STATE OF NEW JERSEY v. ALY RICHARDSON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6016-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ALY RICHARDSON,

Defendant-Appellant.

_________________________________

December 30, 2010

Submitted: December 15, 2010 - Decided:

Before Judges Axelrad and Lihotz.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 06-04-1453.

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

Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Nancy P. Scharff, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Aly Richardson appeals from the March 27, 2009 order of the Law Division denying his petition for post-conviction relief (PCR) and request for an evidentiary hearing. Defendant alleged, in part, ineffective assistance of counsel in connection with his violation of probation (VOP). We affirm.

Camden County Accusation 06-04-1453, filed on April 19, 2006, charged defendant with third-degree attempted burglary, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:18-2. On April 19, 2006, defendant entered a guilty plea to that charge pursuant to a negotiated agreement in which the State would recommend a probationary sentence and a 180-day jail term in the County Supplemental Service Program (CSLS), Home Electronic Detention (HED) or work release program. The court accepted defendant's guilty plea as knowingly and voluntarily entered.

On August 10, 2006, Judge Thomas Brown, Jr. sentenced defendant in accordance with the negotiated plea to a term of five years probation, conditioned on serving a 180-day term in the county jail, CSLS program. Late in August 2006, defendant was purportedly injured while working in the CSLS program, specifically reporting he had been struck by the CSLS van.

On or about December 15, 2006, defendant was charged with VOP. The allegations included failure to report, failure to pay any fines, and failure "to cooperate in serving 180 days in CSLS." At the hearing on February 9, 2007, the State withdrew the third count after defendant explained he had been injured while working in the program. Defendant then pled guilty to the other two counts. Judge Brown accepted the plea and revoked probation, sentencing defendant to a three-year prison term.

Defendant appealed his sentence. We affirmed in a February 7, 2008 order following an excessive sentencing oral argument (ESOA). R. 2:9-11.

On March 14, 2008, defendant filed his PCR petition, supplemented by his counsel's letter brief. Defendant asserted ineffective assistance of VOP counsel in failing to substantiate his claims and obtain a continuance to allow him to controvert the evidence against him, as well as in failing to effectuate any defense for him after defendant informed her of his excusable non-compliance with the conditions of probation. Defendant further asserted a denial of due process in that he was never given notice of the alleged violations, and also contended the probation officer committed perjury in her summary.

In his verified petition defendant certified that while working on CSLS on or about August 17, 2006,1 he was struck on the right side by a trailer pulled by a van that was operated by a supervisor of the program and promptly sought medical attention. He presented CSLS with doctor's notes, which he attached, ordering an x-ray of his right knee, prescribing a muscle relaxer and a pain killer, and stating on August 29, 2006, that he was off work that day because of a knee contusion and limited standing. Defendant further contended his condition worsened and he was bedridden for approximately eight weeks, corroborated by an affidavit of his live-in girlfriend, and his condition did not allow him to travel from his home to Camden, presumably to report for CSLS and for probation. Defendant also represented that, in December, he could get out of bed but only for short periods of time, he had no phone, and on the one occasion when he called the probation office, he was informed his probation officer was no longer on his case and there was an outstanding warrant for his arrest.

Defendant also claimed he met his VOP counsel five minutes before the February 9, 2007 hearing, and she showed him the charged violations for the first time. Defendant conceded he admitted he did not report to probation during the months of October, November, and December, now blaming it on his inability to walk. He also conceded he had admitted he could not pay fines, now claiming his injuries impeded his ability to work as a handyman. Defendant additionally stated he signed the plea agreement because he had not been informed by VOP counsel that he could obtain reports and call and confront witnesses at a hearing.

Judge Brown expressly addressed and rejected defendant's claim of ineffective assistance of VOP counsel in failing to present that defendant was physically unable to comply with the terms of probation, which defendant contended would have favorably affected the outcome of the VOP hearing. Based on the PCR submissions and the VOP hearing transcript, the judge made the following findings:

According to the documents submitted along with the defendant's brief and furnished by the Camden County Department of Corrections, defendant alleged the incident occurred on August 23, 2006. Despite this, defendant finished his detail that day and reported to the program for the next three days. And it was after this point, however, that the defendant stopped reporting to the CSLS program. In addition, defendant failed to report to his probation officer and neglected to make payments on his fines and assessments.

. . . .

[T]hree weeks after sentencing the defendant stopped reporting for CSLS, alleged to be as a result of physical injur[ies] sustained while participating in the program. The defendant did not, however, turn himself in to the Camden County Correctional Facility to serve his jail sentence, nor contact probation to attempt to have his sentence converted to HED. Rather, he discontinued contact with both probation and the CSLS Program.

After several months of non-compliance the defendant's probation officer filed a petition for violation of probation on December 12, 2006. . . .

On February 9, 2007, the defendant appeared before this Court for his violation of probation hearing. Defendant entered a knowing and voluntary admission to counts one and two with an explanation for count three. This Court accepted the defendant's submissions to counts one and two, having made findings [of] facts and conclusions of law.

The judge further noted that defendant had not presented any "affidavits, certifications or expert reports indicating that counsel was under any obligation to present a defense." Moreover, the judge found defendant's girlfriend's affidavit would not have helped defendant at his VOP hearing as to the first and second counts. The PCR judge further found:

The probation officer indicated in the petition that the officer attempted to contact the defendant. Nothing in the affidavit indicated that the defendant was physically unable to call the probation department for alternate means of reporting.

Additionally, the defendant has presented no expert reports, such as, medical records supporting the level of injury he claims. At best, the defendant has presented a prescription . . . stating that he is off work for one day. The defendant has presented no other reports indicating he was physically unable to participate at CSLS.

Considering that the burden of proof at the VOP hearing was only a preponderance of the evidence[,] [c]ounsel was under no obligation to present the medical defense the defendant alleges. . . .

Therefore, the defendant has failed to make a prima facie case of substandard representation.

Additionally, the defendant has failed to make a prima facie case that he was prejudiced. Specifically, because the defendant has provided no expert reports from any of his doctors supporting his claim that he was physically unable to report to probation for three months, the defendant cannot make a prima facie case that he was prejudiced.

The court also found defendant failed to prove that VOP counsel committed "gross error" as the proofs against defendant were "substantial" and based on the State's low burden of proof, "counsel had little choice but to have the defendant admit to the violations then argue for a lenient sentence." Finally, based on the lack of medical evidence presented by defendant on PCR, and his failure to prove he was not medically able to call the probation department, the judge concluded that defendant failed to prove he was prejudiced by VOP's counsel's representation.

Accordingly, defendant was unable to satisfy the two-prong Strickland/Fritz test to demonstrate his claim of ineffective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984) (holding that 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 defendant's right 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 (1987) (adopting the Strickland test in New Jersey); State v. Preciose, 129 N.J. 451, 462-63 (1992) (holding that to establish a prima facie claim of ineffectiveness 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 raises the same arguments on appeal, challenging the court's ruling denying PCR relief and an evidentiary hearing regarding his claim of ineffective assistance of VOP counsel, and perfunctorily "reassert[ing] all other issues raised in post-conviction relief."

We affirm substantially for the reasons articulated by the PCR judge and discern no basis for substantial additional discussion of defendant's renewed claims. R. 2:11-3(e)(2). We note the following brief comments.

The record amply supports the court's findings. Defendant failed to assert and substantiate any deficiency by his VOP counsel and failed to establish prejudice resulting from her conduct. Following the entry of his plea at the VOP hearing, defendant provided an extensive explanation of the accident, his injuries, and the reason he did not return to the CSLS program. As a result, the State withdrew the third charge. Defendant did, however, expressly acknowledge he was entering a knowing and voluntary plea to the VOP on the two remaining charges, conceding, "I definitely did not report, you know, for a period and I knew that I was going to be arrested if I reported." He did not contest that he failed to pay the court-ordered fines and penalties and did not assert, as he later did, that his injuries affected his ability to work.

Moreover, defendant's purported physical injury, contested by the driver of the van,2 did not explain away his failure to contact probation by phone or through an intermediary such as his girlfriend, particularly in light of probation's apparent attempt to contact him and the aforementioned incident report reflecting that defendant continued working after the alleged injury. Moreover, it is significant that in his pro se brief, defendant refers to alternative methods he could have used to contact probation, including the pay phone at a nearby gas station and his neighbor's cell phone, which he used on other occasions.

We recognize that a claim of ineffective assistance of counsel based on facts outside the record must ordinarily be tested by way of an evidentiary hearing. Preciose, supra, 129 N.J. at 462; State v. Taccetta, 351 N.J. Super. 196, 201 (App. Div.), certif. denied, 174 N.J. 544 (2002). Nevertheless, it is also clear that in order to qualify for an evidentiary hearing, a defendant must present a prima facie case of remediable ineffectiveness. State v. Marshall, 148 N.J. 89, 158 (1997); State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). We are satisfied from our review of the record that defendant failed to make a prima facie showing of ineffectiveness of VOP counsel within either prong of the Strickland/Fritz test and thus an evidentiary hearing was not warranted.

1 Although defendant's PCR petition and appellate brief referenced August 17, 2006 as the date of the incident, it is clear from the record the incident occurred on August 23, 2006.

2 According to the incident report, the van driver stated she did not have any knowledge of hitting anyone with the trailer. An inmate reported that the driver immediately stopped the van, which had been coasting forward, when another inmate noticed defendant was standing behind the van and yelled to her. The report further states that defendant got back into the van and continued to work after each work detail stop, reporting to the program the following day, August 24, 2006, as well as August 25 and August 28, 2006. Moreover, "[e]ach officer that supervised [defendant] stated he did not complain of any pain or inform them of any incident."