STATE OF NEW JERSEY v. CORREL GLENN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0279-08T40279-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CORREL GLENN,

Defendant-Appellant.

_________________________________________

 

Submitted October 15, 2009 - Decided

Before Judges Lyons and J. N. Harris.

On appeal from Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 04-06-0676.

Yvonne Smith Segars, Public Defender, attorney for appellant (Michael C. Kazer, Designated Counsel, on the brief).

Ronald J. Casella, Cumberland County Prosecutor, attorney for respondent (Matthew M. Bingham, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant, Correl Glenn, appeals from a denial of his petition for post-conviction relief (PCR). We affirm.

On the evening of March 20, 2004, at approximately 11:30 p.m., Officer Joseph Lopez of the Bridgeton Police Department, observed a small, black motor vehicle, operated by defendant, traveling at a high rate of speed.

Officer Lopez followed the vehicle and observed the driver commit a series of traffic violations. As Officer Lopez narrowed the gap between his vehicle and the one he was following, Officer Lopez activated his overhead lights and siren to stop the vehicle. Upon the activation of the lights and siren, defendant's vehicle sped off. Officer Lopez chased defendant through the residential streets of Bridgeton. Defendant's vehicle went through five stop signs during the pursuit, and Officer Lopez observed that the vehicle's brake lights never lit up at any of the intersections that had stop signs.

Defendant eventually pulled his vehicle over to the side of the road and attempted to flee on foot. After a brief struggle, Officer Lopez was able to apprehend and arrest defendant.

Before a grand jury, on June 23, 2004, the State presented Officer Lopez's testimony regarding the aforementioned facts of this case. After Officer Lopez's testimony, the State apprised the grand jury of the four crimes for which it might return an indictment. The State explained to the grand jury:

Eluding is a crime of the third-degree, but there is a permissive inference that if there is a risk of severe bodily injury or death to other people for - - where there is a violation of Title 39.4 [sic] offense. In this case, I believe that the officer testified that the defendant ran at least two stops [sic] signs without even slowing down. That provides a permissive inference and would allow a finding of second-degree, rather than third-degree, if you so choose.

Defendant was subsequently charged in Indictment No. 04-06-0676 with second-degree eluding, N.J.S.A. 2C:29-2b (count one); third-degree aggravated assault, N.J.S.A. 2C:12-1b(5) (count two); third-degree resisting arrest, N.J.S.A. 2C:29-2a (count three); and fourth-degree resisting arrest, N.J.S.A. 2C:29-2a (count four). Notably, the language of count one, as returned by the grand jury, read:

(Eluding - Second Degree)

Correl Glenn

. . . did knowingly and unlawfully flee in a motor vehicle or did knowingly and unlawfully attempt to elude a law enforcement officer to wit: Ptlm. J. Lopez, of the Bridgeton Police Department, while operating a motor vehicle, after having received a signal from said officer to bring the vehicle to a full stop, contrary to the provisions of N.J.S. [sic] 2C:29-2b, and against the peace of this State, the government and dignity of the same.

Count One, then, charged defendant with second-degree eluding and stated the applicable New Jersey Criminal Code provision for the crime, but the elements set out in the indictment included only those necessary for a third-degree eluding charge. The indictment omitted the element which raised the offense from third-degree eluding to second-degree eluding: "the flight or attempt to elude creates a risk of death or injury to any person." N.J.S.A. 2C:29-2b.

Defendant's counsel requested the grand jury minutes on October 20, 2004.

At a pre-trial conference, defense counsel requested defendant's traffic tickets as part of discovery. Counsel explained that the tickets were important because "the State has charged this as a second-degree eluding. And the way you bump-up a third-degree eluding to a second-degree eluding is to allege that some kind of motor vehicle offenses have occurred."

The matter proceeded to a jury trial on March, 14, 15, and 16, 2005. After the State's case, defendant moved to dismiss the indictment on the basis that the State failed to prove its case. This was denied. Defendant was convicted of all counts in the indictment.

At sentencing, the trial court granted the prosecutor's application to treat defendant eligible for an extended-term. After an appeal to this court, we affirmed defendant's convictions and remanded the matter for resentencing pursuant to State v. Pierce, 188 N.J. 155 (2006). State v. Correl Glenn, No. A-5680-04T4 (App. Div. April 11, 2007), certif. denied, 192 N.J. 293 (2007). On remand, defendant's sentence was modified to twelve and one-half years subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

Defendant filed a pro se petition for PCR on October 23, 2007. Counsel subsequently amended same. On June 11, 2008, oral argument was heard before a judge who did not preside over the criminal trial. Defendant contended that his trial and appellate counsel were constitutionally ineffective. Defendant asserted that both counsel were ineffective because they failed to raise the issue that defendant's right to procedural due process was violated because count one in Indictment No. 04-06-0676 did not contain the necessary statutory language for a charge of second-degree eluding. In his pro se brief, defendant additionally argued that the trial court committed reversible error by amending the indictment to include the added element necessary for second-degree eluding and by not instructing the jury on third-degree eluding.

Although the PCR judge found that count one recited only the elements for third-degree eluding, he also found that count one specified the charge was second-degree eluding and the count cited to the appropriate Criminal Code provision for second-degree eluding, N.J.S.A. 2C:29-2b, and, therefore, both defendant and counsel had notice that the charge was for second-degree eluding. The PCR judge made a series of findings: defendant's counsel had actual notice and knowledge that defendant was being charged with second-degree eluding, as evidenced by counsel's pre-trial submissions and counsel's statements at a charge conference; defendant's counsel requested the grand jury minutes on October 20, 2004, well before trial; the minutes clearly reflected that the State sought and obtained an indictment against defendant for second-degree eluding, as the State had specifically referenced the Criminal Code provision for the charge and specifically addressed the added element necessary for second-degree eluding; Officer Lopez's grand jury testimony regarding defendant's actions supported a second-degree charge; and five motor vehicle citations were incurred by defendant for failing to stop for a yield.

The PCR judge stated that if defendant's counsel had moved to dismiss, modify, or amend count one prior to trial, any dismissal or modification would have been without prejudice. The PCR judge further concluded that the record reflected that the State could easily have resubmitted the charge to a new grand jury and obtained a superseding indictment for the second-degree eluding. Because such dismissal or modification would have been without prejudice, the evidence supported an indictment for second-degree eluding, and defendant had notice that count one was being treated as second-degree eluding, the PCR judge determined that defendant could not show that he was prejudiced by the ineffectiveness of counsel under Strickland v. Washington and State v. Fritz. Furthermore, the PCR judge found that trial counsel was not ineffective.

Because the PCR judge determined that defendant could not raise a prima facie showing of ineffective counsel, the PCR judge denied defendant's application for an evidentiary hearing on his petition.

On appeal, defendant presents the following issues for our consideration:

POINT I

THE COURT ERRED IN DENYING POST-CONVICTION RELIEF BECAUSE THE DEFENDANT'S CONVICTION ON THE CHARGE OF SECOND-DEGREE ELUDING WAS INVALID AND VIOLATED THE DEFENDANT'S RIGHT TO BE CHARGED BY INDICTMENT OR PRESENTMENT UNDER ARTICLE I, PARAGRAPH 8, OF THE NEW JERSEY CONSTITUTION.

POINT II

TRIAL COUNSEL'S FAILURE TO OBJECT TO THE JURY CHARGE ON SECOND-DEGREE ELUDING SATISFIED BOTH PRONGS OF THE STRICKLAND/FRITZ TEST FOR INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL AND APPELLATE COUNSEL WAS INEFFECTIVE FOR FAILING TO RAISE THIS ISSUE ON DIRECT APPEAL.

(A) The Defendant's Petition Satisfied The First Prong of the Strickland/Fritz Test.

(B) The Defendant's Petition Satisfied The Second Prong of the Strickland/Fritz Test.

(C) Appellate Counsel Was Ineffective for Failing to Raise the Issue of the Improper Jury Charge on Second-Degree Eluding on Appeal.

POINT III

THE COURT'S RULING DENYING POST-CONVICTION RELIEF VIOLATED THE DEFENDANT'S RIGHT TO BE CHARGED BY INDICTMENT OR PRESENTMENT UNDER ARTICLE I, PARAGRAPH 8, OF THE NEW JERSEY CONSTITUTION AND THE DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, PARAGRAPH 10 OF THE NEW JERSEY CONSTITUTION.

POINT IV

DEFENDANT REASSERTS ALL OTHER ISSUES RAISED IN HIS PETITION FOR POST-CONVICTION RELIEF.

Defendant's pro se petition presented the following issues:

POINT I

THE INDICTMENT IS FATALLY FLAWED BECAUSE IT LACKED THE CRITICAL ELEMENT REQUIRED TO BE FOUND BY THE GRAND JURY TO ELEVATE THE OFFENSE FROM A THIRD-DEGREE OFFENSE TO A SECOND-DEGREE OFFENSE, VIOLATING PETITIONER'S CONSTITUTIONAL RIGHT SECURED UNDER ARTICLE 1, 8, OF THE NEW JERSEY STATE CONSTITUTION.

POINT II

THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY AMENDING THE INDICTMENT WHEN IT INSTRUCTED THE PETIT JURY TO FIND AN ELEMENT NOT CONTAINED IN THE INDICTMENT, THUS VIOLATING ARTICLE 1, 8 OF THE NEW JERSEY CONSTITUTION AND THE FIFTH AMENDMENT OF THE FEDERAL CONSTITUTION.

POINT III

THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY NOT INSTRUCTING THE JURY ON THIRD-DEGREE ELUDING, WHERE THE OFFENSE SET FORTH IN THE INDICTMENT ONLY CONTAINED THE ELEMENTS OF THIRD-DEGREE ELUDING.

Any issue that could have been raised but was not in a prior proceeding or appeal cannot be a ground for PCR, unless it "could not reasonably have been raised, enforcement of this bar would result in fundamental injustice, or denial of relief would be unconstitutional." R. 3:22-4. However, a claim of ineffective assistance of counsel is generally not barred because it is grounded in constitutional principles. R. 3:22-4(c); State v. Preciose, 129 N.J. 451, 459-60 (1992).

Defendant's claims that the indictment was flawed, that the trial judge improperly amended the indictment, and that the jury instructions were flawed could have and should have been raised at trial or in defendant's direct appeal. Since these issues were not raised until defendant's petition for PCR, they are barred by Rule 3:22-4. However, defendant's claim for ineffective assistance of counsel is entitled to our review.

The two pronged test for assessing ineffective assistance of counsel was set out by Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2063-64, 80 L. Ed. 2d 674, 692 (1984), and adopted by our Court in State v. Fritz, 105 N.J. 42, 57 (1987). "The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland, supra, 466 U.S. at 686, 104 S. Ct. at 2064, 80 L. Ed. 2d at 692-93.

Under the first prong, a defendant must show that counsel's performance was deficient. Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. "[A] court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct." Id. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695.

Defendant claims that State v. Catlow, 206 N.J. Super. 186, 194-96 (App. Div. 1985), certif. denied, 103 N.J. 465 (1986), and State v. Fleischman, 383 N.J. Super. 396, 399 (App. Div. 2006), aff'd, 189 N.J. 539 (2007), would have required a reversal of defendant's conviction because defendant was denied his constitutional right to a presentment before a grand jury. In Catlow, we held that "[a]n indictment must serve as notice to the accused of the charge against him and must apprise him sufficiently so that he may prepare an adequate defense." Catlow, supra, 206 N.J. Super. at 194. Fleischman held "an indictment cannot stand unless the state has presented the grand jury with at least some evidence as to each element of the alleged crime, although the quantum of such evidence need not be great." Fleischman, supra, 383 N.J. Super. at 399 (internal quotations and citations omitted). We find that neither situation was present in the instant case.

"Our courts have refused to construe the language of an indictment rigidly in the absence of any indication that a case was presented to a trial jury on a different basis than to the grand jury or a showing of other prejudice to the defendant." State v. Lopez, 276 N.J. Super. 296, 303 (App. Div.), certif. denied, 139 N.J. 289 (1994). The grand jury minutes and the record reflect that the State presented its case in the same manner before the grand jury and as it did before the trial jury. Hence, we shall not construe the indictment's language rigidly.

We find that defendant was not prejudiced by the language of the indictment. The record, the grand jury minutes, and the indictment support the PCR judge's findings that defendant and his trial counsel had notice defendant was charged with second-degree eluding. While it is true that the body of count one excluded the additional element that enhances a third-degree eluding charge to a second-degree charge, as the PCR judge indicated, the caption boldly indicated defendant was being charged with second-degree eluding count. As the PCR judge also observed, the record reflects that defendant's counsel had actual notice and knowledge of the second-degree eluding charge. This is evidenced by counsel's request for defendant's traffic tickets to permit him to assess whether defendant could be charged with second-degree eluding. Moreover, counsel's summation explicitly addressed the element-in-question, and counsel's strategy, to put the State to its burden of proof, was clear. Hence, defendant was not prejudiced because counsel was served with appropriate notice of the charges against defendant and the notice was sufficient to enable counsel to prepare an adequate defense. Therefore, because there was no error under Catlow, trial counsel's lack of an objection at trial or appellate counsel's failure to raise this issue on appeal did not render their assistance ineffective.

Regarding defendant's claim under Fleischman, the grand jury minutes support the PCR judge's determination that the State presented evidence supporting a second-degree eluding charge. The omitted element that enhances third-degree eluding to second-degree eluding is the creation of a risk of death or injury to someone. N.J.S.A. 2C:29-2b. The Supreme Court held in State v. Bunch, 180 N.J. 534, 547 (2004), that the person at risk may include the defendant. The grand jury heard Officer Lopez's testimony that, in his attempt to elude Officer Lopez, defendant sped through five stop signs. Indeed, this created a risk of death or injury to defendant. In addition, the grand jury heard that defendant's attempt to elude occurred in a residential neighborhood, which could pose a risk of injury or death to residents of the area.

Furthermore, there is a permissive inference that the attempt to elude created a risk of death or injury to any person when a defendant is found to have violated one or more motor vehicle statutes during the chase. State v. Wallace, 158 N.J. 552, 558-59 (1999). Officer Lopez testified before the grand jury that defendant committed five motor vehicle violations in his attempt to elude Officer Lopez.

Moreover, as the PCR judge noted, the grand jury was instructed on the difference between a second-degree and third-degree eluding charge, and that the grand jury was given an option as to which crime to charge defendant.

Hence, there was no error by trial counsel for failure to object, move to modify, or move to dismiss the indictment; neither was there error by appellate counsel for failure to appeal based on the indictment because the error found in Fleischman was not present here. Defendant, therefore, has not satisfied the first prong of Strickland.

Strickland's second prong requires the defendant to "show that the deficient performance prejudiced the defense." Strickland, supra, 466 U.S. at 687, 104 S. Ct. 2064, 80 L. Ed. 2d at 693. "An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment." Id. at 691, 104 S. Ct. at 2066, 80 L. Ed. 2d at 696. Defendant must prove there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.

As the PCR judge noted, even if trial counsel had objected, moved to dismiss, or moved to modify the indictment, the State had sufficient evidence to support a superseding second-degree eluding charge if the State decided to dismiss the third-degree eluding charge. Moreover, the trial court could have amended the indictment under Rule 3:7-4. See Lopez, 276 N.J. Super. at 307. On appeal, if error were to have been found, it would have been found harmless. See State v. Macon, 57 N.J. 325, 338 (1971). Therefore, even if trial counsel had objected or if appellate counsel had appealed, the judgment would not have been affected. Hence, the second prong of defendant's ineffective assistance of counsel claim also fails.

Accordingly, we affirm.

N.J.S.A. 2C:1-1 to 104-9.

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).

(continued)

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A-0279-08T4

November 9, 2009