STATE OF NEW JERSEY v. ISAIAH KINNEY

NOT FOR PUBLICATION WITHOUT THE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.

ISAIAH KINNEY,

Defendant-Appellant.

__________________________________________________

April 10, 2014

 

Submitted March 4, 2014 Decided

 

Before Judges Fisher, Espinosa and O'Connor.

 

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 06-06-2017.

 

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

 

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

 

Appellant filed pro se supplemental briefs.

 

PER CURIAM

Defendant appeals the denial of his post-conviction relief (PCR) petition. We reverse and remand for further proceedings because, among other things, the trial judge's denial of oral argument has left us with a less than clear record regarding defendant's claim that his appellate counsel was ineffective in failing to seek, in the direct appeal, our review of an allegedly unlawful search and seizure.

I

Defendant was charged in 2006, along with co-defendant Gloria Jones, with first-degree conspiracy to commit murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3; second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1); first-degree attempted murder, N.J.S.A. 2C:11-3; fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d); and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d). In pleading guilty to second-degree conspiracy to commit aggravated assault and second-degree aggravated assault, Jones agreed to testify truthfully at defendant's trial.

At the conclusion of an eight-day trial in 2007, defendant was found guilty of the lesser-included offense of second-degree conspiracy to commit aggravated assault, and second-degree aggravated assault; he was acquitted of the other charges. On October 15, 2007, the judge merged the convictions and sentenced defendant to a discretionary extended twenty-year prison term, subject to an eighty-five percent period of parole ineligibility.

Defendant appealed, arguing, through counsel, that the trial judge erred: by failing to charge lesser-included offenses of aggravated assault; in the manner in which he instructed the jury regarding Jones's testimony; in providing written instructions in response to the deliberating jury's questions; and in imposing an excessive sentence. Defendant filed a pro se brief arguing the cumulative effect of trial errors and the denial of due process. We rejected all these arguments and affirmed. State v. Kinney, No. A-3141-07 (App. Div. March 19, 2010), certif. denied, 202 N.J. 347 (2010).

On August 19, 2011, defendant filed a pro se PCR petition. Counsel, who was assigned to represent defendant, filed an amended PCR petition on March 10, 2012, arguing: (1) the ineffective assistance of appellate counsel for failing to present arguments regarding a warrantless search and seizure of evidence from defendant's residence; (2) the ineffective assistance of trial counsel in failing to make use of co-defendant Jones's alleged incompetence at trial; (3) the ineffective assistance of trial counsel in failing to object to a jury instruction regarding Jones's status1; and (4) the trial judge imposed an illegal sentence. Without conducting an evidentiary hearing or even permitting oral argument on the petition's return date, the judge denied relief for reasons set forth in a written opinion.

Defendant now appeals the May 29, 2012 order that denied his PCR petition, arguing, through counsel:

I. THE LOWER COURT ERRED IN FINDING THAT DEFENDANT'S CLAIMS DID NOT WARRANT AN EVIDENTIARY HEARING. THE LOWER COURT ORDER MUST THEREFORE BE REVERSED AND THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING.

 

II. THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT'S CLAIMS ARE NOT PROCEDURALLY BARRED UNDER R. 3:22-5.

 

III. THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT'S CLAIMS ARE NOT PROCEDURALLY BARRED UNDER R. 3:22-4.

 

IV. THE LOWER COURT ERRED IN DENYING DEFENDANT'S PETITION WITHOUT ORAL ARGUMENT. THUS, THE LOWER COURT ORDER MUST BE REVERSED.

 

Defendant also filed two pro se supplemental briefs, posing these additional arguments, which we have renumbered:

V. THE DEFENDANT WAS DENIED HIS STATE AND FEDERAL CONSTITUTIONAL RIGHTS UNDER THE FOURTEENTH AMENDMENT[] OF THE FEDERAL CONSTITUTION, AND UNDER ARTICLE 1, PARAGRAPH 10, OF THE NEW JERSEY CONSTITUTION WHEN THE COURT IMPOSED A[] DISCRETIONARY EXTENDED TERM SENTENCE IN VIOLATION OF N.J.S.A. 2C:44-3(a).

 

VI. THE DEFENDANT WAS DENIED HIS STATE AND FEDERAL CONSTITUTIONAL RIGHTS UNDER THE FOURTEENTH AMENDMENT[] OF THE FEDERAL CONSTITUTION, AND UNDER ARTICLE 1, PARAGRAPH 10, OF THE NEW JERSEY CONSTITUTION WHEN THE COURT IMPOSED A DISCRETIONARY EXTENDED TERM SENTENCE USING A CONVICTION THAT IS OUTSIDE THE TEN YEAR LIMIT SET BY N.J.S.A. 2C:44-3(a).

 

VII. THE DEFENDANT ASSERTS THAT HE WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF U.S. CONST. AMEND. V, VI, XIV; N.J. CONST. ART. I, PAR. 1, 10.

 

VIII. THE P.C.R. COURT ERRED WHEN IT UPHELD A DISCRETIONARY EXTENDED TERM SENTENCE WHERE A CONVICTION WAS USED THAT IS OUTSIDE THE TEN YEAR TIME BAR SET BY N.J.S.A. 2C:44-3(a).

 

IX. PETITIONER DID NOT KNOWINGLY AND VOLUNTARILY WAIVE HIS CONSTITUTIONAL RIGHTS IN 1983 WHEN HE ENTERED A PLEA OF GUILTY IN VIOLATION OF . . . [U.S. CONST.] Amends. 5, 6, 14. N.J. CONST. ART. I, PAR. 1, 10. THUS OPENING CONVICTION TO COLLATERAL ATTACK.

 

X. PETITIONER WAS ENTITLED TO NOTICE AND HEARING WHEN THE POST CONVICTION RELIEF COURT RULED THAT ROBBERY OFFENSES COUNTED AS ONE CONVICTION AND NOT THREE, AND DID NOT ORDER THE STATE TO GIVE NOTICE DEPICTING THE ACTUAL CONVICTIONS THAT WOULD BE RELIED ON IN AN EXTENDED TERM HEARING AS DUE PROCESS REQUIRES.

 

XI. THE P.C.R. COURT SHOULD HAVE ALLOWED PETITIONER TO GIVE ORAL ARGUMENT.

 

XII. THE PETITIONER ASSERTS THAT HE WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL, ON DIRECT APPEAL, AND AT POST CONVICTION, IN VIOLATION OF U.S. CONST. AMEND. V, VI, XIV; N.J. CONST. ART. I, PAR. 1, 10.

II

The right to seek post-conviction relief the State's equivalent of the federal writ of habeas corpus provides "a safeguard to ensure that a defendant was not unjustly convicted." State v. Afanador, 151 N.J. 41, 49 (1997). It "'is not a pro forma exercise, but a meaningful procedure' to root out mistakes that cause an unjust result either in a verdict or sentence." State v. Hess, 207 N.J. 123, 144-45 (2011) (quoting State v. Feaster, 184 N.J. 235, 249 (2005)). In short, it is the defendant's "last chance to raise constitutional error that may have affected the reliability of [the] conviction." State v. Rue, 175 N.J. 1, 18 (2002).

Even though we have recognized that the need or propriety of oral argument is a matter left "to the sound discretion" of the PCR court, "that discretion should be generally exercised in favor of oral argument." State v. Mayron, 344 N.J. Super. 382, 386 (App. Div. 2001). Indeed, in Mayron we held that a PCR court's discretion regarding oral argument

is guided by such considerations as 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. In our view, there should be a significant presumption in favor of oral argument. In light of what is at stake for a defendant, a safeguard designed to ensure that a defendant was not unjustly convicted should be provided in a meaningful manner.

 

[Id. at 387-88.]

 

More recently, the Supreme Court also considered the denial of oral argument in this context, concluding that Mayron set forth "appropriate factors" and correctly recognized "the residuum of discretion . . . rests with our trial judges in weighing those factors." State v. Parker, 212 N.J. 269, 282 (2012). The Court further "stress[ed] that in considering each [factor], they should be approached with the view that oral argument should be granted" and that, just as the question of whether to grant an evidentiary hearing should be viewed in the light most favorable to a defendant, "so too, in determining whether to entertain oral argument, the facts should be viewed through the same generous lens." Ibid.

Parker also imposed on PCR judges the requirement of providing "a statement of reasons that is tailored to the particular application, stating why the judge considers oral argument unnecessary," with the further admonition that "[a] general reference to the issues not being particularly complex is not helpful to a reviewing court when a defendant later appeals on the basis that the denial of oral argument was an abuse of the trial judge's discretion." Id. at 282-83.

III

We reverse and remand for further proceedings not because the judge did not thoroughly explain the reasons for denying oral argument but because of the lack of clarity perhaps a product of the lack of oral argument regarding one particular issue: whether appellate counsel was ineffective in failing to present an argument in the direct appeal about the warrantless search. To explain our ruling, we first briefly reiterate the facts as discussed in our decision on the direct appeal:

Jackie Kinney, the former wife of defendant and a former friend of Jones, is the girlfriend of Floyd Simmons. Jones, Jackie Kinney and Simmons resided together in Jackie Kinney's home on Prospect Street, East Orange.

 

On the evening of January 28, 2006, Jones and defendant visited the medical office where Jackie Kinney worked. Jones had also taken her dog with them to the office. Because Jackie Kinney did not allow the dog in the office, defendant and Jones proceeded to Kinney's residence, intending to leave the dog there. Upon their arrival at Kinney's house, Simmons opened the door but refused Jones entry into the house with the dog. The two began to argue, and Simmons pushed Jones. A struggle ensued.

 

Defendant followed Jones into the house. On observing the altercation between Jones and Simmons, defendant attacked Simmons. The two men fell onto a table in the living room, breaking it. Jones picked up one of the table legs, striking Simmons repeatedly in the head and face with it while defendant pinned him down on the living room floor. During the attack, Simmons lost consciousness.

 

Defendant and Jones dragged Simmons into the kitchen. The kitchen oven was on with its door left open to heat the house. Jones pulled the hot oven racks out of the oven with a towel to prevent being burned, and placed them on the floor. Defendant and Jones then lifted Simmons up and shoved him head first into the oven, up to his waist.

 

After the assault, Jones drove defendant in her red Chevrolet Cavalier to a single-family dwelling on Washington Terrace where defendant rented a room on the second floor. At that time, Sergeant Larry Martin of the East Orange Police Department was on patrol in a marked patrol car when he observed the red Chevrolet traveling north on Prospect Street. The Chevrolet entered the intersection of Park Avenue and made an illegal left turn in front of the patrol car. Martin immediately activated his emergency lights and siren, and pursued the car west on Prospect Street. However, Jones did not stop.

 

Jones pulled over at the intersection of Washington Terrace and Morton Place. As defendant exited the passenger side car door, Martin ordered him to step back into the car. Defendant leaned toward the passenger window, gazed at the sergeant for a minute, and then walked away, saying, "I got to go in the house, I will be back." Defendant climbed the front stairs of the Washington Terrace residence, and Jones pulled away.

 

Martin decided to follow Jones, believing that he would have been unable to reach the front porch before defendant entered the house. During the pursuit, Jones turned onto Brighton Avenue, lost control of the car, and crashed.

 

Martin next ordered Jones who had exited the car to the ground. Jones appeared "extremely agitated," "irate" and "upset," and was sweating profusely. Although Jones's white pants legs were blood-soaked, Martin did not observe any injuries. Based on a statement made by Jones, Martin directed Police Officers Oceola Fair and Lakia Hale to respond to the home on Prospect Street. He also directed other officers to the Washington Terrace residence to detain defendant. A pair of blue and white men's boxer-style underwear with bloodstains was found in Jones's car.

 

[Kinney, supra, slip op. at 5-7.]

 

Our opinion on the direct appeal then briefly discussed the warrantless search of defendant's residence that followed:

Patrolman Gillyard and two detectives proceeded to the Washington Terrace residence to arrest defendant. On their arrival, defendant was just leaving the shower. The officers detained defendant in his second floor bedroom. While there, the officers recovered a bloodstained, white thermal tee shirt with a large bloodstain on the chest from defendant's bedroom floor, and a bloodstained pair of blue jeans from the hallway just outside the bedroom. Officer Gillyard collected the clothing and requested Martin to respond to the apartment. Once there, Martin identified defendant as the individual he saw exit the Chevrolet and climb the stairs to the residence.

 

[Id. at 7-8.]

 

In his PCR petition, defendant argued that a suppression motion was filed on March 1, 2007, and "[s]uppression was denied." He argued with reference only to the trial transcript that the search and seizure was unlawful. The PCR judge, in his written opinion, also refers to the fact that defendant's claim of "an illegal search and seizure . . . was previously raised by trial counsel in a motion to suppress." And the State likewise acknowledged in its appeal brief that "the issue of illegal search and seizure . . . had already been raised and adjudicated at the trial level in a motion to suppress." It may perhaps be safe to assume from those statements that a motion to suppress was filed and denied in the trial court, but see State v. Dellisanti, 203 N.J. 444, 447-48, 459-60 (2010), but the record on appeal does not contain a copy of the suppression motion, a transcript of any proceedings concerning the motion, the judge's decision on the motion, or a copy of an order denying suppression. And, at our request, when the Clerk sought further information in this regard from counsel, we were informed that Promis Gavel notes a suppression motion was filed in the trial court on March 6, 2007, but later marked "withdrawn." Had oral argument been permitted, the present uncertainty about the suppression motion may have been clarified.

In any event, whether viewed as a reversal based on the lack of oral argument or on the lack of certainty as to the ineffective-assistance-of-appellate-counselargument, the current state of the record bars our ability to adequately review the PCR court's disposition.

We, thus, remand for further proceedings designed to determine the existence and resolution of defendant's suppression motion. Those proceedings should include the judge's determination of the question of whether appellate counsel was ineffective in failing to make an argument in the direct appeal regarding the search and seizure of defendant's residence.

In rejecting defendant's contention regarding appellate counsel, the judge relied solely on procedural grounds. We add the following comments regarding that ruling. The PCR judge recognized "an ineffective assistance of appellate counsel claim could not have been raised on appeal," but he concluded that "the true substance of this claim is an allegation of an illegal search and seizure, which was previously raised by trial counsel in a motion to suppress" and "could have again been raised on appeal since all the facts pertaining to this evidentiary motion w[ere] contained on the record for the motion to suppress and on the record at trial." As we have already discussed, the record on appeal does not disclose "all the facts pertaining" to the suppression motion far from it. And we reject the contention, which seems to be the ground upon which the PCR judge denied relief on this point, that defendant could only pursue post-conviction relief on a claim that his appellate counsel was ineffective by making that claim in his petition for certification to the Supreme Court following the unfavorable ruling in his direct appeal. The PCR judge relied on State v. Moore, 273 N.J. Super. 118, 126 (App. Div.), certif. denied, 137 N.J. 311 (1994), which held that "in his petitions to the Supreme Court, defendant had the right to raise the ineffective assistance of appellate counsel claim" and, because "the issue was not raised before the Supreme Court, we do not accept defendant's contention that he did not have the opportunity to previously raise the issue." We do not follow Moore in this regard.

Defendant had no right to Supreme Court review. Following an unfavorable ruling in this court, the Supreme Court's decision to grant a petition for certification and exercise jurisdiction over a matter is purely discretionary, and its denial of certification is not a disposition on its merits. See Beltran v. DeLima, 379 N.J. Super. 169, 172 (App. Div. 2005). Accordingly, the notion that a party's failure to include within a petition for certification a claim of appellate counsel's ineffectiveness cannot constitute a procedural bar to the pursuit of that argument in a subsequent PCR petition. To the extent it suggests the existence of a procedural bar in that circumstance, we decline to follow Moore.

IV

In reversing and remanding for further proceedings on all issues, we express no other view of the merits of defendant's arguments. The judge is to reconsider all issues anew following oral argument. We also commend to the judge, but do not presently compel, his reconsideration of whether an evidentiary hearing is needed on the ineffective-assistance-of-appellate-counsel argument, if, for no other reason, than to create a complete record on that point.

Reversed and remanded for further proceedings in conformity with this opinion. We do not retain jurisdiction.

1The trial judge instructed the jury that "Gloria Jones has yet to be sentenced for the crimes [to] which she has pleaded guilty. This evidence of this witness's present status does not have any bearing on the general credibility to be given her testimony."