STATE OF NEW JERSEY v. ANTHONY FRANKLIN

NOT FOR PUBLICATION WITHOUT THE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,

Defendant-Respondent,

v.

ANTHONY FRANKLIN, a/k/a WORD,

Plaintiff-Appellant.

____________________________________

June 6, 2014

Submitted March 19, 2014 Decided

Before Judges Grall and Waugh.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 00-08-0930.

Joseph E. Krakora, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief).

Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Christopher W. Hsieh, Chief Assistant Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant Anthony Franklin appeals the Law Division's December 21, 2001 order dismissing his petition for post-conviction relief (PCR). We affirm.

We discern the following factual and procedural history from the record on appeal. This case arose out of a confrontation between Franklin and Jermaine Roberts outside the Cheetah Club in Paterson on March 26, 2000. As the club was closing at approximately 2:00 a.m., Franklin approached Roberts and a tussle ensued, during which Franklin attempted to hit Roberts with a gun. He subsequently shot Roberts in the back as Roberts attempted to flee, and Roberts died a few hours thereafter. Franklin handed the gun to Jamie Wilson and left for South Carolina. He was eventually apprehended and returned to New Jersey.

Franklin was indicted for first-degree murder, N.J.S.A. 2C:11-3(a)(1) and (2); third-degree hindering apprehension, N.J.S.A. 2C:29-3(b); and three weapons offenses. He was tried and convicted in 2003. He appealed and we reversed. State v. Franklin, No. A-0909-03 (May 27, 2005). He was retried before the same judge in 2006. The jury convicted him of first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); second-degree certain persons not to possess a weapon, N.J.S.A. 2C:39-7; and the third-degree hindering charge. Franklin was sentenced to a term of incarceration for fifty years with a twenty-five-and-one-half-year period of parole ineligibility for the manslaughter count and a consecutive term of five years on an unlawful possession of a weapon count. The remaining sentences were concurrent.

Franklin appealed his second conviction. We affirmed the conviction but remanded for resentencing pursuant to State v. Pierce, 188 N.J. 155 (2006). State v. Franklin, No. A-0753-06 (Oct. 30, 2009). The Supreme Court denied certification. State v. Franklin, 201 N.J. 272 (2010). The remand judge imposed the same sentence.

Franklin filed his PCR petition pro se on March 4, 2010. PCR counsel filed supplemental briefs. The PCR judge held an evidentiary hearing on December 7 and 19, 2011. On December 21, the judge heard closing arguments and delivered an oral decision that explained his reasons for denying relief and dismissing the petition. The judge also filed a supplemental written opinion and the implementing order the same day. This appeal followed.

Franklin raises the following appellate issues through counsel:

POINT I: DEFENDANT'S CONVICTIONS MUST BE REVERSED DUE TO INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

A. Trial Counsel Failed To Inform Defendant of The Penal Consequences If Convicted.

B. Trial Counsel's Summation Irreparably Eviscerated The Defense.

C. Trial Counsel Failed To Adequately Investigate Defendant's Matter And Failed To Have Exculpatory Witnesses Testify.

D. Trial Counsel Failed To Advance Keshon Roberson's Prior Trial Testimony As A Declaration Against Interest.

E. Trial Counsel's Cumulative Errors Mandate That Defendant's Conviction Be Reversed. (Not Raised Below).

POINT II: DEFENDANT'S CONVICTIONS MUST BE REVERSED DUE TO INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL'S FAILURE TO RAISE THAT DEFENDANT EXERCISED HIS CONSTITUTIONAL RIGHT TO SELF-REPRESENTATION.

He also presents the following arguments pro se:

POINT I: DEFENDANT'S CONVICTION MUST BE REVERSED BECAUSE THE INADEQUATE REPRESENTATION THAT DEFENDANT RECEIVED AT TRIAL FELL BELOW AN OBJECTIVE REASONABLE STANDARD, THUS VIOLATING HIS RIGHTS TO EFFECTIVE ASSISTANCE OF COUNSEL GUARANTEED BY THE UNITED STATES AND NEW JERSEY CONSTITUTIONS.

A. The Constitutional standard.

B. Counsel's failure to provide effective assistance: the particulars.

1. Trial counsel's failure to Interview/investigate Keshon Roberson as a defense witness.

2. Failure to utilize Keshon Robertson['s] prior testimony as a statement against penal interest.

3. Trial counsel's closing arguments [were] tantamount to a concession of guilt and deprived defendant of effective assistance of counsel.

POINT II: DEFENDANT'S CONVICTION MUST BE REVERSED BECAUSE 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 III: DEFENDANT REASSERTS ALL THE ISSUES RAISED IN POST-CONVICTION RELIEF.

A. THE TRIAL COURT IMPOSED AN ILLEGAL SENTENCE NECESSITATING REDUCTION.

B. PETITIONER'S SENTENCE IS ILLEGAL AND VIOLATES THE DICTATES OF NORTH CAROLINA V. PEARCE, 395 U.S. 711 (1969).

C. THE TRIAL COURT VIOLATED THE DEFENDANT'S SIXTH AND FOURTEENTH AMENDMENT RIGHT TO REPRESENT HIMSELF WHEN IT SUMMARILY DENIED HIS MOTION TO DISCHARGE HIS ATTORNEY WITHOUT AFFORDING HIM THE OPPORTUNITY TO KNOWINGLY AND INTELLIGENTLY WAIVE HIS RIGHT TO COUNSEL.

D. PETITIONER'S APPELLATE COUNSEL WAS CONSTITUTIONALLY INEFFECTIVE, PARTICULARLY WHERE SHE FAILED TO ADDRESS ON DIRECT APPEAL DEFENDANT'S CLAIM THAT HE WAS DENIED HIS RIGHT TO SELF-REPRESENTATION AND HIS CLAIM THAT THE TRIAL JUDGE'S IMPOSITION OF AN INCREASED SENTENCE CONSTITUTED AN ACT OF JUDICIAL VINDICTIVENESS.

Having reviewed the arguments raised on appeal in light of the facts in the record and the applicable law, we affirm essentially for the reasons set forth in Judge Raymond A. Reddin's thorough and thoughtful oral and written decisions.

Affirmed.