STATE OF NEW JERSEY v. GARRET EVERETT

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4032-04T44032-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

GARRET EVERETT,

Defendant-Appellant.

__________________________________

 

Submitted May 22, 2006 - Decided June 19, 2006

Before Judges C.S. Fisher and C.L. Miniman.

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 95-01-0061.

Yvonne Smith Segars, Public Defender, attorney for appellant (Roger L. Camacho, Designated Counsel, of counsel and on the brief).

Edward J. DeFazio, Hudson County Prosecutor, attorney for respondent (Karen M. Kazanchy, Assistant Prosecutor, on the brief).

PER CURIAM

This is an appeal from the denial of post-conviction relief (PCR). After conducting an evidentiary hearing, the PCR judge denied relief on all grounds and this appeal followed. We affirm.

In Hudson County Indictment #0061-01-95, defendant was charged with three counts of unlawful possession of three handguns on September 18, 1994, in the Town of West New York, in violation of N.J.S.A. 2C:39-5(b), in that defendant had not obtained a permit to carry same as provided in N.J.S.A. 2C:58-4. In the fourth count, the indictment charged knowing and unlawful possession of a pair of "nun-chucks," in violation of N.J.S.A. 2C:39-5(d), and in the fifth count, charged defendant with knowing and unlawful possession of a cestus without any explainable lawful purpose contrary to N.J.S.A. 2C:39-3(e).

On September 18, 1994, defendant's girlfriend, Barbara Wintjen, called the West New York police to complain of a domestic dispute at 6515 Boulevard East, Apartment 1-S, where Wintjen resided. Wintjen complained that defendant, her former live-in boyfriend, was in her apartment and would not leave. She also advised the police that defendant had been arrested in Fairview on a domestic violence complaint. This report was made at 4:35 a.m. The West New York police, after checking with the Fairview police, determined that defendant was wanted for contempt of court. As a result, he was placed under arrest and transported to police headquarters for processing. Wintjen did not wish to make any complaints at that time and there were no signs of any physical violence, so Wintjen was informed of the procedures to obtain a restraining order and was advised of her domestic rights.

Sometime thereafter defendant contacted Wintjen to secure her assistance in making bail. According to the police report, Wintjen stated that defendant asked her to bail him out of jail with the money that was in his jacket pocket, which was in her apartment. Wintjen later reported to the police that when she reached into the jacket pocket she felt a box, that she removed the box to continue searching for the money, and that she discovered the box contained a pistol. Wintjen asked the police to respond to her apartment to remove the weapon. When the police arrived at her apartment, she turned over the weapon and stated that defendant might have other weapons in the apartment. She related that defendant stayed in the apartment from time to time and had many personal belongings in her apartment. She requested and consented to a search of the entire apartment. That search turned up eight items, three firearms, two sets of nun-chucks, one set of brass knuckles and one cestus. The defendant was then arrested by the West New York police and charged with the weapons offenses. Wintjen gave an unsworn statement to the police.

On October 2, 1994, defendant posted bail on the weapons charges and was released. He never appeared for the pre-arraignment conference that was scheduled for February 2, 1995, and denied having received notice of it. Defendant's bail was forfeited and a warrant for his arrest issued, but was not executed until almost seven years later on January 20, 2002, when defendant was arrested in Brooklyn. While in jail in New York, defendant was not provided with counsel. He remained in jail until February 21, 2002, when he was transferred to the Hudson County jail. He first saw counsel in New Jersey about two weeks later on March 6, 2002.

Defendant ultimately entered into a pre-arraignment plea and was sentenced to a three-year term of probation. He timely sought relief by way of a PCR application and the PCR judge conducted an evidentiary hearing on his claim of ineffective assistance of counsel.

Defendant's counsel, Inez Flores, testified that they did the arraignment on the day of the initial appearance, but a big consideration was bail. The attorney's conference notes for March 6, 2002, indicated that she was informed that Wintjen was deceased. She testified that was a big fact and that she was sure she and defendant discussed it. She explained that the difficulty presented by the death of Wintjen was that the State would need some alternative way to introduce the guns if a trial on the charges were required, but she could not remember what such an alternative theory might have been, and testified that she was sure they discussed whether or not the State would be able to introduce the weapons through another witness.

Defendant and his attorney returned to court on March 8, 2002, a short postponement permitting the prosecutor to get a new "rap sheet." On that date, a plea was negotiated and bail was addressed before the court. Flores testified that bail was a big consideration because the defendant wanted to get out of jail so that he would not lose his job. However, she stated that it would be problematic getting bail in the face of defendant's failure to appear although bail might be available with a plea. In discussing the plea, defendant and his attorney again discussed the absence of Wintjen, but counsel was not sure how elaborate the discussions got about evidence law as it was only two days since she first met defendant.

In looking at the police report at the PCR hearing, Ms. Flores could not think of any method by which the State could get the weapons into evidence. She then expressed the thought that the other identifying information that was gathered with the weapons might provide a basis for admissibility. For example, the weapons were found with picture ID's of the defendant and with mail addressed to him. In addition, the weapons had been found inside a jacket and a knapsack belonging to the defendant. Ms. Flores commented that this would be the prosecutor's problem to address.

When asked if she discussed any other way that defendant could be released from jail except through a plea agreement, Ms. Flores testified that it was up to the judge to decide, but that defendant's failure to appear in 1995 was a strike against him. She did not recall seeking a more advantageous plea agreement, such as one involving a misdemeanor, a disorderly persons offense, or a petty disorderly persons offense, or even one of the fourth degree crimes mentioned in the indictment.

Ms. Flores admitted that after she learned that Wintjen was dead she did not file any motions, such as a motion to dismiss the indictment, nor did she file a bail motion based on the likelihood that the State would not prevail. Ms. Flores admitted that there was nothing in the transcript of the plea hearing that indicated that the State lacked proof of the offenses charged. She admitted that she did not do any research on the admissibility of the evidence, although she was sure that she discussed with defendant the fact that they could file a motion to suppress and await the judge's ruling while defendant was in custody.

In his testimony, defendant denied discussing the case much at all with Ms. Flores on March 6. He testified that Ms. Flores told him that she needed to look over the case to see what it was all about. They met again on March 8, at which time Ms. Flores told defendant the nature of the charges and what evidence the State had against him. Ms. Flores explained the contents of the police report and defendant asked if Wintjen was going to testify against him. According to defendant Ms. Flores told him that the State did not necessarily need her testimony, because it had all the evidence along with the police report. Defendant denied knowing of the death of Wintjen until after the plea was put through. At that point, Ms. Flores advised him of Wintjen's death. Defendant testified that when he learned of Wintjen's death he did not seek to rescind the plea agreement, because he was depending on his attorney to give him "some sort of alternative." Defendant testified that Ms. Flores did not tell him that his case could be handled any way other than by pleading guilty. There was no discussion of any motions that could be filed. He testified that he depended on Ms. Flores to explain the options to him, because he wanted to get out of jail so that he would not lose his job.

Defendant also testified that he told Ms. Flores that the guns were not his, and she responded that the State had the evidence of the guns found in his possession, and that if he pled guilty to one count the judge would not charge him for the others. Then defendant agreed to plead guilty of the one charge of unlawful possession of a firearm. Defendant denied that Ms. Flores ever explained to him that the State could not prove their case if defendant did not enter into a plea. He also testified that Ms. Flores never told him that the State was going to have a difficult time proving the case if they took it to trial, nor did she ever indicate to him that he should take the case to trial. She did, however, encourage him to plead guilty to the one count of possession of a weapon. He also testified that, if he had known the significance of Wintjen's death in terms of the State being able to prove its case, he would never have entered a plea of guilty, even if it meant spending more time in jail.

The PCR judge issued a written decision on March 9, 2005. He found that the defendant's testimony that he did not learn of Wintjen's death until after he signed the guilty plea form was not credible. Rather, he found from Ms. Flores's testimony that defendant was in a much better position to know of Wintjen's death than the public defender to be credible. The court found that it was debatable whether the State would get past a motion to dismiss at trial, but it was no "cinch" that the State would have failed, because the weapons might have been admissible into evidence with the identification evidence located with the weapons, citing State v. Jackson, 326 N.J. Super. 276, 280-81 (App. Div. 1999).

The PCR judge pointed out that the important fact to remember was that the defendant wanted to get out of jail right away, that the plea bargain would allow the defendant to accomplish that end, and that it was the attractive plea bargain, not any ineffective assistance of counsel, which motivated the defendant to plead guilty.

With respect to the failure to file a motion, the court found that same had not been proven. If the motion was to dismiss the indictment, the transcript of the grand jury proceedings had not been submitted. If it was a motion to seek an advisory opinion from the court that the State would not be able to prevail in the absence of Wintjen's testimony, the court noted that such opinions are generally forbidden. And, if it was a motion to dismiss on jurisdictional grounds, nothing was offered in support of such a position. The court then concluded by denying the motion for recusal.

Defendant raises the following issues on appeal:

Point I -- THE TRIAL COURT ERRONEOUSLY FAILED TO RECUSE ITSELF FROM THE POST-CONVICTION RELIEF PROCEEDING (U.S. Const. amends. VI and XIV; N.J. Const. art. I, 10).

Point II -- THE TRIAL COURT REVERSIBLY ERRED IN REJECTING EVERETT'S AMENDED VERIFIED PETITION FOR POST-CONVICTION RELIEF ON THE GROUNDS THAT HIS TRIAL COUNSEL FAILED TO PROVIDE HIM TIMELY WITH (A) NOTICE OF THE STATE'S ONLY WITNESS' DEATH AND (B) WITH THE APPROPRIATE LEGAL CONSEQUENCES OF THAT FACT, NAMELY THAT THE STATE COULD NOT PROVE ITS CASE, PRIOR TO HIS EXECUTING AND PRESENTING THE PLEA AGREEMENT FOR APPROVAL. (U.S. Const. amends. VI and XIV; N.J. Const. art. I, 10).

Point III -- THE PCR COURT REVERSIBLY ERRED IN REJECTING EVERETT'S ARGUMENT THAT HE WAS RENDERED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL FOR FAILURE TO BRING APPROPRIATE PRE-TRIAL MOTIONS TO CLARIFY WHETHER THE STATE COULD PROVE ITS CASE WITHOUT THE TESTIMONY OF MS. WINTJEN WHO HAD PASSED AWAY. (U.S. Const. amends. VI and XIV; N.J. Const. art. I, 10).

Point IV -- THE TRIAL COURT REVERSIBLY ERRED IN FAILING TO GRANT EVERETT'S PETITION FOR POST-CONVICTION RELIEF ON THE GROUNDS THAT HE WAS DENIED HIS FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO HIS PRO SE ISSUES INCLUDED IN HIS MOTION TO OVERTURN WHICH WAS REMANDED FOR TREATMENT AS A PETITION FOR POST-CONVICTION RELIEF. (U.S. Const. amends. VI and XIV; N.J. Const. art. I, 10) [as listed hereafter:]

I. A violation of the Fourth Amendment when the arresting officers in Brooklyn searched defendant's apartment without a warrant on January 20, 2002.

II. A violation of the Fifth, Sixth and Eighth Amendment in holding defendant at Riker's Island and at the Hudson County Correctional Center without apprising him of the charges against him, and in imposing excessive bail.

III. A violation of his Fifth Amendment rights in that he was coerced into pleading guilty.

IV. A violation of his Second Amendment right to keep and bear arms.

V. Ineffective assistance of counsel who failed to adequately advise him as to his legal rights.

VI. Denial of the right to trial by jury.

VII. Trial counsel failed to adequately represent defendant by withholding from him information crucial for him to have known before he entered into a plea agreement.

VIII. Trial counsel failed to pursue pretrial motions.

IX. Cumulative errors denied defendant the right to a fair trial.

Point V -- THE TRIAL COURT FAILED TO EVEN ADDRESS EVERETT'S PCR COUNSEL'S ARGUMENT THAT IN ADDITION TO EACH DISCRETE CONTENTION AS TO INEFFECTIVE ASSISTANCE OF COUNSEL, THE CUMULATIVE EFFECT OF THOSE INADEQUACIES CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL. (U.S. Const. amends. VI and XIV; N.J. Const. art. I, 10).

As to the issue of recusal, defendant points out that the PCR judge, in ruling on defendant's initial pro se motion to overturn the plea, expressed opinions on the issues and denied defendant's application. Thereafter, an appeal was taken and we remanded the matter with instructions to the motion judge to treat the application as one for post-conviction relief. Defendant then moved for recusal. Defendant based his recusal motion on R. 1:12-1, which provides:

The judge of any court shall be disqualified on the court's own motion and shall not sit in any matter, if the judge

. . . .

(d) has given an opinion upon a matter in question in the action;

. . . or

(f) when there is any other reason which might preclude a fair and unbiased hearing and judgment, or which might reasonably lead counsel or the parties to believe so.

In addition, defendant argues that the Code of Judicial Conduct required recusal. He cites Canon 3(C)(1), which states in relevant part:

A judge should disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to instances where: (a) the judge has a personal bias or prejudice concerning a party or has personal knowledge of disputed evidentiary facts concerning the proceeding . . . .

Defendant also relies upon N.J.S.A. 2A:15-49, which provides in pertinent part:

No judge of any court shall sit on the trial of or argument of any matter in controversy in a cause pending in his court, when he:

. . . .

(c) Has given his opinion upon a matter in such action; or

(d) Is interested in the event of such action.

Defendant argues that the PCR judge should not have decided the PCR application. The authorities upon which defendant relies do not support his contention. The Supreme Court has made it abundantly clear that an adverse ruling by a judge in prior proceedings does not warrant disqualification. State v. Walker, 33 N.J. 580, 591 (1960), cert. denied, 371 U.S. 850, 83 S. Ct. 89, 9 L. Ed. 2d 86 (1962). "'A judge [may] continue to participate in a case when [an] opinion which he has rendered . . . was expressed in the course of [the] proceedings regarding the same controversy.'" State v. Medina, 349 N.J. Super. 108, 129 (App. Div.), certif. denied, 174 N.J. 193 (2002), (citing Matthews v. Deane, 196 N.J. Super. 441, 444 (Ch. Div. 1984), appeal dism'd, 206 N.J. Super. 608 (App. Div. 1986)). The rule is "directed primarily at statements made outside of the declarant's role as a judge." State v. Marshall, 148 N.J. 89, 278, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). Recusal was not required in this matter even if the PCR judge made a prior ruling on any of the issues. Furthermore, there has been no showing of any personal bias or prejudice on the part of the judge against defendant.

Defendant next contends that he was entitled to post-conviction relief because his trial counsel failed to notify him of Wintjen's death and advise him of that fact's consequences. The PCR judge considered this claim and made findings of fact based on the testimony presented by defendant's former counsel as well as upon the testimony offered by defendant. The judge concluded that in fact it was defendant who had advised his counsel of the death of the chief witness. He also found that the attorney testified that there was a discussion about the effect of Wintjen's death upon the State's proofs, but that defendant was primarily concerned with not losing his job and getting out of jail.

Where the PCR judge makes findings of fact, those findings are entitled to deference on appeal if supported by substantial, credible evidence in the record. Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974). "We do not weigh the evidence, assess the credibility of witnesses, or make conclusions about the evidence." State v. Barone, 147 N.J. 599, 615 (1997). We only determine "whether the findings made [by the PCR judge] could reasonably have been reached on sufficient credible evidence present in the record." State v. Johnson, 42 N.J. 146, 162 (1964). We are not in a good position to judge credibility and should not make new credibility findings. State v. Locurto, 157 N.J. 463, 470 (1999). It is only where we are "thoroughly satisfied that the finding is clearly a mistaken one and so plainly unwarranted that the interests of justice demand intervention and correction" that we "appraise the record as if [we] were deciding the matter at inception and make [our] own findings and conclusions." Johnson, supra, 42 N.J. at 162. Defendant has failed to demonstrate the absence of substantial credible evidence in the record and as a result the findings made by the PCR judge are entitled to deference. We find no error in this regard.

Next, defendant contends that he was denied constitutionally effective assistance of counsel. The Sixth Amendment of the United States Constitution guarantees every criminal defendant the assistance of legal counsel in his or her defense. Strickland v. Washington, 466 U.S. 668, 685 104 S. Ct. 2052, 2063, 80 L. Ed. 2d 674, 692 (1984). Moreover, the right to counsel is expansively viewed as the right to the effective assistance of counsel. Ibid.

The evaluation of a claim of ineffective assistance of counsel requires a two-prong analysis. In order to prevail on a claim of ineffective assistance of counsel, the defendant must first demonstrate that trial counsel committed serious professional errors. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Second, defendant must demonstrate that the professional errors prejudiced the defendant to the extent that he was deprived of a fair trial. Ibid.

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.

[Id., 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.]

The standards embodied in the Strickland test have been adopted by New Jersey courts. State v. Fritz, 105 N.J. 42, 58 (1987).

"'Judicial scrutiny of counsel's performance must be highly deferential,' and must avoid viewing the performance under the 'distorting effects of hindsight.'" State v. Norman, 151 N.J. 5, 37 (1997) (quoting, Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694). Moreover, there is a strong presumption that counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695.

Adequate assistance of counsel should be measured by a standard of "reasonable competence." Fritz, supra, 105 N.J. at 60-61. That standard does not require "the best of attorneys," but rather requires that attorneys be "not . . . so ineffective as to make the idea of a fair trial meaningless." State v. Davis, 116 N.J. 341, 351 (1989).

In light of the fact-findings made by the PCR judge it is clear that defendant has not demonstrated that his counsel was ineffective. The PCR judge found that defendant was motivated to accept the plea because it would secure his immediate release from jail, he would not face any incarceration, and would be able to preserve his job. The PCR judge concluded that these facts were the predicates of the plea and not any ineffective assistance of counsel. There is substantial evidence in the record which supports those conclusions and they will not be disturbed on appeal.

 
As to the balance of defendant's claims of error, we conclude that they do not merit further discussion in this opinion as the PCR judge's conclusions were based on findings of fact adequately supported in the evidence and defendant's arguments are without sufficient merit to warrant discussion. R. 2:11-3(e)(1)(A) and (E).

Affirmed.

The correct spelling is "nunchaku."

(continued)

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A-4032-04T4

June 19, 2006