STATE OF NEW JERSEY v. DANIEL GATSON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5808-07T45808-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DANIEL GATSON,

Defendant-Appellant.

___________________________________

 

Submitted February 3, 2010 - Decided

Before Judges Payne and Waugh.

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 00-12-2520.

Yvonne Smith Segars, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief).

John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Catherine A. Foddai, Senior Assistant Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant Daniel Gatson appeals the denial of his petition for post-conviction relief (PCR). We affirm.

I.

We discern the following procedural and factual history from the record.

A.

Following a jury trial in June and July 2002, Gatson was convicted of third-degree burglary, N.J.S.A. 2C:18-2 (count one); fourth-degree unlawful possession of a weapon, a stun gun, N.J.S.A. 2C:39-3(h) (count two); and fourth-degree hindering apprehension, N.J.S.A. 2C:29-3(b)(4) (count three). Gatson was given an extended-term sentence of eight years with a four-year period of parole ineligibility for the burglary; a consecutive eighteen-month sentence for the unlawful weapons possession; and a concurrent eighteen-month sentence for hindering apprehension.

We affirmed his conviction in State v. Gatson, No. A-0632-03 (App. Div. March 19, 2007), but remanded for resentencing pursuant to State v. Natale (II), 184 N.J. 458, 484 (2005). The Supreme Court denied certification. State v. Gatson, 192 N.J. 69 (2007). At the sentencing remand, the trial judge imposed the same sentence.

Gatson filed his petition for PCR on August 6, 2007, alleging that the trial judge should have charged a lesser included offense and ineffective assistance of counsel. Assigned counsel filed a supplemental brief. The trial judge heard argument on the petition on February 27, 2008, but denied Gatson's request for an evidentiary hearing. After oral argument, he denied the petition. This appeal followed.

B.

In our opinion affirming the conviction, we described the underlying facts as follows:

The trial record discloses that, on Sunday, June 11, 2000, at approximately 9:15 p.m., Bertran Draing, his father, Hans Draing, and Bertran's [then] fiancée, Diana Sloan, drove up to the Draing's home in Paramus in time to witness a suspected burglary in progress next door. The two men proceeded to investigate, while Sloan watched from the Draing's adjoining property. As she stood near the Draing's garage, she observed two black men leave the neighbor's house, proceed rapidly toward a parked white Ford Expedition truck, and take off. Both Sloan and Bertran had an opportunity to view one of the two men before he got into the truck's passenger seat. Although they sought to pursue the vehicle in a car owned by Bertran's father, they were unsuccessful. However, as Bertran drove, Sloan placed a [9-1-1] call, in which she described the truck, gave a partial license plate number, and identified the two alleged perpetrators as black males. A clothing description was also provided.

A broadcast of the content of the [9-1-1] call was received by patrol officers Robert Vonschalscha and Frank Scott, who were together at the time, but driving separate marked police vehicles. The two officers proceeded in their cars toward Paramus Road and, within approximately one minute, observed a white Ford Expedition being driven within 1.5 miles of the crime scene. The officers conducted a felony stop of the vehicle without incident, and after observing that the license plate contained the "4" and "J" attributed in the [9-1-1] call to the burglars' truck, ordered the vehicle's occupants, two black males, to exit the truck and to lie face down on the road. Vonschalscha and Scott handcuffed the two men, and, while they remained in the road, Scott returned to the truck to determine whether it contained any other occupants. His search disclosed none. However, he observed a stun gun in plain view on the truck's middle seat. As a result, the two males were arrested. A further search of the vehicle by Scott for additional weapons, occurring while Vonschalscha and a third, recently-arrived, officer placed the two offenders in separate police cars belonging to Scott and to a fourth, newly-arrived officer, disclosed various incriminating articles of clothing and a pair of wire cutters. Upon subsequent inquiry by Vonschalscha, Gatson gave a false name and birth date.

Thereafter, the police conducted a show-up identification of suspects by bringing Bertran and Sloan jointly to the scene, where they identified the vehicle and its passenger, co-defendant Collins. Neither could identify Gatson prior to or at trial. Defendants were subsequently charged with burglary and unlawful possession of a stun gun. Additionally, defendant Gatson was charged with hindering apprehension as the result of the misinformation that he had given to the police. The defendants were tried together, and they were convicted of all charges.

[Gatson, supra, slip op. at 5-7 (footnote omitted).]

II.

On appeal, Gatson raises the following issues through counsel:

POINT I: THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE A PRIMA FACIE CASE OF INEFFECTIVENESS OF COUNSEL WAS ESTABLISHED.

POINT II: THIS MATTER MUST BE REMANDED FOR THE PCR COURT TO STATE ITS FINDINGS OF FACT AND CONCLUSIONS OF LAW AS TO TRIAL AND APPELLATE COUNSELS' FAILURE TO CHALLENGE THE TRIAL COURT'S ERRONEOUS JURY INSTRUCTIONS. (Not Raised Below).

In a pro se supplemental brief, Gatson raises the following additional issues:

POINT I: THE LOWER COURT ERRED IN DENYING THE PETITION SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

A. TRIAL COUNSEL FAILED TO PROPERLY INVESTIGATE THE CASE.

B. TRIAL COUNSEL FAILED TO COMMUNICATE WITH HIS CLIENT.

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

POINT III: THE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF POST-CONVICTION COUNSEL, THEREFORE, THE POST-CONVICTION RELIEF MUST BE REMANDED FOR AN EVIDENTIARY HEARING.

POINT IV: THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ARTICLE I, PARAGRAPH 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S ERRONEOUS, PREJUDICIAL AND INCOMPLETE JURY INSTRUCTIONS, THEREBY REQUIRING REVERSAL OF HIS CONVICTION AND REMANDING FOR A NEW TRIAL.

POINT V: COUNSELS WERE INEFFECTIVE FOR FAILING TO DISCOVER AND RAISE THESE ISSUES AT EARLIER PROCEEDINGS.

POINT VI: THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE CUMULATIVE ERRORS BY COUNSEL AMOUNTED TO INEFFECTIVE ASSISTANCE OF COUNSEL.

POINT VII: THE LOWER COURT ERRED IN DENYING DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING, THEREFORE, THE LOWER COURT ORDER MUST BE REVERSED.

A.

"Post-conviction relief is New Jersey's analogue to the federal writ of habeas corpus." State v. Preciose, 129 N.J. 451, 459 (1992). Under Rule 3:22-2, there are four grounds for PCR:

(a) Substantial denial in the conviction proceedings of defendant's rights under the Constitution of the United States or the Constitution or laws of the State of New Jersey;

(b) Lack of jurisdiction of the court to impose the judgment rendered upon defendant's conviction;

(c) Imposition of sentence in excess of or otherwise not in accordance with the sentence authorized by law . . . [;]

(d) Any ground heretofore available as a basis for collateral attack upon a conviction by habeas corpus or any other common-law or statutory remedy.

When petitioning for such relief, the defendant must establish, by a preponderance of the credible evidence, that he is entitled to the requested relief. Preciose, supra, 129 N.J. at 459. To sustain that burden, the defendant must allege and articulate specific facts, which "provide the court with an adequate basis on which to rest its decision." State v. Mitchell, 126 N.J. 565, 579 (1992).

Claims of ineffective assistance of counsel are well suited for post-conviction review. R. 3:22-4(a); Preciose, supra, 129 N.J. at 459-60. The mere raising of such a claim, however, does not entitle a defendant to an evidentiary hearing. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Rather, trial courts should grant evidentiary hearings and make a determination on the merits of a defendant's claim only if the defendant has presented a prima facie claim of ineffective assistance. Preciose, supra, 129 N.J. at 459-64. In determining whether a prima facie claim has been established, the facts should be viewed in the light most favorable to a defendant. Id. at 462-63.

To establish a prima facie claim of ineffective assistance of counsel, a defendant must demonstrate a reasonable likelihood of success under the test set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). Under the first prong of the Strickland test, a defendant must show that defense counsel's performance was deficient. Ibid. Under the second prong, a defendant must demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. The State adopted the Strickland precepts and its tests in State v. Fritz, 105 N.J. 42, 58 (1987).

There is a strong presumption that counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. Further, because prejudice is not presumed, Fritz, supra, 105 N.J. at 52, a defendant must demonstrate "how specific errors of counsel undermined the reliability" of the proceeding, United States v. Cronic, 466 U.S. 648, 659 n.26, 104 S. Ct. 2039, 2047 n.26, 80 L. Ed. 2d 657, 668 n.26 (1984). Moreover, such acts or omissions of counsel must amount to more than mere tactical strategy. Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 695.

Adequate assistance of counsel must be measured by a standard of "reasonable competence." Fritz, supra, 105 N.J. at 55-56; see also State v. Jack, 144 N.J. 240, 248 (1996). Therefore, judicial scrutiny requires great deference because the standard does not demand "the best of attorneys," but rather requires attorneys be "[not] so ineffective as to make the idea of a fair trial meaningless." State v. Davis, 116 N.J. 341, 351 (1989).

B.

Gatson's primary contention on appeal is that the PCR judge should have held an evidentiary hearing based upon the fact that trial counsel's file was sparse and contained no trial notes. He argues that the sparse file and absence of notes in and of themselves amounted to a prima facie case of ineffective assistance of counsel. We disagree.

A review of the record reflects that trial counsel made several motions to suppress evidence leading to pre-trial evidentiary hearings, including a challenge to the initial stop, the search of the vehicle, and Gatson's own misleading statements at the time of his arrest. Trial counsel cross-examined trial witnesses and made trial objections. He also made several objections during the State's summation. He moved for a judgment of acquittal at the end of the testimonial part of the trial.

Gatson fails to articulate with any specificity what investigations trial counsel should have made, and what facts and witnesses would have been revealed. Without such specifics, he fails to present a prima facie case or demonstrate the need for an evidentiary hearing.

C.

Having reviewed Gatson's remaining arguments on appeal in light of the record before us, we find them to be without merit and not warranting discussion in a written opinion. R. 2:11-3(e)(2).

We add only the following. Gatson's arguments with respect to a charge concerning the lesser included offense of trespass are precluded by our decision on the direct appeal that such a charge was unwarranted. The trial judge gave the applicable portion of the burglary charge, and Gatson was not prejudiced by the omission of the irrelevant portion. Gatson's arguments with respect to the ineffective assistance of appellate and PCR counsel, like his arguments with respect to trial counsel, do not set forth any basis for relief.

III.

In summary, for the reasons stated above, we affirm the denial of Gatson's PCR petition.

Affirmed.

 

A co-defendant, Christopher Collins, tried at the same time, was convicted on burglary and weapons charges. He was not charged with hindering apprehension.

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A-5808-07T4

April 12, 2010