STATE OF NEW JERSEY v. MARK TOLBERT

NOT FOR PUBLICATION WITHOUT THE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 TOLBERT,

Defendant-Appellant.

____________________________________

August 17, 2015

Submitted March 23, 2015 Decided

Before Judges Simonelli and Leone.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 05-01-0055.

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

Angelo J. Onofri, Acting Mercer County Prosecutor, attorney for respondent (Dorothy Hersh, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Mark Tolbert appeals from the denial without an evidentiary hearing of his petition for post-conviction relief (PCR). We affirm.

I.

We briefly summarize the facts of this case previously set forth in State v. Tolbert, No. A-4405-07 (App. Div. July 2, 2010) (slip op. at 2-8) (footnote omitted), certif. denied, 205 N.J. 16 (2010).

On August 16, 2004, at approximately 12:00 a.m., Sekhou Cummings was in line waiting to enter the Sambucca Night Club in Trenton when defendant and co-defendant, Norman Murphy, approached him and asked him for five dollars; Cummings refused. The men repeated their request, and Cummings complied, handing them five dollars. The men, however, pressed Cummings for another five dollars. When Cummings attempted to walk away, Murphy pulled out a gun and pointed it at Cummings' chest. Defendant proceeded to take money and a cell phone from Cummings' pockets while Murphy yanked off a white-gold chain from Cummings' neck, which fell to the ground. While the men bent down to retrieve the chain, Cummings fled in the direction of his parked car where he saw a police car patrolling the area. He approached the car and advised Officer Israel Bonilla and Officer Sheffield, of the Trenton Police Department, that he had just been robbed by two black males wearing white t-shirts, one tall and thin and the other short and stocky. Cummings entered the patrol car and drove with the officers back toward the nightclub.

Shortly after Cummings was robbed, sometime between 12:00 and 12:15 a.m., Kenneth Radcliffe was walking through the Auto Zone parking lot in Trenton with three companions heading to the Sambucca Club. Defendant and Murphy approached Radcliffe, who described them as wearing white t-shirts, one short and stocky, and the other tall and thin. Defendant asked Radcliffe for five dollars, pulling up his shirt and displaying a gun tucked in the waistband of his pants, telling Radcliffe that he did not "want to have to paint [his] shirt red." Radcliffe attempted to walk away from defendant, but defendant pulled his gun from his waistband and pointed it at Radcliffe's chest. Radcliffe handed defendant forty dollars from his wallet; one of Radcliffe's friends also handed defendant ten dollars. Officers Bonilla and Sheffield, having been directed to that general area by Cummings, arrived at the scene.

When Cummings saw defendant and Murphy, he shouted "that's them, that's them". Bonilla then observed two men that fit the description provided by Cummings. The officers exited their vehicle and approached the two men, ordering defendant to show his hands. Defendant refused to comply, ran behind a car parked in the lot and appeared to be attempting to hide the gun behind the vehicle. Bonilla then arrested defendant, and Sheffield located a gun under the parked car. Bonilla searched defendant and found U.S. currency and a chain with a pendant in defendant's pocket. Sheffield, upon her search of Murphy following his arrest, retrieved a cell phone from him. Once defendant and Murphy were transported back to police headquarters, Cummings identified the chain and cell phone as the ones that were taken from him earlier that evening.

The jury found defendant guilty of two counts of first-degree robbery, N.J.S.A. 2C:15-1; two counts of third-degree theft, N.J.S.A. 2C:20-3(a); and one count of second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a). Defendant was sentenced to an aggregate term of twenty-five years in prison with an eighty-five percent period of parole ineligibility.

Defendant filed an appeal from the December 4, 2006 judgment of conviction. After we denied his appeal and our Supreme Court denied certification, defendant filed his PCR petition on or about January 4, 2011. After oral argument, Judge Robert C. Billmeier denied PCR in a well-reasoned decision dated June 25, 2013. Defendant appeals, raising the following arguments

POINT I - BECAUSE THE DEFENDANT WAS DENIED HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AND WAS PREJUDICED AS A RESULT, THE PCR COURT ERRED BY DENYING THE DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF OR, IN THE ALTERNATIVE, SHOULD HAVE GRANTED HIM AN EVIDENTIARY HEARING TO FULLY ASSESS HIS CONTENTION THAT HE FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION DURING HIS FAILED PLEA HEARING AND SUBSEQUENT TRIAL.

A. TRIAL COUNSEL WAS INEFFECTIVE DURING THE PLEA NEGOTIATIONS AND PLEA HEARING.

B. TRIAL COUNSEL WAS INEFFECTIVE BECAUSE SHE DID NOT CALL WITNESSES WHO WOULD HAVE SUPPORTED THE DEFENSE THEORY OF THE CASE.

C. TRIAL COUNSEL WAS INEFFECTIVE FOR NOT OBTAINING MEDICAL EVIDENCE TO SUPPORT THE DEFENDANT'S ASSERTION THAT HE HAD RECENTLY HAD SURGERY ON HIS RIGHT HAND THAT INCAPACITATED HIS HAND AND MADE IT IMPOSSIBLE FOR HIM TO HOLD THE GUN.

D. TRIAL COUNSEL WAS INEFFECTIVE FOR NOT MOVING TO GET THE SEIZED HANDGUN TESTED FOR FINGERPRINTS.

POINT II - DEFENDANT REASSERTS ALL OTHER ISSUES RAISED IN POST-CONVICTION RELIEF.

POINT III - REVERSAL IS REQUIRED IN THIS CASE BECAUSE THE CUMULATIVE EFFECTS OF THE ERRORS DEPRIVED THE DEFENDANT OF JUSTICE.

II.

Defendant argues the PCR court erred in denying him an evidentiary hearing on his ineffective assistance claim. A PCR court need not grant an evidentiary hearing unless "'a defendant has presented a prima facie [case] in support of post-conviction relief.'" State v. Marshall, 148 N.J. 89, 158 (alteration in original), cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). "To establish such a prima facie case, the defendant must demonstrate a reasonable likelihood that his or her claim will ultimately succeed on the merits." Ibid. "However, a defendant is not entitled to an evidentiary hearing if the allegations are too vague, conclusory, or speculative[.]" State v. Porter, 216 N.J. 343, 355 (2013) (internal quotation marks omitted). We "conduct a de novo review" of the PCR court's decision to forego an evidentiary hearing. State v. Harris, 181 N.J. 391, 421 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). We hew to that standard of review.

To show ineffective assistance of counsel, a defendant must meet the two-pronged test of Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and State v. Fritz, 105 N.J. 42 (1987). "The defendant must demonstrate first that counsel's performance was deficient, i.e., that 'counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment.'" State v. Parker, 212 N.J. 269, 279 (2012) (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). "In making that demonstration, a defendant must overcome a strong presumption that counsel rendered reasonable professional assistance." Ibid.

Second, "a defendant must also establish that the ineffectiveness of his attorney prejudiced his defense. 'The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Id. at 279 80 (quoting Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698).

After careful review, we affirm for substantially the reasons given by Judge Billmeier in his June 25, 2013 written opinion. We add the following comments.

III.

Defendant asserts trial counsel was ineffective because she never told defendant that, as a condition of the plea agreement, he would need to name his co-defendant as an accomplice in his plea colloquy. We affirm Judge Billmeier's rejection of this claim. Trial counsel negotiated a favorable plea agreement, but during the plea colloquy defendant falsely claimed he acted alone when committing the robberies. The record shows counsel had advised defendant he had to testify truthfully. It was defendant's decision to plead guilty. He cannot blame counsel if in retrospect he concludes he made a bad decision. Moreover, the trial court was entirely in its domain to reject defendant's guilty plea, as the court retains broad discretion in deciding whether to refuse or "accept a plea of guilty." R. 3:9-2; see State v. Campfield, 213 N.J. 218, 230 (2013).

IV.

Defendant alleges that trial counsel did not call witnesses who would have been favorable to him. However, as the PCR court properly noted, defendant's argument presents "purely speculative deficiencies in his trial counsel's representation." Defendant fails to specify what testimony these additional witnesses had to offer. "'[W]hen a petitioner claims his trial attorney inadequately investigated his case, he must assert the facts that an investigation would have revealed, supported by affidavits or certifications based upon the personal knowledge of the affiant or the person making the certification.'" Porter, supra, 216 N.J. at 353.

In particular, defendant alleges trial counsel erred in not calling the Sambucca Night Club bouncers to testify in his favor. However, defendant offered no affidavits from the bouncers detailing what their testimony would have been or how it would have benefitted his case. Defendant's conclusory allegations are unsupported by facts or personal knowledge. The PCR court properly refused to "speculate as to whether the potential testimony of the security personnel would have benefitted [defendant]."

Defendant also alleges trial counsel's decision not to call Officer Sheffield as a witness was ineffective, and that her testimony would have been beneficial to his case. Once again, defendant presents no "affidavits or certifications based upon the personal knowledge of the affiant." Ibid.

Defendant similarly failed to present medical evidence to the PCR court to show his hand was too injured to hold a gun. The PCR court properly rejected defendant's unsupported claims.

V.

Defendant claims trial counsel was ineffective because counsel failed to have the handgun used in the robbery tested for fingerprints. Defendant failed to assert the argument in his certification of the facts.1 In any event, the PCR court correctly found trial counsel's decision not to test the handgun for fingerprints was a sound strategy.

During the cross-examination of Officer Bonilla, trial counsel elicited that the handgun or the bullets in the handgun had not been checked for fingerprints by Trenton Police Department. The testimony supported trial counsel's theory that the State had not carried its burden to prove defendant's guilt beyond a reasonable doubt. With no knowledge of what a fingerprint analysis would have yielded, "defendant cannot argue . . . that if fingerprints had been obtained, they would have exculpated defendant." State v. Loyal, 386 N.J. Super. 162, 173 (App. Div.), certif. denied, 188 N.J. 356 (2006). As the PCR court properly noted "had trial counsel urged fingerprints testing of the firearm, and subsequent testing revealed [defendant's] prints, a question as to whether she provided effective assistance of counsel certainly would exist."

The PCR court properly denied an evidentiary hearing on defendant's unsubstantiated claims. Defendant's remaining claims are without sufficient merit to warrant discussion. R. 2:11-3(e)(2).

Affirmed.

1 "In evaluating whether a prima facie claim has been asserted, '[a]ny factual assertion that provides the predicate for a claim of relief must be made by an affidavit or certification . . . before the [c]ourt may grant an evidentiary hearing.'" Id. at 355 (quoting R. 3:22-10(c)). Further, a PCR petition must "set forth with specificity the facts upon which the claim for relief is based, the legal grounds of complaint asserted, and the particular relief sought." R. 3:22-8; State v. Cummings, 321 N.J. Super. 154, 164 (App. Div.), certif. denied, 162 N.J. 199 (1999).