STATE OF NEW JERSEY v. DWAYNE A. WRIGHT

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2946-02T12946-02T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DWAYNE A. WRIGHT,

Defendant-Appellant.

_______________________________

 

Argued October 31, 2005 - Decided

Before Judges Lintner and Parrillo.

On appeal from the Superior Court of New Jersey, Law Division, Burlington County,

I-0754-10-84.

Nancy C. Ferro argued the cause for appellant (Ferro and Ferro, attorneys; Appellant, pro se, on the brief).

Alexis R. Agre, Assistant Prosecutor, argued the cause for respondent (Robert D. Bernardi, Burlington County Prosecutor, attorney; Carol Lee Tang, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant, Dwayne Wright, appeals from a December 10, 2002, Order entered by Judge Almeida denying his second petition for Post-Conviction Relief (PCR). We now affirm.

The procedural history and relevant facts are as follows. Defendant and co-defendant, James D. Clausell, were tried by a jury between April 1 and April 18, 1986, on various counts arising out of Burlington County Indictment No. I-0754-10-84. Defendant was found guilty of first-degree murder, N.J.S.A. 2C:11-3, for his participation in the contract killing of Robert Atwood, together with three counts of fourth-degree aggravated assault, N.J.S.A. 2C:21-1b(4), and various weapons offenses. Clausell was convicted of death-penalty murder, N.J.S.A. 2C:11-3a(1) or (2), as well as the other offenses, and sentenced by the jury to death.

Defendant was sentenced to life imprisonment with thirty years of parole ineligibility on the murder conviction, nine months on each aggravated assault conviction, which were to be served consecutively to each other and with the sentence imposed on the murder conviction, and four years on the conviction of unlawful possession of a weapon, also to be served consecutively to the sentences imposed on the other counts.

Defendant appealed and, in an unreported opinion decided on May 24, 1989, we affirmed the aggravated assault convictions but modified the sentence imposed to three concurrent eighteen-month terms with eighteen months of parole ineligibility to run consecutively to the murder and weapon conviction. The Supreme Court denied certification. State v. Wright, 118 N.J. 193 (1989).

Meanwhile, in November 1988, Roland S. Bartlett, Atwood's neighbor, was convicted of various offenses, including first-degree murder, for his part in hiring defendant and Clausell to kill Atwood. Prior to defendant's joint trial with Clausell, the State advised the trial judge on July 26, 1985, that Clausell's attorney had a possible conflict of interest because he had represented Bartlett. Clausell's attorney advised that he assumed that Bartlett was paying his fee for representing Clausell, but was not certain. Judge Cornelius P. Sullivan, Sr., removed Clausell's attorney after it was confirmed that someone in his firm had previously represented Bartlett.

One week later, Judge Sullivan sua sponte questioned defendant's counsel, Francis Hartman, to ascertain whether Hartman had "any reason to believe that any of [his] fee was paid by . . . Bartlett . . . ." After expressing initial "outrage" at being called into court to respond to a matter concerning his attorney-client relationship, Hartman advised the judge:

Let me put it to you in the specific context of this case. So far as I know the moneys which were paid to me, and the choice of me as an attorney, although it may have been on the recommendation of another attorney, was a decision that was made solely by Mr. Wright and/or his family.

Maybe there's something I don't know about out there; and if I don't know about it, then obviously later I can't do anything about it. But the client, if he knew about it, could do something about it. I think the real problem is for Mr. Wright to understand whether somebody else, who is looking out for that person's interest as opposed to Mr. Wright, is using me as a pawn in that game.

Hartman further stated that his associate, Robin Marks, was contacted respecting representation. The caller asked for either Marks or Hartman to go to the jail to talk to defendant about possible representation. Marks spoke to defendant and agreed that the firm would represent him if he could pay the requested retainer. Hartman explained the manner in which his fee was paid.

Thereafter someone came to my office, again in my absence, whom a secretary tells me was a female, who paid the agreed upon retainer, who suggested that she was Mrs. Wright. And we were satisfied as far as the retainer as far as the representation.

I would further say to the Court that I do not to my knowledge have known Roland Bartlett. If he walked into the room, I would not recognize him. I don't believe I ever represented him in any manner, in any way, shape, or form, and I have no interest in his case as opposed to Mr. Wright's case.

I really think that covers it from my point of view. As I said, I have not been sought out to be the attorney of Mr. Bartlett; nor have I been paid to my knowledge by Mr. Bartlett.

Judge Sullivan then questioned defendant regarding the payment of his counsel fees. He asked defendant, "Mr. Wright, are you aware of any information, any reason to believe that Mr. Bartlett paid your legal fees in this case?" Defendant replied, "No, sir." Defendant acknowledged that he understood "what the lawyers and [judge] have been talking about . . . ." Hartman remained as defendant's counsel.

In the 1988 trial of Bartlett, the State established as part of its proofs that Bartlett paid both Clausell's and defendant's lawyers and continued to pay their salaries following their arrest. The testimony of co-defendants Darryl Cherry, who entered into a deal with the State and testified for the prosecution, and Lorenzo Werts established that Bartlett instructed both of them to make the payments to defendant's mother and instruct her to pay counsel. Werts, who was instructed by Bartlett to pay Hartman, indicated that he was told to take money to defendant's mother, take her over to Hartman, give him the money, and bring the receipts back to Bartlett.

On August 30, 1990, the Supreme Court reversed and remanded Clausell's convictions for capital murder. State v. Clausell, 121 N.J. 298 (1990). Defendant's first PCR petition, filed on October 10, 1990, was postponed pending our determination of Clausell's non-capital appeal. Defendant's PCR hearing was eventually held on April 22, 1994. Judge Sullivan vacated defendant's aggravated assault convictions, finding that the jury had received erroneous instructions, but denied defendant further relief on the remaining convictions. We affirmed Judge Sullivan's order denying PCR in an unreported decision indicating that the rulings by the Supreme Court in State v. Clausell, 121 N.J. 298 (1990), on three issues, namely (1) the voice identification made by Valerie Atwood; (2) permitting the composite artist's endorsement of Atwood's credibility; and (3) prosecutorial misconduct, "did not create a possibility of injustice 'sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached'".

Defendant filed his second petition for PCR, the subject matter of this appeal, on January 26, 2000. Hartman submitted an affidavit, which stated in pertinent part:

Upon agreeing to pay my fees, Mr. Wright indicated to me that his mother would be able to raise the funds. At that time, I did not know, nor was I concerned with where Mrs. Wright obtained the funds. There was no indication to me that she obtained the funds from Mr. Roland Bartlett.

I received two or three payments from Mrs. Wright, not from someone else. On at least one occasion, Mrs. Wright made the payment to my secretary. At no time when I received payment for Dwayne Wright's fees did I know that the money came from anyone other than Mrs. Wright.

Judge Almeida issued a written opinion denying defendant's application for PCR. Although Judge Almeida initially found that defendant's motion was procedurally barred, he nevertheless addressed the merits and found that defendant failed to meet his burden to establish a prima facie case that a conflict of interest existed at the time of his trial because Hartman and, indeed, defendant himself were unaware that Bartlett had paid for the legal fees. Specifically, regarding the time bar, Judge Almeida pointed out:

In the case at bar, the defendant's petition is well beyond the five-year time bar. The defendant was sentenced on August 29, 1986. The defendant did not file his current petition for post-conviction relief until January 26, 2000. This petition was filed twelve years and five months after the sentencing date and seven years and five months beyond the five-year time bar. Further . . . defendant has failed to show excusable neglect or that the interest of justice demands that the time bar be relaxed.

In addition to the defendant's current petition being filed over seven years beyond the five-year time bar, this defendant has previously filed a post-conviction relief petition on October 10, 1990. Upon that post-conviction relief petition being denied, the defendant appealed that decision . . . . The . . . Appellate Division affirmed the lower court holding . . . . Finally, the defendant certainly had the opportunity to raise the conflict of interest issue in the post-conviction relief petition that was filed on October 10, 1990.

Thus, the petition is clearly time barred.

Regarding defendant's claim that he received ineffective assistance of counsel because of the conflict of interest, Judge Almeida found:

In this case, the defendant failed to make a prima facie showing that a conflict of interest existed. The defendant alleges that a conflict of interest existed because Mr. Bartlett, who was later found guilty of conspiracy to commit the murder of Mr. Atwood, the victim in the defendant's case, paid for the defendant's attorney fees. However, the defendant failed to establish that Mr. Hartman had knowledge that his fees were being paid by Mr. Bartlett during the defendant's trial. In fact, the record is to the contrary.

. . . .

As the trial transcript details, Mr. Hartman did not have knowledge that his fees were being paid by anyone other than the defendant's family. This is evidenced by the dialog between Judge Sullivan and Mr. Hartman before the start of the defendant's trial . . . .

. . . .

Clearly, Judge Sullivan specifically asked Mr. Hartman if Mr. Bartlett was paying for the legal representation of the defendant. Mr. Hartman stated . . . he was not receiving payment from Mr. Bartlett and that he did not even know Mr. Bartlett. Mr. Hartman also stated that it was his belief that the defendant's legal fee was being paid by either the defendant or his family. Mr. Hartman then explained to Judge Sullivan that the retainer was paid to his secretary by a woman "who suggested that she was Mrs. Wright."

Further, the defendant was given the opportunity to address the issue over whether Mr. Bartlett was paying the legal fees for him . . . . The defendant stated, "No, sir." Judge Sullivan even went one step further to ensure that the defendant understood the problem of Mr. Bartlett paying the legal fees for him with regard to the State's theory of the case that Mr. Bartlett hired Mr. Clausell and the defendant to kill Mr. Atwood. The defendant responded that he understood.

. . . .

From the inquiry by Judge Sullivan and the affidavit from Mr. Hartman, it is clear that Mr. Hartman was under the belief that the funds were provided to him by the defendant's family . . . . Since Mr. Hartman did not have knowledge at the time of the defendant's trial that Mr. Bartlett was supplying the money for the payment of his legal representation, Mr. Hartman had no conflict between the defendant's interests and Mr. Bartlett's interests.

. . . .

. . . Here, Mr. Hartman was not aware that Mr. Bartlett was paying the legal fees for the defendant. If Mr. Hartman had no knowledge that Mr. Bartlett was paying the defendant's legal fees, then [he] could not have been biased in representing the defendant. Therefore, his loyalty was not in any way divided between the defendant and Mr. Bartlett.

Defendant raises the following points on appeal:

I. THE POST-CONVICTION COURT ERRED BY PROCEDURALLY BARRING THE ISSUES RAISED, WHERE THEY COULD NOT HAVE BEEN PREVIOUSLY PRESENTED AND WHERE DEFENDANT DID NOT RECEIVE ADEQUATE REPRESENTATION DURING THE ORIGINAL POST-CONVICTION RELIEF.

II. DEFENDANT'S CONVICTION SHOULD BE REVERSED BECAUSE OF A CONFLICT-OF- INTEREST, WHERE CO-DEFENDANT ROLAND BARTLETT PAID FOR DEFENDANT'S LEGAL FEES AND KEPT DEFENDANT SILENT BY COERCION, AND FEAR OF DEATH TO HIM AND HIS LOVED ONES.

III. THE LAW DIVISION ERRED IN ITS ASSESSMENT OF THE CONFLICT OF INTEREST MATTER, BY FAILING TO CONSIDER ALL OF THE INFORMATION PUT FORTH, AND BY REQUIRING AN AFFIDAVIT OF COUNSEL AFTER HEARING ARGUMENT WITHOUT SUBJECTING THE ATTORNEY TO ANY EXAMINATION ON THE RECORD.

A consideration of defendant's contentions and supporting arguments leads us to conclude that they are without merit. We affirm substantially for the reasons stated by Judge Almeida's in his written opinion of November 25, 2002. R. 2:11-3(e)(2). Although Judge Almeida properly found, under the circumstances, that defendant's application was time-barred, R. 3:22-12, he nevertheless relaxed the procedural proscription and addressed the issues raised on the merits. More importantly, he correctly analyzed the merits and found that defendant failed to present a prima facie case of ineffective assistance of counsel to warrant an evidential hearing.

 
Where a "court perceives that holding an evidentiary hearing will not aid the court's analysis of whether the defendant is entitled to post-conviction relief, or that the defendant's allegations are too vague, conclusory, or speculative to warrant an evidentiary hearing, then an evidentiary hearing need not be granted." State v. Marshall, 148 N.J. 89, 158 (citations omitted), cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). We are satisfied that Judge Almeida appropriately concluded that defendant's belated reliance on the information derived from Bartlett's trial that Bartlett paid Hartman's fees did not in and of itself present sufficient grounds for an evidential hearing. Contrary to defendant's arguments on appeal, the judge correctly concluded that a hearing was not warranted, based on the uncontradicted evidence that Bartlett surreptitiously made fee payments unbeknownst to both counsel and defendant. Defendant failed to meet his prima facie burden to establish that a conflict of interest existed such that he was rendered ineffective assistance of counsel.

Affirmed.

Simultaneously with the filing of his notice of appeal, defendant filed for direct certification for consolidation with Clausell's appeal. The Court denied defendant's application on January 30, 1987.

(continued)

(continued)

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A-2946-02T1

November 22, 2005