STATE OF NEW JERSEY v. JOHNNIE PARKER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5270-08T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOHNNIE PARKER,

Defendant-Appellant.

_______________________________

January 25, 2011

Submitted: January 12, 2011 - Decided:

Before Judges Axelrad and J. N. Harris.

On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Camden County, Indictment No. 03-06-2278.

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).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant Johnnie Parker appeals from the October 15, 2008 order of the Law Division denying his first petition for post-conviction relief (PCR) without oral argument or an evidentiary hearing. He alleged ineffective assistance of trial counsel in pretrial investigation and representation and at sentencing. We affirm.

In December 2002, defendant, then seventeen years of age, was charged with the murder of Demetreas Fletcher. By order of March 24, 2003, the court granted the State's waiver motion and transferred the matter to the Law Division for prosecution as an adult. N.J.S.A. 2A:4A-26. The Camden County Grand Jury charged defendant and his co-defendant, Tremain Paige, in June 2003 under Indictment No. 03-06-2278 with committing the following offenses: murder, conspiracy to commit murder, two weapons offenses, hindering apprehension or prosecution, tampering with or fabricating physical evidence, and endangering an injured victim. Pursuant to a negotiated agreement, defendant pled guilty on October 6, 2003, to first-degree aggravated manslaughter, N.J.S.A. 2C:11-4a(1), downgraded from murder.

On November 21, 2003, the court sentenced defendant pursuant to the plea arrangement to twenty-five years imprisonment subject to the No Early Release Act, N.J.S.A. 2C:43-7.2. Defendant did not file a direct appeal.

In October 2007, defendant filed this PCR petition, which was denied by the Law Division judge on the papers in an October 15, 2008 written opinion and order of that date. In a pro se submission and that of PCR counsel, defendant asserted ineffective assistance of trial counsel in failing to: (1) raise duress as an affirmative defense; (2) argue at sentencing mitigating factors twelve (cooperation) and thirteen (influence of an older person), N.J.S.A. 2C:44-1b(12), (13); and (3) adequately investigate his case. Defendant sought an evidentiary hearing.

The PCR judge addressed and rejected each of defendant's ineffective assistance of trial counsel allegations as without substantive merit, and provided a detailed explanation as to why none of the issues were sufficient to warrant relief under the applicable law and the two-prong Strickland/Fritz test. See Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984) (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 deficient 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 the 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 (l987) (adopting the Strickland test in New Jersey); State v. Preciose, l 29 N.J. 451, 462-63 (l992) (To establish a prima facie claim of ineffective assistance 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).

More specifically, the judge found defendant failed to set forth a prima facie case of ineffective assistance of counsel warranting an evidentiary hearing. He found defendant, for the most part, relied "on nothing more than naked averments" to support his claims. The judge further found defendant presented nothing to show that raising a duress defense would have affected the outcome of his case given that defendant pled guilty to aggravated manslaughter as amended from murder as part of his negotiated agreement. Thus, a successful duress defense would have achieved the same result as defendant's plea. See N.J.S.A. 2C:2-9b (stating that "[i]n a prosecution for murder, the [duress] defense is only available to reduce the degree of the crime to manslaughter"). Additionally, the judge found defendant failed to satisfy the prejudice prong as to sentencing, concluding defendant provided no evidence tending to prove that the court would have imposed a lesser sentence than negotiated if either or both the newly-asserted mitigating factors were presented. This appeal ensued.

Defendant essentially raises the same arguments on appeal through counsel, asserting:

POINT I

THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED BECAUSE THE COURT DENIED THE DEFENDANT HIS RIGHT TO A RUE "HEARING" BY NOT AFFORDING PCR COUNSEL THE OPPORTUNITY FOR ORAL ARGUMENT WITHOUT SECURING FROM PCR COUNSEL A CERTIFICATION WAIVING ORAL ARGUMENT.

POINT II

THE COURT ERRED IN DENYING POST-CONVICTION RELIEF WITHOUT CONDUCTING A FULL EVIDENTIARY HEARING BECAUSE TRIAL COUNSEL'S INADEQUATE PRETRIAL INVESTIGATION AND FAILURE TO PURSUE THE DEFENSE OF DURESS, AND TRIAL COUNSEL'S FAILURE TO ARGUE MITIGATING FACTORS AT SENTENCING, SATISFIED BOTH PRONGS OF THE STRICKLAND/FRITZ TEST FOR INEFFECTIVE ASSISTANCE OF COUNSEL.

POINT III

THE COURT'S RULING DENYING POST-CONVICTION RELIEF VIOLATED THE DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.

POINT IV

DEFENDANT REASSERTS ALL OTHER ISSUES RAISED IN DEFENDANT'S PRO SE PETITION FOR POST-CONVICTION RELIEF AND IN PCR COUNSEL'S BRIEF IN SUPPORT OF POST-CONVICTION RELIEF.

In a pro se supplemental brief, defendant also argues:

POINT I

PETITIONER'S ARREST WAS ILLEGAL.

POINT II

THE PURPOSE OF A PETITION FOR POST-CONVICTION RELIEF.

POINT III

INEFFECTIVE ASSISTANCE OF COUNSEL WAS THE CALL OF THE DAY IN THIS DEFENDANT'S CASE AND SUCH CONSTITUTIONAL VIOLATIONS ARE CONTRARY TO THE NEW JERSEY AND THE UNITED STATES CONSTITUTIONS.

a. Counsel was ineffective, Standards of Ineffective Assistance and Petitioner's Request for an Evidentiary Hearing.

POINT IV

COUNSEL'S FAILURE TO INVESTIGATE AND CONSIDER POTENTIAL DEFENSES, CONSTITUTES THE INEFFECTIVE ASSISTANCE OF COUNSEL; PETITIONER WAS, THEREFORE DEPRIVED OF A FAIR DISPOSITION OF HIS MATTERS.

POINT V

COUNSEL CAJOLED HIS CLIENT INTO PLEADING GUILTY AND MISINFORMED HIS CLIENT ABOUT MATERIAL CONSEQUENCES OF HIS GUILTY PLEA; THESE ACTIONS CONSTITUTE INEFFECTIVE ASSISTANCE OF COUNSEL.

POINT VI

THE ERRORS OF COUNSEL IN THIS MATTER WERE SO BAD THAT ACTUAL PREJUDICE NEED NOT BE SHOW[N].

POINT VII

ALL POINTS RAISED BY APPELLANT IN ANY AND ALL PRIOR SUBMISSIONS TO THE COURT BELOW ARE HEREFORE INCORPORATED BY REFERENCE INTO THIS SUPPLEMENTAL LETTER BRIEF.

Based on our review of the record and applicable law, we are satisfied defendant failed to make a prima facie showing of ineffectiveness of trial counsel within the Strickland/Fritz test warranting an evidentiary hearing. We are further satisfied all of defendant's arguments raised on PCR are without substantive merit. His arguments renewed on appeal were adequately addressed by the PCR judge and do not warrant additional discussion save for the following brief comments. R. 2:11-3(e)(2).

The first argument raised by defendant in his supplemental brief, the illegality of his arrest, is procedurally barred pursuant to Rule 3:22-4, because it could have been, but was not, raised on direct appeal. Defendant's second point contains no argument but merely states case law. Points four and six reassert arguments made to the PCR judge that are discussed by defense counsel on appeal. Defendant's third and fifth points challenging his plea veiled as an ineffective assistance of counsel claim are not properly before us on appeal as such arguments were not raised before the PCR judge. See State v. Robinson, 200 N.J. 1, 20 (2009) (holding that "appellate courts will decline to consider questions or issues not properly presented to the trial court when an opportunity for such presentation is available unless the questions so raised on appeal go to the jurisdiction of the trial court or concern matters of great public interest[]" (quoting Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973))).

The question of whether oral argument is granted on a PCR petition "remains within the sound discretion" of the PCR court. State v. Mayron, 344 N.J. Super. 382, 387 (App. Div. 2001). That discretion is guided by the following considerations: "the apparent merits and complexity of the issues raised, whether the petition is an initial application, whether argument of counsel will add to the written positions that have been submitted, and in general, whether the goals and purposes of the post-conviction procedure are furthered by oral argument." Ibid. Though oral argument may have been preferable, we are not persuaded the court's decision on the papers resulted in a fundamentally unfair PCR proceeding warranting reversal of the order. See id. at 385-87 (recognizing that although there is no court rule specifically permitting oral argument on a PCR petition, there should be a significant presumption in favor of oral argument).

Defendant's PCR counsel advanced the claims defendant desired to express and made the best available arguments in support of them in a fifteen-page brief and lengthy appendix submitted to the PCR court. Apparently the judge concluded that argument of counsel would not add to the lengthy paper submissions, nor would oral argument have further advanced the goals and purposes of the PCR procedure. We do not discern a legal basis upon which to second-guess that discretionary ruling.

We recognize that when a defendant negotiates a plea in which a particular sentence is to be recommended by the State, trial counsel still has the responsibility to urge the trial court to impose a lesser sentence when the mitigating factors present would support such an argument. State v. Briggs, 349 N.J. Super. 496, 501 (App. Div. 2002). Even if we considered trial counsel's determination not to argue any mitigating factors at sentencing to be deficient performance under the first Strickland prong, defendant has not demonstrated such action was "so serious as to deprive [him] of a fair trial." Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Defendant's conclusory statement that, but for trial counsel's deficient performance at sentencing, there was a reasonable probability he would have secured the same twenty-year plea agreement and sentence imposed on co-defendant Paige, is mere speculation.