STATE OF NEW JERSEY v. CLAYON GODFREY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0359-11T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CLAYON GODFREY,

Defendant-Appellant.

______________________________

October 17, 2012

Submitted October 10, 2012 - Decided

Before Judges Yannotti and Harris.

On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 99-06-0373 and 00-05-0289.

Joseph E. Krakora, Public Defender, attorney for appellant (Michele A. Adubato, Designated Counsel, on the brief).

Geoffrey D. Soriano, Somerset County Prosecutor, attorney for respondent (Nathan C. Howe, Assistant Prosecutor, of counsel and on the brief.

PER CURIAM

Defendant Clayon Godfrey appeals from the November 9, 2010 order denying his petition for post-conviction relief (PCR). We affirm.

On June 30, 1999, a Somerset County grand jury indicted Godfrey for first-degree attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3, of his cousin Rachiem Godfrey.

Godfrey was tried before a jury from April 4, 2000 to April 6, 2000. He absconded on the penultimate day of trial and was consequently indicted for third-degree bail jumping, N.J.S.A. 2C:29-7. The jury found Godfrey guilty of attempted murder. After he was apprehended, Godfrey pleaded guilty to bail jumping.

On January 5, 2001, Godfrey was sentenced on both charges. The sentencing court imposed a fifteen-year prison term subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, for the first-degree crime and a consecutive three-year prison term for the third-degree crime.

We affirmed the convictions and sentence, State v. Godfrey, No. A-3671-00 (App. Div. May 28, 2002), and the Supreme Court denied further review. State v. Godfrey, 175 N.J. 434 (2003).

On March 13, 2006, Godfrey filed a pro se petition for PCR, which was later followed by the assignment of counsel and the submission of both the pro se's and PCR counsel's briefs to the Law Division. Following an unexplained withdrawal of the petition and its subsequent reinstatement, a hearing was conducted by the Law Division on November 8, 2010. Although several claims of ineffective assistance of counsel were presented, PCR counsel indicated that

the real focus of this post conviction relief application . . . is the [d]efendant is maintaining he did receive ineffectiveness of trial counsel, but particularly as it related to the sentencing phase. The [d]efendant's real request here today is that your Honor give him an opportunity to be resentenced with the effective assistance of counsel.

On November 9, 2010, Judge John H. Pursel issued a fourteen-page written opinion explaining why Godfrey had "not made a prima facie showing that he [was] entitled to an evidentiary hearing on his illegal sentence claim or his ineffective assistance of counsel claim," and denied relief. This appeal followed.

Godfrey reprises his ineffective assistance of counsel claims as follows:

POINT I: THE COURT ERRED IN NOT GRANTING PETITIONER AN EVIDENTIARY HEARING ON HIS PCR PETITION.

POINT II: PETITIONER WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL GUARANTEED BY THE UNITED STATES AND NEW JERSEY CONSTITUTIONS.

A. FAILURE OF TRIAL COUNSEL TO PRESENT ALL MITIGATING EVIDENCE TO THE SENTENCING COURT.

B. FAILURE OF APPELLATE COUNSEL TO RAISE THE INEFFECTIVENESS OF TRIAL COUNSEL AT SENTENCING.

C. PREJUDICE.

Our review of the record convinces us that Judge Pursel properly denied PCR.

At trial, the State's proofs demonstrated the following. On the evening of June 6, 1999, Godfrey and the victim had an argument outside of the Edgemere Apartment complex in Franklin Township. At some point the argument became physical, and the men began grabbing at each other. Godfrey left the scene but came back later and the argument ensued anew. Godfrey then fired a gun at his cousin, and a bullet hit him in the chest, after which Rachiem ran away.

April Tibbs witnessed the argument between Rachiem and Godfrey. According to Tibbs, she was sitting on her steps with Godfrey's mother, Myra Godfrey, when she overheard Rachiem and Godfrey arguing. Subsequently, Godfrey came up to Tibbs and Myra and said "if [Rachiem] kept bothering him . . . he might have to go get his gun." Tibbs then went inside her apartment and later overheard more arguing between the cousins. She then heard three gunshots and testified that Godfrey ran into her home and said that he had shot Rachiem. She further observed Godfrey throw a gun under her sofa.

Lateisha Wilson also witnessed the incident. She claimed that the men were arguing about money. She observed Godfrey run inside, come back downstairs, shoot Rachiem, then run inside Tibbs's apartment. Like Tibbs, she claims she heard three gunshots.

After the jury verdict and subsequent guilty plea to bail jumping, Godfrey was sentenced. Judge Edward M. Coleman heard argument from the State and defense counsel. Defense counsel contended that Godfrey's criminal record consisted of mostly juvenile and disorderly persons offenses, with only one indictable offense. He noted that Godfrey maintained his innocence, thus the fact that he was not remorseful should not be used against him. He described the events "[i]f as the jury found, this did happen" as a "very unfortunate offense, very unfortunate set of circumstances, [where] we find one cousin shooting another at point blank range, there must have been some strong forces at work." He advocated for a lenient sentence due to Godfrey's young age and claimed that his client only fled during the trial due fear of being unjustly convicted.

At the conclusion of the argument, Judge Coleman complimented defense counsel for his strong advocacy. The judge then reviewed the aggravating and mitigating factors of N.J.S.A. 2C:44-1(a) and (b). He found the aggravating factors to be (1) the risk that Godfrey would commit another offense, due to Godfrey's repeatedly committing criminal offenses; (2) Godfrey's juvenile record; and (3) the need to deter Godfrey and others from violating the law. Judge Coleman found no mitigating factors. While acknowledging defense counsel's argument that Godfrey grew up in a rough and violent neighborhood, he found no excuse for the events of June 6, 1999. He then sentenced Godfrey to a mid-range, fifteen-year NERA prison term for attempted murder, plus a consecutive three-year prison term for bail jumping.

Godfrey claims that his trial counsel was ineffective for failing to present all mitigating evidence to the sentencing court and failing to object to the sentencing court's "double counting" of certain aggravating factors. Godfrey further contends that his appellate attorney was ineffective for not arguing on direct appeal that defense counsel was thusly ineffective. We disagree with both contentions.

We review claims of ineffective assistance of counsel under the two-factor test established by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and subsequently adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987) (implementing the Strickland standard for ineffective assistance of counsel claims under Article I, Paragraph 10 of New Jersey Constitution). See State v. McDonald, 211 N.J. 4, 29-30 (2012). The Strickland/Fritz paradigm not only applies to trial counsel, but also "governs claims that appellate counsel rendered ineffective assistance." State v. Harris, 181 N.J. 391, 518 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005).

First, Godfrey must demonstrate that counsel's performance was deficient. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Second, he must show there exists "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. With respect to both factors of the Strickland test, a defendant asserting ineffective assistance of counsel on PCR bears the burden of proving his right to relief by a preponderance of the evidence. See State v. Echols, 199 N.J. 344, 357 (2009).

Additionally, the Court has counseled that

[t]he right to counsel guarantees defendants the right "to competent counsel." State v. DiFrisco, 174 N.J. 195, 220 (2002). Attorneys are held to a standard of "reasonableness under prevailing professional norms." Strickland, supra, 466 U.S. at 688, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694. Deficient performance is established by proving 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." State v. Castagna, 187 N.J. 293, 314 (2006) (quoting Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695). And, the evaluation as to the reasonableness of an attorney's performance must be "'viewed as of the time of counsel's conduct.'" Ibid. (quoting Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 694).

[State v. Gaitan, 209 N.J. 339, 350 (2012).]

The specific mitigating factors Godfrey claims his trial counsel failed to argue were: "(3) The defendant acted under strong provocation; (4) [t]here were substantial grounds tending to excuse or justify the defendant's conduct, though failing to establish a defense; [and] (5) [t]he victim of the defendant's conduct induced or facilitated its commission." N.J.S.A. 2C:44-1(b)(3); -1(b)(4); -1(b)(5).

A sentencing court should consider all valid mitigating factors. State v. Blackmon, 202 N.J. 283 (2010); see also State v. Dalziel, 182 N.J. 494, 504 (2005) ("where mitigating factors are amply based in the record before the sentencing judge, they must be found"). "[T]he failure [of defense counsel] to present and argue the mitigating evidence can only be explained as attorney dereliction" and in some cases can rise to the level of ineffective assistance of counsel. State v. Hess, 207 N.J. 123, 154 (2011) (finding on a PCR appeal that the defendant did not receive effective assistance of counsel at sentencing due to his attorney's failure to raise mitigating factors).

Here, the record indicates Godfrey's trial counsel was a zealous advocate at all stages of trial, including sentencing. He was placed in a difficult situation due to the State's strong evidence, Godfrey's flight, and his client's lack of remorse. Although trial counsel did not specifically mention mitigating factors three through five, he did state "there must have been some strong forces at work" to cause Godfrey to shoot his cousin. The sentencing judge had presided over the trial and was very familiar with the facts, including the nature of the cousins' argument and Godfrey's conduct on the day in question. There was no justification for Godfrey shooting Rachiem under the circumstances presented. Even if tempers had flared, he had time to cool off when they first separated. Instead, he contemplated getting his gun, went inside and retrieved the firearm, and then went back outside and purposely used it against Rachiem.

This is not a situation like Hess, where the attorney failed to mention any mitigating factor. Id. at 154. Godfrey's trial counsel argued in mitigation of the crime by pointing out his client's age and relative lack of involvement with criminality, together with his reference to the personal nature of the crime and Godfrey's continued claim of innocence. The fact of the matter is that no mitigating factors applied and defense counsel was not deficient in his ultimately vain efforts to soften the blow of the impending sentence.

Godfrey also claims that trial counsel was ineffective for failing to object to Judge Coleman's "double counting" of aggravating factors by relying on a juvenile record for the basis of finding aggravating factors three, six, and nine. N.J.S.A. 2C:44-1(a)(3); -1(a)(6); -1(a)(9). However, aggravating factors three, six, and nine "stem from a common origin, namely defendant's criminal record." State v. Abdullah, 372 N.J. Super. 252, 281 (App. Div. 2004), aff'd in part and rev'd in part, 184 N.J. 497 (2005). Here, it was not improper for Judge Coleman to use Godfrey's complete criminal history as a basis for applying aggravating factors three, six, and nine;1 trial counsel was not ineffective for failing to object since it would have been a legally futile argument.

It is also worth noting that Godfrey argued on direct appeal that Judge Coleman improperly failed to consider mitigating factors and improperly applied the aggravating factors. Godfrey, supra, slip op. at 5-6. We rejected those contentions and conclude that even if trial counsel had raised the arguments Godfrey contends he should have, they would not have been successful. Accordingly, Godfrey's argument that appellate counsel's performance was inadequate is also without merit. See State v. Worlock, 117 N.J. 596, 625 (1990) ("The failure to raise unsuccessful legal arguments does not constitute ineffective assistance of counsel.").

Godfrey further contends that the PCR court should not have dismissed his petition without allowing an opportunity to provide further support for his claims at an evidentiary hearing. "An evidentiary hearing . . . is required only where the defendant has shown a prima facie case and the facts on which he relies are not already of record." Pressler & Verniero, Current N.J. Court Rules, comment 2 on R. 3:22-10 (2013). "[I]n order to establish a prima facie claim, a petitioner must do more than make bald assertions that he was denied the effective assistance of counsel. He must allege facts sufficient to demonstrate counsel's alleged substandard performance." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). So measured, we conclude that Godfrey has failed to establish a prima facie case to satisfy either the performance or prejudice prong of the Strickland/Fritz test.

To the extent we have not discussed any issue raised in this appeal, we are satisfied that it lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

A

1 On direct appeal, we rejected Godfrey's argument about Judge Coleman's deficient sentencing calling it "without sufficient merit to warrant discussion in a written opinion" pursuant to Rule 2:11-3(e)(2).