STATE OF NEW JERSEY v. KEVIN JONES

 
(NOTE: The status of this decision is Published.)

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2790-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KEVIN JONES,

Defendant-Appellant.

________________________________________________________________

October 5, 2010

 

Submitted September 20, 2010 - Decided

 

Before Judges Lisa, Reisner and Sabatino.

 

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 90-06-1158.

 

Yvonne Smith Segars, Public Defender, attorney for appellant (Michele Adubato, Designated Counsel, on the brief).

 

TheodoreJ. Romankow,Union County Prosecutor, attorney for respondent (Jill Grace Viggiano, Assistant Prosecutor, of counsel and on the brief).

 

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant appeals from an order denying his post-conviction relief (PCR) petition. Tried to a jury, defendant was convicted of first-degree armed robbery, N.J.S.A. 2C:15-1, and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a). After merging the weapons offense with the robbery offense, defendant was sentenced on July 9, 1993 to an extended term of life imprisonment with a twenty-five-year parole disqualifier, consecutive to a sentence defendant was then serving. On March 23, 2000, we granted defendant's motion to file an appeal nunc pro tunc. We affirmed his conviction and sentence in all respects. State v. Jones, No. A-4070-99 (App. Div. November 3, 2003). The Supreme Court denied defendant's petition for certification on January 21, 2004. State v. Jones, 178 N.J. 453 (2004).

Although defendant later contended at his PCR hearing that he had filed his PCR petition sooner, the copy of the petition in the record is dated November 1, 2006, and was filed at that time. The matter came before Judge Triarsi on May 20, 2008. The judge heard oral argument from both counsel and permitted defendant to supplement his attorney's arguments with factual statements and arguments of his own. The judge found that the petition was time-barred. He also found that the arguments presented were procedurally barred because they had been decided on direct appeal. Finally, he addressed each argument substantively and found each lacking in merit. The judge also found that defendant failed to establish a prima facie case as to any issue, as a result of which no evidentiary hearing was warranted. The judge therefore denied the petition and issued an order to that effect on May 20, 2008. This appeal followed.

In the brief filed by his attorney, defendant argues:

POINT I

 

THE COURT ERRED IN NOT GRANTING PETITIONER AN EVIDENTIARY HEARING ON HIS PCR PETITION.

 

POINT II

 

PETITIONER WAS DENIED HIS RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL GUARANTEED BY BOTH UNITED STATES AND NEW JERSEY CONSTITUTIONS.

 

A. REQUIREMENT OF COUNSEL TO MAKE REASONABLE INVESTIGATIONS.

 

B. FAILURE TO PRESENT A MEANINGFUL TRIAL STRATEGY.

 

C. FAILURE ADEQUATELY TO CONSULT WITH PETITIONER AND RESOLVE CONFLICTS.

 

D. FAILURE TO PURSUE APPLICATION TO PROCEED PRO SE.

 

E. FAILURE TO VOIR DIRE JURORS REGARDING THE IMPACT OF PETITIONER'S ELECTION NOT TO BE PRESENT AT TRIAL.

 

F. PETITIONER WAS DENIED HIS RIGHT TO THE EFFECTIVENESS OF POST-CONVICTION RELIEF COUNSEL.

 

G. PREJUDICE.

 

POINT III

 

THE TRIAL COURT ERRED BY NOT ALLOWING PETITIONER TO PROCEED PRO SE OR IN THE ALTERNATIVE FAILED TO MAKE THE REQUISITE FINDING ON THIS ISSUE.

 

In a supplemental pro se brief, defendant further argues:

POINT I

 

PCR COUNSEL WAS INEFFECTIVE FOR FAILING TO ADEQUATELY PRESENT DEFENDANT'S CLAIM.

 

POINT II

 

THE PCR JUDGE ERRED BY NOT GRANTING AN ADJOURNMENT AND BY NOT CONDUCTING AN EVIDENTIARY HEARING ON THE ISSUE OF EXCUSABLE NEGLECT.

These arguments are lacking in merit and we reject them and affirm. Extended discussion in a written opinion is not warranted. R. 2:11-3(e)(2). Our affirmance (except as to ineffectiveness of PCR counsel) is substantially for the reasons expressed by Judge Triarsi in his May 20, 2008 oral opinion.

I

Defendant and three other persons robbed a McDonald's in Hillside on March 28, 1990. After being advised of his Miranda1 rights, defendant gave a written confession, admitting to his role in the crime. The four men proceeded to McDonald's in a car with the intention of committing the robbery. One of the other individuals went inside alone, after which he came out and reported there were only three people inside and no police. It was therefore determined that the robbery would proceed. Defendant and one other individual went inside while the other two men waited in the car. The defendant and the other man wore masks. They both brandished handguns and demanded money from the McDonald's employees. Defendant said in his confession that his handgun was a fake and the other perpetrator's was real. The employees handed over about $1000 from the cash registers. Defendant and the other man returned to the waiting car, and they fled the scene. Police had been alerted and pursued the fleeing vehicle, but the perpetrators succeeded in getting away.

The investigation led to defendant. He was brought to the police station and gave the statement we have previously mentioned. The other three perpetrators resolved the charges against them through pleas. Defendant and the prosecutor had also entered into a plea agreement and defendant pled guilty. However, when the matter came before the court for sentencing on April 10, 1992, the judge rejected the plea agreement, finding that the recommended sentence was too lenient in light of defendant's prior criminal history as revealed by the presentence report. Defendant declined the opportunity to attempt to renegotiate the plea, and declared that he wanted to go to trial. He also complained about the performance of his assigned counsel and said he wanted him replaced or he wanted to represent himself. The judge deferred consideration of defendant's requests at that time.

After a number of additional court proceedings, trial commenced about one year later on March 30, 1993. Defendant again complained about his assigned counsel's performance and demanded that he be relieved and replaced, or, alternatively, that defendant be allowed to represent himself. He expressed to the judge his reasons for dissatisfaction with his attorney. The attorney provided detailed representations about his meetings with defendant, the provision to defendant of all discovery materials, and his discussions with defendant about potential plea agreements and trial strategies.

The judge was satisfied that there was no basis to relieve the assigned counsel and order substitute counsel. He so ordered.

The judge then attempted to discuss with defendant the seriousness of the charges and potential consequences of conviction. The judge also attempted to explain to defendant the pitfalls of self-representation. Defendant became uncooperative and refused to allow the judge to discuss these matters, constantly saying he wanted to leave, did not want to hear anything about it, and wanted to go back to State prison (where he was serving a sentence). Defendant said he did not want to be present at the trial. Out of an abundance of caution, the judge directed that defendant be remanded to the county jail so he would be readily available to be brought back into the courtroom if he had a change of heart about being present at the trial, and the judge explained this to defendant.

During jury selection, the judge thoroughly explained to the jury that defendant had a right not to be present at trial and that no adverse inference should be drawn from his absence. The trial proceeded to a conclusion in defendant's absence.

II

In his direct appeal, defendant raised the following issues:

POINT I THE TRIAL COURT DEPRIVED THE DEFENDANT OF HIS RIGHT OF SELF-REPRESENTATION, ALTERNATIVELY THE TRIAL COURT ERRED IN FAILING TO CONDUCT A PROPER HEARING TO DETERMINE THE DEFENDANT'S WAIVER OF COUNSEL AND RIGHT TO PROCEED PRO SE MANDATING THE REVERSAL OF THE DEFENDANT'S CONVICTIONS.

 

POINT II THE TRIAL COURT FAILED DURING JURY SELECTION TO VOIR DIRE POTENTIAL JURORS ON THE SUBJECT OF THE DEFENDANT'S ABSENCE FROM TRIAL, AND TRIAL COUNSEL WAS INEFFECTIVE IN FAILING TO REQUEST ANY QUESTIONS OF POTENTIAL JURORS REGARDING THEIR ABILITY TO BE FAIR AND IMPARTIAL TO THE ABSENT DEFENDANT MANDATING THE REVERSAL OF THE DEFENDANT'S CONVICTIONS. (Not Raised Below)

 

POINT III DEFENSE COUNSEL PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL WHEN HE AFFIRMATIVELY INTRODUCED INTO EVIDENCE INCULPATORY INADMISSIBLE HEARSAY WHICH STANDING ALONE PERMITTED THE JURY TO CONVICT THE DEFENDANT OF ALL CHARGES. (Not Raised Below)

 

[State v. Jones, supra, slip op. at 5-6.]

 

We considered and rejected each of those arguments.

III

In his PCR petition, defendant alleged "that he was denied the effective assistance of trial and appellate counsel for the reason articulated in his pro se brief supporting his argument that he is entitled to Post Conviction Relief." The record on appeal does not contain a copy of a pro se brief filed in support of the petition. Counsel was assigned to represent defendant in the PCR proceeding, and he filed a brief raising the following arguments:

PETITIONER IS ENTITLED TO POST-CONVICTION RELIEF BECAUSE HIS TRIAL ATTORNEY RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL.

 

A. PETITIONER SHOULD BE ENTITLED TO POST-CONVICTION RELIEF BECAUSE THERE WAS EXCUSABLE NEGLECT IN FILING HIS PETITION OUT OF TIME.

 

B. PETITIONER'S TRIAL ATTORNEY RENDERED INEFFECTIVE ASSISTANEC [SIC] OF COUNSEL FROM THE OUTSET OF TRIAL.

 

C. PETITIONER'S TRIAL ATTORNEY RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL BY FAILING TO VOIR DIRE THE JURORS AS TO THEIR ABILITY TO BE FAIR AND IMPARTIAL TO PETITIONER'S ABSENCE FROM TRIAL.

 

D. PETITIONER'S TRIAL ATTORNEY RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL WHEN HE AFFIRMATIVELY INTRODUCED INTO EVIDENCE INCULPATORY INADMISSIBLE HEARSAY WHICH STANDING ALONE PERMITTED THE JURY TO CONVICT PETITIONER OF ALL CHARGES.

The PCR petition was not supported by any affidavits or certifications. At the hearing on May 20, 2008, after defendant's counsel presented oral argument regarding the points raised in his brief, the judge allowed defendant to address the court to present any additional factual matters or legal arguments he wished. Defendant contended that because of the negligent inaction of his trial attorney, his case was not promptly referred to the appellate section of the Office of the Public Defender, resulting in a seven-year delay in the filing of his direct appeal. Defendant apparently believed he could not file a PCR petition until his direct appeal was concluded. He stated that he had initially filed a pro se PCR petition in 2004, shortly after the Supreme Court denied his petition for certification on his direct appeal. During the PCR hearing, defendant filed a certification to that effect. This information provided the basis for defendant's claim of excusable neglect for not filing the petition within the time provided by the court rules. Defendant expressed his suspicion that corrections officers at the prison where he was housed destroyed his papers or, alternatively, they were lost by court officials. Nevertheless, after he later learned that the court did not have his papers, he refiled his petition in November 2006. Defendant was unable to produce any documentation in support of his contention.

The judge found defendant's assertions lacking in credibility. He found an absence of excusable neglect for the late filing of the petition. Although the judge found the petition time-barred, he nevertheless proceeded to consider it as if it had been timely filed. The judge noted that the issues raised had been previously adjudicated by the Appellate Division on defendant's direct appeal, and, as a result, they could not be re-litigated in a PCR proceeding. Finally, the judge addressed each argument and rejected each on its merits.

IV

A defendant must establish two elements to prove ineffective assistance of counsel. First, he must demonstrate that counsel's performance was deficient. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). Performance is deficient when "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Ibid. Second, a defendant must establish that counsel's deficiency prejudiced the defense by demonstrating that there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Ibid. New Jersey has adopted the Strickland test. State v. Fritz, 105 N.J. 42, 58 (1987).

There is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694. In order to rebut this presumption, a defendant must prove that counsel's actions did not amount to "sound trial strategy." Id. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694-95 (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S. Ct. 158, 164, 100 L. Ed. 83, 93 (1955)).

"'Judicial scrutiny of counsel's performance must be highly deferential,' and must avoid viewing the performance under the 'distorting effects of hindsight.'" State v. Norman, 151 N.J. 5, 37 (1997) (quoting Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694). Thus, an attorney's strategy decision should not be characterized as ineffective assistance merely because the decision did not produce the desired result. See id. at 37-38. Moreover, defendant bears the burden of proving, by a preponderance of the evidence, that counsel's strategy decisions were not within the broad spectrum of competent legal representation. Fritz, supra, 105 N.J. at 52.

PCR petitions must be filed within five years of the entry of the judgment of conviction, unless defendant can demonstrate excusable neglect for the delay. R. 3:22-12. Issues previously adjudicated on the merits are deemed conclusively determined and may not be considered in a PCR proceeding. R. 3:22-5.

V

With respect to Point A in the PCR brief filed by defendant's attorney, we agree with Judge Triarsi that defendant's petition was time-barred. It was filed more than sixteen years after defendant's judgment of conviction. We need not discuss this issue in detail, however, because, like Judge Triarsi, we conclude that defendant's PCR arguments were unsustainable for other reasons.

The procedural bar of Rule 3:22-5 was properly invoked to preclude consideration in the PCR proceeding of Point C (ineffective assistance of counsel by failing to voir dire jurors regarding defendant's absence from trial), and Point D (ineffective assistance by introducing into evidence inculpatory inadmissible hearsay evidence). These issues were squarely addressed and adjudicated in the direct appeal. We also agree with Judge Triarsi that the arguments were not meritorious for the reasons he expressed.

Under Point B, defendant's PCR counsel argued that defendant's trial attorney rendered ineffective assistance from the outset of the trial. The allegations were general in nature, asserting a breakdown in the relationship between defendant and trial counsel and pointing out that defendant "made it very clear to the court that he did not want [trial counsel] representing him at trial." As to the latter claim, however, we had previously decided that issue adversely to defendant in his direct appeal. As to the claim that defendant's trial counsel did not conduct a proper investigation or prepare adequately for trial and did not produce favorable witnesses, defendant provided no affidavits or certifications explaining what a better investigation would have revealed. Nor were any witnesses identified, along with a statement of the favorable testimony they would have provided and certifications or affidavits from those witnesses setting forth their proposed testimony. Therefore, this claim consisted of nothing more than the kind of "bald assertions" that are insufficient to establish a prima facie showing of ineffective assistance of counsel. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).

VI

In this appeal, defendant repeats the same arguments. He also argues that the judge erred in not granting an evidentiary hearing on the PCR petition. However, such hearings are discretionary and are only required upon a prima facie showing of ineffective assistance. State v. Preciose, 129 N.J. 451, 462 (1992). Defendant failed to make the required prima facie showing. Accordingly, the judge acted within his discretion in declining to conduct an evidentiary hearing.

Defendant also argues that PCR counsel was ineffective for failing to adequately present his claims. See R. 3:22-6(d); State v. Webster, 187 N.J. 254 (2006); State v. Rue, 175 N.J. 1 (2002). However, at the PCR hearing, after hearing all arguments from defendant's attorney, Judge Triarsi scrupulously inquired of defendant whether he had any other factual statements or legal arguments he wished to present that his attorney had not presented. We are satisfied from our review of the record that PCR counsel fulfilled his obligations in this regard.

Finally, we consider defendant's pro se argument that Judge Triarsi erred by not granting an adjournment and not conducting an evidentiary hearing on the issue of excusable neglect. We find no mistaken exercise of discretion in refusing to grant an adjournment. Further, because the time-bar is not dispositive of the denial of PCR to defendant, even if it was error to fail to conduct an evidentiary hearing as to excusable neglect, any such error was harmless.

Affirmed.

1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).