STATE OF NEW JERSEY v. MARK BARTEE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MARK BARTEE,

Defendant-Appellant.

November 8, 2013

Submitted October 29, 2013 Decided

Before Judges Alvarez and Carroll.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 04-11-3597.

Joseph E. Krakora, Public Defender, attorney for appellant (Lee March Grayson, Designated Counsel, on the brief).

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Barbara A. Rosenkrans, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant Mark Bartee appeals from an August 26, 2011 Law Division order denying his petition for post-conviction relief (PCR), without an evidentiary hearing. We affirm.

On February 27, 2006, immediately before his trial was set to begin, defendant pled guilty to first-degree carjacking, N.J.S.A. 2C:15-2 (count one); second-degree aggravated assault, N.J.S.A. 2C:12-1b(1) (count two); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d (count four), and second-degree eluding, N.J.S.A. 2C:29-2b (count five). In return, the State agreed to dismiss counts three and six of the indictment, and recommend a prison sentence not to exceed twelve years, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2(a). Defendant was sentenced on April 24, 2006, to an aggregate twelve-year prison sentence, subject to NERA, followed by an aggregate five-year period of parole supervision. Defendant appealed his sentence, and the matter was placed on a sentencing calendar pursuant to Rule 2:9-11. We declined to disturb the length of defendant's sentence, but remanded for a restitution hearing, and to consider merger of the assault, weapons, and carjacking charges. State v. Bartee, No. A-3824-06 (App. Div. July 30, 2008). It is unclear from the record whether this remand hearing took place.

Defendant then filed for PCR in August 2009. Counsel was appointed, and filed an amended PCR petition in August 2010. In his amended petition, defendant claimed that trial counsel was ineffective because he failed to (1) meet with defendant on a regular basis to discuss his rights, and trial strategy; (2) fully familiarize himself with the facts of the case; (3) interview key potential witnesses, including co-defendant Titiana Gordon who, he claimed, was prepared to exonerate him; and (4) properly counsel him about the consequences of his plea.

On August 26, 2011, Judge Robert H. Gardner heard argument from counsel, and then denied defendant's petition, without an evidentiary hearing. Judge Gardner rejected defendant's contention that he was not properly advised by counsel as to the consequences of his plea. The judge pointed out that the plea colloquy was "very thorough and complete," and he "[did not] find in any way that the defendant did not understand what he was doing at the time he went through the plea colloquy."

Judge Gardner also found no evidence in the record to suggest that trial counsel was unfamiliar with the file, or that the pre-trial identification of defendant by the victim was improper. The judge noted that the recent decision in State v. Henderson, 208 N.J. 208 (2011), cited by PCR counsel, was unavailing to defendant as it did not apply retroactively.1 With respect to trial counsel's determination not to call the co-defendant, Gordon, as a witness at trial, the court noted that she was not the only witness; rather, the victim also identified defendant and was a stronger witness. Judge Gardner concluded that defendant failed to make a prima facie showing of ineffective assistance of counsel under either prong of the Strickland/Fritz2 test, and was thus not entitled to an evidentiary hearing on his petition.

On appeal, defense counsel raises the following issues:

POINT I

THE DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF THE UNITED STATES AND NEW JERSEY CONSTITUTIONS BECAUSE THE TRIAL ATTORNEY DID NOT GET A STATEMENT FROM A KEY WITNESS, SPENT MINIMUM TIME WITH THE DEFENDANT AND DID NOT CONDUCT A PROPER INVESTIGATION.

POINT II

BECAUSE THIS CASE INVOLVES FACTS THAT LIE OUTSIDE OF THE RECORD, THE PCR COURT SHOULD HAVE GRANTED DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING AND THE FAILURE TO DO SO HAS RESULTED IN FUNDAMENTAL INJUSTICE, REQUIRING REMAND.

In a supplemental pro se brief, defendant echoes counsel's claims of ineffective assistance of counsel, and concludes that had he "been in [] possession of the affidavits negating his guilt, he would have never plead guilty."

We conclude these arguments lack merit, and affirm the denial of PCR substantially for the reasons stated by Judge Gardner in his cogent oral opinion issued on August 26, 2011. We add the following.

To prove ineffective assistance of counsel, a defendant must satisfy the Strickland two-part test by demonstrating "counsel's performance was deficient"; that is, "that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment," and "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 687, 694, 104 S. Ct. at 2064, 2068, 80 L. Ed. 2d at 693, 698 (1984); accord, Fritz, supra, 105 N.J. at 58. To set aside a guilty plea based on ineffective assistance of counsel, defendant must demonstrate under the first prong of Strickland that "counsel's assistance was not 'within the range of competence demanded of attorneys in criminal cases.'" State v. DiFrisco, 137 N.J. 434, 457 (1994) (quoting Tollett v. Henderson, 411 U.S. 258, 266, 93 S. Ct. 1602, 1608, 36 L. Ed. 2d 235, 243 (1973)), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996). Under the second prong of Strickland, defendant must establish "'that there is a reasonable probability that, but for counsel's errors, [the defendant] would not have pled guilty and would have insisted on going to trial.'" DiFrisco, supra, 137 N.J. at 457 (quoting Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 371, 88 L. Ed. 2d 203, 210 (1985)) (alteration in original).

Whether a PCR hearing on an ineffective assistance of counsel petition is necessary is a matter within the court's discretion. R. 3:22-10; see State v. Preciose, 129 N.J. 451, 462 (1992). Rule 3:22-10(b) states, in pertinent part:

A defendant shall be entitled to an evidentiary hearing only upon the establishment of a prima facie case in support of PCR, a determination by the court that there are material issues of disputed fact that cannot be resolved by reference to the existing record, and a determination that an evidentiary hearing is necessary to resolve the claims for relief.

Additionally, to establish a prima facie claim of ineffective assistance of counsel, a defendant must demonstrate the reasonable likelihood of succeeding under the Strickland/Fritz test. See Preciose, supra, 129 N.J. at 463. To successfully demonstrate the likelihood of succeeding under the Strickland/Fritz test, a petitioner "must do more than make bald assertions[,] . . . [and] must allege facts sufficient to demonstrate counsel's alleged substandard performance." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.) (emphasis omitted) certif. denied, 162 N.J. 199 (1999).

We first consider defendant's argument that his trial counsel did not spend sufficient time with him, resulting in a pressured and less than voluntary and knowing guilty plea. We conclude that these contentions lack merit, and are belied by the record. In his certification in support of his amended PCR petition, defendant does not claim that he did not understand the plea colloquy, nor deny the factual basis the judge elicited from him. To the contrary, he admits that counsel had discussed the photo array with him, from which the victim selected his photograph, and admits discussing with counsel that he could be impeached with his criminal history, which consisted of five prior convictions, if he chose to testify. Also, at his plea colloquy, defendant testified extensively that he understood the charges, had sufficient time to prepare with his attorney, reviewed the discovery, discussed any applicable defenses and the consequences of his guilty plea with his attorney, and that he was satisfied with his attorney's representation. Defendant then went on to give a detailed factual basis, stating "[the victim] was at the corner and I snatched her out of the vehicle. I hit her, and threw her on the ground, and took her vehicle." Defendant then acknowledged that the victim was dragged by the vehicle and injured as he left the scene.

We similarly reject defendant's related contentions that trial counsel did not properly investigate the case, and was ineffective in failing to obtain a statement from co-defendant Gordon. Defendant supports this argument with a certification submitted by his prior counsel, who ceased representing him in July 2005, some seven months before the trial date, in which he states:

During the course of my representation of Mr. Bartee, Ms. Gordon approached us to indicate that she was prepared to sign a [c]ertification or [a]ffidavit or otherwise confirm that contrary to prior statements to the police that she had no knowledge of Mr. Bartee in the carjacking, aggravated assault or weapons offenses set forth in the subject indictment.

However, no certification or affidavit was submitted by Gordon that she was prepared to recant her prior statements. Rather, she pled guilty, and agreed to testify against defendant at trial. As the sentencing judge noted:

[THE COURT]: But I think you missed the point of why I gave Tatianna Gordon (sic) a little credit. I think you missed the point. You had many opportunities to plead to your case. You plead when I was about to pick a jury. And sitting in this courtroom was Tatianna Gordon (sic), the person who intended to testify against you. She was the passenger, as I recall, correct?

[DEFENSE COUNSEL]: That's correct, Your Honor.

[THE COURT]: And it's her tenacity in showing up here every single time that, I think, had a lot to do with your deciding not to take the case to the jury. But even if that's not the case, she didn't have to testify and she did, she was willing to do that, and that's why I gave her some extra credit for her cooperation. Not just because I adjourned the case.

Moreover, as the defense acknowledges, Gordon had previously given statements to the police, as well as testimony at her guilty plea, wherein she disclosed defendant's admission of guilt, and his eluding the police. Accordingly, if called as a witness at trial, Gordon was subject to impeachment with these prior inconsistent statements. Judge Gardner properly labeled counsel's decision not to pursue this line of defense a strategic one.

Indeed, informed strategic choices "are virtually unchallengeable." Strickland, supra, 466 U.S.at 690, 104 S. Ct.at 2066, 80 L. Ed. 2d at 695. Even strategic choices made after limited investigation are afforded great deference and are assessed for reasonableness. State v. Petrozelli, 351 N.J. Super. 14, 22 (App. Div. 2002). Trial strategy is clearly within the discretion of competent trial counsel. State v. Coruzzi, 189 N.J. Super. 273, 321 (App. Div.), certif. denied, 94 N.J. 531 (1983). A reviewing court must grant substantial deference to the discretion of counsel in determining which witnesses to call at trial. State v. Arthur, 184 N.J. 307, 321 (2005). This heightened deference given to strategic decisions is only overcome when the defendant shows that the decision was based upon a lack of preparation for trial. Id. at 322-23. As noted, defendant here has failed to make such showing.

A defense lawyer's decision regarding whether to call a proposed defense witness is a classic example of such a strategic choice. The defense attorney's judgment call assessing a potential trial witness's credibility should not be readily second-guessed. See id. at 320-21 (noting that a court's review of a defense attorney's decision as to whether to call a witness should be very deferential). As the Court in Arthur observed:

Determining which witnesses to call to the stand is one of the most difficult strategic decisions that any trial attorney must confront. A trial attorney must consider what testimony a witness can be expected to give, whether the witness's testimony will be subject to effective impeachment by prior inconsistent statements or other means, whether the witness is likely to contradict the testimony of other witnesses the attorney intends to present and thereby undermine their credibility, whether the trier of fact is likely to find the witness credible, and a variety of other tangible and intangible factors.

[Id.]

We are satisfied that the record shows no evidence to support defendant's claims of ineffective assistance of counsel. No evidentiary hearing was required. To the extent we have not addressed defendant's remaining arguments, we find them without sufficient merit to warrant discussion in a written opinion. R. 2:11-3 (e)(2).

1 In Henderson, the Court revised the framework for evaluating eyewitness identification evidence. We note that the procedures articulated in Henderson were explicitly given prospective application. Henderson, supra, 208 N.J. at 302.

2 The two-part test set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), was adopted by the New Jersey Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987).