STATE OF NEW JERSEY v. JORDAN ATKINSON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1811-09T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JORDAN ATKINSON,

Defendant-Appellant.

_______________________________

January 23, 2012

 

Submitted November 30, 2011 - Decided

 

Before Judges Cuff and Lihotz.

 

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 07-10-1687.

 

Joseph E. Krakora, Public Defender, attorney for appellant (Stephen W. Kirsch, Assistant Deputy Public Defender, of counsel and on the brief).

 

Bruce J. Kaplan, Middlesex County Prosecutor, attorney for respondent (Brian D. Gillet, Assistant Prosecutor, of counsel and on the brief; Jason A. Seidman, on the brief).

 

PER CURIAM

Tried by a jury, defendant Jordan Atkinson was convicted of first-degree armed robbery, N.J.S.A. 2C:15-1 (count one); second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 (count two); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (count three); and third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b (count four). Following merger, the trial judge imposed an aggregate sentence of fifteen-years in state prison, eighty-five percent of which must be served prior to parole consideration, pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, with a five-year period of parole supervision upon release.

Defendant appeals from his conviction and sentence arguing:

POINT I.

 

DEFENSE COUNSEL WAS UNCONSTITUTIONALLY INEFFECTIVE WHEN HE CONCEDED THE DEFENDANT'S GUILT OF THE ELEMENTS OF ALL THE CRIMES IN THE INDICTMENT, APPARENTLY OUT OF A MISTAKEN BELIEF THAT HIS CLAIMS THAT THE CODEFENDANT "PUT [DEFENDANT] UP TO THIS" AND THAT DEFENDANT "NEVER [HAD] ANY INTENT TO HARM" THE ROBBERY VICTIM WERE ACTUALLY DEFENSES TO THE CRIMES CHARGED (Not Raised Below).

 

POINT II.

 

THE MATTER SHOULD BE REMANDED FOR MERGER AND RESENTENCING.

 

Following our review of the arguments presented, in light of the record and the applicable law, we affirm defendant's conviction. However, a remand for resentencing is necessary to properly provide for the merger of counts two and three with count one.

 

 

I.

The State presented these facts at trial. On July 30, 2007, Joseph Olarra was working as a gas station attendant at the Exxon gas station on New Brunswick Avenue in Woodbridge. At approximately 6:15 a.m., Olarra observed a white male with pale skin and reddish hair walking toward him, wearing a black hooded sweatshirt and baggy khaki shorts. When the man, later identified as defendant, was "around [twenty-five] to [thirty] feet" away, Olarra saw him pull a black mask over his face, reach into his sweatshirt pocket and say, "give me all the money in your pocket. I have a gun." Olarra said "no." Olarra then looked to his left and noticed a black Ford Explorer, driven by a black male, waiting at a gas pump. When defendant demanded money, the Explorer abruptly left the gas station. Defendant reiterated his demand for money and again asserted he had a gun. Olarra yelled to his coworker "go inside and call the police department" because "[w]e're getting robbed." Defendant "took off" on foot, in the same direction the Explorer had exited.

Woodbridge police detective Robert Ptaszynski received a "holdup alarm" call over his police radio along with a description of the suspect. Responding in a marked vehicle, Detective Ptaszynski traveled on New Brunswick Avenue in the direction the suspect had fled and saw defendant walking on the side of the road. Defendant matched the description of the suspected gunman given by Olarra and Detective Ptaszynski noticed defendant was perspiring and his face looked red. Detective Ptaszynski pulled his police cruiser alongside defendant as his fellow officer also pulled up, exited her vehicle, and asked defendant to stop. Defendant "took off," running toward a Burger King. Detective Ptaszynski drove toward the Burger King and parked his police car in position to cut off defendant's escape. As defendant attempted to flee, he reached into his waistband. Detective Ptaszynski drew his weapon and screamed, "let me see your hands." After reiterating the command, defendant complied and dropped a handgun. Detective Ptaszynski placed defendant under arrest and secured the weapon, which was a "Daisy CO2 pellet gun," which although operable, was rendered ineffective by the absence of a CO2 cartridge or ammunition.

Woodbridge police officer Benjamin Stevenson went to the Exxon station and transported Olarra to the scene of defendant's arrest. Olarra positively identified defendant as the man who attempted to rob him. With defendant's assistance, police located the black Ford Explorer at the Kings Inn in Rahway. Using the description they received from defendant, police apprehended codefendant Philip Sharp. Olarra was transported to the motel where he positively identified Sharp as the driver of the Explorer he saw speed away from the Exxon station.

A six-day trial commenced on June 8, 2009. At the close of the State's case, defense counsel proposed to called Sharp as a defense witness. Prior to Sharp taking the stand, the prosecutor advised she believed Sharp would testify consistently with his prior statement, which would not provide exculpating evidence for defendant. At the State's insistence, the court examined defendant:

THE COURT: Have you discussed the issue whether or not to call Mr. Sharp with your lawyer?

 

[DEFENDANT]: Yes, sir.

 

THE COURT: Are you satisfied with his advice concerning that issue?

 

[DEFENDANT]: Absolutely.

 

THE COURT: He may not necessarily testify favorably to you, do you understand that?

 

[DEFENDANT]: Yes.

 

Defense counsel then stated:

I want to make one thing clear. I did not talk to Mr. Sharp about the specifics of his statement. It was clear to me in my discussions with Mr. Sharp unlike my client he's unhappy he's doing time and my client is out and I concluded from that that he is not going to do anything to help my client. Now, does that mean that he's going to stick with his statement? I don't know. I have no idea what this man will do in that context but I did not talk to him about the specifics of anything.

 

THE COURT: My understanding is that this is a matter you decided. You decided to do this after consultation with your client. . . .

 

. . . .

 

THE COURT: This [c]ourt does not interfere with clients['] and attorneys' strategy. It may not be what I would do if I was in the situation and I am not privy to some of the information your client may have told you. Bottom line is you have a right to proceed in the manner you deem is appropriate . . . . [L]et's all find out what Mr. Sharp is going to say and I hope your trial strategy whatever it might be is as successful as you hope it is.

 

Defense counsel called Sharp, who appeared on the witness stand dressed in his State-issued correctional clothing. Sharp testified he was named in the State's indictment along with defendant charging him with offenses related to the Exxon station robbery. Sharp admitted he had accepted a plea bargain under which some of the counts were dismissed and admitted he plead guilty to charges in a separate indictment arising out of an unrelated robbery. Consequently, he was incarcerated in South Woods State Prison.

In discussing this matter, Sharp stated he met defendant a week prior to the robbery. Sharp gave defendant his mask, a friend's gun, told him not to "be a coward," and dropped defendant off one block away from the Exxon station. Sharp then drove to the station to ask for a job application. Knowing defendant "was supposed to rob the place," once Sharp saw defendant "put the mask on[,] [he] hauled ass." Sharp acknowledged he did not see what happened thereafter. Finally, Sharp stated he was angry because defendant had implicated him in the Exxon station robbery and a second robbery for which he was sentenced to prison. Following Sharp's testimony, the defense rested.

During summation, defense counsel attacked the State's evidence regarding intent, arguing Sharp had "put [defendant] up to this." In explaining how "Sharp set it up[,]" counsel stated:

[Sharp] gives [defendant] a handgun that he's had for a while. He gives him a mask to wear . . . .

 

. . . .

 

You got a young kid here with a hardened criminal. I don't know how to describe it. I've never even doubted, there would be no question [in this case,] this was [Sharp's] game, his idea, his plan. He tried . . . to say he had nothing to do with it. Supplies the gun, drives him up even though he says he didn't drive him up, concocts the story about . . . getting an application.

 

At the close of evidence, the jury returned a guilty verdict on all counts.

At sentencing, the trial judge found no mitigating factors and applied aggravating factor three, a risk defendant would reoffend; six, the extent of defendant's criminal record; and nine, the need for deterrence. Finding the aggravating factors clearly outweighed the nonexistent mitigating factors, the court imposed a fifteen-year custodial term subject to NERA and a five-year period of parole supervision upon release for the armed robbery conviction. On the conspiracy conviction, defendant was sentenced to ten years to be served concurrently to count one. The two weapons offenses were merged and a five-year sentence imposed on the unlawful possession of a weapon conviction with three years of parole supervision upon release. The court also imposed the applicable fines and fees and credited defendant with applicable jail-time credits. This appeal ensued.

II.

On appeal, defendant first argues counsel was constitutionally ineffective by admitting all elements of the charged offenses without any strategic basis and in presenting Sharp's testimony that essentially conceded defendant was engaged in a conspiracy to commit robbery. We are not persuaded.

Preliminarily, ineffective assistance of counsel claims are normally best suited for post-conviction relief (PCR) proceedings because the "'claims involve allegations and evidence that lie outside the trial record.'" State v. Castagna, 187 N.J.293, 313 (2006) (quoting State v. Preciose, 129 N.J.451, 460 (1992)). "However, when the trial itself provides an adequately developed record upon which to evaluate defendant's claims, appellate courts may consider the issue on direct appeal." Ibid. (citing State v. Allah, 170 N.J. 269, 285 (2002)). We recite additional facts from the record that allow us to address defendant's assertions on direct appeal.

Prior to imposing the sentence, the trial court questioned defense counsel regarding why Sharp was called as a witness, believing Sharp "buried" defendant. The court explained it was "clear calling Mr. Sharp was about the most incompetent act [its] ever seen a defense lawyer do in trial." Disagreeing, defense counsel explained it was defendant's "adamant decision" to try the case "from day one." Counsel, noting the major charge was armed robbery, admitted the strength of the State's proofs on this charge:

Judge, there was a videotape. My guy was on video. Everybody saw what he did. The jury knew there was someone else. They knew who it was. Mr. Sharp had a record. My view was -- and [defendant] wasn't going to testify, Judge. As you said, the evidence was overwhelming. I'm looking at a video that shows it's [defendant]. He's doing the job.

 

The State had an impeccable witness [in Olarra] and I'm sure -- again, I'm not -- obviously, I'm not waiving the technical aspects of what I believe are the legal aspects which may warrant to suggest for appeal, but from a practical decision they had him cold. You know it and I know it.

 

So my shot was to put Mr. Sharp on the stand and to try to show through him even though he wasn't going to say good stuff about my client. Halfway he didn't say good stuff, but to beat him up, show what a lousy person he was and to try to get the jury to take it that he was the boss of this. He's got the convictions and take it there. I don't question that strategy at all. I would do it again tomorrow.

 

. . . .

 

. . . And as you said, Judge, the evidence was overwhelming. Where was I going to go? He made a strategy decision. The jury might make a determination this guy is a lousy, rotten guy and he took over this kid, and so that's the shot.

. . . .

 

. . . My strategy was . . . to put that man on the stand and show what kind of bad guy he was because I couldn't win the armed robbery, Judge. . . . And if the jury just said this guy, he's the garbage, we don't like him, maybe we had a shot.

 

The trial judge remarked "the [c]ourt doesn't understand the strategy" or why the case went to trial when there was overwhelming evidence of guilt. Defense counsel emphasized defendant had a right to a trial and exercised that right with full knowledge of the available alternatives. Even the prosecutor remarked, "I recall [defendant] saying . . . to the [c]ourt he's wanted to go to trial from the day he came here." In defense counsel's view, the strategy employed was "[defendant's] only shot" to "win" on the armed robbery charge.

For a defendant to succeed on a claim of ineffective assistance of counsel, he or she must demonstrate "errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment[,]" and that the deficient performance led to a conviction that otherwise would have been avoided. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). New Jersey has adopted the Strickland test. State v. Fritz, 105 N.J. 42, 58 (1987).

There is "'a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance[,]'" because of the "'variety of circumstances faced by defense counsel or the range of legitimate decisions regarding how best to represent a criminal defendant.'" Castagna, supra, 187 N.J. at 314 (quoting Strickland, supra, 466 U.S. at 688-89, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694). Thus, we evaluate claims of ineffectiveness in light of "the totality of counsel's performance in the context of the State's evidence of defendant's guilt." Ibid. (citing State v. Marshall, 123 N.J. 1, 165 (1991), cert. denied, 507 U.S. 929, 113 S. Ct. 1306, 122 L. Ed. 2d 694 (1993)). Defense counsel's strategic miscalculations or trial mistakes, therefore, "are insufficient to warrant reversal 'except in those rare instances where they are of such magnitude as to thwart the fundamental guarantee of [a] fair trial.'" Id. at 315 (alteration in original) (quoting State v. Buonadonna, 122 N.J. 22, 42 (1991)). Accord State v. Norman, 151 N.J. 5, 38 (1997).

In some circumstances, we have found defense counsel's errors in admitting a defendant's guilt sufficient to warrant reversal. In State v. Harrington, 310 N.J. Super. 272, 281-82 (App. Div.), certif. denied, 156 N.J. 387 (1998), counsel conceded in summation his client willingly participated in an armed robbery with a codefendant. In that matter, the robbery victim was fatally stabbed during the robbery and counsel's admission "assured [the defendant's] conviction for felony murder." Id. at 282. Moreover, "nothing in the record suggest[ed] that this [admission] was a deliberate tactical or strategic decision[,]" or anything other than "an unthinking blunder." Ibid. We concluded "[a] lawyer who informs the jury that there is no reasonable doubt but that his client committed the predicate crime to felony murder has utterly failed to subject the prosecution's case to meaningful adversarial scrutiny[,]" requiring a new trial. Id. at 284 (internal quotation marks omitted).

The facts presented in this case are distinguishable from those of Harrington. Here, defense counsel's strategic decision to present Sharp as a witness and to effectively concede guilt during summation, while ultimately unsuccessful, were strategically designed to undermine the intent element essential for armed robbery. Knowing the gas station surveillance tape captured defendant's image and Olarra was "[one] hundred percent certain" in his identification of defendant and "an impeccable witness[,]" counsel presented Sharp to show that it was he, the hardened criminal mastermind, who manipulated a young, na ve, financially desperate defendant. The testimony showed defendant was away from home, living in Sharp's motel room and that Sharp demanded money for tolls and gas to drive defendant back to Connecticut. Further, Sharp admitted the robbery was his idea, he gave defendant the gun and the mask, showed him how to hold the gun, and mocked defendant's inexperience by telling him not to "be a coward." Finally, Sharp did not control his anger on the witness stand, admitting he hated defendant because he implicated Sharp in a robbery he "would have got [sic] away with" had defendant not told the truth.

Like Harrington, counsel's strategic decision was a gamble that ultimately backfired. Nevertheless, here, defendant was fully apprised of the strength of the State's case, the possibilities in going to trial, and the risks of allowing Sharp to testify. If the strategy had been successful, Sharp's testimony would have allowed the jury to excuse defendant by casting Sharp as the culpable party who was already punished for the crime. We do not conclude counsel's conduct was so deficient to thwart defendant's right to a fair trial. Castagna, supra, 187 N.J. at 315. Further, considering counsel's performance in the context of the State's overwhelming evidence, the miscalculation in calling Sharp did not otherwise lead the jury to unjustly convict defendant. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. The fact that the strategy failed is insufficient to suggest it denied defendant a fair trial or constituted ineffective assistance of counsel.

Defendant additionally challenges the sentence imposed, maintaining the trial court failed to apply applicable mitigating factors when fixing the sentence term and did not merge counts two and three into count one. We examine these issues separately.

An appellate court's role in reviewing a sentence on appeal is limited. We reinforced the standards governing our review in State v. Lawless, __ N.J. Super. __ (App. Div. 2011) (slip op. at 4):

So long as the trial court properly identifies and balances aggravating and mitigating factors that are supported by competent, credible evidence in the record, the reviewing court must affirm the defendant's sentence. State v. Jabbour, 118 N.J. 1, 6 (1990); State v. O'Donnell, 117 N.J. 210, 215 (1989). In other words, unless the sentencing court was "clearly mistaken," State v. Jarbath, 114 N.J. 394, 401 (1989), or a sentence otherwise "shocks the judicial conscience," State v. Roth, 95 N.J. 334, 364 (1984), an appellate court is bound to affirm. See O'Donnell, supra, 117 N.J. 215; cf. State v. Dunbar, 108 N.J. 80, 83 (1987) (sentence within statutory guidelines may strike reviewing court as harsh, but that is a consequence of the legislative scheme and not error by trial court).

 

Guided by these standards, we will not disturb the trial court's rejection of mitigating factor four. Defendant argued "[t]here were substantial grounds tending to excuse or justify the defendant's conduct, though failing to establish a defense[.]" N.J.S.A. 2C:44-1b(4). In considering this argument, the trial judge found "there were no threats" and defendant's actions were all done "voluntarily" without "anybody . . . threatening [him] or coercing [him] in any way, shape or form." The facts in the record and the court's sentencing opinion reflect the court considered whether the factor should apply, and based on credibility determinations, concluded the factor should not apply. This conclusion will not be disturbed. Jabbour, 118 N.J. at 6.

The trial judge, however, did not address the applicability of mitigating factor twelve, the "willingness of the defendant to cooperate with law enforcement authorities." N.J.S.A. 2C:44-1b(12). Defendant identifies the fact that his cooperation with police eventually led to the discovery and apprehension of Sharp in an unrelated robbery.

In State v. Dalziel, 182 N.J. 494, 505 (2005), the New Jersey Supreme Court explained "the trial judge is required to consider all of the aggravating and mitigating factors and to find those supported by the evidence." Concluding the trial court failed to consider the defendant's participation with law enforcement required by his plea agreement, the Court reversed for resentencing with consideration of the argued mitigating factor. Id. at 505-06. Defendant is entitled to consideration and, if appropriate, application of all mitigating factors supported by the record. Id. at 506.

Resentencing is also warranted because the court omitted the necessary merger of convictions. The State concedes the trial court failed to merge the conviction for conspiracy with the primary conviction for armed robbery. We also reject the State's argument to the contrary and conclude the conviction for unlawful possession of a weapon should have merged with the armed robbery conviction.

When a conspiracy culminates to consummation of the substantive offense, the conspiracy conviction merges with the substantive conviction if the sole criminal objective of the conspiracy was the completed crime. State v. Hardison, 99 N.J. 379, 386 (1985). Similarly, a conviction for possession of a weapon for an unlawful purpose will merge with a conviction of a substantive offense when "'the only unlawful purpose in possessing the [weapon] is to use it to commit the substantive offense.'" State v. Romero, 191 N.J. 59, 80 (2007) (alteration in original) (quoting State v. Diaz, 144 N.J. 628, 636 (1996)).

Here, defendant's conviction for conspiracy must merge with the armed robbery conviction. The conspiracy between defendant and Sharp related only to the substantive offense of robbery and the conspiracy conviction consists of the same facts as the substantive robbery offense.

This analysis also applies to defendant's conviction for possession of a weapon for an unlawful purpose. Defendant possessed the weapon, but that possession was in the course of the substantive offense of armed robbery. Defendant did not use the weapon for any unlawful purpose other than to commit the robbery. We decline comment on the trial judge's decision to merge count four into count three, noting the State did not file a cross appeal. Thus, count three must be merged with count one.

On remand, in resentencing defendant, the trial court must merge counts two and three with count one. Further, the court is instructed to review, apply, and weigh all applicable mitigating factors presented, supported by credible evidence in the record.

A

ffirmed in part, reversed and remanded in part.