STATE OF NEW JERSEY v. RUSSELL BREITWEISER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5180-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RUSSELL BREITWEISER,

Defendant-Appellant.

_________________________________

May 5, 2011

 

Submitted October 6, 2010 - Decided

 

Before Judges Fuentes and Gilroy.

 

On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 01-04-0172.

 

Yvonne Smith Segars, Public Defender, attorney for appellant (David A. Gies, Designated Counsel, of counsel and on the brief).

 

A. Peter DeMarco, Jr., Acting Somerset County Prosecutor, attorney for respondent (Michael McLaughlin, Assistant Prosecutor, on the brief).

 

Appellant filed a pro se supplemental brief.

 

PER CURIAM

Defendant Russell Breitweiser appeals from the August 27, 2008 order that denied his petition for post-conviction relief (PCR). We affirm and remand for the trial court to enter an amended judgment of conviction (JOC).

A jury found defendant guilty of second-degree-tender-years sexual assault, N.J.S.A. 2C:14-2b. On November 7, 2003, the trial court denied defendant's motion for a new trial and sentenced him to an extended fifteen-year term of imprisonment with a seven-and-one-half-year period of parole ineligibility, and to a five-year period of parole supervision upon release. The court ordered that the sentence run concurrent with sentences defendant was then serving on federal convictions of abusive sexual contact with a minor aboard an aircraft - repeat offenders, 18 U.S.C.A. 2244(a)(3) and 2247(a), and assault within Maritime and Territorial Jurisdiction, 18 U.S.C.A. 113(a)(5). The court also directed that defendant comply with applicable Megan's Law, N.J.S.A. 2C:7-1 to -11, including community supervision for life, and imposed all appropriate fines and penalties. On appeal, we affirmed. State v. Breitweiser, 373 N.J. Super. 271 (App. Div. 2004). Because the trial facts were discussed at length in our prior published opinion, id. at 278-82, it is unnecessary for us to detail the evidence against defendant for this crime. However, the following summary will place this appeal in context.

On March 6, 2001, defendant entered a grocery store wherein he observed an unsupervised eight-year-old girl (N.E.) in the store's greeting card aisle. While holding a rotisserie chicken, defendant un-tucked his shirt from his pants and grabbed himself. Defendant then entered the greeting card aisle, waited until no other customers were in the aisle, and approached N.E. from behind, stopping within one foot of the child. Defendant stared directly at N.E., grabbed his penis, and masturbated. N.E. briefly looked at defendant, but ostensibly, did not observe defendant's actions. When a woman entered the aisle, defendant immediately left that area of the store. Defendant's encounter with N.E. lasted less than one minute. Upon defendant paying for the chicken and approaching the exit door, the store's loss prevention officer, who had observed the incident from a catwalk that overlooked the entire store, stopped and detained defendant until the police arrived.

A store surveillance video captured the event. The video taken from behind defendant showed him walking in the aisle, approaching N.E., and standing within one foot of her. It did not, however, readily depict defendant's hand gestures.

On direct appeal, defendant raised several arguments, the primary of which presented the following legal question: whether a defendant could be convicted of second-degree-tender-years sexual assault without proof that the child actually viewed the defendant intentionally touching his or her intimate parts for self-arousal or sexual gratification. Id. at 276. Following the principle annunciated in State v. Zeidell, 154 N.J. 417, 428 (1998), we answered the question in the affirmative. We held that to convict a defendant of that crime, the State was required to prove

that defendant engaged in an intentional touching of his or her intimate parts, for arousal or sexual gratification, in the view of an underage child, whom defendant knows to be present. To establish that the sexual contact occurred "in the view of" the underage victim, it is sufficient for the State to prove, beyond a reasonable doubt, that either (1) the underage child actually observed the act; or (2) there was an unreasonable risk that the underage child might view the act.

 

[Breitweiser, supra, 373 N.J. Super. at 286-87.]

 

On January 31, 2005, the Supreme Court denied defendant's petition for certification. 182 N.J. 628 (2005).

In November 2005, defendant filed a petition seeking PCR. In the petition, defendant contended that he was: 1) denied effective assistance of trial counsel because his attorney: a) denied him his constitutional right to present any defense; b) denied him the right to testify on his own behalf; and c) failed to object to the prosecutor's improper comments during summation. Defendant also asserted that he was: 2) denied a fair trial by the cumulative effect of the aforementioned errors; 3) denied the effective assistance of appellate counsel; 4) entitled to an evidentiary hearing on the petition; and 5) not procedurally barred from presenting the arguments raised in the petition. On August 27, 2008, Judge Paul Armstrong entered an order supported by an oral decision denying the petition without an evidentiary hearing. Although the trial court found that many of defendant's arguments were procedurally barred pursuant to Rule 3:22-4 or -5, the court addressed defendant's arguments on the merits. In addressing defendant's primary argument that he was denied effective assistance of trial counsel because his attorney failed to call an expert witness to testify that one of the possible side effects of a certain medication defendant was taking at the time of the incident was itching, the court reasoned in part:

[D]efendant was not denied his right to present the defense. Defendant's trial counsel provided discovery concerning defendant's proposed expert Doctor Katz. Discovery motions were filed and contested regarding the proposed itching defense.

 

Ultimately, defendant's attorney chose not to offer Doctor Katz as an expert witness, even though he clearly contemplated at some point doing so. However, the fact that defense counsel elected not to present the itching defense at trial, does not mean that counsel was ineffective. The defendant fails to overcome the "strong presumption" that his counsel acted within the "wide range" of reasonable professional conduct.

 

Furthermore, the defendant has not demonstrated a reasonable probability that the proceedings would have been different had defense counsel presented such an argument.

 

The decision to forego unsuccessful legal arguments does not constitute ineffective assistance of counsel. In light of the trial testimony and the videotape evidence, this court is not convinced that the proffered testimony of Doctor Katz would have [affected] the jury's verdict.

[(internal citations omitted).]

In addressing defendant's second principal argument that he was denied his right to testify at trial because his attorney failed to communicate with him during trial and to properly advise him of his right to testify, the court rejected the argument determining that defendant had been "clearly afforded an opportunity to testify on his own behalf, but waived his right to do so." In support of that determination, the court cited to that portion of the trial transcript during which the court inquired of defendant whether he desired to testify or not:

The court: [Defendant], you

understand that you have a right to testify in this case?

 

Defendant: Yes, [Y]our Honor.

 

The court: And it is a basic

fundamental constitutional right.

 

Defendant: Yes.

 

The court: And you have an

opportunity to speak

with counsel about your exercise?

 

Defendant: I have.

 

The court: Have you arrived at a decision concerning your election to either testify or not testify?

 

Defendant: Yes, I have.

The court: Are you under the influence of any medications or substance that would impair your ability to understand this right or the procedure we are engaged in at this point?

 

Defendant: No.

 

The court: What is your decision concerning that?

 

Defendant: To not testify.

 

On appeal, defendant argues:

POINT ONE.

A TRIAL ATTORNEY'S STRATEGIC MISCALCULATIONS WHICH ARE OF SUCH MAGNITUDE AS TO THWART THE FUNDAMENTAL GUARANTEE OF A FAIR TRIAL MAY SUSTAIN A CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL.

 

POINT TWO.

 

THE SENTENCING COURT ERRED WHERE IT DID NOT APPLY THE PRINCIPLES OF COMITY AND FAIRNESS IN DETERMINING WHETHER TO AWARD JAIL CREDITS FOR A PERIOD OF CONFINEMENT UNDER A FOREIGN CONVICTION.

 

POINT THREE.

 

The defendant's trial attorney was constitutionally ineffective where he did not object to the prosecutor's improper comments during summation, where he did not consult with the defendant during the trial and where he did not raise an adequate argument on appeal.

 

POINT FOUR.

 

The procedural bar should not be enforced where preclusion would result in a fundamental injustice to the criminal justice system.

 

In a supplemental brief, defendant argues pro se:

POINT I.

 

THE SENTENCING COURT ERRED WHERE IT DID NOT AWARD JAIL CREDIT FOR DEFENDANT'S INVOLUNTARY CONFINEMENT IN ANN [KLINE] FORENSIC CENTER (AFKC)[,] A STATE HOSPITAL, WHERE SAID CONFINEMENT WAS ATTRIBUTABLE TO THE OFFENSE FOR WHICH HE WAS SENTENCED.

 

POINT II.

 

THE SENTENCING COURT ERRED WHERE IT AWARDED 14 DAYS JAIL CREDIT FOR A PERIOD WHEN DEFENDANT WAS SERVING TIME OUT OF STATE, BUT DID NOT AWARD CREDIT FOR THE PERIOD WHEN DEFENDANT WAS CONFINED IN SOMERSET [COUNTY] JAIL DISPOSING OF HIS NEW JERSEY INDICTMENT.

 

The decision whether to conduct an evidentiary hearing on a claim of ineffective assistance of counsel rests primarily on the trial court's determination whether a defendant has made a prima facie showing of the claim. State v. Preciose, 129 N.J. 451, 462 (1992). Rule 3:22-1 does not require that an evidentiary hearing be granted in every PCR proceeding. Ibid. Where a "court perceives that holding an evidentiary hearing will not aid the court's analysis of whether the defendant is entitled to post-conviction relief, or that the defendant's allegations are too vague, conclusory, or speculative to warrant an evidentiary hearing, then an evidentiary hearing need not be granted." State v. Marshall, 148 N.J. 89, 158 (internal citations omitted), cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997).

Claims of ineffective assistance of counsel are governed by the standards set forth in Strickland v. Washington.1 See State v. Fritz, 105 N.J. 42, 58 (1987) (holding the precepts of Strickland have been adopted by New Jersey). For a defendant to establish a prima facie case of ineffective assistance of counsel under Strickland, the defendant must show that defense "counsel's performance was deficient," and that "there exists 'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Preciose, supra, 129 N.J. at 463-64 (quoting Strickland, supra, 466 U.S. at 694; 104 S. Ct. at 2068, 80 L. Ed. 2d at 698); see also State v. Allegro, 193 N.J. 352, 366 (2008).

To satisfy the first prong of the Strickland standard, our Supreme Court has stated:

The first prong of the test is satisfied by a showing that counsel's acts or omissions fell outside the wide range of professionally competent assistance considered in light of all the circumstances of the case. No particular set of detailed rules for counsel's conduct can satisfactorily take account of the variety of circumstances faced by defense counsel or the range of legitimate decisions regarding how best to represent a criminal defendant. Therefore, there is a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. To rebut that strong presumption, a defendant must establish that trial counsel's actions did not equate to sound trial strategy. In evaluating a defendant's claim, the court must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct.

 

Thus, an otherwise valid conviction will not be overturned merely because the defendant is dissatisfied with his or her counsel's exercise of judgment during the trial. The quality of counsel's performance cannot be fairly assessed by focusing on a handful of issues while ignoring the totality of counsel's performance in the context of the State's evidence of defendant's guilt. 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, 314-15 (internal citations and quotations omitted).]

 

To prove the second prong of Strickland, a defendant must prove "'that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Allegro, supra, 193 N.J. at 367 (quoting State v. Loftin, 191 N.J. 172, 198 (2007)). It is "an exacting standard: '[t]he error committed must be so serious as to undermine the court's confidence in the jury's verdict or the result reached.'" Ibid. (quoting Castagna, supra, 187 N.J. at 315).

We have considered defense counsel's and defendant's pro se ineffective assistance of counsel arguments in light of the record and applicable law. We conclude that none of them are of sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by Judge Armstrong in his oral decision of August 27, 2008. Nevertheless, we add the following comments.

In Point I of defense counsel's brief, defendant argues that his "trial attorney's failure to proffer an expert witness at trial was a strategic miscalculation of such magnitude that [his] guarantee of a fair trial was proscribed." Defendant contends that at time of the incident he had been taking a prescribed medication known as "Dilaudid" which, among its noted side effects may cause itching. Defendant asserts that prior to trial his attorney anticipated calling Dr. Howard A. Katz, D.O., as an expert witness to testify to the possible side effect of the medication to present the jury with a plausible explanation for his hand movements as testified to by the store security officer. Defendant argues that, without his knowledge and consent, trial counsel chose not to call Dr. Katz as a witness, and that failure should be considered "as a per se violation of [his] right to effective assistance of counsel." We disagree.

Prior to trial, defense counsel sent the prosecutor a letter dated September 28, 2001, to which was attached pharmacy receipts in defendant's name indicating that he had been prescribed Dilaudid and was taking it at the time of the incident. Also attached to the letter was a report from Dr. Katz dated March 13, 2000, which read:

To Whom It May Concern:

 

[Defendant] was seen by me in our office for the first time on September 28, 1998. He had been a prior patient of ours, but had not been seen for approximately two years. He suffers from chronic back pain related to a herniated disk in his lumbosacral spine. This problem is chronic in nature. [Defendant] has been seen by many doctors including pain management and orthopedics and has been prescribed pain relievers and relaxants. He has continued to have pain and is continuing to be treated with pain medications.

 

[Defendant] was recently involved in a motor vehicle accident which took place on August 4, 1999. He suffered an exacerbation of his neck and back pain and has had worsened pain since that time.

 

If I can be of any further assistance, please do not hesitate to contact me.

 

Counsel also indicated in the letter that he was adding Dr. Katz as a potential defense witness "who may address the side effects of itching as my investigation continues."

Subsequent to that correspondence, the State filed a motion seeking to compel defendant to provide a curriculum vitae for Dr. Katz and to advise as to the substance of Dr. Katz's prospective testimony. Defense counsel subsequently provided the prosecutor with an undated "two-sentence letter" from Dr. Katz referencing the Physician's Desk Reference Manual concerning the possible side effects of Dilaudid. Defense counsel indicated in a supplemental letter dated December 31, 2001, that he may call Dr. Katz as a witness because:

Dr. Katz can be called to testify as a fact witness to medical facts, and to the extent necessary, as an expert medical witness to the use of Dilaudid with regard to [defendant] and to the potential side effect of itching, which clearly is relevant to explain the conduct alleged to the sexual contact with himself on the videotape.

 

After defense counsel provided a copy of Dr. Katz's curriculum vitae, the State withdrew its discovery motion.

In support of his petition for PCR, defendant submitted a report from Dr. Daniel P. Greenfield dated February 22, 2008. After reviewing the discovery previously provided by defense counsel, Dr. Greenfield stated:

From a practical clinical perspective, a known side effect of Dilaudid (hydromorphone) is pruritus (itching), and it appears from available records and materials and from [defendant's] account to me (during my interview/examination of him) that he had been taking prescribed Dilaudid for his chronic back pain during the period of time in question in the underlying matter.

 

Taking these two points together, in my view, it is possible that [defendant's] observed behaviors on the video tape in question were consistent with his scratching an itch in his genital region, an itch which was a side effect of the Dilaudid he had been reportedly taking during that time; in that respect, I agree with the point made by [defense counsel] in his letter of December 6, 2001.

 

While I cannot offer a psychiatric/ neuropsychiatric/addiction medicine opinion with a degree of reasonable medical probability that pruritus (itching) was definitely the cause of [defendant's] scratching his genital region as seen on the videotape in question, I nevertheless reiterate that from a medical/pharmacologic perspective, since pruritus is a known side effect of Dilaudid and since [defendant] had a prescription and was reportedly taking Dilaudid during the period of time in question, the inference to be drawn from those two points is that his scratching behaviors may have been the result of a pruritic side effect of Dilaudid, in connection with the offense in question.

 

In rejecting defendant's argument that he was denied effective assistance of counsel because his attorney chose not to call Dr. Katz as a defense witness, the trial court concluded that defendant did not meet the second prong of Strickland, that is, show that there exists "a reasonable probability that, but for counsel's unprofessional error, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. The court determined that the trial testimony of the store's security officer that he saw defendant masturbating as he approached the child, and the videotape that showed defendant targeting the child in the store, constituted overwhelming evidence of defendant's guilt. Accordingly, the court concluded that the decision to forego Dr. Katz's testimony concerning the "possibility" that defendant was itching himself was a tactical decision within trial counsel's range of professional judgment. We agree.

What is more, as indicated in defense counsel's heading to Point I, he also agrees that defendant's trial attorney's election not to call Dr. Katz as a witness was a strategic calculation, although he argues it was adverse to his benefit. Indeed, the record indicates that defense counsel's decision not to call Dr. Katz to testify was not a decision that should have surprised defendant at the end of the State's case, as defense counsel advised the trial court during jury selection that he was not going to call Dr. Katz as a witness, and thus, the court did not need to inquire of the jurors whether they knew Dr. Katz.

Defendant, by incorporating by reference the arguments he asserted in the trial court at the PCR hearing, contends he was denied effective assistance of counsel because his attorney's lack of communication with him during trial led to his decision not to testify. The trial court, after reviewing that portion of the trial record showing that defendant had been advised by the court of his right to testify and voluntarily chose not to, determined that "the defendant's decision not to testify was likely a wise choice made after consultation with his counsel," because the court had already ruled that defendant's prior convictions would have been admissible to impeach his credibility should he have elected to testify at trial. We concur.

Indeed, for defendant to have testified on his own behalf would have opened the door for the State to cross-examine defendant concerning his prior federal convictions, which surely would have prejudiced defendant in the eyes of the jury. We conclude from the colloquy between the court and defendant concerning defendant's right to testify that defendant had spoken to his attorney about that right, and recognized the probability that he would have been subject to cross-examination on his prior federal convictions for crimes of a similar nature, and recognized the possibility of that prejudice should he have testified on his own behalf.

Defendant also argues that the trial court erred by failing to award him jail credits for the time he was involuntarily committed at the Ann Kline Forensic Center (AKFC) and while confined in the Somerset County Jail pending disposition of the charge. Alternatively, defendant seeks gap-time credit for the period between defendant's sentencing on his federal conviction and the sentencing imposed on the criminal charge. The State counters that defendant is procedurally barred from raising the arguments because he could have raised the issues on direct appeal, R. 3:22-4, and defendant failed to raise the arguments in his PCR petition. Additionally, the State contends the arguments are without merit.

We choose to address the merits of defendant's arguments challenging the failure of the trial court to award him proper jail or gap-time credits against his sentence as a matter of fundamental justice. Although defendant pro se sent the trial court a letter on October 17, 2005, requesting the court to award him 230 days of jail credit and attached a copy of that letter to his PCR petition, stating in the petition that the court should consider the letter as a claim for relief, the trial court did not address the issue of jail credits in its decision. Generally, we would remand for the trial court to address the issues in the first instance. However, because the record contains sufficient facts for us to rule on the merits of the arguments, we choose to exercise original jurisdiction and decide the issues presented. R. 1:10-5.

Jail credits are governed by Rule 3:21-8. That rule provides that "[t]he defendant shall receive credit on the term of a custodial sentence for any time served in custody in jail or in a state hospital between arrest and the imposition of sentence." R. 3:21-8. By its own terms, "[t]he credit requirements of the rule are mandatory." Pressler & Verniero, Current N.J. Court Rules, comment on 1. 1 R. 3-21.8 (2011). However, jail credits are generally "only allowable for a period of incarceration attributable to that crime and hence time spent in custody on other charges is not subject to credit." Ibid.

Gap-time credits are provided by statute. N.J.S.A. 2C:44-5b. Gap-time credit must be awarded to a defendant on a showing of the following three criteria: "(1) the defendant has been sentenced previously to a term of imprisonment, (2) the defendant is sentenced subsequently to another term, and (3) both offenses occurred prior to the imposition of the first sentence." State v. Franklin, 175 N.J. 456, 462 (2003).

Nonetheless, a defendant is not entitled to jail credit for time he or she was incarcerated in New Jersey after being returned pursuant to the Interstate Agreement on Detainers Act (IAD), N.J.S.A. 2A:159A-1 to -15, because that detention is attributable to the foreign sentence. State v. Carreker, 172 N.J. 100, 115 (2002). Nor does the gap-time credit statute apply to any portion of time served by a defendant on a foreign sentence. Id. at 110-11. This is so because the gap-time statute is directed at New Jersey sentencing authorities, who have no jurisdiction to "aggregate" out-of-state sentences. Id. at 111.

Here, defendant committed the acts leading to his federal convictions on January 11, 2001. United States v. Breitweiser, 357 F.3d 1249, 1251-52 (11th Cir.), reh'q denied, en banc, 99 F. App'x 889 (11th Cir.), cert. denied, 541 U.S. 1091, 124 S. Ct. 2829, 159 L. Ed. 2d 257 (2004). Following his convictions, defendant was sentenced in the Federal District Court on August 15, 2002, to an aggregate term of forty-six months of imprisonment.

In the interim, on March 6, 2001, defendant committed the present offense. Following his arrest, defendant remained in custody from March 6 to 19, 2001, when he posted bail. Subsequently, defendant commenced his federal sentence in the Allenwood Federal Correctional Complex in Pennsylvania. On March 6, 2003, defendant was transferred to Somerset County Jail pursuant to the IAD. Following an incident where defendant fainted and presented psychotic behavior during the jury's return of the verdict on May 1, 2003, he was taken to the hospital for emergency treatment. On May 2, 2003, he was transferred to the AKFC where he remained until May 29, 2003. Following a second incident while in jail awaiting sentence, defendant was readmitted to the AKFC from July 23 to October 8, 2003. On November 7, 2003, the court sentenced defendant to a fifteen-year extended term of imprisonment with a seven-and-one-half-year period of parole ineligibility. The court also awarded defendant fourteen days of jail credit.2

Based on the facts concerning defendant's prior federal charges and sentencing, defendant is not entitled to either gap-time credit or jail credit between the time when he was returned to New Jersey, pursuant to the IAD, to the time of sentencing on the present conviction. Carreker, supra, 172 N.J. at 110-11, 115.

Nonetheless, defense counsel, citing State v. Hemphill, 391 N.J. Super. 67, 70 (App. Div.), certif. denied, 192 N.J. 68 (2007), argues that even if defendant is not entitled to jail credits pursuant to Rule 3:21-8, the court should have awarded such credits based on considerations of "fairness, justice and fair dealings." Not so. We find nothing in the record that would have justified the trial court deviating from Carreker. Defendant's confinement in the AKFC and the county jail was not due solely to the present offense as N.J.S.A. 2A:159A-5(f) of the IAD required him to continue his term of incarceration under the federal sentence.

We affirm the order denying defendant's petition for PCR. We remand for the trial court to enter a corrected JOC.

1 Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).

2 The JOC indicates that defendant received jail credit of fourteen days from March 6, 2003 to March 19, 2003. This appears to have been a typographical error as defendant should have received jail credit from March 6, 2001 to March 19, 2001, when he was incarcerated pending the posting of bail. We remand for the trial court to enter a corrected JOC.