STATE OF NEW JERSEY v. LONZELL SWINT

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5453-09T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LONZELL SWINT,

Defendant-Appellant.

________________________________________________________________

June 6, 2011

Submitted May 24, 2011 - Decided

Before Judges Baxter and Koblitz.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 06-08-2555.

Yvonne Smith Segars, Public Defender, attorney for appellant (Virginia Drick Messing, Designated Counsel, on the brief).

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Sara A. Friedman, Special Deputy Attorney General/ Acting Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Lonzell Swint appeals from a December 11, 2009 Law Division order that denied his petition for post-conviction relief (PCR) without affording him an evidentiary hearing. On appeal, defendant raises the following claims:

I. IT WAS JUDICIAL ERROR TO DENY THE MOTION FOR POST-CONVICTION RELIEF.

II. THE DEFENDANT IS ENTITLED TO A REMAND TO THE TRIAL COURT FOR AN EVIDENTIARY HEARING TO DETERMINE THE MERITS OF HIS CONTENTION THAT HE WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL.

III. ALL POINTS RAISED BY DEFENDANT-APPELLANT IN ANY AND ALL PRIOR AND SUBSEQUENT SUBMISSIONS TO THE COURT ARE INCORPORATED BY REFERENCE INTO THIS BRIEF.

We affirm.

I.

On October 6, 2004, the Essex County Prosecutor's Office filed a juvenile delinquency complaint against defendant, charging him with committing murder and related weapons offenses on September 7, 2004, when he was seventeen years old. Less than two months later, the State moved for an order waiving the jurisdiction of the Family Part and seeking to have defendant tried as an adult in the Law Division. Because defendant was over the age of sixteen at the time of the offense, and he had been charged with the crime of murder, waiver was required so long as the State established probable cause. N.J.S.A. 2A:4A-26. At the conclusion of the January 14, 2005 waiver hearing, at which the State presented the testimony of two eyewitnesses to the shooting, the judge found probable cause and granted the State's motion to waive defendant to the Law Division. Defendant was eighteen years old at the time of the waiver.

On August 21, 2006, an Essex County grand jury indicted defendant for first-degree murder, third-degree unlawful possession of a weapon and second-degree possession of a weapon for an unlawful purpose. Following plea negotiations, defendant pled guilty to an amended charge of second-degree manslaughter, N.J.S.A. 2C:11-4(b)(1), and to unlawful possession of a weapon, N.J.S.A. 2C:39-5(b), for which the judge sentenced him on March 23, 2007 to a nine-year term of imprisonment, subject to the eighty-five percent parole ineligibility term required by N.J.S.A. 2C:43-7.2 on the manslaughter charge, concurrent to a five-year term of imprisonment on the weapons offense. Defendant did not appeal his March 23, 2007 conviction.

On August 25, 2009, defendant filed a pro se PCR petition that was later supplemented by his own brief, and by a brief from assigned counsel. The petition asserted ineffective assistance of trial counsel, based on counsel's failure to "forcibly defend against the Prosecutor's motion to 'waive up' defendant to face charges as an adult." Additionally, defendant claimed that he was entitled to a trial by jury in the waiver proceeding, notwithstanding N.J.S.A. 2A:4A-26, which requires the waiver decision to be made by a judge. He maintained that the denial of his right to a trial by a jury, and without a finding of guilt beyond a reasonable doubt, denied him his Sixth Amendment right to a trial by jury in violation of the United States Constitution.

After considering the oral argument presented by the parties, Judge Ramona Santiago issued a written opinion and confirming order denying defendant's PCR petition. She held that defendant had failed to establish a prima facie case of ineffective assistance of counsel, and procedurally the petition was barred by Rule 3:22-4, as these arguments could have been, but were not, raised on direct appeal.

In particular, as to defendant's claim that trial counsel rendered ineffective assistance by failing to vigorously resist the State's waiver motion, the judge relied upon our decision in State v. J.M., 364 N.J. Super. 486, 490-91 (App. Div. 2003), in which we held that "juveniles who were sixteen years of age or older at the time of the charged offense, and were accused of Chart I offenses [such as murder], are waived solely upon a showing of probable cause" and "[j]urisdiction of the case shall be transferred immediately" once such a showing has been made. Thus, the judge concluded that once probable cause was established, counsel had no further avenue upon which to prevent defendant from being waived to the Law Division. Therefore, according to the judge, trial counsel did not render ineffective assistance.

The judge also rejected defendant's claim that he was entitled to a trial by jury on the issue of waiver. The judge reasoned that the United States Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 2363, 147 L. Ed. 2d 435, 455 (2000) did not entitle defendant to a trial by jury in the waiver context because Apprendi's requirement of a trial by jury applies only to those instances where a penalty for a crime is increased beyond the prescribed statutory maximum. The judge noted, relying upon our decision in State v. Read, 397 N.J. Super. 598, 610 (App. Div. 2008), that the decision in Apprendi deals solely with the sentencing stage of criminal proceedings, while the decision to waive juvenile jurisdiction "is made at the initial charging stage of the case." Therefore, she concluded, there is no entitlement to a trial by a jury in the context of the waiver hearing. Finally, Judge Santiago observed that any challenge to whether probable cause existed at the waiver hearing was procedurally barred by Rule 3:22-4, because such an argument could have been advanced on direct appeal, and the Rule bars a defendant from raising in a PCR petition a claim that could have been advanced on direct appeal. Quoting from State v. Mitchell, 126 N.J. 565, 584 (1992), which construed Rule 3:22-4 as barring the "disconnected and piecemeal" adjudication of claims, Judge Santiago observed that none of the Rule's exceptions was applicable.

II.

In Points I and II, which we consider jointly, defendant maintains that the judge erred in denying his PCR petition and that, at a minimum, he was entitled to an evidentiary hearing. To prove ineffective assistance of counsel, defendant must demonstrate that counsel's performance was deficient, and that this deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). Performance is deficient when "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Ibid. To show prejudice, the defendant must demonstrate that there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Ibid. There is a "strong presumption that counsel's conduct falls within a wide range of reasonable professional assistance." Id. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694. The New Jersey Supreme Court has adopted the Strickland test. State v. Fritz, 105 N.J. 42, 58 (1987).

Although not separately denominated in point headings, defendant repeats the same claims he advanced in the Law Division, maintaining that trial counsel rendered ineffective assistance by not vigorously defending him against the State's motion to waive him to the Law Division. As defendant has not provided us with a transcript of the waiver hearing, we are unable to evaluate counsel's performance. Thus, in light of the absence of a transcript, defendant has not overcome the presumption created by Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694, that counsel functioned effectively. We therefore reject this aspect of defendant's argument.

We likewise reject his claim that he was entitled to a trial by jury on the issue of waiver. This argument lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by Judge Santiago in her written opinion of December 11, 2009.

As to defendant's contention that the judge erred by denying him an evidentiary hearing on his claims, we disagree. Because he has failed to establish a prima facie case, he was not entitled to such a hearing. State v. Preciose, 129 N.J. 451, 462 (1992). We therefore reject all of the arguments advanced in Points I and II.

III.

In Point III, defendant requests, pursuant to State v. Webster, 187 N.J. 254, 258 (2006), that we address the issues that he raised in his pro se brief before the Law Division. There, he argued that he was entitled to a trial by jury before being waived to the Law Division. We have already considered that claim, and rejected it, and need not discuss it further. He also maintained in his pro se brief, without providing any supporting legal argument, that his sentence was illegal. It appears, however, that his argument of an illegal sentence was based upon the premise that his waiver to the Law Division was unlawful, a contention we have already deemed meritless. We therefore reject defendant's argument of an "illegal sentence."