indictment by grand jury was violated when the aggravating factors used to increase the sentence for murder were not charged in the indictment.

 

III. Defendant's waiver of his Miranda rights was not knowing and intelligent because defendant was not informed that, although he was a juvenile, any statement made by him could be used against him in a prosecution as an adult.

 

IV. Trial counsel was ineffective for failing to present evidence of defendant's low intellectual functioning in order to establish that defendant's waiver of his Miranda rights was not knowing and intelligent.

 

V. Trial counsel was ineffective for not presenting in mitigation of sentence the evidence of defendant's low intellectual functioning and personality disorder.

 

VI. The new rule proposed in Point III should be retroactively applied to defendant.

 

VII. The claims for relief are not barred by a procedural rule.

 

In a supplemental pro se letter brief filed in August 2007, defendant added the following additional issue:

I. Trial and appellate counsel were prejudicially ineffective by failing to discover and raise the issue of the defendant's lack of competence to stand trial. N.J. Const. (1947), Art. I, Par. 10; U.S. Const., Amend V; VI; XIV.

 

At the February 29, 2008 PCR hearing, PCR counsel did not submit a brief in support of defendant's petition. Nor did he certify that he had conducted an independent review of the record and had determined that there were no additional claims that could be advanced on defendant's behalf. Instead, relying solely on defendant's submissions, PCR counsel's oral argument, in its entirety, was as follows:

I'm not going to go through all the details. You've read the briefs. The essence here is that Mr. Mathis has had a long history of cognitive difficulties, inability to understand complex concepts, and problems with school. And these were well documented by [various psychological experts].

And this is not so much a direct challenge to the waiver, but rather a challenge to the effectiveness of the counsel that he had at the time who's now deceased. Inasmuch as trial counsel didn't perceive when he should have the difficulties that this man, Mr. Mathis, was going to have in understanding the charges against him, and understanding the questions asked of him, and understanding the plea offer, and understanding the proceedings in general.

 

And trial counsel should have basically put forth a defense of inability to stand trial for lack of competence, but this wasn't done, Your Honor. As such this was ineffective to the level of Strickland and the other cases. And we ask that post-conviction relief be granted on this basis, Your Honor.

 

As is evident from PCR counsel's remarks, he limited his argument to the contention that trial counsel rendered ineffective assistance by failing to retain an expert to evaluate defendant's competence to stand trial. PCR counsel noted that trial counsel did secure an expert who rendered an inconclusive report on defendant's competence to proceed, but when the expert recommended a follow-up psychological evaluation, trial counsel apparently never pursued it. Counsel stated:

Your Honor, Dr. Thompson in her own report stated that [defendant] should have a subsequent evaluation, a psychiatric evaluation, to determine his level of retardation and competence. That was not done.

 

Second of all, Mr. Mathis'[s] functioning level due to maturation and additional training and education now is certainly more than when he was 15 years and 10 months. And as a result saying well, he assisted in preparing these briefs now means that he was competent you know 12 years ago. And that's not necessarily the case, Your Honor.

 

Unlike PCR counsel, who confined his remarks to only one of the many issues defendant had raised in his memoranda of law, the judge addressed many of the claims defendant had presented. After considering defendant's memoranda of law and the argument of counsel, the trial court denied defendant's petition, finding no legal basis to disturb defendant's conviction and sentence.

II.

As we recently held in State v. Hicks, 411 N.J. Super. 370, 375 (App. Div. 2010), Rule 3:22-6(d) prohibits PCR counsel from choosing to ignore the arguments advanced by a defendant in support of his petition. In particular, Rule 3:22-6(d) provides, in pertinent part, that PCR "[c]ounsel should advance any grounds insisted upon by defendant notwithstanding that counsel deems them without merit." In State v. Rue, which is the seminal opinion addressing the obligations of PCR counsel, the Court pointedly noted:

PCR is a defendant's last chance to raise constitutional error that may have affected the reliability of his or her criminal conviction. It is not a pro forma ritual.

 

[State v. Rue, 175 N.J. 1, 18 (2002).]

 

To satisfy the requirements of Rule 3:22-6(d), PCR counsel must "communicate with his client and investigate the claims" and "then must fashion the most effective arguments possible." Ibid. (quotation and citation omitted).

PCR counsel's role does not end with simply presenting "the most effective arguments possible," ibid., based upon the arguments defendant has already advanced in his PCR petition. Instead, counsel has an affirmative obligation to "determine whether there are additional claims that should be brought forward." State v. Webster, 187 N.J. 254, 257 (2006). In Hicks, supra, elaborating on Webster, we established the following procedures to ensure that a defendant receives the benefit "of having his case independently reviewed by a trained legal professional." Hicks, 411 N.J. Super. at 377. We held:

In order to give meaning to the requirements of Rule 3:22-6(d), a defendant's pro se presentation should be viewed by counsel as a mere starting point in the process leading to the actual prosecution of the PCR petition. If after reviewing the pro se petition and brief counsel is satisfied that no further argument or elaboration is required, counsel must so certify to the reviewing court. This will provide the court with a reliable indication that defendant has received the benefits of the attorney's expertise. In the absence of such certification, a reviewing court must presume that counsel did not make a meaningful effort to comply with the requirements of Rule 3:22-6(d).

 

[Ibid. (emphasis added).]

 

Here, PCR counsel's performance was deficient in two respects. First, counsel's oral presentation did not satisfy the standards established by Webster because counsel did not present all of defendant's PCR claims, instead confining his remarks to the issue of competency to proceed. Even if counsel believed some of defendant's arguments were meritless, Webster obligated counsel, at a minimum, to either list defendant's arguments, or incorporate them by reference, so that the judge would be able to consider the defendant's additional arguments. Webster, supra, 187 N.J. at 257. Counsel may not simply ignore the arguments he deems unconvincing. Ibid. Second, PCR counsel never certified to the court that he had thoroughly reviewed defendant's memoranda and determined that "no further argument or elaboration [was] required." Hicks, supra, 411 N.J. Super. at 377.

From the record before us, we can have no confidence that defendant received the benefit of the independent review of his claims required by Hicks. PCR counsel's omissions constitute a structural defect in the proceedings, for which defendant need not demonstrate actual prejudice. Id. at 376. The remedy for counsel's failure to conduct an independent investigation of the entire trial record is a remand for a new hearing. Ibid.

As in Hicks, id. at 377, our determination that the denial of PCR must be reversed and the matter remanded for a new hearing "in no way implies any criticism of the trial court's ruling here." As is evident from the record, the judge addressed each of defendant's claims, even though PCR counsel made no reference to most of those claims. Our reversal of the February 29, 2008 order is predicated solely upon PCR counsel's failure to comply with the requirements of Rule 3:22-6(d), Rue and Webster. In light of this disposition, we need not address the balance of the claims advanced on appeal. On remand, we recommend that defendant be represented by a different attorney.

Reversed and remanded.