STATE OF NEW JERSEY v. FRANCIS 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NOT FOR PUBLICATION WITHOUT THE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.

FRANCIS MITCHELL,

Defendant-Appellant.

_____________________________________________

September 22, 2014

Submitted September 15, 2014 - Decided

Before Judges Sabatino and Guadagno.

On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 06-10-831.

Joseph E. Krakora, Public Defender, attorney for appellant (Richard Sparaco, Designated Counsel, on the brief).

Geoffrey D. Soriano, Somerset County Prosecutor, attorney for respondent (James L. McConnell, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Francis Mitchell appeals from the denial of his petition for post-conviction relief (PCR). Mitchell claims his trial counsel was ineffective in failing to convince the trial court to sever the two counts of his indictment, and in failing to present a more compelling argument at sentencing to reduce his custodial term. We are not persuaded by defendant's arguments and affirm on the basis of the comprehensive written decision of Judge John H. Pursel, who heard and denied defendant's petition without an evidentiary hearing.

The underlying facts are detailed in our 2010 unpublished opinion, State v. Mitchell, No. A-4151-08 (App. Div. Nov. 9, 2010), certif. denied, 205 N.J. 519 (2011) and need not be repeated in full here. To summarize, in August 2006, an African-American male parked a black Hyundai Elantra at a gas station next to the bank. The man walked up to a teller, handed her a check and a note demanding money, and informed her that he had a gun. The teller gave the man more than $3,000 in cash.

The police responded and reviewed the bank's video surveillance footage as well as surveillance video from the gas station next to the bank. The gas station video showed the Hyundai driving into the service station shortly before the robbery and a man getting out of the car and walking toward the bank. Approximately seven minutes later, it appeared that the same individual returned from the direction of the bank, got into the Hyundai, and drove off.

Approximately one month later, a second robbery occurred in the same branch of the bank. A man handed a different teller a handwritten note, which instructed her to put all the cash from her drawer into a black plastic bag that the man handed to her. After the teller placed approximately $3,000 into the bag, the man grabbed the bag and left.

The police again responded and recovered the note, as well as a business check, that the robber had presented to the teller. The detective was able to read defendant's name under a portion of the upper left-hand corner of the check that had been scratched out with ink. With the aid of a backlight, the detective was able to make out a street address on the check for premises located at Route 27 in Somerset.

The parties stipulated that defendant owned a restaurant located at that Route 27 address. The parties also stipulated that the account number on the check matched a closed bank account that was formerly held by defendant. Through motor vehicle records, the detective ascertained that defendant had a Hyundai Elantra registered under his name, and that the vehicle matched the description of the vehicle observed at the gas station in the August 3, 2006 robbery.

A grand jury subsequently issued a two-count indictment, charging defendant in Count One with first-degree robbery of the bank on August 3, 2006, and charging him in Count Two with first-degree robbery of that same bank on September 1, 2006.

Before trial, defendant moved to sever the two counts of the indictment. The trial court denied the motion, concluding that severance was not warranted, particularly in light of the factual similarities between the two robberies, and the likelihood that, even if the trials were severed, under N.J.R.E. 404(b) evidence of one robbery would be admissible at the trial of the other robbery. Prior to trial, the trial court granted the State's motion to amend Count Two to a downgraded charge of second-degree, rather than first-degree, robbery.

The jury found defendant guilty on both counts of the indictment. The trial court sentenced defendant to a fifteen-year term on the first-degree robbery and a consecutive seven-year term on the second-degree robbery. Both sentences were subject to the parole ineligibility periods prescribed by the No Early Release Act, ("NERA") N.J.S.A. 2C:43-7.2.

On direct appeal, defendant challenged the trial court's refusal to sever the counts and claimed his sentence was excessive. We rejected both contentions. As to the joinder issue, we found that the characteristics of the two robberies were sufficient to justify those proofs being presented at the same trial under Rule 404(b) as proof of defendant's identity. We also affirmed defendant's sentence. The Supreme Court denied certification. 205 N.J. 519 (2011).

In his PCR application, defendant claimed that his trial attorney should have been more forceful in arguing the Rule 404(b) identity issues to the trial court. He contends that the characteristics of the two robberies are actually rather common and that the trial court analysis, and by extension, our analysis on appeal, was wrong. He further argues that his lawyer should have done more to stress the mitigating factors at sentencing.

Judge Pursel denied defendant's PCR petition and defendant appealed. Defendant presents three points for our consideration:

point i

the defendant made a prima facie showing that he was denied effective assistance of counsel in the critical motion to sever the counts of the indictment and was therefore entitled to an evidentiary hearing.

point ii

the defendant made a prima facie showing that he was denied the right to trial counsel due to trial counsel's failure to provide proper representation at sentencing, and was therefore entitled to an evidentiary hearing.

point iii

the court should have granted an evidentiary hearing to decide the petition for post-conviction relief.

We find insufficient merit in these arguments to warrant discussion in a written opinion, Rule 2:11-3(e)(2), and affirm for the reasons stated by Judge Pursel in his cogent decision dated May 30, 2012. We add only the following brief comments.

A defendant's claim of ineffective assistance of counsel is considered under the standards enunciated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted by our Court in State v. Fritz, 105 N.J. 42, 58 (1987). Under Strickland, to obtain relief based upon a claim of ineffective assistance of counsel, a defendant must show that counsel's performance was deficient, and that counsel's deficient performance prejudiced his defense. Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693).

Judge Pursel engaged in a thorough review of the trial transcript and concluded that defendant failed to satisfy both the deficiency and the prejudice prongs of Strickland. He found that defendant's trial counsel presented numerous facts and legal arguments that were professionally argued, including the timing of the offenses; the lack of commonality; the two separate bank teller victims; no evidence of a common plan or scheme; judicial economy did not dictate a need to try both indictments together; and the jury might infer a propensity to commit this type of crime.

Judge Pursel also correctly found defendant's claim that trial counsel did not argue the implications of Rule 404(b) was unsubstantiated and cited to specific portions of the trial transcript where these arguments were considered and rejected.

Finally, Judge Pursel properly rejected defendant's claim that his trial counsel was deficient at sentencing, citing numerous arguments made by trial counsel, including the age and non-violent nature of defendant's prior convictions; the twelve-year period preceding the robberies where defendant was arrest free; that no victim was physically harmed during the robberies; and defendant's age, personal life, and various contributions to society. In addition, counsel submitted a letter from defendant's wife to the sentencing court.

We agree with the conclusion of Judge Pursel that "trial counsel supplied competent legal advocacy on behalf of [defendant] at sentencing and functioned as one would expect an attorney to function."

Affirmed.