STATE OF NEW JERSEY v. MICHAEL BARCALOW

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1095-09T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MICHAEL BARCALOW,

Defendant-Appellant.

___________________________________

March 7, 2011

Submitted January 19, 2011 - Decided

Before Judges Wefing and Baxter.

On appeal from Superior Court of New Jersey,

Law Division, Ocean County, Indictment No.

05-04-0516.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Philip Lago, Designated Counsel,

on the brief).

Marlene Lynch Ford, Ocean County Prosecutor,

attorney for respondent (Samuel Marzarella,

Supervising Assistant Prosecutor, of counsel

and on the brief).

PER CURIAM

Defendant appeals from a trial court order denying his petition for post-conviction relief. After reviewing the record in light of the contentions advanced on appeal, we reverse and remand for further proceedings.

A jury convicted defendant of four counts of fourth-degree contempt for violating a domestic violence restraining order, N.J.S.A. 2C:29-9b and two counts of third-degree stalking, N.J.S.A. 2C:12-10b.1 In light of his prior record, defendant was subject to an extended-term sentence, N.J.S.A. 2C:44-3; and the trial court granted the State's motion to sentence defendant accordingly. The trial court sentenced defendant to ten years in prison, with a five-year period of parole ineligibility on one of the stalking convictions and a concurrent five-year term, with two and one-half years of parole ineligibility, on the second stalking conviction. For each of the remaining counts the trial court sentenced defendant to eighteen months in prison, with a nine-month period of parole ineligibility; it directed that these be served concurrently with one another but consecutively to the sentence for stalking. Defendant's aggregate sentence was thus eleven and one-half years in prison, with a five-and-three-quarter-year period of parole ineligibility. Defendant appealed his convictions and sentence, and we affirmed his convictions but remanded for resentencing in light of State v. Natale, 184 N.J. 458 (2005), and State v. Pierce, 188 N.J. 155 (2006). State v. Barcalow, No. A-2635-05 (App. Div. July 2, 2007). At that resentencing, the trial court imposed the identical terms as it had originally. The Supreme Court denied defendant's petition for certification. State v. Barcalow, 192 N.J. 482 (2007).

Defendant thereafter filed a timely petition for post-conviction relief, asserting that he had been deprived of the effective assistance of counsel. Counsel was assigned to represent defendant in connection with this petition. After hearing oral argument, the trial court denied relief without conducting an evidentiary hearing. This appeal followed.

The charges against defendant were based upon his conduct toward his former wife and her new boyfriend. Defendant and his former wife were married in 2001 and divorced in 2003. Shortly after their marriage, he was imprisoned on unrelated charges, and the divorce occurred while he was in custody. As part of the divorce proceedings, she retained the marital residence. She then formed a new relationship and had a child with that man.

Defendant was released on parole in April 2004. Shortly after his release, he began a series of visits and telephone calls to her, all of which were unwelcome and disturbing and which she perceived as threatening. She eventually obtained a final restraining order against defendant, but that did not deter him. At one point, someone put sugar in the gas tank of her vehicle; she attributed this to defendant because she had observed him standing near her car shortly before the vandalism occurred. Defendant presented the testimony of his mother, sister and niece to counter the allegations against him. By its verdict, the jury rejected their testimony.

Defendant presents the following arguments on appeal:

POINT I THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL

A. Trial counsel failed to investigate and call to trial an alibi witness, Goldman. Moreover, Goldman's testimony is newly discovered evidence which warrants a new trial.

B. Trial counsel failed to file a motion to set aside the verdict as against the weight of the evidence since the verdict was a result of uncorroborated victim testimony

C. Trial counsel failed to file a motion to suppress false evidence and the victim's perjured testimony.

D. Trial counsel failed to consult with defendant in a meaningful manner.

E. Trial counsel failed to advise the court that defendant had elected to represent himself at trial.

F. Trial counsel failed to file a motion for a change of venue.

POINT II THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE CUMULATIVE ERRORS RENDERED THE TRIAL UNFAIR AND COUNSEL INEFFECTIVE

POINT III THE LOWER COURT ORDER MUST BE REVERSED IN LIGHT OF ADDITIONAL ERRORS

POINT IV THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT'S CLAIMS ARE NOT PROCEDURALLY BARRED UNDER R. 3:22-5

POINT V THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT'S CLAIMS ARE NOT PROCEDURALLY BARRED UNDER R. 3:22-4

POINT VI THE LOWER COURT ERRED IN NOT GRANTING DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING AND THE LOWER COURT ORDER MUST THEREFORE BE REVERSED

We note first the standards which govern our analysis of the legal questions presented. The principles that underlie a defendant's assertion that he is entitled to relief because his attorney was ineffective in representing him are well-known. A defendant charged with a criminal violation is entitled to the effective assistance of counsel. To prevail on a claim that the attorney who represented him was ineffective, a defendant must not only overcome a presumption that defense counsel's "conduct falls within the wide range of reasonable professional assistance," Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 2065, 80 L. Ed. 2d 674, 694 (1984), but the defendant must also establish that the performance of his attorney was "deficient" and that "the deficient performance prejudiced the defense." Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. A defendant alleging ineffective assistance of counsel must establish that his "counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Id. at 686, 104 S. Ct. at 2064, 80 L. Ed. 2d at 692-93. New Jersey has explicitly adopted this two-pronged standard. State v. Fritz, 105 N.J. 42, 60 (1987).

We turn now to defendant's specific allegations that the performance of his trial attorney was ineffective when measured by these principles. Defendant submitted as part of his petition to the trial court a "certification" from Nicholas Goldman, who stated that he had expected to be called to testify as a witness at defendant's trial but never was.2 His testimony was directed to events which occurred on the evening of August 5, 2004. Defendant's former wife testified that he had called her twice during the day and that she had reported the calls to the police. He called again at approximately 10:30 that evening and recounted how he had had her under observation for a period of time and knew that her boyfriend was not home. Her boyfriend happened to call; she managed to keep defendant on the phone and answered that call, telling him quietly to call the police. When they arrived, they canvassed the neighborhood but could not find him. While they were still there, he called back and told her that he had told her not to call the police. He then called back several hours later and said she could relax because he had left the area. Goldman's statement recites simply that he had been with defendant's sister during the day, and defendant came over in the evening with his girlfriend to his sister's house to watch a movie.

We note that during defendant's trial, his sister and his niece testified to that scenario. Even if Goldman had testified, his testimony would only have been cumulative. This contention fails to satisfy the second prong of the Strickland/Fritz test.

In addition, there is no merit to defendant's claim that this statement should in some manner be newly considered evidence, entitling him to a new trial.

To meet the standard for a new trial based on newly discovered evidence, defendant must show that the evidence is 1) material, and not "merely" cumulative, impeaching or contradictory; 2) that the evidence was discovered after completion of the trial and was "not discoverable by reasonable diligence beforehand"; and 3) that the evidence "would probably change the jury's verdict if a new trial were granted."

[State v. Ways, 180 N.J. 171, 187 (2004) (quoting State v. Carter, 85 N.J. 300, 314 (1981)).]

We find no substantive merit to defendant's second claim of ineffective assistance - the failure of his trial attorney to move to set aside the verdict as against the weight of the evidence. He rests this contention upon his assertion that his former wife lied during her testimony, and the jury could not have found her credible. The jury, however, heard and observed all the witnesses; the credibility of each was wholly within its province. R. 2:11-3(e)(2).

Defendant's third claim involves his contention that a power of attorney his former wife used to collect certain workers' compensation benefits defendant believed were due to him was, in fact, a forgery. There is no support in the record for this beyond defendant's bare assertion. The trial court correctly rejected it.

Defendant also argues that his attorney did not consult with him in advance of trial in a "meaningful" way. We concur in the trial court's conclusion that defendant has failed to demonstrate what was left undone and how further efforts might have led to a different result.

Defendant's next argument is that his attorney was ineffective for not advising the trial court before the trial got underway that defendant wished to represent himself. Defendant did make such a statement to the trial court at his sentencing, where he expressed his displeasure at his trial attorney. The issue is therefore not properly one to be raised in a petition for post-conviction relief because it could have been raised on direct appeal, and it was not. R. 3:22-4(a)(1).

Defendant's final specific allegation of ineffective assistance is his contention that he asked his trial attorney to file a motion for what he characterizes as a change of venue. We interpret defendant's papers to refer not to a change of venue but, rather, to have his matter tried before someone other than the judge who handled it. Defendant said that he requested his attorney to raise the issue because the trial judge's secretary was a close friend to his former wife and, in fact, had been a bridesmaid at their wedding.

The judge who handled defendant's petition for post-conviction relief, and who was not the judge who presided at defendant's trial, referred to this as a "bald assertion" We are unable to agree with this characterization in light of the fact that defendant certified to the truth of the statement. The post-conviction judge also noted that defendant had not supplied any case law or rule which would call for recusal in such a situation. The post-conviction judge also referred to this as a "tenuous connection." Although we agree that Rule 1:12-1 does not contain a specific prohibition against such an instance, we are unable to dismiss the assertion out of hand. We cannot judge the truth of the contention from the papers alone and neither do we have any knowledge about the nature of the relationship which existed between the trial judge and his secretary if, in fact, defendant's assertion is true. We are, however, aware that in many instances such a close working relationship, which is one of confidence and trust, can naturally lead to discussion of the work at hand. If defendant's assertion is true, it would not be unexpected that the victim's friend, the judge's secretary, would express her opinions, both about the victim and defendant. We have no way of knowing whether such occurred and, if it did, what impact if any it may have had upon the proceedings. If such occurred, the question whether that could "reasonably lead counsel or the parties" to think that a "fair and unbiased hearing" was precluded must be addressed. R. 1:12-1.

We are satisfied that this aspect of the matter must be remanded for further proceedings; by doing so, we in no way should be understood as expressing an opinion on the ultimate merits of the assertion. Rather, we are simply satisfied that it could not summarily be disposed of on the basis of the papers that had been submitted.

We have reviewed defendant's additional assertions of error; we are satisfied they do not contain sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

The order under review is reversed, and the matter is remanded to the trial court for further proceedings in accordance with this opinion.

Reversed and remanded.

1 The convictions for harassment and stalking were both raised one degree because the offenses were committed while defendant was on parole. N.J.S.A. 2C:33-4e; N.J.S.A. 2C:12-10e.

2 Although defendant referred to this and the other supporting statements as certifications, other than his own, they were not. They did not contain a statement that the signer was certifying the truth of the contents of the document and was aware he was subject to punishment if any of the statements were willfully false. R. 1:4-4. Rather, the statements simply contained a notary's signature and stamp. Defendant, however, did certify to the truth of the statements he made in support of his petition.