STATE OF NEW JERSEY v. JOHN FLEMING

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0439-10T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOHN FLEMING,

Defendant-Appellant.

________________________________

October 26, 2011

 

Submitted: October 13, 2011 - Decided:

 

Before Judges Axelrad and Ostrer.

 

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 04-04-01790.

 

Joseph E. Krakora, Public Defender, attorney for appellant (Kimmo Z.H. Abbasi, Designated Counsel, on the brief).

 

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Kenneth P. Ply, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant John Fleming appeals from the Law Division's April 13, 2010 order denying his petition for post-conviction relief (PCR) and request for an evidentiary hearing. Defendant argued that trial counsel was ineffective in failing to object to the verdict sheet and jury instructions. We affirm.

The record reflects that defendant was convicted by a jury in 2005 of aggravated manslaughter, as a lesser-included offense of murder, for fatally stabbing his paramour in the presence of her then-eight-year-old son. The jury acquitted defendant of two weapons offenses. Defendant received a twenty-two year custodial sentence.

We affirmed defendant's conviction and sentence in an unreported opinion. State v. Fleming, No. A-1887-05 (App. Div. Dec. 12, 2007). We expressly rejected the arguments raised by both defense counsel and defendant pro se that the court abused its discretion in instructing the jury on the elements of aggravated manslaughter and reckless manslaughter as lesser-included offenses of purposeful and knowing murder. Id. (slip op. at 5, 8-10). We concluded that "[t]he proofs at trial clearly established that a rational basis existed for the judge to charge the lesser-included offense of manslaughter." Id. at 9. We perfunctorily rejected the other contentions raised in defendant's pro se supplemental brief, R. 2:11-3(e)(2), which included that the court "gave confusing and misleading jury instructions, which in conjunction with the verdict sheet, precluded consideration of passion/provocation manslaughter." Id. at 5, 16. Noting a failure to object to the jury charge triggers a plain error analysis, we expressly found the absence of "any error or omission" that would be "clearly capable of producing an unjust result[.]" Id. at 16. The Supreme Court denied certification. State v. Fleming, 194 N.J. 445 (2008).

Defendant thereafter filed a PCR petition by a pro se submission and through counsel, arguing trial counsel was ineffective in failing to object to the "confusing and misleading" jury instructions and verdict sheet, which precluded the jury from effectively considering the passion and provocation defense of manslaughter. Defendant further argued that he was not procedurally barred by Rule 3:22-5, and had established a prima facie case sufficient to merit an evidentiary hearing.

Following oral argument on April 9, 2010, Judge Cassini denied defendant's petition, memorialized in an order of April 13, 2010. The judge found the petition was procedurally barred under Rule 3:22-5 as the "substantially equivalent" claims had been rejected on direct appeal, and defendant's petition did not meet any of the exceptions set forth in Rule 3:22-4. This appeal ensued.

On appeal, defendant renews the arguments that his claims were not procedurally barred under Rules 3:22-4 and -5, and he established a prima facie case of ineffective assistance of trial counsel sufficient to require remand for an evidentiary hearing.1 We deem defendant's arguments raised on appeal not to be of sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons articulated by Judge Cassini in his thorough oral decision. We add the following brief comments.

On direct appeal we expressly found no error in the judge charging the lesser-included offense of manslaughter. Moreover, even if defendant were to argue that we found the absence of plain error, as opposed to error, in response to his pro se arguments on direct appeal, we clearly determined that no prejudice resulted. Accordingly, defendant would be unable to satisfy the second requisite prong to demonstrate ineffective assistance of counsel, i.e., there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984).

Affirmed.

1 PCR appellate counsel also incorporated by reference any arguments contained in defendant's verified petition and any pro se supplemental brief.