STATE OF NEW JERSEY v. ALFRED R. BISHOP

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0358-09T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

vs.

ALFRED R. BISHOP,

Defendant-Appellant.

__________________________________

January 3, 2011

 

Submitted: November 10, 2010 - Decided:

 

Before Judges Cuff and Fisher.

 

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 04-09-1827; Accusation No. 05-06-1364.

 

Yvonne Smith Segars, Public Defender, attorney for appellant (Michael Confusione, Designated Counsel, of counsel and on the brief).

 

Theodore F.L. Housel, Atlantic County Prosecutor, attorney for respondent (Jack J. Lipari, Assistant County Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Alfred R. Bishop appeals from the denial of his petition for post-conviction relief (PCR). He is serving a twenty-four year term of imprisonment subject to a No Early Release Act1 85% parole ineligibility term for aggravated manslaughter, terroristic threats, and unlawful possession of a weapon (a handgun), and a consecutive three-year term for possession of a controlled dangerous substance (CDS). His aggregate term is twenty-seven years imprisonment; twenty years, four months and twenty-four days to be served without parole.2

Between 2004 and early 2005, the State charged defendant with criminal offenses twice. First, the State charged defendant with possession of a CDS (cocaine), contrary to N.J.S.A. 2C:35-10a(1); and third degree possession of cocaine with intent to distribute, contrary to N.J.S.A. 2C:35-5a(1) and -5b(3). Both were third degree offenses. Defendant pled guilty to third degree possession of cocaine in exchange for a recommendation that he receive long-term in-patient drug rehabilitation.

In 2005, defendant pled guilty to all charges in an accusation: aggravated manslaughter, contrary to N.J.S.A. 2C:11-4a; terroristic threats, contrary to N.J.S.A. 2C:12-3a; and unlawful possession of a handgun, N.J.S.A. 2C:39-5b. The events giving rise to this accusation occurred on March 29, 2005.

On March 29, 2005, defendant was involved in three episodes that form the basis for the charges in the accusation. At that time, defendant had pled guilty to the 2004 CDS indictment but remained free on bail pending sentence. At 2:30 p.m., Shaquanna Smith was walking with her thirteen year old sister in Atlantic City. Smith's sister noticed defendant in the backyard of a house and informed Smith that defendant often followed her as she walked home from school. Defendant saw them and called out to Smith's sister to come and talk to him. Smith informed him his sister would not do so. In response, defendant began to follow the young women. Smith informed defendant again to leave her sister alone. Defendant replied he "[could] mess with whoever he want to," and pulled a gun from his pocket. The girls continued to walk, defendant lowered the weapon, and the encounter ended.

Later that day, defendant approached Kaneisha Oglesby and her two cousins on the same block. Defendant was riding his bike. Holding a gun in his hand, he directed the three girls to get on the ground. Defendant shot the gun in the air and rode to the back of a house.

Finally, just before midnight, defendant arrived at a house where a girl he knew lived with her sisters. Another teenage girl, Elisa Hernandez, was visiting at that time. During this visit, defendant shot Hernandez in the face. She died that evening. There are different versions of the events leading up to the shooting.

Defendant admitted he shot the victim. According to him, the victim asked him to show her how to use his gun. Standing close enough to the victim that he could touch her, defendant showed her how to handle the hammer and the trigger without firing the gun. The second time he demonstrated the manipulation of the hammer and trigger, the gun fired and a bullet hit the victim in the eye.

A young woman present that evening offered a different version of events. Jessica Navarro stated that the victim arrived at the house and took one of defendant's cigarettes. He became angry, pulled out his gun, and told the victim to kiss him. As the victim tried to move defendant's hand, "[defendant] clicked the trigger back and shot her." According to this statement, the gun was only a foot from the victim's face.

The pre-sentence report contained the discharge summaries following two mental health admissions in 2003 and 2004. The September 3, 2004 discharge summary reports that defendant felt suicidal after an argument with his girlfriend. The summary also reports "[h]e was out of control during screening." Following a ten-day hospitalization, defendant was discharged with a diagnosis of "[b]ipolar manic" accompanied by marijuana and cocaine abuse. Defendant had also been hospitalized in August 2003. The discharge summary reported that he was "very suspicious, agitated, anxious, preoccupied with paranoia ideas. The patient has some suicidal idea and also the patient has command auditory hallucinations. . . ." On discharge, defendant carried a diagnosis of "[p]sychotic disorder not otherwise specified" and marijuana abuse.

On appeal, defendant raises the following argument:

The Court should reverse the denial of defendant's petition for post-conviction relief and remand this matter for an evidentiary hearing on defendant's claims.

 

1. Defendant established at least a prima facie case of ineffective assistance of counsel.

 

2. At the very least, the trial court erred in rejecting defendant's ineffective assistance claims without conducting an evidentiary hearing.

 

Pursuant to the Sixth Amendment of the United States Constitution, every criminal defendant is guaranteed assistance of counsel. Strickland v. Washington, 466 U.S. 668, 685, 104 S. Ct. 2052, 2063, 80 L. Ed. 2d 674, 692 (1984). Whether "retained or appointed," such counsel must "ensure that the trial is fair"; therefore, "'the right to counsel is the right to the effective assistance of counsel.'" Id. at 685-86, 104 S. Ct. at 2063, 80 L. Ed. 2d at 692 (quoting McMann v. Richardson, 397 U.S. 759, 771 n.14, 90 S. Ct. 1441, 1449 n.14, 25 L. Ed. 2d 763, 773 n.14 (1970)). The New Jersey Constitution extends the same right to counsel. N.J. Const. art. I, 10; State v. Fritz, 105 N.J. 42, 58 (1987).

In order to establish a prima facie case of ineffective assistance of counsel, defendant must demonstrate a reasonable likelihood of succeeding under the two-prong test established by Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. State v. Goodwin, 173 N.J. 583, 596 (2002). First, defendant must show that defense counsel's performance was indeed deficient. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Second, defendant must demonstrate that there exists 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 precepts of Strickland and its tests have been adopted by New Jersey. Fritz, supra, 105 N.J. at 58.

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 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694. Further, because prejudice is not presumed, Fritz, supra, 105 N.J. at 61, 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).

An evidentiary hearing is required only when the facts viewed in the light most favorable to the defendant would entitle defendant to post-conviction relief. State v. Marshall, 148 N.J. 89, 158, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). The Supreme Court has noted that there is a "pragmatic dimension" to this inquiry. Ibid. It stated:

If the court perceives that holding an evidentiary hearing will not aid the court's analysis of whether the defendant is entitled to post-conviction relief, or that the defendant's allegations are too vague, conclusory, or speculative to warrant an evidentiary hearing, then an evidentiary hearing need not be granted.

 

[Ibid. (citations omitted).]

 

The PCR judge dismissed the petition without an evidentiary hearing. Having reviewed the record in its entirety in light of the issues presented by defendant, we are satisfied that the PCR judge properly dismissed most of the claims raised by defendant. For example, defendant argues that his trial counsel failed to file a motion to suppress a statement given to police and to ensure that he understood the consequences of his guilty plea. Yet, our review of the transcript of the plea proceeding demonstrates that defendant was fully informed of the consequences of his plea. Moreover, defendant failed to provide to this court or to the PCR judge a copy of the statement that he now believes should have been suppressed. The record also reveals defendant had been informed that his family had retained an attorney to represent him before he made any statement to police.

On the other hand, defendant asserts that defense counsel did not consult with him about his mental state at the time of the shooting and such consultation would have allowed them to fashion an appropriate defense to the aggravated manslaughter charge. To be sure, the record contains no more than two discharge summaries from 2003 and 2004. The last admission occurred six months before the March 2005 shooting. There is nothing in the record to link defendant's behavior on March 29, 2005, to the mental health problems which required a ten-day hospitalization in August-September 2004. Yet, defendant's behavior throughout the day of March 29 was known to defense counsel and can only be described as troublesome.

Defendant's conduct in the three encounters with young women throughout the day was characterized by aggressive and threatening behavior. In each instance, he displayed a gun. His troublesome behavior escalated from simply following two young women with a gun drawn to shooting a gun in the air to the final act of demonstrating the action of a gun in very close proximity to the victim. The need to investigate defendant's mental state seems eminently reasonable and obvious. Although PCR counsel has not provided evidence that supports a prima facie claim that defense counsel may have been able to fashion a defense or procure a more favorable plea agreement had he investigated defendant's mental state on that day, the mere recitation of the events of the day raise serious questions that prevent summary dismissal of this claim.

We, therefore, remand for an evidentiary hearing on defendant's claim that defense counsel provided ineffective assistance of counsel because he failed to consult with an expert concerning defendant's mental health. We affirm the order dismissing the PCR petition on all other claims, including the failure to communicate with defendant, failure to file appropriate motions, and failure to insure defendant understood the consequences of his plea.

Affirmed in part; remanded for an evidentiary hearing consistent with the terms of this opinion. We do not retain jurisdiction.

1 N.J.S.A. 2C:43-7.2.

2 This court affirmed defendant's sentence by order dated May 31, 2007; the Supreme Court denied certification, 194 N.J. 271 (2008).