STATE OF NEW JERSEY v. MATAN SHELTON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2371-06T42371-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MATAN SHELTON,

Defendant-Appellant.

_________________________________________

 

Submitted August 12, 2009 - Decided

Before Judges Rodr guez and LeWinn.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 97-07-846.

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

Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney for respondent (Dorothy Hersh, Assistant Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant Matan Shelton appeals from the denial of his first petition for post-conviction relief (PCR). We affirm.

In November 1999, following a jury trial, defendant was convicted of several crimes stemming from the murder of Sarah Harris, a seventy-five-year-old woman who lived alone. Defendant was found guilty of first degree murder, N.J.S.A. 2C:11-3a(1) (count one); first degree felony murder, N.J.S.A. 2C:11-3a(3) (count two); first degree robbery, N.J.S.A. 2C:15-1 (count three); two counts of third degree theft by unlawful taking, N.J.S.A. 2C:20-3a (counts four and five); third degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d (count six); fourth degree unlawful possession of a weapon, N.J.S.A. 2C:39-4d (count six); and fourth degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d (count seven). After appropriate merger of offenses, Judge Andrew J. Smithson imposed a life term with a thirty-year parole disqualifier and concurrent terms on the remaining convictions. In addition, the judge imposed two consecutive five-year terms on violations of probation. The aggregate custodial sentence imposed was life plus ten years with a thirty-year parole disqualifier. We affirmed on direct appeal. State v. Shelton, 344 N.J. Super. 505 (App. Div. 2001), certif. denied, 171 N.J. 43 (2002).

The State's proofs, which the jury credited, tended to prove that defendant murdered Harris, for whom he had worked as a handyman, in order to steal her automobile. He took the vehicle to New York City. There, he met Hasaan Stevens. They attempted to sell the vehicle at different "chop shops." However, they were unsuccessful. Defendant returned to Trenton. Stevens kept the vehicle and was later arrested in possession of it. Further investigation focused on defendant. Eventually, he confessed to the murder. A copy of his confession was admitted at trial.

In January 2003, defendant, represented by counsel, filed a PCR petition. Defendant alleged that he was denied the effective assistance of trial counsel. Specifically, he maintained his innocence and asserted that, "trial counsel did not properly investigate or pursue avenues at trial despite the urgings of the defendant. These areas include, but are not limited to, alibi defense of which counsel was made aware, as well as forensic testing of evidence at the crime scene, including fingerprints." According to defendant, he "advised trial counsel of his witness and counsel did nothing to investigate her or produce her at trial." He also argued that trial counsel failed to request the State to compare fingerprints at the crime scene to those of Stevens.

The State moved to dismiss the petition, arguing that defendant had failed to make a threshold showing of ineffective assistance. Judge Charles A. Delehey denied the State's motion and ordered defendant to provide more specific information concerning his ineffectiveness claim. Defendant filed a supplemental certification. Defendant then certified that at the time of the crime, he was watching a movie at the Mercer Mall in Lawrenceville with Stephanie Davis. After the movie, he met Joseph Verde. He again argued that there were numerous fingerprints at the crime scene and trial counsel made no effort to compel the State to compare these against those of Stevens.

The judge ruled that defendant provided sufficient information to warrant an evidentiary hearing. At this hearing, Verde, Anderson D. Harkov (trial counsel), and defendant testified. Verde admitted that he knew defendant as a source for obtaining the illegal substance PCP. Harkov testified that he had no recollection of specifics of his representation of defendant. He did testify that generally he discouraged clients from asserting alibi defenses. In his experience, if a client insisted he would put the defense forward.

Judge Delehey denied the petition in an August 15, 2006 written opinion. He found that even if the alibi testimony of Verde and defendant were to be believed, it still did not account for the window of time when the medical examiner opined the death occurred. The judge noted that Davis was not produced and Verde was not a credible witness. In conclusion, the judge found that, "[i]t is unlikely that the alibi testimony, which the defendant now claims should have been presented to the jury, would have aided his defense."

As for the fingerprint evidence, the judge found that defendant's contention was "rife with speculation and lacking in merit." Defendant presented no evidence that Stevens' fingerprints were found at the scene. The judge concluded that defendant's bold assertion was insufficient to carry his burden of proof at the PCR hearing.

Defendant filed a notice of appeal in December 2006. We granted defendant's motion to file a notice of appeal as within time and referred the matter to the Office of the Public Defender, for representation. No. M-3347-06 (App. Div. February 21, 2007).

On appeal, defendant contends:

I. THE COURT ERRED IN DENYING [PCR] BECAUSE THE DEFENDANT DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL.

A. Trial Counsel's Failure To Investigate And Pursue An Alibi Defense And Failure To Request That A Fingerprint Comparison Be Made With Hassan Stevens Satisfied The First Prong Of The Strickland/Fritz Test.

B. Trial Counsel's Failure To Investigate And Pursue An Alibi Defense And Failure To Request That A Fingerprint Comparison With Hassan Stevens Be Made Satisfied The Second Prong Of The Strickland/Fritz Test.

II. DEFENDANT REASSERTS ALL OTHER ISSUES RAISED IN HIS PETITION FOR [PCR].

III. THE COURT'S RULING DENYING [PCR] VIOLATED 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.

We disagree.

The two-pronged analysis for determining whether a defendant was rendered ineffective assistance of counsel was set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), and adopted by the New Jersey Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). To prove ineffective assistance, a defendant must show: 1) counsel's performance was deficient; and 2) defendant's case was prejudiced by the deficiency. Strickland v. Washington, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.

To avoid "the distorting effects of hindsight," a reviewing court must presume counsel's conduct fell within the range of sound trial strategy. Strickland v. Washington, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694-95 (internal quotations omitted).

Here, judged against the Strickland/Fritz standard, we conclude that defendant's claims of ineffective assistance of trial counsel are without merit. Defendant asserts both that trial counsel failed to investigate an alibi defense and develop fingerprint evidence that inculpated someone other than defendant. However, the first allegation was rejected by the judge based on the lack of credibility of defendant and Verde. Harkov, the only credible witness, did not corroborate defendant's PCR testimony.

The second contention, regarding fingerprints, was simply not factually supported. In order to show a reasonable likelihood of success pursuant to the Strickland/Fritz standard, we have recognized that "a petitioner must do more than make bald assertions that he was denied the effective assistance of counsel." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Defendant must make sufficient allegations to show trial counsel's deficient performance. Ibid. More specifically, "when a petitioner claims his trial attorney inadequately investigated his case, he must assert the facts that an investigation would have revealed, supported by affidavits or certifications based upon the personal knowledge of the affiant or the person making the certification." Ibid. Here, no such prima facie showing has been made.

 
Affirmed substantially for the reasons expressed by Judge Delehey in his August 15, 2006 written opinion.

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A-2371-06T4

October 2, 2009