STATE OF NEW JERSEY v. MELVIN HESTER

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE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.

MELVIN HESTER,

Defendant-Appellant.

November 1, 2013

Argued September 17, 2013 Decided

 
Before Judges Reisner and Alvarez.

On appeal from the Superior Court of New Jersey, Law Division, Morris County, Indictment No. 04-05-0518.

David A. Gies, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Gies, on the briefs).

Reema Sethi Kareer, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Fredric M. Knapp, Acting Morris County Prosecutor, attorney; ErinSmith Wisloff, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Melvin Hester appeals from the February 8, 2012 Law Division order denying his petition for post-conviction relief (PCR). We affirm.

A jury found defendant guilty of second-degree sexual assault, N.J.S.A. 2C:14-2(c)(4) (count two); third-degree child endangering, N.J.S.A. 2C:24-4(a) (count three); and fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3(b) (count six). He was acquitted of a separate second-degree sexual assault charge involving the same incident, N.J.S.A. 2C:14-2(c)(1) (count one). Charges of third-degree criminal restraint, N.J.S.A. 2C:13-2(b) (count four), and fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a)(2) (count five), were dismissed.1 The trial court merged count three with count two, sentencing defendant to seven years, which sentence defendant has completed. A concurrent 365 days of imprisonment was imposed on count six.

Defendant did not file a direct appeal. However, the judge who decided the PCR application stated on the record that he had reviewed the sentencing transcript, which we have not been provided. The judge stated he is "very confident" that defendant was advised by the sentencing judge of his right to appeal. Included in defendant's appendix is an incomplete notice of appeal dated November 1, 2006. The signature is illegible. The form does not appear to have been filed. No certification or affidavit was submitted explaining the particulars on the notice of appeal. Trial counsel, who testified at the PCR hearing, was not asked any questions with regard to defendant's election to appeal.

After defendant filed his pro se PCR notice on March 26, 2007, it was discovered that significant portions of the trial record were missing. The delay between that filing and the eventual hearing was occasioned, presumably, by efforts to locate the recordings, as well as the participants, including the trial judge, who had retired. Eventually, the State submitted a certification from defense counsel that the missing portions of the record, which principally contained the testimony by investigating officers, tracked the police reports prepared as a result of the incident. Also absent from our record for review purposes was the transcript of the trial proceedings, if any, that took place in the days after the State rested, the defense case, if any, closing arguments, and jury instructions.

Briefly summarized, the convictions resulted from defendant's sexual assault of a thirteen-year-old victim, A.A., on May 8, 2003. At that time, defendant was employed as a carnival worker; A.A., her sister, and a friend, were at the fairgrounds during the evening in question when she became separated from her group. She testified at trial that defendant, whom she had seen earlier in the evening, grabbed her, placed his hand over her mouth, and took her inside the multi-unit trailer where he lived. While there, he proceeded to sexually assault her.

Patrolman Alan J. Belcher of the Wharton Police Department, who was in the area around the fairgrounds, stated in his report that when A.A.'s absence was reported by her companions, he was approached by another carnival employee. That individual told him that he had seen defendant walking with a girl into his room at the trailer. Belcher, along with a fairgrounds supervisor, approached the trailer, and the supervisor knocked on the door. After the supervisor instructed another employee to obtain a screwdriver so he could force the door open, the officer heard the sound of glass breaking and ran towards the rear of the unit. When he saw defendant fleeing from the area, Belcher gave chase, arresting defendant and placing him in his police vehicle. He then spoke with the victim, whose mother was contacted. A.A. and her companions were taken to the police station. Meanwhile, Belcher, along with another Wharton Police Department officer, entered the trailer. Belcher's police report says in relevant part:

Now knowing the relative ages of the two persons and the fact that [A.A.] was upset and "didn't want to be there", I briefly looked through the unit to check for weapons, ensure the scene was safe and there were no additional victims. On top of the night stand was an open box of "Trojan" brand condoms and an open wrapper of a condom. These two items were collected by this officer and later turned over to the Morris County Sheriff's detectives. The trailer unit was secured and [the other officer] remained on scene.

While at the station, defendant was administered his Miranda2 warnings and waived his right to remain silent. Defendant denied having sexually assaulted A.A., insisting the two of them had merely smoked marijuana together.

Detective Gordon T. Gillen obtained defendant's written consent to search on a departmental form, after which sheriff's department detectives entered the trailer. While defendant's interview was underway, Gillen received a call from the officers at the scene who reported the discovery of a used condom on defendant's bed. When asked, defendant denied any knowledge of it.

The PCR judge, without finding that defendant had established a prima facie case as required by State v. Preciose, 129 N.J. 451 (1992), conducted a hearing with regard to defendant's claims of ineffective assistance of counsel. As we have mentioned, defendant's trial attorney testified at the hearing. The attorney related that defendant was insistent that he was not guilty, and that defendant had no explanation as to why traces of A.A.'s DNA and his own DNA were found on the condom. Counsel was not asked any questions regarding notification to defendant of his right to appeal at the sentencing hearing.

In addition, the record indicates that the delay in trying the matter was the result of delays in obtaining a DNA expert on behalf of the defense to review the DNA evidence produced by the State and obtaining reports. The partial transcripts that were available also reflected that during the trial defense counsel moved to suppress the condom wrapper and box, claiming that he had not previously understood that those two items were seized before defendant signed a consent to search.

The PCR court rejected defendant's claims of ineffective assistance of counsel, which included the following: that his attorney was unprepared, did not review discovery with him, was not familiar with his case, and did not effectively cross-examine the victim or the other State witnesses. He also alleged that he told counsel that he wanted to file a direct appeal, that counsel failed to do so, and defendant argued that he completed his own appeal form and forwarded it to the court. The court rejected these claims as well.

On this appeal, defendant argues:

POINT ONE

THE DEFENDANT'S TRIAL ATTORNEY WAS CONSTITUTIONALLY INEFFECTIVE WHERE HE WAS NOT ADEQUATELY PREPARED, A FACT EVIDENCED BY THE TRIAL ATTORNEY'S MISTAKEN BELIEF THAT THE CRITICAL EVIDENCE WAS SEIZED AFTER THE DEFENDANT CONSENTED TO A SEARCH OF HIS HOME. (U.S. CONST. AMEND. VI, XIV; N.J. CONST. Art. I, para. 10 (1947).

POINT TWO

THE DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO A SPEEDY TRIAL WHERE OVER 720 DAYS PASSED BETWEEN THE DATE OF ARREST AND THE COMMENCEMENT OF TRIAL. (NOT RAISED BELOW).

A defendant must establish two elements to prove ineffective assistance of counsel. First, he must demonstrate that counsel's performance was deficient. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). An attorney's performance is deficient when he or she makes "errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Ibid. Second, a defendant must establish that counsel's deficiency prejudiced the defense by demonstrating 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 one that undermines confidence in the outcome. Ibid. New Jersey has adopted the Strickland test. See State v. Fritz, 105 N.J. 42, 58 (1987).

There is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694. To rebut this presumption, a defendant must prove counsel's actions did not amount to "sound trial strategy." Id. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694-95 (internal quotation marks omitted). "[A] petitioner must do more than make bald assertions that he was denied the effective assistance of counsel." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).
First, we address defendant's claim that his attorney was inadequately prepared for the trial, in particular, that his attorney was confused about the seizure of the box of condoms and the empty wrapper, and about defendant's execution of a written consent to search. If, for the sake of discussion, we were to agree that defendant established the first prong of the Strickland test, he still cannot satisfy the second requirement. This is because the crucial evidence, namely, the DNA taken from the condom found on the bed after defendant signed the consent, would have been discovered after a lawful search unrelated to the initial entry. Thus, under the inevitable discovery doctrine, the evidence would have been admissible. See State v. Sugar, 100 N.J. 214, 238 (1985). That evidence alone was sufficient to have convicted defendant. Hence, even if counsel was ineffective in failing to suppress the box and empty wrapper, the failure did not prejudice defendant or the outcome of his trial.

The condom was a piece of evidence that would inevitably have been discovered; it was obtained after defendant was at the station, agreed to talk to investigators, and consented to the search in writing. See State v. Pante, 325 N.J. Super. 336, 348-49 (App. Div. 1999), certif. denied, 163 N.J. 76 (2000). Even if trial counsel had been familiar with the timing of the seizures, a motion to suppress the condom from which the crucial DNA evidence was taken would have failed. Defendant, therefore, suffered no prejudice as a result of counsel's mistake. The mistake did not constitute ineffective assistance of counsel. See Strickland, supra, 466 U.S. at 687, 694, 104 S. Ct. at 2064, 2068, 80 L. Ed. 2d at 693, 698; State v. Fritz, supra, 105 N.J. at 58.

As to defendant's claim that his attorney was ineffective as a result of his failure to file a notice of appeal on his behalf, the record is entirely devoid of any proofs in this regard. Defendant did not proffer a certification or affidavit, or the sentencing transcript, nor did he testify at the PCR hearing. Trial counsel was not asked about this issue at that hearing. The partially completed notice of appeal, although it purports to be dated and signed by defendant, is an unfiled document, the significance of which is not explained by any affidavit, certification, or testimony. Given this absence of proof, defendant has failed to establish either that he requested that his attorney file an appeal, or that counsel was ineffective in failing to do so.

With regard to the delay in trial, we find that claim to lack merit as well. There is no doubt that defendant has a right to a speedy trial. See State v. Cahill, 213 N.J. 253, 263-67 (2013). In this case, however, it was necessary for the State and for defendant to obtain DNA experts. The trial's delay was occasioned by delays in obtaining expert reports, which is reflected in the transcripts we have been supplied for various pre-trial status conferences. In fact, defendant's trial counsel requested that, although the matter had been given a plea cutoff date of October 7, 2004, he be granted an additional six weeks because of his difficulty in contacting a DNA expert. When a pretrial conference pursuant to Rule 3:9-1(e) was conducted on November 17, 2004, the pretrial memorandum notes that defendant's DNA expert report had not been completed. A trial date was initially set for January 31, 2005, although the trial was not conducted until May 2005. No explanation was offered as to the reason five months passed before the trial was conducted.

We find no merit to defendant's speedy trial argument in light of the clear indications on the record that the delay was the product, at least in part, of his own delay in obtaining an expert. Defendant has failed to establish that the delay was caused by the State in order to gain an advantage, or that he was actually prejudiced as a result. See Cahill, supra, 213 N.J. at 266.

1 Although the judgment of conviction was included in defendant's brief, we have no transcript of the sentence proceedings. As a result of the incident at issue, defendant was also charged with three disorderly persons offenses. Two were dismissed, and defendant was sentenced to concurrent ninety days on a charge of criminal mischief, N.J.S.A. 2C:17-3(a)(1). We cannot discern from the record the reason for the dismissals nor does the question affect the issues addressed on this appeal.

2 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).