STATE OF NEW JERSEY v. CHARLES ELLIS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2316-05T42316-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CHARLES ELLIS,

Defendant-Appellant.

________________________________________________________________

 

Submitted February 27, 2007 - Decided March 19, 2007

Before Judges Skillman and Lisa.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, 00-02-0260 and 00-06-0951.

Yvonne Smith Segars, Public Defender, attorney for appellant (Arthur J. Owens, Designated Counsel, on the brief).

Luis A. Valentin, Monmouth County Prosecutor, attorney for respondent (Mark P. Stalford, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant appeals from an order denying his post-conviction relief (PCR) petition. Defendant was convicted in a jury trial under Indictment No. 00-02-0260 of multiple drug offenses arising out of a single incident, namely third-degree possession of a controlled dangerous substance (CDS) (N.J.S.A. 2C:35-10a(1)), second-degree conspiracy to distribute a CDS (N.J.S.A. 2C:5-2 and 2C:35-5), third-degree maintaining a fortified structure for the distribution or possession of a CDS (N.J.S.A. 2C:35-4.1c), and second-degree possession of a weapon while in the course of committing drug offenses (N.J.S.A. 2C:39-4.1). In a sequential trial before the same jury, see State v. Ragland, 105 N.J. 189 (1986), the jury found defendant guilty under Monmouth County Indictment No. 00-06-0951 of second-degree certain persons not to possess weapons (N.J.S.A. 2C:39-7b). On October 5, 2001, Judge DeStefano sentenced defendant to an aggregate term of twenty years imprisonment.

Defendant appealed, and in an unpublished opinion, we affirmed his conviction and sentence. State v. Ellis, No. A-5765-01T4 (App. Div. August 5, 2003). The Supreme Court denied defendant's petition for certification. State v. Ellis, 178 N.J. 250 (2003).

On March 24, 2004, defendant filed a petition for PCR, alleging ineffective assistance of trial and appellate counsel. To give context to the arguments raised by defendant in his PCR proceeding and in this appeal, we set forth the relevant facts underlying his conviction as recited in our previous opinion:

The charges against defendant resulted from an investigation of a narcotics operation in Asbury Park at 510 Sewall Avenue, Apartment 3. Defendant was not a target of the investigation, and before the execution of a search warrant at the premises on November 4, 1999 the police were not aware of his involvement in the operation. One of defendant's co-defendants, Joey Johnson, who the police suspected of participating in the drug operation at the premises, was searched on November 3, 1999 when he exited the apartment. He possessed $3,290 in cash.

On November 4, 1999 at about 10:30 p.m., the police arrived at the apartment to execute a search warrant. Before they entered the apartment, however, four individuals ran out of the only exit door. Defendant and his two co-defendants were caught. The fourth individual got away. Defendant ran into a fenced alleyway. Detective Richard Chapman was stationed in that area and cornered defendant. Chapman used a flashlight to illuminate the area. He saw defendant crouching and appearing to be hiding something. He ordered defendant to come out and put his hands in the air. As defendant approached Chapman, defendant discarded from his waistband a loaded nine-millimeter semi-automatic handgun wrapped in a white tee-shirt.

Upon entry into the apartment, the police discovered an operating video camera fixed on the exterior doorway, connected to a monitor inside, thus enabling occupants to view anyone approaching the door. A police scanner monitoring the Asbury Park Police frequency was also present and operating. A nine-millimeter bullet matching those in the gun possessed by defendant was found in the apartment, in the same bedroom where the video monitor was located. In a trash can immediately outside the exit door, the police found a bag containing 39.24 grams of cocaine. The apartment is located within 1000 feet of school property.

At trial, the State produced an expert in narcotics distribution who opined that in circumstances such as these the drugs were intended for distribution. He estimated the value of the drugs at $1,560 to $3,900. The cash seized the previous day was likely derived from ongoing sales of CDS and indicated that "sales were good." The expert described this as "a sophisticated, street-level operation." The scanner and video equipment are part of the security for such an operation. Binoculars were also found in the apartment, which would also contribute to the security measures.

The expert described the purpose of a firearm and the person carrying it in such an operation:

The handgun is more for security. Drug dealers do get robbed and do get robbed frequently. Obviously we don't hear that much about them, because a drug dealer is not going to report to the police that he was just robbed of $5,000 cash. Drug dealers are robbed by rival drug dealers, by guys who do home invasions.

Also, you're in the middle of a deal, a deal goes bad, you need security and most sophisticated drug operations do have weapons.

. . . .

Yes, I would say you're going to have one person maybe as the, what I would call the direct seller. That's the person when you come to the door and he sells. Then you have another person who is going to be the spotter. Okay. He is going to alert the other guy to what the problem is. And you should have a security guy. I mean, a person armed with some type of weapon or whatever, just to say, look, there is a problem here, take care of this problem.

[Ellis, supra, No. A-5765-01T4, slip op. at 3-5.]

At trial, defendant insisted, over his attorney's contrary advice, to call as a witness his co-defendant, Brian Rice, who had previously pled guilty. Defendant's attorney expressed to the court his opinion that Rice's testimony would be "extremely detrimental to [defendant's] case." Nevertheless, because defendant insisted, Rice was called as a witness. In his direct testimony, Rice said defendant was not involved in the drug distribution activity and characterized him, in effect, as an innocent bystander. Confronting Rice with his sworn plea colloquy, however, the prosecutor elicited on cross-examination that Rice had previously testified that defendant was providing security for the drug operation and was handling the gun which defendant was convicted of possessing. A lengthy redirect examination followed, in which Rice expressed a lack of certainty in defendant's possible involvement.

At the first portion of the trial, defendant equivocated as to whether he would testify. Ultimately, he chose not to testify and, when asked by the judge whether he wanted the jury instructed that they should draw no adverse inference from his failure to testify, he assented. The instruction was given. In the second portion of the trial, defendant chose to testify. He told the jurors he was present that evening only as a drug purchaser, he was not involved in the drug distribution operation, and he did not possess the gun.

In his PCR proceeding, defendant argued that his trial attorney was deficient in several respects. He found fault with his trial attorney's method of presenting Rice's testimony because his attorney did not "neutralize" on direct examination the inculpatory statements Rice made about defendant at his plea hearing. Defendant further contended that his trial attorney was ineffective for failing to order the complete transcripts of the plea hearings of Johnson and Rice. Defendant also contended that his attorney should have called him as a witness in the first portion of the trial. Defendant suggested that Johnson may have been a favorable witness at the trial and his attorney was deficient for not pursuing Johnson as a potential witness. Defendant presented in support of his PCR petition a handwritten letter from Gregory McCloud, written from prison about fourteen months after defendant's conviction, that contained some statements exculpatory to defendant. When the police raided the premises on the night of the crime, four individuals attempted to flee. Three of them, defendant, Johnson and Rice, were caught. The fourth got away. Purportedly, McCloud is that person. Defendant argued that his trial attorney was deficient for not calling McCloud as a witness. Finally, defendant argued that his trial attorney should have requested that the judge instruct the jury on a lesser-included offense to a weapons offense with which he was charged.

Defendant argued that his appellate counsel was deficient for not arguing that his above-presumptive sentence violated his constitutional rights. However, defendant's sentences on the various counts were within the prescribed statutory ranges, and thus conformed with the controlling legal authority at the time the sentence was imposed and at the time defendant's appeal was taken and concluded. See Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). Defendant argued in his PCR proceeding that his appellate counsel was deficient for not arguing on appeal that his sentence was unconstitutional. Defendant argued that his attorney should have anticipated changes in the law that would later occur and would eliminate as a mandatory starting point a presumptive sentence within the statutory range. See Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004); State v. Natale, 184 N.J. 458 (2005).

Judge DeStefano, after accurately and thoroughly setting forth the controlling legal principles, rejected each of defendant's PCR arguments, see Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Fritz, 105 N.J. 42 (1987), and denied defendant's request for an evidentiary hearing. See State v. Preciose, 129 N.J. 451, 462 (1992). He concluded that trial counsel was not ineffective for failing to call defendant to testify because it was defendant's choice not to testify. The judge found no deficiency in counsel's conduct for failing to order the plea transcripts of Johnson and Rice because those were provided to counsel during discovery. He found no evidential support for the allegation of ineffective assistance for failing to call Johnson or McCloud as exculpatory witnesses. See R. 1:6-6; State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). The judge found that the manner of presenting Rice's testimony was the result of a reasonable strategic decision. Defendant's attorney was obviously aware of the negative aspect Rice's testimony would entail, and his assessment of how best to manage "damage control" is not subject to being second guessed in a PCR proceeding. The judge found no deficiency for failing to request a lesser-included weapons offense. Such a request would have conflicted with the trial strategy of denying possession of the gun, and the proffered lesser offense is not included in the greater offense with which defendant was charged.

As to appellate counsel, the judge found no deficiency in the failure to anticipate the later development of sentencing jurisprudence. We note further in this regard that the Blakely and Natale holdings would not render defendant's sentences illegal, but would, at best, entitle him to a reconsideration of sentence at which the starting point for each count would be the midrange as a matter of logic rather than compulsion by statute. See Natale, supra, 184 N.J. at 488. There is no reasonable probability that defendant's sentence would be different if imposed under the prescriptions of Blakely and Natale.

Based upon our review of the record, we find no error in Judge DeStefano's disposition of defendant's PCR petition, and we affirm substantially for the reasons set forth in his comprehensive oral decision of October 7, 2005. We are further satisfied that defendant has presented no evidential basis to support his argument that his PCR counsel was ineffective. The record demonstrates that PCR counsel had thoroughly familiarized himself with the trial record and "fashion[ed] the most effective arguments possible." See State v. Velez, 329 N.J. Super. 128, 133 (App. Div. 2000). And, PCR counsel presented all of the arguments defendant requested to be made on his behalf. See State v. Rue, 175 N.J. 1 (2002). Defendant's arguments on appeal do not warrant further discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.

 

Indictment No. 00-02-0260 charged defendant, Joey Johnson and Brian Rice. Defendant was tried alone. Johnson and Rice are not implicated in this appeal.

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A-2316-05T4

March 19, 2007