STATE OF NEW JERSEY v. PHILIP WILSON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5482-03T45482-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

PHILIP WILSON,

Defendant-Appellant.

______________________________

 

Submitted: January 10, 2006 - Decided January 30, 2006

Before Judges Skillman and Axelrad.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, 96-11-1104.

Yvonne Smith Segars, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, of counsel and on the brief).

James F. Avigliano, Passaic County Prosecutor, attorney for respondent (Terry Bogorad, Senior Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Philip Wilson appeals from an order denying his petition for post-conviction relief (PCR), alleging ineffective assistance of trial counsel in failing to request a Kociolek charge and of appellate counsel in failing to assert a disparate sentence challenge on direct appeal. Alternatively, defendant contends the court erroneously rejected his disparate sentencing claim as a basis for PCR relief. We are not persuaded by any of these arguments and affirm.

On three successive nights in 1996, couples parked in their vehicles in Eastside Park in Paterson were robbed by defendant and co-defendant Ivory Richardson. Richardson pled guilty to a variety of conspiracy, robbery and burglary charges, as well as an aggravated assault charge. Richardson testified for the State at defendant's jury trial and received an eight-year sentence.

Defendant was convicted of conspiracy and second-degree robbery of Elizabeth Santiago; conspiracy and second-degree robbery of Kiam Ziku and a juvenile M.D., and second-degree burglary of Ziku's 1988 Ford truck; and conspiracy and second-degree robbery of Richard Davis, and second-degree burglary of Davis' Jeep. Defendant was acquitted of attempted aggravated sexual assault upon M.D. Defendant was sentenced to an aggregate term of twenty-seven years imprisonment with a nine-year period of parole ineligibility. The term included three consecutive sentences.

Defendant challenged his conviction, asserting three trial errors, all raised for the first time on direct appeal. He also challenged his sentence as excessive, contending the trial court erred in improperly balancing the aggravating and mitigating factors and by imposing multiple consecutive sentences.

We affirmed defendant's conviction and sentence on appeal. State v. Wilson, No. A-3943-98 (App. Div., June 19, 2000). Pertinent to the PCR petition, we found no plain error in the trial judge's failure to give a Kociolek instruction regarding defendant's out-of-court statements to co-defendant Richardson concerning their agreement to rob people in the park, as well as defendant's statements regarding having M.D. perform a sexual act on him. We noted his acquittal on the charge of attempted aggravated sexual assault. We were satisfied the jury was properly instructed to carefully scrutinize co-defendant's testimony and consider whether it was influenced by the expectation of favorable treatment. In light of the strong evidence against defendant on the robbery and conspiracy charges, we found no error capable of producing an unjust result. Moreover, we found neither the term nor the imposition of three consecutive sentences to be excessive.

On September 26, 2000, the Supreme Court denied certification. State v. Wilson, 165 N.J. 532 (2000). This PCR petition ensued and was denied by Judge Sokalski following oral argument on February 27, 2004.

We consider defendant's claims in light of well-settled principles. In order to prevail on a claim of ineffective assistance of counsel, defendant must meet the two-part test of showing both that counsel's performance was seriously deficient and that the defect in performance prejudiced his right to a fair trial. Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); United States v. Cronic, 466 U.S. 648, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984); State v. Allah, 170 N.J. 269, 283 (2002). Our evaluation is governed by the test that the United States Supreme Court established:

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 . . . resulted from a breakdown in the adversary process that renders the result unreliable.

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

Our Supreme Court subsequently adopted the Strickland standard in interpreting the right to the effective assistance of counsel under the New Jersey Constitution. State v. Fritz, 105 N.J. 42, 52-58 (1987).

To establish the first prong of the test, defendant must prove that counsel's representation fell below an objective standard of reasonableness measured by prevailing professional norms. Strickland, supra, 466 U.S. at 687-88, 104 S. Ct. at 2064-65, 80 L. Ed. 2d at 693. We judge counsel's conduct on the facts of the particular case, viewed at the time of the challenged conduct. Id. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. In our analysis, we acknowledge the strong presumption that counsel made all significant decisions in the exercise of his or her reasonable professional judgment. Ibid.

We "must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance." Ibid.

To prove the second prong, defendant must do more than "show that the error or errors had some conceivable effect on the outcome of the trial." State v. Sheika, 337 N.J. Super. 228, 242 (App. Div.), certif. denied, 169 N.J. 609 (2001). "An error by counsel . . . does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment." Strickland, supra, 466 U.S. at 691, 104 S. Ct. at 2066, 80 L. Ed. 2d at 696. "The error committed must be so serious as to undermine [the reviewing court's] confidence in the jury's verdict." Sheika, supra, 337 N.J. Super. at 242. In order to sustain a claim of ineffective assistance of counsel, defendant must establish that counsel's performance was "so deficient as to create a reasonable probability that these deficiencies materially contributed to defendant's conviction. . ." Fritz, supra, 105 N.J. at 58.

Although on direct appeal we addressed the judge's failure to sua sponte give the Kociolek charge, not trial defense counsel's failure to request it, our analysis is the same. We note that defendant's argument on his PCR application and on appeal is devoid of any explanation as to how his statements were misunderstood or taken out of context or of the prejudicial effect of the omission of this instruction. Based on our review of the trial record, we discern no basis for a Kociolek instruction under the facts of this case. There was no risk of misunderstanding or error in recollection regarding defendant's out-of-court statements to Richardson pertaining to the planned robberies. Defendant and Richardson proceeded to do just what they had discussed. On three successive nights, the men approached parked motorists from opposite sides of their cars and robbed them.

We affirmed both the aggregate term and consecutive components of defendant's sentence. As there is no mention in our opinion of Richardson's eight-year sentence and the disparate sentence argument was not raised on direct appeal, we cannot necessarily infer that we previously analyzed defendant's sentence in terms of that issue. We are satisfied, however, the sole fact that co-defendant received a lesser sentence does not render defendant's sentence illegal or justify PCR relief based on grounds of disparity or non-uniformity. See, e.g., State v. Roach, 146 N.J. 208, 231-234, cert. denied, 519 U.S. 1021, 117 S. Ct. 540, 136 L. Ed. 2d 424 (1996); State v. Hicks, 54 N.J. 390, 391-92 (1969). Defendant and Richardson did not share the same status. A negotiated plea carries with it certain assurances that a trial does not. The court was entitled to take into account Richardson's guilty plea and cooperation in testifying for the State against defendant in determining Richardson's sentence. Defendant, on the other hand, chose to go to trial, facing a litany of second-degree charges in connection with four separate victims, with potential consecutive terms. The PCR judge, who had been defendant's trial and sentencing judge, re-iterated at oral argument on the PCR petition why he had imposed the sentence, including the consecutive terms. He explained that he felt "very comfortable" with the sentence, even though it was "severe," because it was a "very brutal crime with an impact upon victims." On direct appeal we declined to second-guess the trial judge in his analysis of the sentencing factors and found the sentences imposed upon defendant "were not manifestly excessive, unduly punitive or an abuse of discretion." Defendant has failed to convince us there is a meritorious basis to do so by way of the PCR petition.

 
Affirmed.

State v. Kociolek, 23 N.J. 400 (1957).

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A-5482-03T4

January 30, 2006