STATE OF NEW JERSEY v. VIRGIL S. MITCHELL

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

VIRGIL S. MITCHELL,

Defendant-Appellant.

September 13, 2013

Submitted September 3, 2013 Decided

 
Before Judges Alvarez and Maven.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 04-02-0384.

Joseph E. Krakora, Public Defender, attorney forappellant (Michael Confusione, Designated Counsel, on the briefs).

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Brian Pollock, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Virgil Mitchell appeals from a January 24, 2011 Law Division order denying his petition for post-conviction relief (PCR). We affirm.

A jury found defendant guilty of aggravated manslaughter, N.J.S.A. 2C:11-4(a)(1), (2), as a lesser-included charge of murder (count one); felony murder, N.J.S.A. 2C:11-3(a)(3) (count two); two counts of first-degree robbery, N.J.S.A. 2C:15-1 (counts three and four); fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(4) (count five); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count six); and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count seven). After appropriate mergers, defendant was sentenced on May 9, 2005, to a thirty-year imprisonment term on the felony murder count, subject to thirty years of parole ineligibility. He was also sentenced to a concurrent four-year term of imprisonment on the unlawful possession of a weapon charge. On appeal, we affirmed the judgment of conviction. State v. Mitchell, No. A-0227-06 (App. Div. Apr. 4, 2008). Defendant was denied certification of his direct appeal by the Supreme Court. State v. Mitchell, 196 N.J. 343 (2008).

The charges arose from defendant's armed robbery and shooting of Serge Guerrier. The victim was purchasing marijuana from defendant when defendant circled around the back and pulled out a gun. He demanded Guerrier's gold chain, and when Guerrier resisted, he shot him. When the victim dropped to the ground, defendant took the gold chain as well as other items of value from the victim's pockets.

Joseph Medlin, a friend of Guerrier, who was standing next to him as he was shot, immediately threw his hands up into the air. Defendant patted him down and also took items of value from him, including a cell phone and money. Later, Medlin identified defendant through a photograph.

A friend of defendant, Shaniqua Jones, testified at trial that defendant called several of his friends to a meeting at which time he allegedly told her to "lie on the stand." He also admitted shooting someone and robbing the person of $800 and a chain. Defendant gave the chain to Jones, who in turn gave it to someone else. In later conversations with Jones, defendant denied that he had killed anyone.

On September 28, 2002, an arrest warrant was issued based on Medlin's identification. A few days later, defendant turned himself in, was arrested, and placed in a holding cell. He refused to give a formal statement and would not sign a Miranda1 waiver. Defendant informed the investigating officers that on the evening in question he had patronized a White Castle restaurant with Jones and a second friend, Duwan Jeter. While there, he had spoken briefly with an off-duty policeman named Isaac Eason, who was working a second job as a security guard. After Eason met with defendant at the police station at defendant's request, defendant signed the Miranda waiver but denied any wrongdoing. He suggested the officers meet with Jones and Jeter, however, claiming they could confirm his whereabouts and lack of culpability.

Defendant filed a timely PCR petition in which he and his attorney asserted a host of grounds for relief, the principal among those being ineffective assistance of counsel. The PCR judge denied the petition, reasoning that since defendant's Bruton2 and Miranda claims were adjudicated by the trial court, they were therefore barred by Rule 3:22-5. The PCR petition also raised an impermissibly suggestive identification claim as to Medlin, but no facts were asserted in support of the claim. Since the claim could have been raised on direct appeal, the judge found it was barred by Rule 3:22-4.

Although the PCR judge did not specifically address each and every claim made by the defendant in his handwritten notice of PCR, we are not convinced that procedurally, she was required to do so. Nor are we convinced that any of those arguments on appeal have merit which warrants discussion in a written opinion. See R.2:11-3(e)(2). In any event, on this appeal, defendant argues:

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'S PETITION IS NOT BARRED.

2. DEFENDANT ESTABLISHED AT LEAST PRIMA FACIE EVIDENCE OF INEFFECTIVE ASSISTANCE OF COUNSEL AND OTHER GROUNDS OF ERROR IMPACTING THE VALIDITY OF HIS CONVICTIONS.

3. REMAND IS WARRANTED BECAUSE THE POST-CONVICTION COURT DID NOT ADDRESS SOME OF DEFENDANT'S CLAIMS; ORAL ARGUMENT AND AN EVIDENTIARY HEARING ON THE CLAIMS [WERE] WARRANTED IN THE COURT BELOW.

4. REMAND IS REQUIRED TO DETERMINE WHETHER DEFENDANT RECEIVED EFFECTIVE REPRESENTATION BY POST-CONVICTION COUNSEL IN THE COURT BELOW.

Defendant also asserts that, at a minimum, oral argument should have been conducted on his PCR petition. Although we strongly concur that sound practice requires oral argument, failure to schedule oral argument alone, in this case, is not a basis for reversal because defendant on his written submissions to which he would have been limited on oral argument does not make out a prima facie case of ineffective counsel. Therefore the failure to conduct oral argument alone does not warrant reversal.

A defendant must establish two elements to prove ineffective assistance of counsel. First, he must demonstrate that counsel's performance was deficient. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). An attorney's performance is deficient when he or she makes "errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Ibid. Second, a defendant must establish counsel's deficiency prejudiced the defense by demonstrating 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. A reasonable probability is one that undermines confidence in the outcome. Ibid. New Jersey has adopted the Strickland test. See 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[.]" Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694. To rebut this presumption, a defendant must prove counsel's actions did not amount to "sound trial strategy." Id. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694-95 (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S. Ct. 158, 164, 100 L. Ed. 83, 93 (1955)). "[A] petitioner must do more than make bald assertions that he was denied the effective assistance of counsel." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).

"'Judicial scrutiny of counsel's performance must be highly deferential,' and must avoid viewing the performance under the 'distorting effects of hindsight.'" State v. Norman, 151 N.J. 5, 37 (1997) (quoting Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694). Thus, an attorney's decisions about trial strategy should not be characterized as ineffective merely because they did not produce the desired result. See id. at 37-38. Moreover, defendant bears the burden of proving, by a preponderance of the evidence, that counsel's decisions about trial strategy were not within the broad spectrum of competent legal representation. Fritz, supra, 105 N.J. at 52. We are persuaded that the alleged deficiencies of counsel as asserted by defendant clearly fail to meet either the performance or prejudice prongs of the Strickland test.

Jones testified during the trial that she knew the gun in question belonged to a co-defendant, who was ultimately acquitted by the jury, because he told her it was his. Defendant now contends that this constituted an incomplete redaction of the testimony in violation of Bruton. Additionally, he contends that Medlin's out-of-court identification was improper. Both points could have been raised, however, on direct appeal. Generally, consideration of such issues is barred pursuant to Rule 3:22-4(a)(2). Both the Bruton and Wade3 arguments could have been raised on direct appeal, as neither required a record outside the transcripts of the trial itself. See State v. Hess, 207 N.J. 123, 145 (2011). We are simply unconvinced that the exception of the bar of "fundamental injustice" applies to either issue.

On direct appeal, defendant's Miranda claim was fully and completely addressed. That prior review is conclusive, and reconsideration by way of PCR is barred by rule. See R. 3:22-5.

Defendant's counseled brief also challenges the PCR judge's failure to discuss each and every point raised in defendant's handwritten notice of PCR. We disagree. The PCR court is not required to address points which were not subsequently briefed albeit contained in defendant's pro se initial notice. The mere fact that defendant enumerated concerns about his conviction, without any supporting precedent or facts, does not compel the PCR judge to address them. Defendant's unsupported list of possible issues does not mean that they were properly presented for the court's consideration.

Defendant also contends that PCR counsel was not effective because he did not communicate with defendant. In support of this argument, defendant submitted a certification after the judge's decision was rendered. But the submission was unaccompanied by an order issued after the appropriate motion for inclusion of that certification in the papers submitted for review. Rule 2:5-4 defines "record on appeal," and that does not include a certification of defendant generated after the matter under consideration was decided in the absence of a motion to expand the record. Thus we do not reach this issue.

This is a case in which the proofs the State presented to the jury were overwhelming, including Medlin's identification and inculpatory statements defendant made to a friend. The matter was affirmed on appeal and certification was denied by the Supreme Court. Despite the failure to conduct oral argument, it is clear on review that defendant's arguments are without merit.

1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

2 Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968).

3 United States v. Wade, 388 U.S. 218, 217 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967).