STATE OF NEW JERSEY v. DAMON SORENSON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0787-09T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DAMON SORENSON,

Defendant-Appellant.

________________________________

October 28, 2010

Submitted: October 20, 2010 - Decided:

Before Judges Axelrad and R. B. Coleman.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 02-02-0362.

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

Luis A. Valentin, Monmouth County Prosecutor, attorney for respondent (Monica do Outeiro, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Damon Sorenson appeals from the July l0, 2009 order of the Law Division denying his petition for post-conviction relief (PCR). He alleged his sentence was excessive, there was prosecutorial misconduct, he did not receive a fair trial, and trial and appellate counsel were ineffective in their handling of the trial, sentencing and his appeal. We affirm.

Following a remand, defendant was retried and convicted by a jury of first-degree armed robbery, N.J.S.A. 2C:15-1, and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d. On February l0, 2005, Judge Neafsey merged the weapons conviction with the armed robbery conviction and sentenced defendant to a fifteen-year custodial term, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

Defendant filed a direct appeal, challenging the judge's decision to admit his statements into evidence, the jury charge on robbery, and his sentence. We affirmed defendant's conviction and sentence. State v. Sorenson, No. A-5366-04T4 (App. Div. June 19, 2007). We incorporate by reference the procedural and factual history of the case. Id., slip op. at 1-8. The Supreme Court denied defendant's petition for certification on September 20, 2007. State v. Sorenson, 192 N.J. 481 (2007).

This PCR petition ensued and was denied by Judge Neafsey on the record on July l0, 2009, following oral argument, with defendant present. In a pro se submission and that of PCR counsel, defendant claimed: (1) his sentence was excessive because the court failed to credit his military service and consider he had no history of violence and because the mitigating factors outweighed the aggravating ones; (2) his sentence was "cruel and unusual" in violation of the Eighth Amendment; (3) he was deprived of a fair trial by the court failing to dismiss a juror who observed him outside the courtroom in handcuffs, by the prejudicial six day break between two days of trial as it likely allowed the jurors to forget how poorly one of the State's witnesses performed on the stand, and by the court improperly allowing hearsay testimony; and (4) the prosecutor engaged in unprofessional and prejudicial conduct of seeking a sentence that was higher than the plea offer and grossly disproportionate to the offenses.

In a supplemental letter brief, defense counsel submitted the following arguments requested by defendant pursuant to State v. Webster, 187 N.J. 254 (2006): (1) trial and appellate counsel were ineffective in failing to argue more strongly about the mitigating factors on defendant's behalf, which resulted in an excessive sentence; (2) although his record was sanitized, his trial counsel tainted the jury by bringing up specific details of his prior record; and (3) in its jury charge the court improperly continued to use the word "force" but did not properly define the term "as a matter of law" and his trial and appellate counsel were ineffective in not challenging the jury instruction.

Judge Neafsey comprehensively addressed and rejected defendant's arguments. He specifically found defendant's excessive sentencing claims were not a cognizable basis for PCR pursuant to Rule 3:22-2, and defendant's unfair trial claims were procedurally barred pursuant to Rule 3:22-4(a), as all "could have been raised on direct appeal as they are based on issues that occurred at trial." The court also found defendant has failed to establish any of the three exceptions to the procedural bar contained in Rule 3:22-4(a). Judge Neafsey further found defendant's claims of ineffective assistance of counsel to be merely alternative means of arguing non-cognizable, procedurally-barred claims, and thus were also procedurally barred by Rule 3:22-4.

Nevertheless, the judge addressed and rejected each of the allegations of trial error and ineffective assistance of trial and appellate counsel as without substantive merit, and provided a detailed explanation as to why none of the issues were sufficient to warrant relief under the applicable law and the two-prong Strickland/Fritz test. See Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984) (In order to prevail on a claim of ineffective assistance of counsel, a defendant must meet the two-prong test of establishing both that: (1) counsel's performance was insufficient and he or she made errors that were so serious that counsel was not functioning effectively as guaranteed by the Sixth Amendment to the United States Constitution, and (2) the defect in performance prejudiced the defendant's rights to a fair trial such that there exists a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."). See also State v. Fritz, 105 N.J. 42, 58 (l987) (adopting the Strickland test in New Jersey); State v. Preciose, l 29 N.J. 451, 462-63 (l992) (To establish a prima facie claim of ineffective assistance of counsel within the Strickland/Fritz test warranting an evidentiary hearing, a defendant must demonstrate a reasonable likelihood that his or her claim will ultimately succeed on the merits). This appeal ensued.

Defendant essentially raises the same arguments on appeal, asserting:

POINT I

THE COURT ERRED IN FINDING THAT POST-CONVICTION RELIEF SHOULD BE DENIED ON PROCEDURAL GROUNDS BECAUSE THE DEFENDANT'S FOURTEENTH AMENDMENT DUE PROCESS RIGHTS TO A FAIR TRIAL, EFFECTIVE ASSISTANCE OF COUNSEL, AND A JUST SENTENCE, WERE VIOLATED.

POINT II

THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE DEFENDANT'S CONVICTIONS VACATED BECAUSE TRIAL COUNSEL'S FAILURE TO MOVE FOR A MISTRIAL AFTER THE DEFENDANT WAS OBSERVED BY A JUROR HAND-CUFFED IN THE HALLWAY OF THE COURTHOUSE; TRIAL COUNSEL'S ELICITATION OF THE DEFENDANT'S PRIOR CONVICTION; TRIAL COUNSEL'S FAILURE TO OBJECT TO THE TRIAL COURT'S CHARGE; AND TRIAL COUNSEL'S DEFICIENT PERFORMANCE AT SENTENCING SATISFIED BOTH PRONGS OF THE STRICKLAND/FRITZ TEST FOR INEFFECTIVE ASSISTANCE OF COUNSEL.

POINT III

THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE DEFENDANT'S CONVICTIONS VACATED BECAUSE APPELLATE COUNSEL'S FAILURE TO ARGUE ON APPEAL THAT THE DEFENDANT'S RIGHT TO A FAIR TRIAL WAS PREJUDICED WHEN THE DEFENDANT WAS OBSERVED BY A JUROR HANDCUFFED IN THE COURTROOM HALLWAY; APPELLATE COUNSEL'S FAILURE TO ARGUE ON APPEAL THAT THE TRIAL COURT'S JURY CHARGE WAS PREJUDICIAL AND INCOMPLETE; APPELLATE COUNSEL'S FAILURE TO ARGUE ON APPEAL THAT THE TRIAL COURT FAILED TO CREDIT ALL APPLICABLE MITIGATING FACTORS AT SENTENCING; AND APPELLATE COUNSEL'S FAILURE TO ARGUE ON APPEAL THAT TRIAL COUNSEL WAS INEFFECTIVE; RESULTED IN A DEFICIENT APPEAL AND THE ENSUING PREJUDICE TO THE DEFENDANT SATISFIED BOTH PRONGS OF THE STRICKLAND/FRITZ TEST FOR INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL.

POINT IV

THE COURT'S RULING DENYING POST-CONVICTION RELIEF VIOLATED THE DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.

POINT V

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

Based on our review of the record and applicable law, we are satisfied that defendant failed to make a prima facie showing of ineffectiveness of trial or appellate counsel within the Strickland/Fritz test warranting an evidentiary hearing. We are further satisfied that all of defendant's arguments raised on PCR are either procedurally barred or without substantive merit. Defendant's arguments renewed on appeal were more than adequately addressed by the PCR judge and do not warrant additional discussion. R. 2:11-3(e)(2). We affirm substantially for the reasons articulated by Judge Neafsey in his cogent oral opinion.

We reiterate that the facts do not support defendant's claim that a juror was biased because he saw defendant shackled in the courthouse hallway. To the contrary, Judge Neafsey conducted an extensive voir dire of the juror as to what he had seen and ascertained the juror had not observed defendant in handcuffs. In his decision on the PCR motion, the judge referenced the trial transcript, noting that after speaking with defendant, defense counsel conceded he did not "think it was clear that the juror had seen [defendant]." Judge Neafsey concurred with defense counsel, finding on PCR it was "clear that all parties involved in the trial including the defendant were satisfied with the juror's response as they accepted that the juror wasn't biased and should not be dismissed."

Affirmed.