STATE OF NEW JERSEY v. ANTHONY CHAPPLE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4375-07T44375-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ANTHONY CHAPPLE,

Defendant-Appellant.

___________________________

 

Submitted March 24, 2009 - Decided

Before Judges Parker and LeWinn.

On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 96-12-1365.

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

Ronald J. Casella, Cumberland County Prosecutor, attorney for respondent (James O. Turner, Jr., Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Anthony Chapple appeals from the January 22, 2008 order denying his second petition for post-conviction relief (PCR). For the reasons that follow, we affirm.

Tried to a jury in 1997, defendant was found guilty of second-degree burglary, N.J.S.A. 2C:18-2; two counts of fourth-degree aggravated assault with a firearm, N.J.S.A. 2C:12-1(b)(4); third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b); two counts of second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a); second-degree conspiracy, N.J.S.A. 2C:5-2; and two counts of first-degree robbery with bodily injury, N.J.S.A. 2C:15-1(a)(1). On June 13, 1997, defendant was sentenced to an aggregate term of fifty years with a parole ineligibility period of sixteen and two-thirds years, to run consecutive to a sentence he was then serving on another conviction.

Defendant appealed and we affirmed his convictions and sentence. State v. Chapple, No. A-7190-96 (App. Div. March 23, 1999) (slip op. at 16). In that decision, we summarized the trial evidence as follows:

In the early morning hours [of December 18, 1995], three masked men broke into an apartment shared by Benita Harris and Linford Crooks. One of the masked men went into the bedroom, encountered Crooks, who had been awakened by the break-in, and put a gun to his head. A struggle for the gun ensued, and the robber in the bedroom yelled out[,] "Shoot him! shoot him!" At that point another of the robbers, who was standing outside the bedroom door, fired a gun into the room. That person was later identified as Chapple. The two robbers outside the bedroom fled at this point. Crooks grabbed the gun from the robber in the bedroom, hit him on the head with the gun, and pulled off the robber's mask. Crooks recognized him as Marvin German, with whom he was acquainted. German subsequently fled the apartment. Crooks did not initially identify German to the police because he wanted to handle the matter himself; he later thought better of this.

Marvin German and another individual, Levi Thompson, testified at defendant's trial that they had been involved in the robbery, and that defendant was the third robber. Both German and Thompson testified that defendant had given German a gun, had another gun himself, and that it was defendant who fired the shot into the bedroom.

[Id. at 4.]

The Supreme Court denied defendant's petition for certification on June 9, 1999. 161 N.J. 149 (1999).

On April 14, 2000, defendant filed his first PCR petition, claiming: (1) his convictions on the robbery counts were against the weight of the evidence; (2) the jury was not properly instructed on how to consider defendant's statements; (3) error in the imposition of two extended term sentences; and (4) ineffective assistance of trial and appellate counsel. On October 31, 2000, the trial court denied defendant's PCR petition, and we thereafter affirmed in State v. Chapple, No. A-1897-00 (App. Div. January 29, 2002) (slip op. at 7). The Supreme Court denied defendant's petition for certification on May 22, 2002. 172 N.J. 358 (2002).

On September 12, 2006, defendant filed his second PCR petition, which is the subject of this appeal. In his pro se petition defendant raised one main argument: "Defendant did not commit the crime of armed robbery and the trial court should have instructed the jury as to the elements of the offense of attempted armed robbery." Defendant raised this claim as a matter of legal error and as a "fundamental injustice[.]" Defendant also asserted that he was entitled to resentencing pursuant to State v. Natale, 184 N.J. 458 (2005).

Counsel was assigned and filed a supplemental brief. Regarding the robbery/attempted robbery issue, defendant argued that he was entitled to have the jury charged as to the lesser-included offense of attempted robbery, an offense which the Supreme Court held as a matter of first impression to be "an offense contemplated by the Code [of Criminal Justice]" in State v. Farrad, 164 N.J. 247, 251 (2000).

Defendant noted that the Supreme Court decided Farrad on June 22, 2000. Prior PCR counsel did not raise this issue in defendant's first petition which, as noted, was denied on October 31, 2000. Rather, PCR counsel had raised a weight of the evidence argument regarding the elements of the offense, which the PCR judge rejected as grounds for relief.

In Farrad, the Supreme Court noted that the "Appellate Division vacated the robbery conviction, finding the State failed to establish either the use of force or the threat of immediate bodily injury, proof of which is an essential element of the crime of robbery." Ibid. However, "[t]he panel declined to mold the verdict to enter a conviction for attempted robbery because it was of the view that such an offense is not cognizable under the Code." Ibid.

Defendant pointed out that the appellate decision affirming his convictions and sentences was filed on March 23, 1999, and argued that, "[i]n Farrad, on an unknown date in 1999, the appellate court reversed the defendant's conviction for robbery and remanded the matter back for a new trial[,]" but that the Supreme Court granted certification on November 18, 1999. Based on these circumstances, defendant contended:

Clearly the defendant's case was in the [A]ppellate [D]ivision at the same time as the Farrad case[,] so any decision in the Farrad case having retroactive application would be applicable to the defendant's case. Even though the defendant may not have argued the same exact issues in his direct appeal as in the Farrad case, his first application for post[-]conviction relief was heard on October 13, 2000, about four months after the [C]ourt rendered its decision in the Farrad case.

Defendant argued, therefore, that his first PCR counsel had been ineffective for failing to advance the argument recognized in Farrad, that attempted robbery is a cognizable offense under the Criminal Code.

Defendant once again claimed ineffective assistance of trial counsel for failing to request "a jury instruction consistent with the defendant's version of the case[,]" and for "not objecting to the court's instructions, which did not define the offense of attempted robbery."

In denying relief, the PCR judge stated:

I disagree with the defense position that this was an attempted robbery. I don't think the facts fit within the definition of an attempted robbery as contemplated by State v. Farrad.

Here the perpetrators in the middle of the night at 4:00 a.m. broke into a residence with the intent to commit a theft. They did, in fact, break in. They were armed. . . . [A]t least one of the guns was brandished and then used against one of the would-be robbers. Another gun, specifically the one handled by Mr. Chapp[le], was actually discharged into the room where the struggling robber was being overcome by the victim. They then left and apparently didn't get away with any money or goods from the apartment.

But, it's very clear that they had broken in, that they intended to commit the theft and that they were in the course of committing the theft when the resistance was made that prevented them from carrying it out. This is anything but a situation such as in Farrad where the interruption of the course of events occurr[ed] before the force [wa]s either threatened or exercised.

Here the theft sequence . . . was already well in place. The victims had been threatened. They had been put in fear. A gun had been brandished. A physical struggle occurred and a gun was discharged all during the sequence in the apartment. This was a robbery. The fact that they left before they took any money does not change it into an attempted robbery. That argument is without merit.

Therefore, even if Farrad applies and even if it is given full retroactivity[,] not just pipeline retroactivity[,] it wouldn't apply to the facts of this case and defendant was not entitled to an attempted robbery instruction.

But, this [c]ourt finds that there isn't any indication that the [S]upreme [C]ourt, in announcing the Farrad case, intended to give it full retroactive application and instead finds that it was only to be given pipeline retroactivity, that the [S]upreme [C]ourt would have announced that it intended to give it full retroactivity if that was it[s] intention.

This case does not fall within pipeline retroactivity. The defendant's direct appeal process ended before the [S]upreme [C]ourt decision in Farrad . . . was issued. The fact that this case may have been on appeal at the same time the Farrad case was on appeal at the appellate level does not render it within the definition of pipeline retroactivity. That's essentially an equitable argument and I don't think it applies . . . .

Therefore, for that additional reason[,] even if Farrad did apply, which it doesn't, this case wouldn't fall within it[]s [e]ffect because it was beyond pipeline retroactivity.

In denying relief on defendant's sentencing claim, the PCR judge found that "the convictions in this matter and the subsequent appellate direct process ended before 2000. The Natal[e] decision was a 2005 decision[,] . . . [and] also . . . clearly a pipeline retroactivity case. It does not appl[y] to this matter and therefore the Natal[e] arguments are inapplicable and without merit." The judge noted that the Appellate Division had considered and rejected defendant's argument that his sentence was excessive.

Finally, the PCR judge noted that, notwithstanding the fact that he regarded defendant's petition as "procedurally barred by the time-bar provisions of the post[-]conviction relief rule[,]" he had nonetheless decided defendant's issues on the merits. Based on his findings, the PCR judge concluded that defendant had not made out a prima facie case of ineffective assistance of counsel and, therefore, was not entitled to a plenary hearing.

On appeal, defendant raises the following nine issues for our consideration:

POINT I

THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL

POINT II

THE TRIAL COURT ERRED IN NOT CHARGING THE JURY APPROPRIATELY SUA SPONTE AND THE LOWER COURT ORDER MUST THEREFORE BE REVERSED

POINT III

THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL

POINT IV

DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL ON THE FIRST PETITION FOR POST-CONVICTION RELIEF AND THE LOWER COURT ORDER MUST THEREFORE BE REVERSED

POINT V

THE LOWER COURT ORDER MUST BE REVERSED SINCE THE COURT ERRONEOUSLY HELD THAT DEFENDANT IS NOT ENTITLED TO RE-SENTENCING UNDER STATE V. NATALE, 184 N.J. 458 (2005)

POINT VI

THE LOWER COURT ORDER MUST BE REVERSED SINCE THE FIVE-YEAR TIME BAR SHOULD NOT BE APPLIED TO BAR DEFENDANT'S CLAIMS

POINT VII

THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT'S CLAIMS ARE NOT PROCEDURALLY BARRED UNDER R. 3:22-4

POINT VIII

THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT'S CLAIMS ARE NOT PROCEDURALLY BARRED UNDER R. 3:22-5

POINT IX

THE LOWER COURT ERRED IN NOT GRANTING DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING AND THE LOWER COURT ORDER MUST THEREFORE BE REVERSED

Having reviewed these contentions in light of the record and the applicable legal principles, we conclude that they are wholly without merit. We affirm substantially for the reasons stated by Judge Richard J. Geiger in his decision rendered from the bench on January 18, 2008. We add only the following comments.

Trial counsel in 1997 could not reasonably have anticipated the Supreme Court's 2000 decision in Farrad. Therefore, trial counsel was not ineffective for failing to request a jury instruction on attempted armed robbery, nor did the trial court err in failing to so instruct the jury. Similarly, appellate counsel in 1999 could not reasonably have been expected to advance a Farrad argument.

Regarding the claimed ineffective assistance of defendant's first PCR counsel, we are satisfied that Judge Geiger properly found that defendant was barred from asserting a Farrad claim because he had no appeal pending at the time the Supreme Court rendered its decision in June 2000; therefore, defendant could not claim the benefit of so-called "pipeline retroactivity." Moreover, as noted, the judge distinguished the facts in defendant's case from those in Farrad, and concluded that, even if defendant were entitled to seek relief under that case, he must lose on the merits of the claim. These findings, which we are satisfied are supported by the record, defeat defendant's contentions that trial, appellate and PCR counsel were ineffective.

We are further satisfied that the PCR judge properly rejected defendant's Natale argument on "pipeline retroactivity" grounds. Defendant's first appeal was decided on March 23, 1999; the Supreme Court denied his petition for certification on June 9, 1999. Therefore, when Natale was decided in 2005, defendant did not have a case "on direct appeal[,]" nor had he "raised Blakely claims at trial or on direct appeal . . . ." Natale, supra, 184 N.J. at 494.

Defendant concedes that his "direct appeal, which concluded on June [9], 1999, falls outside the Natale cut-off date[,] . . . [and that he] did not raise a Sixth Amendment challenge to the State's presumptive sentencing scheme during trial or on the direct appeal." Defendant argues, however, that because he raised "an argument addressed to the excessiveness of a presumptive term," he had thereby raised a Natale claim. This argument is without merit. In his prior appeal, defendant argued only the excessiveness of the sentence imposed and the claimed "illegality" of the imposition of two extended terms. He did not address the impropriety of sentencing from the vantage point of a presumptive term.

Defendant's remaining arguments are "without sufficient merit to warrant discussion in a written opinion . . . ." R. 2:11-3(e)(2). Suffice it to say, the PCR judge addressed the merits of defendant's claims notwithstanding the procedural bar in Rule 3:22-4 and the time bar in Rule 3:22-5.

Defendant failed to establish a prima facie case of ineffective assistance trial, appellate and/or PCR counsel under the standards established in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). Therefore, defendant was not entitled to a plenary hearing. State v. Preciose, 129 N.J. 451, 462 (1992).

 
Affirmed.

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

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A-4375-07T4

August 14, 2009