STATE OF NEW JERSEY v. CHARLES MINCEY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1029-09T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CHARLES MINCEY,

Defendant-Appellant.

_________________________________

January 6, 2011

Submitted December 15, 2010 - Decided

Before Judges Lihotz and J. N. Harris.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 01-12-2455.

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 Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Charles Mincey appeals from the denial of his application for post-conviction relief (PCR). We remand for an evidentiary hearing.

I.

In May 2004, defendant went to trial putting the State to its proofs as to the identity of the shooter in connection with a fifteen-count indictment that charged him with the murder of Fritz Charlestin, felony murder, attempted murder of Steve Lemus, robbery, conspiracy, and unlawful possession of a weapon, among other things.1 After jury selection and two days of trial testimony from several witnesses, the State and defendant negotiated a plea arrangement by which defendant would plead guilty to first-degree aggravated manslaughter, N.J.S.A. 2C:11-4 (count five, as amended), and second-degree aggravated assault (count seven, as amended), N.J.S.A. 2C:12-1(b)(1). The balance of the indictment was to be dismissed.

In exchange for the guilty plea to the two charges, the State promised to recommend a maximum aggregate sentence of twenty-five years imprisonment, subject to the provisions of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The Law Division imposed the recommended sentence, and dismissed the remaining counts of the indictment. Defendant appealed his sentence only, which we reviewed and did not disturb. State v. Mincey, No. A-3989-04T4 (App. Div. Feb. 7, 2006).

In June 2007, defendant filed a pro se PCR application. In it, he argued that he was entitled to a new trial because of newly-discovered evidence in the form of three exculpatory affidavits he had collected from (1) codefendant Reed (stating, "[defendant] had nothing to do with the robbery or shooting of Fritz Charlestin. He did not help me in any way."), (2) Michael Charlestin (the victim's brother), and (3) Karl Michael Thomas (a friend of the victim). The affidavits, although containing hearsay, cast doubt on defendant's involvement in the crimes to which he had, three years earlier, pled guilty. In a December 2007 affidavit, defendant further asserted that he was coerced by his defense attorney into pleading guilty "despite my innocence" solely "to avoid a life sentence in prison." Defendant's affidavit provided no details concerning his putative innocence other than to proclaim it.

In March 2009, defendant's PCR counsel submitted a brief to the Law Division where it was argued that defendant's constitutional right to the effective assistance of counsel was abridged. The primary thrust of this contention was that defense counsel had conducted a deficient investigation before trial (and before counseling defendant to plead guilty) by failing to interview and obtain a statement from codefendant Reed, and neglecting to obtain the information known by others concerning defendant's conduct at the time of the shooting. In addition, defense counsel was faulted for making "material inaccurate representations" concerning defendant's likely conviction by the jury and the potential penal consequences of such conviction, including a life sentence. The brief also argued that defendant's sentence was illegal because "the court failed to give proper weight to the defendant having no prior indictable convictions when imposing sentence." Lastly, PCR counsel's brief suggested further ineffective assistance of counsel insofar as defense counsel "would not let defendant explain in his own words what occurred when providing the factual basis for the plea agreement" and "refused to allow the defendant to read a letter at sentencing which would have shown remorse."

The Law Division considered the PCR application on June 25, 2009. The PCR judge was the same judge who oversaw the truncated trial, accepted the guilty plea, and sentenced defendant. After considering the submissions of the parties and oral argument by counsel, the judge denied the application in an oral opinion without conducting an evidentiary hearing. In commenting upon codefendant Reed's affidavit, the judge stated:

Reed's exculpatory statement could have been elicited prior to the plea and prior to sentencing. If [defendant] were granted a new trial, Reed's statement would likely change the outcome. However, there was no jury verdict here. The [defendant] pled guilty and provided a more than adequate factual basis for the plea.

This appeal followed.

II.

A.

Because there was no evidentiary hearing and only a limited trial record, we have gleaned the material facts from the defendant's plea allocution and sentencing, codefendant Reed's plea allocution and sentencing,2 the abbreviated trial proceedings, and other competent evidence contained in the record.

In the early morning of July 8, 2001, defendant, then nineteen years of age, was a passenger in a crowded taxi van with several other individuals who were being transported into Atlantic City. Among the passengers were seventeen-year old codefendant Reed, Fritz Charlestin, Steve Lemus, and the taxi van driver Christopher Soyer.

When the taxi van arrived at a parking lot adjacent to the Jacob's Terrace apartments an armed robbery ensued. Although first directed at Soyer, the robbery quickly escalated to involve the remaining passengers. Defendant's plea allocution revealed that he had brandished a firearm, pointed it in the direction of Charlestin and Lemus, and fired the weapon several times. Although Lemus escaped unscathed, Charlestin did not fare as well. He suffered fatal gunshot wounds, and ultimately perished at the Atlantic City Medical Center three days later.

Codefendant Reed entered a plea of guilty approximately two months before the start of defendant's trial.3 As part of Reed's plea allocution he also admitted to wielding a firearm, largely to frighten Soyer while defendant rummaged for the driver's cash and belongings. Then, Reed testified that he handed the firearm to defendant and left the taxi van.

Codefendant Reed was not sentenced until June 4, 2004, several days after the conclusion of defendant's abridged trial. Although he had been called as a witness at trial, he provided no testimonial evidence. Instead, with the permission of the court, the State simply asked him to stand next to defendant so that the jury could observe their physical attributes, side by side. Other than taking the oath and acknowledging that he was Howard Reed, he did not utter a word to the jury, and there was no cross-examination by defense counsel.4

B.

In support of his PCR application, defendant presented three affidavits. The first one dated two years after defendant's sentencing was signed by Reed, and stated in full the following:

Charles Mincey had nothing to do with the robbery or shooting of Fritz Charlestin. He did not help me in any way. He was there and I believe that's why he was picked in the line up. I could not say anything about the truth because I did not want to get myself any more time.

The second affidavit -- dated on March 27, 2007, and signed by the decedent's brother Michael Charlestin -- indicated that in June 2006 the affiant had a conversation with Soyer about the death of Fritz Charlestin. Soyer was reported telling Michael Charlestin that "somebody had to pay for what they did." Because defendant was present in the taxi van, Soyer identified defendant's picture as the assailant since "he did not want them [sic] to get away with killing my brother." Soyer supposedly further stated that defendant "was not one of the people who robbed them or shot [Fritz Charlestin]."

The last affidavit, dated January 23, 2007, was attributed to Karl Michael Thomas. Thomas reported having met Soyer "at a strip club in Atlantic City in August of 2005," where Soyer expressed remorse for accusing defendant of the crime. Soyer allegedly claimed that even though defendant did not commit the crime, "because [Soyer] actually wanted them to get the guy who shot Fritz, he was hoping that if they got [defendant] on something he would identify the shooter."

III.

Before addressing defendant's particularized claims, we observe the following principles of law that govern our review. Since defendant mostly claims that he was denied the effective assistance of counsel, we reiterate the Strickland/Fritz5 paradigm that is applicable in such cases.

To establish a case of ineffective assistance of counsel, a defendant must satisfy two prongs. First, a defendant must show that counsel was actually deficient. Second, he must show that there exists "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984); State v. Taccetta, 200 N.J. 183, 193 (2009).

The Law Division must grant a defendant an evidentiary hearing on a claim of ineffective assistance of counsel upon presentation of a prima facie case by a defendant. State v. Marshall, 148 N.J. 89, 157-58, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997); State v. Preciose, 129 N.J. 451, 462 (1992); State v. Norman, 405 N.J. Super. 149, 162 (App. Div. 2009).

When evaluating whether a defendant has presented a prima facie case, the PCR court "should view the facts in the light most favorable to a defendant." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). If, under this inquiry, the PCR court determines that the defendant could possibly be entitled to relief, the defendant is entitled to an evidentiary hearing unless "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." Marshall, supra, 148 N.J. at 158 (internal citations omitted); State v. Ball, 381 N.J. Super. 545, 558 (App. Div. 2005).

Defendant argues that he presented a prima facie case because his defense counsel not only failed to investigate what codefendant Reed knew, but also neglected to extract his concessions in 2004, which would have influenced defendant's decision to plead guilty. Of course, Reed's post-plea 2006 statement completely contradicted what both he and defendant had said during their independent plea allocutions two years earlier. It also conflicted with the testimony that was adduced during defendant's trial that never went to verdict.

In denying defendant's application, the PCR court relied upon State v. Allen, 398 N.J. Super. 247 (App. Div. 2008), for the proposition that "post conviction statements of persons who did not testify at trial, particularly when serving time at the same institution as the defendant are inherently suspect." Id. at 258 (internal quotations omitted). In commenting upon codefendant Reed's affidavit, the PCR court continued:

You don't have to be a rocket scientist to see what is going on here. The statement does not appear to be credible. Especially in the face of the police investigation, the testimony that was adduced at trial and most importantly the [d]efendant's own admission at the time of his plea.

If this observation had been made at the conclusion of an evidentiary hearing, we would have little reason to question the findings of the Law Division. But therein lies the problem; there never was an evidentiary hearing.

Allen, upon which the Law Division relied, was an appeal from the denial of a PCR application. We considered several grounds of that defendant's PCR application, including ineffective assistance of trial, appellate, and PCR counsel. Id. at 250. Although we rejected most of the arguments raised, we remanded for an evidentiary hearing on the issue of an affidavit submitted post-trial from John Korman, which provided exculpatory evidence, much akin to Reed's affidavit. Korman was precluded from testifying at Mr. Allen's trial due to his then pending homicide prosecution, but in a striking coincidence, "Korman was brought into the courtroom and identified by a witness as having been with the victim on the day of the shooting." Id. at 257. Furthermore, it appears that Korman "was asked to walk past the jury box 'so the jury [could] assess his height and get a closer appearance of him' in light of questions asked of the witness." Id. at 258 n.9.

We ultimately held:

Korman's post-judgment exculpatory statements to third parties, and confirmed by affidavit, must be tested for credibility and cannot be summarily rejected. See State v. Carter, supra, 85 N.J. at 314; State v. Cummings, supra, 321 N.J. Super. at 164; R. 1:6-6. See also State v. Robinson, supra, 253 N.J. Super. at 366-67. Accordingly, we remand for an evidentiary hearing as to whether Korman's present statement warrants a new trial under the standard applicable to motions for newly discovered evidence.

[Id. at 258-59.]

We believe a similar outcome is mandated in this case, with the additional overlay of determining whether defense counsel's failure to call Reed as a witness and alleged incomplete investigation compromised defendant's decision to plead guilty, thereby further implicating Strickland/Fritz concerns.

Defendant further asserts that he was denied the effective assistance of counsel insofar as his defense counsel pressured him to plead guilty and did not allow defendant to provide an independent factual basis, which might have alerted the Law Division to defects in the plea. The PCR judge, who was well familiar with the case having supervised the prior proceedings involving both codefendant Reed and defendant, and who had presided over defendant's shortened trial, plea allocution, and sentencing noted, "[b]ased on what I've heard during the two, three days of trial testimony, quite frankly, if I were [defendant's] lawyer, I probably would have given him the same exact advice . . . if I had heard that testimony." We are unpersuaded that the PCR record warrants an evidentiary hearing on defendant's naked claim of coercion, and except as may be linked to the contents of codefendant Reed's exculpatory statement, we find no evidence of an insufficient investigation by defense counsel to warrant an evidentiary hearing on that claim.

We find that all of the other issues raised by defendant are without merit and do not warrant discussion in a written opinion. R. 2:11-3(e)(2).

In summary, we conclude that the circumstances of this case so parallel the circumstances in Allen that, as there, defendant has demonstrated a prima facie entitlement to an evidentiary hearing. We emphasize that our holding is limited to the issue of the exculpatory evidence of codefendant Reed and that which may be developed from Soyer, if any. We do not preclude the State from attempting to demonstrate that the after-the-fact revelations are not worthy of belief. In like vein, we permit the Law Division to determine whether, after the evidentiary hearing, the exculpatory evidence is credible and whether defendant is entitled to withdraw his plea due to newly discovered evidence or the ineffective assistance of counsel.

The denial of PCR is reversed, and the matter is remanded for further proceedings consistent with this opinion.

1 The same indictment also charged codefendant Howard Reed with counts one through fourteen. He is not a party to this appeal, although we have taken into account his plea allocution, which was conducted before defendant's trial began.

2 Codefendant Reed pled guilty on March 25, 2004, to count three of the indictment first-degree robbery, N.J.S.A. 2C:15-1 based upon conduct he described as occurring immediately before defendant's criminal acts. He was sentenced to ten years imprisonment, subject to the NERA, consecutive to a twelve-year sentence for an unrelated attempted murder that he committed two days after the robbery.

3 We consider this evidence because Reed's plea allocution was conducted by the same judge who oversaw defendant's trial and PCR application. During the PCR, the judge remarked, "I remember this case well."

4 At codefendant Reed's sentencing, the court mentioned anecdotal information suggesting that Reed had been the subject of threats, and had refused to testify at defendant's trial. Nonetheless, only when "he received assurances from the State through his attorney that he would only be asked his name and to stand in front of the jury for comparison purposes as to the height of [defendant], did he agree to come into court."

5 Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland test in New Jersey).