STATE OF NEW JERSEY v. KEON MILLEDGE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2172-10T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KEON MILLEDGE,

Defendant-Appellant.

_______________________________________

October 24, 2012

Submitted January 30, 2012 - Decided

Before Judges A. A. Rodr guez and Ashrafi.

On appeal from Superior Court of New Jersey,

Law Division, Cumberland County, Indictment

No. 03-02-0156.

Joseph E. Krakora, Public Defender, attorney

for appellant (Steven M. Gilson, Designated

Counsel, on the brief).

Jennifer Webb-McRae, Cumberland County Prosecutor, attorney for respondent (David M. Galemba, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Keon Milledge appeals from denial of his petition for post conviction relief (PCR) alleging ineffective assistance of counsel. We affirm.

In 2004, a jury found defendant guilty of committing a series of horrific crimes against two teenagers who were parked in a car in an isolated area in Cumberland County. In our decision on direct appeal affirming the jury's verdict, State v. Milledge, 386 N.J. Super. 233, 237-39 (App. Div.), certif. denied, 188 N.J. 355 (2006), we recounted the brutal facts shown by the evidence at defendant's trial, which we now summarize briefly.

Defendant, then seventeen years old, and three other young men set out on the night of September 19, 2002, to "rob some Mexicans." At approximately 9:00 p.m., they came upon a teenage boy and girl parked near a boat ramp at Elmer Lake in Bridgeton. Defendant and the others pulled the teenagers out of their car and assaulted them repeatedly and brutally. They robbed their money and belongings. All four young men sexually assaulted the girl, punching her and threatening to kill her to force compliance with their demands. They dragged the girl into a wooded area and continued the sexual assaults over a period of about half an hour. At the same time, they repeatedly punched the boy, struck him with a baseball bat, and kicked and stomped on him. They taunted and threatened the victims and shouted words of encouragement to one another to continue the savage assaults.

After they finished and left, the victims managed to get themselves to a hospital and were treated for serious injuries. The police quickly developed suspects because the victims had recognized some of the assailants from school. Defendant and his mother were contacted and came to the police station. They were advised of their rights, which they waived in writing. Defendant's mother instructed him to tell the police the truth and decided she would not stay in the interview room.

During the interview, defendant spoke freely, at first denying involvement in the assaults and claiming that he had a list of people that would provide an alibi. When asked to provide the list, he rushed at and shoved a detective. He was restrained, and the interview continued. His mother briefly returned and again urged him to tell the truth. She elected a second time not to remain with her son during the interview. Defendant then made statements identifying the other perpetrators and admitting he was present and participated in some aspects of the assault, including forced oral sex. He denied he had used a baseball bat or that he had personally assaulted the boy.

After defendant was charged, he appeared with his attorney for a hearing in the Family Part. He voluntarily waived further juvenile proceedings and agreed to transfer of the charges to adult criminal court. The jury at his trial found defendant guilty of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a; first-degree kidnapping, N.J.S.A. 2C:13-1b; third-degree criminal restraint, N.J.S.A. 2C:13-2a; second-degree robbery, N.J.S.A. 2C:15-1a(1); disorderly persons simple assault, N.J.S.A. 2C:12-1a; second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2; and fourth-degree aggravated assault upon a law enforcement officer, N.J.S.A. 2C:12-1b(5)(a). The jury acquitted defendant of several other charges.

The trial court sentenced defendant to an aggregate term of thirty-four years imprisonment with eighty-five percent of the term without eligibility for parole under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. We affirmed the conviction on direct appeal, Milledge, supra, 386 N.J. Super. at 237, but remanded for resentencing on counts that should have merged at sentencing. The Supreme Court denied defendant's petition for certification. Milledge, supra, 188 N.J. 355. On remand, the trial court re-imposed the aggregate thirty-four year NERA sentence.

Defendant then filed a pro se PCR petition on December 24, 2007, alleging ineffective assistance of counsel. An attorney was appointed to represent him and filed a brief and additional items supporting defendant's petition. The trial court heard oral argument on June 11, 2010, and denied defendant's petition without conducting an evidentiary hearing.

On appeal, defendant argues:

THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE DEFENDANT ESTABLISHED A PRIMA FACIE CASE OF TRIAL COUNSEL'S INEFFECTIVENESS.

A. Trial Counsel Failed To Inform Defendant That He Could Contest The Waiver Hearing.

B. Trial Counsel Failed To Move For A Change Of Venue.

C. Trial Counsel Failed To Effectively Cross-Examine The Male Victim.

In a PCR petition, the defendant bears the burden of proving that his attorney's assistance was a violation of his constitutional rights. State v. Loftin, 191 N.J. 172, 198 (2007). In this case, defendant's claims and arguments do not overcome the presumption that he received the assistance of counsel that is mandated by the Sixth Amendment of the United States Constitution and Article I, Paragraph 10 of the New Jersey Constitution. See Strickland v. Washington, 466 U.S. 668, 689, 694, 104 S. Ct. 2052, 2065, 2068, 80 L. Ed. 2d 674, 694, 698 (1984); Loftin, supra, 191 N.J. at 198. Defendant's allegations did not satisfy both parts of the Strickland test: first, that "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment. Second, . . . that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; State v. Fritz, 105 N.J. 42, 51-52 (1987).

In denying defendant's PCR petition, Judge Richard Geiger carefully considered all of defendant's contentions. Basing his ruling on a comprehensive review of the record of pretrial proceedings and the trial, Judge Geiger concluded that defendant had not established a prima facie case of ineffective assistance of counsel to warrant an evidentiary hearing. We agree with that conclusion.

We review the PCR court's determination to decide the matter without holding an evidentiary hearing under the abuse of discretion standard of review. State v. Marshall, 148 N.J. 89, 157-58, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). An evidentiary hearing may be required where matters beyond the trial record must be examined. See State v. Preciose, 129 N.J. 451, 462 (1992). Here, an evidentiary hearing would not have been beneficial because the record of pretrial proceedings and the trial contradicted defendant's allegations of ineffective assistance of counsel.

As to the merits of defendant's claims, Judge Geiger thoroughly discussed the relevant facts and applicable law. Having reviewed the record on appeal, we are in agreement with his rulings in every respect. We affirm denial of defendant's PCR petition for the reasons stated in the comprehensive and well-reasoned oral decision of Judge Geiger placed on the record in the presence of defendant and counsel on June 11, 2010.

We add only the following brief remarks. The record of proceedings in the Family Part demonstrates that defendant voluntarily and with advice and assistance of counsel waived his right to have a hearing in accordance with Rule 5:22-2 and N.J.S.A. 2A:4A-26e to determine whether the charges should be referred to adult criminal court for prosecution. The Family Part made a full record of defendant's knowledge and understanding of his right to oppose transfer of the matter to the Criminal Part and his decision to waive a hearing on that issue. As stated by his defense counsel, defendant was aware that a hearing had been conducted for another juvenile who had been charged with participating in the crimes and that the charges had been referred to adult criminal court. His attorney explained that he had discussed the matter with defendant. Contrary to contentions made now on appeal, defendant acknowledged not only his understanding that he had a right to oppose referral of the charges to adult criminal court but also his right to testify in the juvenile court proceedings.

With respect to the absence of a motion for a change of venue for trial, the PCR court studied the circumstances of jury selection and recounted the relevant facts. Only a small percentage of potential jurors had prior knowledge of the case and the charges. The jury that was selected included only one juror who had heard about the charges, and that juror explained that she could and would evaluate the evidence fairly and without regard to her prior knowledge. Defense counsel elected not to exercise a peremptory challenge against that juror although he had challenges remaining. Additionally, that juror was selected as an alternate at the end of the case and did not deliberate on the verdict. Consequently, there was no evidence that the jury that convicted defendant was biased because of publicity about the crimes. A change of venue would not have been granted even if defense counsel had requested one.

Finally, with respect to defense counsel's cross-examination of the male victim, Judge Geiger reviewed the trial transcript and concluded that counsel had competently cross-examined the boy and other prosecution witnesses. Most important, the boy's identification of defendant by voice as one of the assailants was not crucial to the prosecution's case because defendant had given a taped statement admitting his participation in the crimes, and the police had also discovered his palm print on a window of the victims' car. There was no serious issue at trial as to correct identification of defendant as one of the four persons who committed the crimes.

In sum, defendant's PCR petition failed to make a prima facie showing of ineffective assistance of counsel.

A