STATE OF NEW JERSEY v. DONALD SCOTT

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4597-07T44597-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DONALD SCOTT,

Defendant-Appellant.

________________________________

 

Submitted February 25, 2010 - Decided

Before Judges Axelrad and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 01-11-3372.

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

Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Linda A. Shashoua, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

In this appeal from a denial of post-conviction relief (PCR), defendant argues that the PCR judge erred in failing to conduct an evidentiary hearing to explore his claims of ineffective assistance of counsel and prosecutorial misconduct. He also claims that his Natale re-sentence was excessive. None of these claims have any merit and we therefore affirm.

Defendant was indicted for second-degree burglary, N.J.S.A. 2C:18-2 (Count One), and first-degree armed robbery, N.J.S.A. 2C:15-1 (Count Two). At trial the State presented the following evidence. The victim observed defendant in her vehicle as she drove past in another vehicle. When she jumped out of the other car to apparently confront defendant she saw him attempting to crawl out of the back window with a bag of her belongings. She chased after him and when she caught up with him, the two of them engaged in a tussle, later joined by her boyfriend with whom the victim had been traveling in the other car. Together they restrained defendant until police arrived.

The jury convicted defendant of the burglary charge and the lesser-included offense of second-degree robbery. Defendant was sentenced to an aggregate fifteen-year custodial sentence along with an eighty-five percent No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, period of parole ineligibility. We affirmed his conviction and sentence. State v. Scott, No. A.-3924-02T4 (App. Div. May 6, 2004) (slip op. at 8-9), certif. denied, 190 N.J. 395 (2007).

On May 25, 2007, defendant filed a pro se PCR petition. Thereafter, the court appointed counsel to represent him, who in turn filed a brief on defendant's behalf. The court conducted oral argument on the petition on February 20, 2008 and denied relief to defendant. The court found that there was no basis in the record to support defendant's claim of ineffective assistance of counsel. Specifically, the court noted that there was no documented evidence in the record that defendant suffered from Tourette's Syndrome, which may have explained his conduct during jury selection. The court also noted that while arguably a trespassing charge could have been given, the fact that the jury convicted defendant of burglary and second-degree robbery meant that the jury did not have to consider the lesser-included offense of trespassing. Further, the court rejected the claim of ineffective assistance of counsel for not raising judicial error in admitting an out-of-court statement defendant purportedly made to one of the arresting officers that he had only been sleeping in the victim's car. The court noted that trial counsel unsuccessfully raised that issue and that therefore an ineffectiveness claim could only be attributed to appellate counsel. The court surmised that its ruling would have been upheld on appeal and therefore the failure of appellate counsel to raise this issue was also not a basis for PCR.

On May 9, 2008, the court conducted a re-evaluation of defendant's sentence pursuant to State v. Natale, 184 N.J. 458 (2005) and State v. Pierce, 188 N.J. 155 (2006) and concluded that the original sentence imposed should not be changed. The present appeal followed.

On appeal, defendant contends that we should reverse the denial of his PCR petition and remand for an evidentiary hearing. We disagree.

To establish a deprivation of the right to the effective assistance of counsel under the Sixth Amendment, a defendant must satisfy the two-part test enunciated in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), by demonstrating that: (1) counsel's performance was deficient, and (2) the deficient performance actually prejudiced the accused's defense. See also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland two-part test in New Jersey). When reviewing ineffective assistance claims, we apply a strong presumption that defense counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695.

In State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999), we held that "bald assertions" are not a sufficient basis to establish ineffective assistance of counsel. A defendant must do more:

He must allege facts sufficient to demonstrate counsel's alleged substandard performance. Thus, when a petitioner claims his trial attorney inadequately investigated his case, he must assert the facts that an investigation would have revealed, supported by affidavits or certifications based upon the personal knowledge of the affiant or the person making the certification.

[Ibid.]

In this case, no certifications or affidavits were submitted to substantiate defendant's position that if trial counsel had investigated his medical history, information would have come to light establishing that he suffered from Tourette's Syndrome, which would have therefore explained his conduct before the jury during jury selection. Prior to trial, defense counsel arranged for defendant's psychiatric evaluation in order to explore potential defenses. Defendant also underwent a competency evaluation. None of these evaluations revealed that defendant suffered from Tourette's Syndrome. Without such proofs, defendant's claims are no more than bald assertions and therefore did not warrant an evidentiary hearing. See State v. Preciose, 129 N.J. 451, 462 (1992).

The claims of prosecutorial misconduct evidenced by the prosecutor's opening statement in which he addressed the jury on the law, commented on defendant's state of mind, and improperly commented on defendant's silence near the time of the arrest and supposed uncooperativeness with police, are equally without merit. First, defendant does not argue that in the prosecutor's purported lecturing to the jury, there was a misstatement of the applicable legal principles. Moreover, in its final charge to the jury, the court instructed the jurors to follow its instructions on the law and that to the extent the attorneys made statements that conflicted with the court's instructions, the jurors were to disregard those comments. Second, the prosecutor's characterization of defendant as being uncooperative at the scene, based upon one of the responding police officer's anticipated testimony, did not infringe upon defendant's right to remain silent. Defendant was not being questioned about any of the victim's allegations, but simply about pedigree information. See State v. Bohuk, 269 N.J. Super. 581, 593 (App. Div.), certif. denied, 136 N.J. 29, cert. denied, 513 U.S. 865, 115 S. Ct. 183, 130 L. Ed. 2d 117 (1994) (noting that pedigree information sought from a suspect is ministerial in nature and beyond the right to remain silent). Further, defense counsel affirmatively used this evidence to support the argument that defendant's conduct was more consistent with him being the victim rather than the aggressor.

The PCR judge acknowledged that a criminal trespass charge could have been given but that the jury's conviction of defendant for second-degree robbery was inconsistent with criminal trespass and defendant suffered no harm resulting from the failure to have the jury instructed on this lesser-included offense, given the imposition of a concurrent sentence on the burglary conviction. We are in agreement with this analysis and conclude that any error in failing to instruct the jury on the lesser-included offense of criminal trespass was harmless. In the absence of a specific request for a trespassing instruction, as was the case here, an instruction on the lesser- included charge of criminal trespass would only have been appropriate if the evidence clearly indicated that such an instruction was appropriate. State v. Singleton, 290 N.J. Super. 336, 341-42 (App. Div. 1996) (noting that where a defendant fails to request a lesser-included offense charge, the instruction must be given only if the evidence clearly indicates that such an instruction is appropriate) (citing State v. Purnell, 126 N.J. 518, 541 (1992)).

The evidence before the jury was that defendant was not only in the victim's car without permission, a fact conceded by defense counsel during the opening statement, but when seen by the victim, he exited the vehicle and attempted to run away with the victim's belongings as the victim chased after him. Under these circumstances, there was no other evidence in the record from which the jury could have concluded that defendant's presence in the victim's vehicle was compelled by anything other than his intent to commit an offense. Consequently, the failure to give a criminal trespass charge did not result in prejudice to defendant warranting the grant of defendant's PCR petition.

Finally, defendant claimed before the PCR judge that the imposition of an extended term of imprisonment was contrary to Pierce and Natale because the three aggravating factors the trial court considered did not justify the court, upon re-sentencing, imposing a mid-range sentence. Defendant challenged his sentence as excessive on direct appeal. As such, this claim is procedurally barred. R. 3:22-5. Additionally, an excessive sentence challenge, as distinguished from an illegal sentence, is not an appropriate ground for post-conviction relief. State v. Clark, 65 N.J. 426, 436-37 (1974).

The remaining arguments advanced by defendant are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

 
Affirmed.

State v. Natale, 184 N.J. 458 (2005).

The trial judge explained that defendant "engaged in what just about any person would think was inappropriate conduct during the jury selection process. . . . laughing, giggling, [and] raising his arms at different times . . . ."

(continued)

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A-4597-07T4

April 14, 2010