STATE OF NEW JERSEY v. PARRISH KING

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4794-04T44794-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

PARRISH KING,

Defendant-Appellant.

_____________________________

 

Submitted April 3, 2006 - Decided June 29, 2006

Before Judges Parrillo and Gilroy.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, 01-02-0394.

Yvonne Smith Segars, attorney for appellant (Thomas Menchin, Designated Counsel, and on the brief).

John L. Molinelli, Bergen County Prosecutor, attorney for respondent (John J. Scaliti, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant, Parrish King, appeals from an order of the Law Division entered on March 7, 2005, denying his petition for post-conviction relief (PCR). We affirm.

On February 16, 2001, a Bergen County Grand Jury charged defendant with various criminal offenses arising out of the attempted murder of his ten-year old stepdaughter, J.M., and aggravated assault of J.M.'s mother, defendant's wife, Darlene, that occurred on December 8, 2001. Tried to a jury, defendant was convicted of first-degree attempted murder, contrary to N.J.S.A. 2C:5-1, and 2C:11-3 (Count One); second-degree aggravated assault of J.M., contrary to N.J.S.A. 2C:12-1b(1) (Count Two); third-degree aggravated assault with a deadly weapon, a knife, contrary to N.J.S.A. 2C:12-1b(2) (Count Three); two counts of third-degree aggravated assault by causing significant bodily injury, contrary to N.J.S.A. 2C:12-1b(7) (Counts Four and Seven); second-degree endangering the welfare of a child, contrary to N.J.S.A. 2C:24-4a (Count Five); and third-degree possession of a weapon, a knife, for an unlawful purpose, contrary to N.J.S.A. 2C:39-4d (Count Nine). Defendant was acquitted of the charge of third-degree criminal restraint, N.J.S.A. 2C:13-2, that allegedly occurred on November 18, 2000 (Count Ten), and the charge of third-degree terroristic threats, N.J.S.A. 2C:12-3b, that occurred on October 25, 1999 (Count Eleven).

Because the trial facts were discussed at length in our prior opinion, State v. King, No. A-2342-01T4 (App. Div. March 19, 2003), it is unnecessary for us to detail the evidence against defendant for these egregious crimes. We note only that contrary to defendant's testimony that he did not commit the acts charged, other evidence of his guilt was substantial, including his identification by J.M. and her mother.

On November 30, 2001, defendant filed a pro se motion to set aside the verdict. The trial judge, treating it as a motion for a new trial, denied the motion determining that the evidence in the case was "overwhelming." Defendant was sentenced to an aggregate term of imprisonment of twenty-five years with seventeen years of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. Fees and penalties were also imposed.

On direct appeal, defendant argued that the trial judge: 1) erroneously denied his request to discharge his assigned counsel and represent himself; and 2) failed to apply correct sentencing guidelines and principles in imposing sentence. Defendant also argued pro se that: 1) the verdict was against the weight of the evidence; 2) he was denied a fair trial by the State's introduction of other crimes evidence; 3) the jury failed to follow the court's instructions and returned an inconsistent verdict; 4) the judge erroneously excluded testimony from his character witnesses; and 5) there was prosecutorial misconduct. We affirmed the judgment of conviction and the sentences imposed, except we directed that the Violent Crimes Compensation Board (VCCB) and Safe Neighborhood Services Fund (SNSF) fees, imposed on the convictions that were merged into the attempted murder conviction, be vacated. (slip op. at 14). On July 10, 2003, the Supreme Court denied defendant's petition for certification. State v. King, 177 N.J. 492 (2003).

On or about January 20, 2004, defendant filed a pro se motion for PCR, arguing: 1) that the imposition of a twenty-year prison term on Count One was contrary to Blakely v. Washington, and State v. Natale; and 2) the complaints were not taken under oath before a neutral and detached judicial officer.

After the matter was referred to the Office of the Public Defender for assignment of counsel, a formal brief was filed in February 2005, presenting the following additional arguments: 1) ineffective assistance of trial counsel; 2) the trial judge should have relieved trial counsel and allowed defendant to represent himself; 3) the trial judge should have severed certain counts for purposes of trial; and 4) defendant should be re-sentenced to concurrent prison terms.

On the issue of ineffective assistance of trial counsel, defendant argued that counsel: 1) failed to try to sever the charges; 2) failed to supply him with proper discovery; 3) failed to request a competency hearing for his stepdaughter; 4) failed to have the knife tested for fingerprints; and 5) conceded defendant's guilt in counsel's closing argument.

On March 3, 2005, Judge Venezia rendered an oral decision denying defendant's motion for PCR, determining that the issues concerning self-representation, severance, and sentencing were either previously addressed by this court on direct appeal or could have reasonably been asserted in the prior appeal, Rule 3:22-5 and 3:22-4(a); the trial record "does not bespeak of ineffective assistance [of counsel];" and the evidence of defendant's guilt was overwhelming based upon the identification by his stepdaughter and her mother.

On this appeal, defendant argues that PCR counsel provided ineffective representation concerning defendant's argument on the PCR motion that he had ineffective assistance of trial counsel. Defendant contends that PCR counsel should have argued that trial counsel was ineffective because trial counsel failed to defend the action in the manner that defendant wanted, that is, he never committed the crimes charged, the child was stabbed by her mother, and any injury to her mother was the result of her attacking him. Defendant asserts that contrary to his request, counsel tried the case in a manner as to minimize his conduct, rather than request the jury to reject the State's contentions. The State counters that the PCR record is devoid of evidence defendant ever instructed PCR counsel to attack trial counsel's representation in the manner now argued. Defendant also contends that PCR counsel was ineffective by not having the knife tested for fingerprints to demonstrate prejudice to the defendant; counsel failed to support the PCR motion with evidence suggesting that defendant's stepdaughter was incompetent; and counsel failed to prepare an affidavit detailing how defendant was prejudiced by trial counsel not supplying him with discovery.

We first address defendant's argument that PCR counsel was ineffective because he failed to argue trial counsel's ineffective assistance by failing to defend the action in the manner that defendant desired. We reject the argument, finding that it is unsupported by the record.

A defendant is entitled to effective assistance of counsel assigned to represent him or her in prosecuting a petition for PCR. State v. Velez, 329 N.J. Super. 128, 132-33 (App. Div. 2000). "At a minimum, assigned counsel must communicate with his client, fashion the most effective arguments possible, amend the petition when warranted, and inspect the trial record." Id. at 133. The duty of assigned PCR "[c]ounsel . . . [includes] advanc[ing] any grounds insisted upon by defendant notwithstanding that counsel deems them without merit." R. 3:22-6(d). See State v. Rue, 175 N.J. 1, 19 (2002). However, "[n]either the Sixth Amendment nor our rules call for an attorney to be 'effective' in terms of crafting a defense when none actually exists." Velez, supra, 329 N.J. Super. at 133. "All that we require is that counsel give his [or her] best efforts to [the] client's cause." Ibid.

To establish a prima facie claim of ineffective assistance of counsel, a defendant "must do more than make bald assertions that he was denied the effective assistance of counsel. He must allege facts sufficient to demonstrate counsel's alleged substandard performance." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). We have reviewed the record in light of defendant's contentions and applicable law. Defendant's contentions are little more than unsupported allegations. We are satisfied that PCR counsel's performance was not perfunctory. His lack of effectiveness arose from the lack of merit in defendant's claims. Contrary to defendant's assertion, PCR counsel raised and argued below that trial counsel was ineffective by failing to defend the action in the manner that defendant requested.

And my final issue is -- is -- another issue, it [is] really one of my -- I think one of the better ones. It [is] the fact that Mr. Meehan [(trial counsel)] actually conceded [defendant's] guilt in the closing argument. On Page 10 of my brief, I put the -- the colloquy where he actually concedes in the oral argument that [defendant] was guilty. And on -- at that stage of the proceeding, Mr. Meehan actually abandoned his client and conceded guilt which -- was really totally -- that was totally an act of ineffective assistance of counsel.

. . . .

[Y]ou could construe this to -- you could construe this paragraph for Mr. Meehan indicating that [defendant] did stab the victim but he did [not] really mean to kill her. And that was [not] the type of defense that [defendant] wanted to have.

In addressing defendant's argument, Judge Venezia stated:

I do not agree with counsel. I do not read those comments as he reads them to be. It [is] an interesting assessment[,] but not one that I agree with because, very frankly, I tried this case as I said before. I remember how Mr. Meehan approached this case, and the theory of the State's case was based on the [identification] made by the little girl of [defendant], and she identified him as the person who stabbed her. The mother was in the house at the time. [Defendant] had an absolute denial of this circumstance, indicated he just did not do the event. That is what []his defense was, and that is the defense that Mr. Meehan proffered at trial.

To indicate and take in a vacuum the comment, "I submit to you, ladies and gentlemen, that the man before you on trial was not intending to commit murder that night. He had no intention. He got out of bed to go to work, to go to a second job after his wife coaxed him, come on, go to work, you can sleep tomorrow. And between the time he got up and the time he went inside to get dressed or to get ready to go to work, he did [not] decide to kill [J.M.]. He had no intention to commit murder." The argument that those comments taken from a summation that ran a lot longer than just the 23 seconds it took me to read that paragraph indicate that he was acquiescing in the fact that his client committed the -- the assault is ludicrous with even a bigger L, okay, because that [is] not what the intention of Mr. Meehan's summation was if you read the summation -- in its entirety.

If I read just that paragraph which I -- when I first saw it, I said I do [not] know what the argument is here. It [is] not -- not a[n] admission that the defendant did the deed. It [is] comment. Maybe somebody could say, well, it [is] like using negatives, he did [not] do -- he did [not] do the event, he had no intention to do the event. Well, it [is] like saying, I did [not] commit the murder, I had no intention to do that, I was [not] there.

I know what the summation was. Taking that one portion out of context, very frankly, and trying to stress the fact that Mr. Meehan decides after trying the case for two weeks, well, you know what, I [am] just going to get up in my summation and admit that my client did the act, ladies and gentlemen, have a good day, is ludicrous again with a capital L.

It does not bespeak of ineffective assistance. It is his comment. [Defendant], very frankly, is grasping at straws with reference to his argument.

The case in my opinion was overwhelming in terms of the identification by the little girl and his guilt . . . .

The other point I [am] trying to make is on the PCR, what I [am] left with is an argument of ineffective assistance. Just the opposite. Extremely effective assistance . . . . There [is] no ineffective assistance of counsel. It [is] not even close. There [is] no prima facie showing.

We find no merit in defendant's claim that PCR counsel failed to raise and argue that trial counsel was ineffective by not defending the charges in the manner defendant requested. We are also in complete agreement with Judge Venezia's evaluation of defendant's argument on this issue. Defendant denied his guilt at trial, but the jury did not believe him. The additional allegations of ineffective assistance of PCR counsel, suffered from the same deficiencies as the claims when presented by PCR counsel to Judge Venezia, and are unsupported and insufficient to raise a prima facie showing that defendant was denied the effective assistance of counsel. They are without merit. R. 2:11-3(e)(2).

Affirmed.

 

Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).

The defendant cited this court's decision, State v. Natale, 373 N.J. Super. 226 (App. Div. 2004), aff'd in part, rev'd in part, 184 N.J. 458 (2005) (Natale II). In Natale II, the Court held "that a sentence above the presumptive statutory term based solely on a judicial finding of aggravating factors, other than a prior criminal conviction, violates a defendant's Sixth Amendment jury trial guarantee." Natale II, supra, 184 N.J. at 466. To remedy the constitutional defect in our sentencing code, that permitted judges to impose a term above the presumptive based on the finding of aggravating factors other than a prior conviction, the Court eliminated presumptive terms, but left intact the sentencing ranges contained in N.J.S.A. 2C:43-6a. Id. at 487.

(continued)

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11

A-4794-04T4

RECORD IMPOUNDED

June 29, 2006