STATE OF NEW JERSEY v. LARRY FOGLER

 
(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NOT FOR PUBLICATION WITHOUT THE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-5812-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LARRY FOGLER, a/k/a TAVVAN FOGLER,

LASON FAGLER, TARAJ FOGLEO,

Defendant-Appellant.

__________________________________

October 26, 2010

 

Submitted September 28, 2010 - Decided

 

Before Judges Carchman and Waugh.

 

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 01-01-0163.

 

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

 

Robert D. Laurino, Acting EssexCounty Prosecutor, attorney for respondent (Kenneth P.Ply,SpecialDeputyAttorney General/ Assistant Prosecutor, of counsel and on the brief).

 

Appellant filed a pro se supplemental brief.

 

 

PER CURIAM

Defendant Larry Fogler appeals the dismissal of his petition for post-conviction relief (PCR). We affirm.

I.

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

A.

Fogler and two co-defendants were charged with the attempted robbery and shooting of Derrick McKenzie in Newark on September 23, 1999. Prior to trial, Fogler gave notice of an alibi defense, the gist of which was that he was at a family dinner at approximately the time of the shooting.

Sahir Thompson, one of Fogler s co-defendants, pled guilty prior to trial and agreed to testify against Fogler in exchange for a lighter sentence. Fogler and the other co-defendant, Charles McDougald, were tried before a jury in May 2002. Both McKenzie and Thompson identified Fogler as the shooter. Another witness identified Thompson as the shooter and testified that Thompson was accompanied by McDougald at the time.

At the end of the State's case, Fogler and McDougald moved for judgments of acquittal. The trial judge granted Fogler's motion as to the charge of first-degree robbery, but denied it as to the remaining charges. The judge granted McDougald's motion completely, concluding that he was in the area attempting to purchase drugs but that there was no evidence connecting him with the shooting.

The State conferred use immunity on McDougald for any incriminating testimony he might give about his efforts to purchase drugs. The prosecutor then notified the trial judge and Fogler's trial counsel that the State would call McDougald as a rebuttal witness if Fogler presented a defense.

Fogler and his trial counsel decided to withdraw the alibi defense and rested without calling any witnesses. The following colloquy took place at that time:

[DEFENSE COUNSEL]: Is the State saying they're giving use immunity to the defendant, McDougald, if he should testify?

 

[PROSECUTOR]: That's what I said.

 

[DEFENSE COUNSEL]: Judge, . . . I've indicated off the record, and I'll go on the record by indicating that at this juncture my client and I have agreed that it's our intention to rest our case now.

As the Court may be aware, the defendant had filed a notice of alibi in this case, which was provided to the Prosecutor, and accepted by the Prosecutor. My client and I have discussed the pros and cons of resting as opposed to proceeding with any defense. In light of the State's case, the nature and quality of it, in light of the fact that Mr. Fogler's co-defendant has now been acquitted by the Court, and the fact that . . . all of the potential positives and negatives that may flow from that, Mr. Fogler and I have agreed, and I'll ask him to acknowledge on the record . . . the fact that, in fact, we will be resting our case and not pursing an alibi defense.

 

Mr. Fogler, is that correct?

 

MR. FOGLER: Yes.

 

[DEFENSE COUNSEL]: Your Honor --

 

THE COURT: Mr. Fogler, that's your decision? You've consulted with [your attorney], and ultimately it's your decision, and that's your decision. Is that correct?

 

MR. FOGLER: Yes, your Honor.

 

Fogler was found guilty of second-degree conspiracy to commit robbery, contrary to N.J.S.A. 2C:5-2 and 2C:15-1; second-degree aggravated assault, contrary to N.J.S.A. 2C:12-1(b); third-degree unlawful possession of a handgun, contrary to N.J.S.A. 2C:39-5(b); and second-degree possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-4(a). He was acquitted on two other counts not relevant to this appeal.

Following the required merger of the second-degree weapons offense with the second-degree aggravated assault, the trial judge sentenced Fogler to seventeen years incarceration with an eighty-five percent parole disqualification period on the aggravated assault conviction, with shorter concurrent sentences on the remaining convictions. Fogler appealed both the conviction and the sentence.

We affirmed as to both. State v. Fogler, No. A-6451-01 (App. Div. October 6, 2003). We rejected Fogler's claim that his trial attorney was ineffective because had he abandoned the alibi defense.

[Fogler] claims that he suffered from ineffective assistance of counsel because counsel failed to object to such "other crime" evidence and improvidently abandoned an alibi defense, which placed defendant "at approximately the time of the shooting" at his grandmother's home. . . .

 

We add only the following brief comments regarding defendant's argument that counsel was ineffective for failing to present the alibi defense. Preliminarily, we note that the evidence against defendant was strong and included McKenzie's testimony that defendant, with whom he was familiar for about eleven years, shot him at close range. During trial, defendant agreed with counsel to abandon the alibi and not proceed with a defense after a co-defendant agreed to testify against him in the State's rebuttal case. On appeal, defendant fails to specify any details of how the potential alibi testimony by his grandmother, mother, and sister would have counteracted the proposed rebuttal evidence. State v. Gonzalez, 223 N.J. Super. 377, 393 (App. Div.), certif. denied, 11 N.J. 589 (1988) (rejecting ineffective assistance of counsel claim where "evidence against [defendant] was strong" in that co-defendants testified against him, and any alibi testimony from defendant's mother "could scarcely be deemed disinterested [and] would not have elevated this case to one having a reasonable probability of a different result."). Consequently, Strickland v. Washington, 466 U.S. 688, 685-86, 104 S. Ct. 2052, 2062-63, 81 L. Ed. 2d 674, 692 (1984) and State v. Fritz, 105 N.J. 42, 58 (1987) compel affirmance.

 

[Slip op. at 2-4 (footnote omitted).]

 

The Supreme Court denied certification. State v. Fogler, 180 N.J. 152 (2004).

B.

Acting pro se, Fogler filed a petition for PCR.1 The petition was supplemented in July 2008 by the public defender, who included recent interview reports concerning the proposed alibi witnesses. The thrust of Fogler's application was that he had been denied the effective assistance of counsel because trial counsel failed to interview or call any of his alibi witnesses, who would have testified that he was at a family dinner at the time of the shooting. He sought an evidentiary hearing to resolve his claim of ineffective assistance.

Following oral argument on April 17, 2009, the PCR judge delivered an oral opinion denying Fogler's request for an evidentiary hearing and dismissing his PCR petition. After noting that Fogler had specifically waived the testimony of the alibi witnesses on the record at the trial, the judge analyzed the issues presented in the petition under both prongs of the test for ineffective assistance of counsel set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). He concluded that Fogler failed to make out a prima facie case of ineffective assistance. Based upon that conclusion, he determined that an evidentiary hearing was not required, citing State v. Preciose, 129 N.J. 451, 459 (1992). He dismissed the petition. This appeal followed.

II.

Fogler raises the following issues on appeal:

POINT I: THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING THE DEFENDANT AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION THAT HE FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION COUNSEL AT THE TRIAL LEVEL.

 

A. THE PREVAILING LEGAL PRINCIPLES REGARDING CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL, EVIDENTIARY HEARINGS AND PETITIONS FOR POST CONVICTION RELIEF.

 

B. SINCE THE DEFENDANT PRESENTED A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL, THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF IN ITS ENTIRETY WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS THIS CONTENTION.

 

POINT II: THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WAS BASED UPON A LEGAL ISSUE NOT PREVIOUSLY RAISED AND ADJUDICATED, RENDERING RULE 3:22-5 INAPPLICABLE, THUS PERMITTING THE ISSUE TO BE PROPERLY ADDRESSED ON A SUBSTANTIVE BASIS.

 

In a Pro Se Supplemental Brief, Fogler raised two additional issues:

Point I: The trial Court violated defendant's rights by not properly contacting witnesses at trial level.

 

A. The prevailing legal principles regarding claims of ineffective assistance of counsel.

 

Point II: The trial Court violated defendant's rights by not properly issuing subpoena or entire memorandum to eyewitness at trial level.

 

A. Motions Regarding Subpoena.

 

A.

"Post-conviction relief is New Jersey's analogue to the federal writ of habeas corpus." Preciose, supra, 129 N.J. at 459. 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, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. 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 trial 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.

Fogler's primary contention on appeal is that the PCR judge should have held an evidentiary hearing based upon his assertion that his trial counsel failed to interview the proposed witnesses and that, if trial counsel had done so and then presented their testimony, he would have been acquitted. We disagree.

Fogler's trial counsel had given notice of the proposed alibi defense, as required by Rule 3:12-2(a). The notice stated that "[o]n September 23, 1999, at approximately the time of the shooting alleged . . . [he] was at . . . the home of [his] grandmother, mother and sister." He listed five potential witnesses. The factual assertion in trial counsel s notice of alibi is fully consistent with the substance of the proposed testimony outlined in the witness statements submitted to the PCR judge.2 Consequently, even if trial counsel had not actually interviewed the proposed alibi witnesses as Fogler asserts, he knew the substance of their proposed testimony at the time he filed the notice and at trial.

After the charges against McDougald had been dismissed and he had been given use immunity, Fogler and trial counsel had essentially two options: (1) presenting the alibi defense through testimony by Fogler's relatives and then having McDougald testify that Fogler was the shooter, or (2) dropping the alibi defense and relying on the testimony of the one witness who testified that Fogler was not involved in the shooting. That they jointly decided to forgo the alibi defense was a strategic decision. Fogler represented to the trial judge at the time that he had consulted with his defense attorney and that he made the decision.

The implementation of a failed trial strategy does not generally satisfy the first prong of the Strickland test. Because of the strong presumption that counsel was acting effectively, an attorney's strategy at trial is not generally second-guessed. See State v. Gary, 229 N.J. Super. 102, 115-16 (App. Div. 1988).

Even assuming that the decision not to pursue the alibi defense amounted to ineffective representation, satisfying the first Strickland prong, Fogler has failed to present a prima facie case that, but for counsel's ineffectiveness, the outcome of the trial would probably have been different. As the Supreme Court held in State v. Allegro, 193 N.J. 352, 367 (2008) (quoting State v. Castagna, 187 N.J. 293, 315 (2006)), it "is an exacting standard: '[t]he error committed must be so serious as to undermine the court's confidence in the jury's verdict or the result reached.'"

We cannot conclude that the testimony of Fogler's relatives that he was at a family dinner would "probably" have caused the jury to acquit Fogler in light of the contrary testimony already given by McKenzie and Thompson, which would have been enhanced by McDougald's rebuttal testimony. See State v. Gonzalez, 223 N.J. Super. 377, 393 (App. Div.), certif. denied, 111 N.J. 589 (1988) (observing that, in light of strong evidence of guilt, "the added alibi testimony of [defendant's] mother, who could scarcely be deemed disinterested, would not have elevated his case to one having a reasonable probability of a different result.").

Finally, as the State points out, the issue of ineffective assistance of counsel with respect to the alibi witnesses was raised in Fogler's direct appeal and rejected in our earlier decision. Rule 3:22-5 precludes the raising of an issue in the context of PCR when it has already been adjudicated on the merits on a direct appeal. Contrary to Fogler's argument, the issue raised in his PCR petition was essentially the same issue raised on the direct appeal.

Having reviewed the arguments raised in Fogler's pro se supplemental brief 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).

Affirmed.

1 The petition is not contained in either party's appendix.

2 Following the denial of the petition, Fogler's attorney submitted certifications from several of the proposed alibi witnesses. Those documents are not properly before us because they were not part of the record in the trial court, Rule 2:5-4, however, we note that they reflect similar proposed testimony.