STATE OF NEW JERSEY v. DARNELL WILLIAMS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4148-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DARNELL WILLIAMS,

Defendant-Appellant.

________________________________________________________________

SubmittedMay 3, 2011 Decided June 23, 2011

 

Before Judges Wefing and Koblitz.

 

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 03-04-0687.

 

Yvonne Smith Segars, Public Defender, attorney for appellant (Brian P. O'Reilly, Designated Counsel, on the brief).

 

EdwardJ. De Fazio, Hudson County Prosecutor, attorney for respondent (Jason M. Cieri, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Darnell Williams appeals the December 31, 2008 denial of his petition for post-conviction relief (PCR), arguing that he received ineffective assistance of both trial and PCR counsel. After reviewing the record in light of the contentions advanced on appeal, we affirm.

Defendant was indicted in Hudson County Indictment No. 03-04-0687, charging him with first-degree armed robbery, N.J.S.A. 2C:15-1 (count one); second-degree possession of a nine-millimeter Luger pistol weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (count two); third-degree unlawful possession of that pistol, N.J.S.A. 2C:39-5b (count three); two counts of fourth-degree aggravated assault on a police officer, N.J.S.A. 2C:12-1b(5)(a) (counts four and six); second-degree eluding, N.J.S.A. 2C:29-2b (count five); fourth-degree assault by auto, N.J.S.A. 2C:12-1c(1) (count seven); and second-degree possession of a gun by a convicted person, N.J.S.A. 2C:39-7b (count eight). Defendant pled guilty to the armed robbery, count one, and the remaining counts were dismissed by the State.

The indictment resulted from a late-night armed robbery of a McDonald's restaurant in Bayonne on December 29, 2002. Defendant displayed a loaded handgun and threatened to shoot if he did not receive money. He then fled by car, chased at high speeds by two police departments, until he ultimately crashed into a Jersey City Police patrol car. Two officers suffered injuries.

Defendant was sentenced to eighteen years in prison with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, followed by a five-year period of parole supervision. This sentence was ordered to run concurrent to the three-year sentence defendant was then serving on an unrelated drug charge. Defendant's sentence was affirmed on appeal in our order dated February 9, 2005, State v. Williams, No. A-2690-03 (App. Div. Feb 9. 2005), and certification was denied by the Supreme Court on May 25, 2005. 183 N.J. 591 (2005).

Defendant's PCR petition raised ineffectiveness of trial counsel, alleging that had counsel presented testimony of defendant's good character by his family and friends, defendant would have received a lesser sentence. After conducting oral argument, the trial court, which was also the original sentencing court, denied defendant's PCR petition.

Defendant raises the following arguments on appeal:

Point I

 

DEFENDANT WAS DENIED HIS RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL AT SENTENCING. (Raised Below)

 

A. Mitigating factor 11 (Raised below).

 

B. Mitigating Factor 10 (Raised below).

 

C. Mitigating Factor 9 (Not raised below).

 

Point II

 

DEFENDANT WAS DENIED HIS RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL AT HIS PCR HEARING. (Not Raised Below)

 

The law governing our analysis of defendant's claims of ineffective assistance of counsel is well recognized. Under the Sixth Amendment of the United States Constitution, a person accused of crimes is guaranteed the effective assistance of legal counsel in his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). To establish a deprivation of that right, a convicted defendant must satisfy the two-part test enunciated in Strickland by demonstrating that: (1) counsel's performance was deficient, and (2) the deficient performance actually prejudiced the accused's defense. Ibid. See also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland two-part test in New Jersey). In reviewing such claims, courts 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. "[C]omplaints 'merely of matters of trial strategy' will not serve to ground a constitutional claim of inadequacy . . . [.]" Fritz, supra, 105 N.J. at 54 (quoting State v. Williams, 39 N.J. 471, 489 (1963), cert. denied, 382 U.S. 964, 86 S. Ct. 449, 15 L. Ed. 2d 366 (1965), overruled in part on other grounds by, State v. Czachor, 82 N.J. 392 (1980)); see also State v. Perry, 124 N.J. 128, 153 (1991).

"As a general rule, strategic miscalculations or trial mistakes are insufficient to warrant reversal except in those rare instances where they are of such magnitude as to thwart the fundamental guarantee of [a] fair trial. " State v. Castagna, 187 N.J. 293, 314 (2006) (quoting State v. Buonadonna, 122 N.J. 22, 42 (1991)). Additionally, a defendant's dissatisfaction with his or her counsel's exercise of judgment is not sufficient to overturn a conviction based on a claim of ineffectiveness. Id. at 314.

Defendant argues that his trial and PCR counsel were ineffective in not presenting mitigating evidence or arguing certain mitigating factors to the court. Defendant had been previously convicted of armed robbery with a gun and served a twenty-year sentence. At the time of this sentence, he was serving a three-year term of incarceration on drug charges. Defendant's plea agreement called for a maximum of eighteen years, which he received. The court made that sentence concurrent to the term he was then serving, although the plea agreement was silent regarding that issue as defendant was not serving that sentence at the time of the plea.

The court found mitigating factor twelve, N.J.S.A. 2C:44-1b(12), the willingness to cooperate with law enforcement, because immediately after his arrest, defendant gave an incriminating statement in which he exculpated his companion. The court found aggravating factor three, the risk that defendant will commit another offense, based on defendant's apparent drug involvement and prior record. N.J.S.A. 2C:44-1a(3). The court also found aggravating factor six, the extent and seriousness of defendant's prior record, and factor nine, the need to deter defendant and others from violating the law. N.J.S.A. 2C:44-1a(6) and (9). The court found that the aggravating factors outweighed the sole mitigating factor "without a doubt" and that "[t]his is a robbery with at least four victims with a loaded gun, and then a chase and a dangerous situation involving the police." The court also mentioned "the injuries to the police officers." The court found that defendant had not "learned his lesson" from the twenty-year sentence he received for his prior armed robbery.

Defendant argues that his trial counsel should have argued the applicability of mitigating factor eleven, that imprisonment would cause excessive hardship to defendant's dependents. N.J.S.A. 2C:44-1b(11). Defendant had joint custody of his daughter. Defendant's wife, daughter and granddaughter wrote letters to the court at the time of defendant's PCR hearing. However, defendant was already separated from his family serving a three-year term of incarceration when he was sentenced for this crime. He had previously served a lengthy prison sentence. As the court stated, the fact of having a child does not in itself demonstrate the "excessive hardship" of factor eleven. The court correctly found that trial counsel was not ineffective in not presenting evidence of factor eleven.

Defendant argues also that trial counsel should have argued the existence of mitigating factor ten, that "defendant is particularly likely to respond affirmatively to probationary treatment." N.J.S.A. 2C:44-1b(10). However, this factor is not available for a first-degree robbery charge. State v. Kelly, 266 N.J. Super. 392, 395-96 (App. Div. 1993). Defendant was in prison serving a sentence and had previously been in prison for a serious crime. This argument is entirely without merit.

Finally, defendant argues as plain error trial counsel's failure to urge the court to find mitigating factor nine, that defendant's character and attitude indicate he is unlikely to commit another offense. N.J.S.A. 2C:44-1b(9). This argument also lacks merit. Defendant's character and attitude is most clearly proven not by letters from friends and family, but by his actions. Defendant's prior criminal record belies his contention that he is unlikely to re-offend.

Defendant argues that the trial court erred in denying him an evidentiary hearing. Rule 3:22-1 does not require an evidentiary hearing in every PCR proceeding, but rather grants trial courts discretion as to whether or not one should be held. "[T]rial courts ordinarily should grant evidentiary hearings to resolve ineffective-assistance-of-counsel claims if a defendant has presented a prima facie claim in support of post-conviction relief." State v. Preciose, 129 N.J 451, 462 (1992). "To establish a prima facie claim of ineffective assistance of counsel, a defendant must demonstrate the reasonable likelihood of succeeding under the test set forth in Strickland v. Washington . . . ." Id. at 463. In determining whether defendant has established a prima facie case, the court should construe the facts in the light most favorable to the defendant. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 194 (1999).

D

efendant's arguments as to mitigating factors he believes are applicable do not demonstrate a reasonable likelihood of success under any fair construction of the facts.

Affirmed.