STATE OF NEW JERSEY v. ZACHARY CASH

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5235-07T45235-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ZACHARY CASH,

Defendant-Appellant.

_______________________________

 

Submitted January 5, 2010 - Decided

Before Judges Parrillo and Ashrafi.

On appeal from the Superior Court of New Jersey,

Law Division, Essex County, Indictment No. 99-07-2487.

Yvonne Smith Segars, Public Defender, attorney for appellant (Adam W. Toraya, Designated Counsel, of

counsel and on the brief).

Paula T. Dow, Essex County Prosecutor, attorney for

respondent (Lucille M. Rosano, Assistant Prosecutor,

of counsel and on the brief).

PER CURIAM

Defendant Zachary Cash appeals from an order of the Law Division denying his petition for post-conviction relief (PCR). We affirm.

Retried by a jury, defendant was found guilty of first-degree aggravated manslaughter, N.J.S.A. 2C:11-4a and N.J.S.A. 2C:11-4c; fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d; and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d. He was sentenced to a term of seventeen years subject to an 85% period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on the manslaughter count and a concurrent term of eighteen months for unlawful possession of a weapon. The remaining count, possession of a weapon for an unlawful purpose, was merged for sentencing purposes. We affirmed the judgment of conviction, State v. Cash, No. A-5759-01T4 (App. Div. November 6, 2003) (slip op. at 2), and the Supreme Court denied defendant's petition for certification, State v. Cash, 181 N.J. 544 (2004).

We recount the facts of the underlying criminal episode as stated in our earlier opinion affirming the judgment of conviction:

On the evening of April 7, 1999, Zachary Cash and several others were sitting around, drinking beer on the porch in front of a house on Taylor Street in Orange where Cash resided. Tina Wright and her 10-year old son were standing in the narrow street, talking with someone sitting in a car that was double-parked in front of the house. At approximately 8:00 p.m. the victim, David Hanson, came down the street in his pick-up truck and encountered the double-parked car. Chevelle Derrick, a next door neighbor, testified that Hanson waited for five minutes before becoming frustrated and pulling around the double-parked car. As he passed, Tina Wright, who was intoxicated at the time, shouted at Hanson to slow down, because her son was near the street. Hanson then stopped his truck and jumped out, cursing and threatening to kill everyone. As he did so, he pulled a brown paper bag from his truck and raised it, keeping his right hand inside of the bag while cursing.

The people in front of the house told Hanson to leave, but he continued to curse with the brown bag still in his hand. Shamelle Wright, Tina Wright's sister, who lived in the Taylor Street house, called the police because she saw Hanson pulling a "shiny object" out of the brown paper bag and thought it was a gun. In response to Shamelle Wright's call, Orange Detective Tyrone Grundy arrived and stopped Hanson's car a block away. He spoke with Hanson and learned that there were peanuts in the bag. He then reported to Shamelle Wright that Hanson did not have a gun. She believed that the detective told her that Hanson had no gun but that he had a silver tool of some type in the bag and she conveyed this information to the others on the porch and in front of the house.

Approximately 10 or 15 minutes later, Hanson returned, angry because the others had called the police. He again got out of his truck, again yelling words in "Rastafarian"[,] as Cash described it in his statement to the police which was read to the jury, which none of the witnesses could understand.

According to Cash, he thought that Hanson might be armed and might be planning to harm him[self] or the others. He described an altercation that broke out involving Hanson and his friend James Lewter, who was Tina Wright's cousin, who was armed with an aluminum baseball bat. He admitted that he also was armed with an aluminum baseball bat and that he hit Hanson in the head with his bat during the fight that erupted when Hanson returned. One of the witnesses described that blow to Hanson's head as having been so hard that she heard a loud crack. Hanson then fell to the ground, bleeding profusely, and tried to roll underneath his truck. Accounts given by the witnesses varied about whether Cash continued to hit Hanson with the bat or not, and they varied with respect to Lewter's role in the incident, but all of them agreed that others intervened to end the fight and that by that time another 911 call had been placed.

Hanson then got up, stared at the porch, and managed to drive his truck away from the scene. He was taken to the hospital where surgeons placed an intracranial pressure monitor into his skull to relieve swelling of his brain. Medications were prescribed and Hanson was placed on life support. Hanson died on April 12, 1999, five days after being attacked by Cash and Lewter. Dr. Junaid Shaikh, the medical examiner, performed an autopsy on Hanson's body. He found that Hanson had a fractured skull, bruises on his right shoulder and knee, and superficial injuries to his upper left arm. Dr. Shaikh opined that Hanson sustained "at least four separate blows" to the head with a blunt object, any one of which could have caused his death.

[Cash, supra, slip op. at 2-4.]

Defendant filed a timely PCR petition in which he primarily challenged the NERA feature of his sentence and claimed both trial and appellate counsel were ineffective for failing to raise the alleged illegality of his sentence. Specifically, defendant argued that under the original version of NERA in effect at the time of the offense, as well as under Blakely v. Washington, 542 U.S. 296, 301, 124 S. Ct. 2531, 2536, 159 L. Ed. 2d 403, 412 (2004), and Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 2362-63, 147 L. Ed. 2d 435, 455 (2000), he was entitled to a post-trial jury determination of whether he had committed a "violent" crime subject to NERA's parole ineligibility bar. The PCR judge rejected this claim as without substantive merit, reasoning:

Implicit in an aggravated manslaughter is the finding that defendant caused death or serious bodily injury resulting in death. There's virtually no chance on appeal that this petitioner would prove that any alleged negligence of his appellate counsel would result in something different based upon the Jury's verdict here.

Implicit in the crime of aggravated manslaughter is the element that death was caused or serious bodily injury resulting in death, which in itself implies a violent crime.

Defense counsel -- appellate counsel was not negligent in failing to raise this issue because it is self apparent. Furthermore, even if this issue had been raised the Defense had little likelihood of success on its merits.

There's an argument here that the Appellate Division considered the sentence in its entirety. If it was not, the claim is procedurally barred because it could have been raised on appeal.

On appeal, defendant raises the following related arguments:

I. THE COURT ERRED IN FAILING TO FIND THAT DEFENDANT HAD RECEIVED AN ILLEGAL SENTENCE WHEN AT THE TIME OF SENTENCING A NERA PAROLE DISQUALIFIER WAS IMPOSED WITHOUT THE REQUIRED HEARING UNDER N.J.S.A. 2C:43-7.2.

II. THE COURT ERRED IN FAILING TO GRANT AN EVIDENTIARY HEARING TO THE DEFENDANT TO ESTABLISH HE WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL CONSTITUTIONALLY GUARANTEED TO HIM AT TRIAL, BY THE U.S. CONST., AMENDS. VI, XIV; N.J. CONST. ART. I, PAR. 10.

We have considered both of these issues in light of the record, the applicable law, and the arguments of counsel, and we are satisfied that neither of them is of sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). We add, however, the following comments.

Unlike the current version, N.J.S.A. 2C:43-7.2, the version of NERA in effect at the time of the April 17, 1999 offense and therefore the version applicable to Cash at sentencing, State v. Parolin, 171 N.J. 223, 232 (2002), did not include the specific listing of offenses to which it applied. Instead, the original NERA version applied to a crime of the first- and second-degree found to be a "violent crime," as defined by the statute. N.J.S.A. 2C:43-7.2(a). NERA defined "violent crime" as:

[a]ny crime in which the actor causes death, causes serious bodily injury as defined in subsection b. of N.J.S.A. 2C:11-1, or uses or threatens the immediate use of a deadly weapon. "Violent Crime" also includes any aggravated sexual assault or sexual assault in which the actor uses, or threatens the immediate use of, physical force.

[N.J.S.A. 2C:43-7.2(d).]

NERA also provided that the grounds for imposing an enhanced sentence must be "established at a hearing after the conviction of the defendant and on written notice to him of the ground proposed." N.J.S.A. 2C:43-7.2(e).

In State v. Johnson, 166 N.J. 523, 543-44 (2001), the Court, to avoid constitutional due process challenges, interpreted the language of subsection (e) to require that the "violent crime" condition must be submitted to a jury and found beyond a reasonable doubt. Yet, despite the fact that the trial judge in Johnson failed to specifically instruct the jury to find the NERA "violent crime" predicate, the Court nevertheless affirmed the defendant's sentence because the facts adduced at trial established that the jury made that finding beyond a reasonable doubt. Id. at 546.

Here, defendant challenges the failure to conduct a post-trial hearing to establish the NERA "violent crime" predicate. However, under Johnson, supra, such a hearing was unnecessary because, as in Johnson, the jury here did, in fact, find the NERA "violent crime" predicate in reaching its verdict.

As noted, NERA's original version defined "violent crime" as, for present purposes, any crime in which the actor causes death or uses or threatens the immediate use of a deadly weapon. N.J.S.A. 2C:43-7.2(d). Thus, the elements of the NERA "violent crime" factor overlap with the elements of first-degree aggravated manslaughter, which is committed when "[t]he actor recklessly causes death under circumstances manifesting extreme indifference to human life[.]" N.J.S.A. 2C:11-4a(1). Here, the undisputed proof is that defendant struck the victim hard on the head with an aluminum baseball bat at least once, but possibly several times, and the victim died five days later of a head injury. Such facts adduced at trial clearly establish that defendant's jury found the requisite NERA "violent crime" predicate beyond a reasonable doubt.

Having found the NERA conditions to be fully satisfied, consistent with constitutional demands, we are convinced there was no attorney deficiency or any prejudice to defendant in counsel's failure to request a post-trial, pre-sentencing hearing to determine a factual predicate already established by the jury at trial beyond a reasonable doubt. On this score, it is virtually axiomatic that in order for defendant to obtain relief based on ineffective assistance grounds, he is obliged to show not only the particular manner in which counsel's performance was deficient but also that the deficiency prejudiced his right to a fair trial. See Strickland v. Washington, 466 U.S. 668, 687, l 04 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693, reh'g denied, 467 U.S. 1267, 104 S. Ct. 3562, 82 L. Ed. 2d 864 (1984); State v. Fritz, 105 N.J. 42, 58 (1987). For reasons already stated, we are persuaded that the alleged deficiency here clearly fails to meet either the performance or prejudice prong of the Strickland test.

 
Affirmed.

In the first trial in April 2000, defendant was tried with co-defendant James Lewter and was convicted of first-degree aggravated manslaughter and both weapons offenses. Following the jury's verdict, the trial court granted a new trial to both defendants and granted defendant Cash's motion for a separate trial.

In L. 2001, c. 129 (eff. June 29, 2001), the Legislature amended N.J.S.A. 2C:43-7.2 and eliminated the section of NERA that provided for a judicial hearing on the violent crime predicates.

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A-5235-07T4

January 29, 2010