STATE OF NEW JERSEY v. BRYAN C. BOSTON

NOT FOR PUBLICATION WITHOUT THE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.

BRYAN C. BOSTON,

Defendant-Appellant.

________________________________

July 25, 2014

 

Submitted March 24, 2014 Decided

 

Before Judges Yannotti and Leone.

 

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 05-06-1397.

 

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

 

James P. McClain, Acting Atlantic County Prosecutor, attorney for respondent (Mario C. Formica, Special Deputy Attorney General/ Acting Chief Assistant Prosecutor, of counsel and on the brief).

 

Appellant filed a pro se supplemental brief.

 

PER CURIAM

Defendant Bryan C. Boston appeals from the denial without a hearing of his petition for post-conviction relief (PCR), which claimed ineffective assistance of trial counsel. We affirm.

I.

As summarized on direct appeal, the essential facts are as follows. On May 2, 2005, defendant and his girlfriend were staying at the Trump Plaza Hotel in Atlantic City. That evening, defendant and the victim got into an argument at a restaurant. According to defendant, the victim yelled at him, called him vulgar names, and slapped his glasses off. Defendant then threw a drink in the victim's face.

Defendant, who had been drinking for approximately three hours, purchased a half-pint of Bacardi rum from a liquor store and returned to their hotel room. There, defendant and the victim again argued. Defendant hit the victim in the head with a lamp, and then strangled her with the lamp cord so tightly that he cut his own hand.

About an hour later, hotel security investigators found defendant standing in the hallway. Defendant said "[s]he's dead," that he had "killed her," and that she was in the room. Investigators found the victim's body. Meanwhile, defendant repeatedly stated that he "had killed her" and that he was glad she was dead. He added that "[s]he pushed my buttons. She got what she deserved."

After police arrived and read defendant his rights, defendant said "[y]es, I killed her." While being transported in the police car, defendant said, "[s]he disrespected me. She slapped my glasses off my face in front of a bunch of white people. We went up to the room and began to argue and then I strangled the bitch." As they arrived at the detective bureau, defendant said, "[a]s soon as you mix Bicardi [sic] and Hennessy you know what you got to do and I did what I had to do: I killed her."

In his audio-recorded interview, defendant said that when he returned to their room, the victim started calling defendant names. He claimed the victim grabbed him by his collar and chain, which began to cut his neck. Defendant said he threatened "to kill" her. Defendant indicated that when she did not desist, he "busted her in the head with the . . . lamp." Defendant said that the victim "kept coming and kept on coming," so he strangled her with the cord. Defendant said that he "wanted her dead."

While defendant was being transported to the Prosecutor's Office, he said, "[b]itch pushed my buttons, man." While he was in the holding area, he shouted, "[y]ou take these cuffs off and I'll kill the judge just like I killed her."

The grand jury charged defendant with first-degree murder, N.J.S.A. 2C:11-3(a)(1) & (2), and third-degree possession of a weapon, a blunt object and a cord, with the purpose to use it unlawfully against a person, N.J.S.A. 2C:39-4(d).

Trial counsel retained as an expert Dr. Kenneth Weiss, a psychiatrist who examined defendant three times. Dr. Weiss examined defendant regarding his state of mind at the time of the homicide and concluded that, although defendant "may have been mentally ill and intoxicated, it did not rise to the level as I understood it of a defense in New Jersey." Dr. Weiss testified that defendant's unstable emotional state would tend to support a conclusion that defendant was too intoxicated to understand what he was doing when he confessed. Based on that testimony, trial counsel moved to suppress defendant's confessions. The State presented contrary expert testimony.

After the trial court rejected defendant's suppression motion and found defendant's prior violent acts against the victim admissible under N.J.R.E. 404(b), the State offered defendant the choice to: (1) go to trial for murder; (2) plead to aggravated manslaughter and receive a twenty-two-year prison sentence with an 85% parole disqualifier; or (3) plead open to aggravated manslaughter and receive a ten to thirty-year prison sentence with an 85% parole disqualifier.

After consulting with counsel, defendant decided to plead open to aggravated manslaughter, N.J.S.A. 2C:11-4(a), and the State agreed not to move for an extended term. In accepting the plea, the trial court noted that, absent that agreement, "in light of your prior record it is certainly very plausible that I would have extended the term and even on the aggravated manslaughter conviction [defendant] would have been facing up to life" in prison.

At sentencing, the trial court imposed a sentence of twenty-two years imprisonment with an 85% parole disqualifier, and dismissed count two. Defendant appealed. We upheld the suppression and 404(b) rulings, and affirmed the sentence. State v. Boston, No. A-3663-07 (App. Div. Jan. 12, 2010), certif. denied, 201 N.J. 442 (2010).

Defendant filed a pro se PCR petition raising numerous points. PCR counsel was appointed and filed a brief arguing that counsel was ineffective at sentencing. On November 29, 2012, after hearing argument, Judge Kyran Connor denied the PCR petition in an oral opinion. Defendant appeals, raising claims of ineffective assistance in a counseled brief and a pro se brief.

II.

To show ineffective assistance, defendant must meet the two-pronged test of Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and State v. Fritz, 105 N.J. 42 (1987). "The defendant must demonstrate first that counsel's performance was deficient, i.e., that 'counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment.' In making that demonstration, a defendant must overcome a strong presumption that counsel rendered reasonable professional assistance." State v. Parker, 212 N.J. 269, 279 (2012) (citation omitted).

Second, "a defendant must also establish that the ineffectiveness of his attorney prejudiced his defense. 'The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Id. at 279-80. This "is an exacting standard: '[t]he error committed must be so serious as to undermine the court's confidence in the jury's verdict or the result reached.'" State v. Allegro, 193 N.J. 352, 367 (2008).

A PCR court need not grant an evidentiary hearing unless "'a defendant has presented a prima facie [case] in support of post-conviction relief.'" State v. Marshall, 148 N.J. 89, 158, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). "To establish such a prima facie case, the defendant must demonstrate a reasonable likelihood that his or her claim will ultimately succeed on the merits." Ibid.

If the PCR court has not held an evidentiary hearing, we "conduct a de novo review." State v. Harris, 181 N.J. 391, 420-21 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). We must hew to that standard of review.

III.

Defendant's counseled brief raises the following argument:

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR POST-CONVICTION RELIEF WITHOUT AFFORDING DEFENDANT AN EVIDENTIARY HEARING.

 

Counsel's Performance at Sentencing.

 

Defendant argues trial counsel was ineffective for failing to properly prepare for sentencing and to argue adequately for mitigating factor four, namely that "[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:44-1(b)(4). In fact, trial counsel's sentencing memorandum argued mitigating factor four should be applied in light of defendant's intoxication and extensive mental health history. Counsel also attached defendant's mental health records.

Defendant claims trial counsel was ineffective for failing to provide the medical records in a timely fashion, translate handwritten notes, or explain how the materials related to mitigating factor four. Defendant's ineffectiveness claim fails.

The sentencing memorandum and supporting records were mailed on December 31, 2007. At the January 4, 2008 sentencing hearing, the court noted it had received that day defendant's sentencing memorandum plus the "roughly 250 pages of exhibits with regard to medical background, disability claims, [and] a variety of other matters that deal with [defendant] and his physical and mental history." The court stated it had taken time out from other proceedings and had done its "very best" to review those papers, "[s]o I feel I'm prepared to go forward with the sentencing."

Trial counsel apologized for not sending the records earlier, and then explained:

The bulk of the submission is medical records, which I am not sure if they are contained in the court's files. They're there for your reference more than anything else. You'll note that most of the issues that are set forth in the presentence report are backed up by the medical records and the psychiatric records that I've provided. So it's merely an encyclopedia. It's there is you need it. It's not necessarily important that you know every inch of the paperwork because, to be honest, I don't know every inch of the paperwork. The other . . . attachments were one or two pages long. I know you're familiar with those because of some of the previous proceedings that we've had.

 

Counsel pointed out that defendant was bipolar and paranoid schizophrenic, that defendant was regarded as disabled for these mental health issues, and that defendant's diagnoses were reflected in the information submitted from the Social Security Administration (SSA). Counsel argued his submission showed mitigating factors applied to the case. Later, counsel argued he had documented that defendant has "serious mental issues" and a substance abuse problem.

The sentencing court found defendant was an alcoholic, that alcohol affected "his ability to control his temper and rage," and that his violent incidents against the victim likely "had some relationship to his being under the influence of alcoholic beverages." The court also considered defendant's mental and physical health as a mitigating factor. The court adopted mitigating factor three and rejected mitigating factor five, both of which counsel had argued for in the same sentencing memorandum. The court commended trial counsel "for what I believe was excellent assistance of counsel, thoroughness, preparedness," and for exhausting all possible "avenues of defense" and "all possible mitigating factors."

The PCR court rejected defendant's ineffectiveness claim, finding it "completely clear that trial counsel did in fact advocate for mitigating factor 4 at sentencing through the medium of his" sentencing memorandum, that the references to facts supporting mitigating factor four were "clearly spread upon the record at the sentencing hearing,"
and that "the court considered and weighed facts that appertain to mitigating factor 4."

We agree. Defendant has failed to demonstrate a reasonable probability that any document counsel attached with his sentencing memorandum, if submitted earlier, translated from handwriting, or highlighted at sentencing, would have changed the result of the proceeding. Defendant references only one document, a 2001 SSA medical summary stating that defendant's medical disposition was based on the categories "Schizophrenic, Paranoid, and Other Psychotic Disorders" and "Substance Addiction Disorders." As set forth above, however, counsel referenced the SSA information and specifically argued that defendant was paranoid schizophrenic and an alcoholic with substance abuse problems. Further, counsel also correctly noted that same information was contained in the presentence report. Defendant thus shows neither deficiency of counsel nor prejudice.

As defendant notes, there was some confusion as to which mitigating factor the sentencing court found based on this mitigating evidence. The sentencing transcript recorded that the court was finding "to some extent, mitigating factor 11, due to the defendant's age, being 49, the condition of his mental health and the . . . condition of his physical health."1 The judgment of conviction similarly recorded that the court found mitigating factor eleven "to some extent," based on defendant's "age, mental health and disability."

However, on direct appeal defendant's appellate counsel argued that both the sentencing transcript and judgment of conviction erroneously cited mitigating factor eleven when the sentencing court was really referring to mitigating factor four. We agreed, stating that the sentencing court found mitigating factor number three and "number four, the defendant's age, mental health, and physical condition, were applicable to defendant." Boston, supra, slip op. at 33.

The PCR court agreed it was likely that the sentencing court misstated which mitigating factor it found. The PCR court concluded that, because trial counsel had communicated these arguments to the trial court, "and the [trial] court affirmatively considered" them, defendant failed to make out a prima facie case that trial counsel's representation at sentencing was deficient.

We agree that defendant has failed to make out a prima facie case that trial counsel was in any way responsible for the sentencing court's misstatement, if any, of the mitigating factor it applied. To the extent defendant is claiming the court erred, that claim could have been raised on direct appeal, and is thus barred under Rule 3:22-4(a). See, e.g., State v. Echols, 199 N.J. 344, 357 (2009); see R. 3:22-3 (stating that a PCR petition is not a substitute for raising a claim on direct appeal).

Moreover, defendant fails to show prejudice given the weight of the aggravating factors. The sentencing court found aggravating factor one, "[t]he nature and circumstances of the offense." N.J.S.A. 2C:44-1(a)(1). More importantly, the court gave "significant weight" to aggravating factor three, "[t]he risk that the defendant will commit another offense," aggravating factor six, "[t]he extent of the defendant's prior criminal record and the seriousness of the offenses of which he has been convicted," and aggravating factor nine, "[t]he need for deterring the defendant and others from violating the law." N.J.S.A. 2C:44-1(a)(3), (6), (9). Indeed, the court found the "risk of re-offense was very strong." The court went through defendant's extensive prior record in detail, finding that it "shows without question a pattern of violence," and that the court had "never seen" such a series of prior crimes so lightly punished.2 The court stressed that the need to deter this defendant, "who is almost a poster boy of domestic violence," was "as high as it can be."

By contrast, the sentencing court only accorded "some weight" to mitigating factor three, "[t]he defendant acted under a strong provocation." N.J.S.A. 2C:44-1(b)(3). The court only found "to some extent" what it recorded as mitigating factor eleven. The court found the aggravating factors substantially outweighed the mitigating factors.

The PCR court found "[t]he notion that this balance would have been disturbed in a significant way if mitigating factor 4 had been explicitly articulated by the judge" was contrary to "common sense." The PCR court concluded there was no reasonable probability the result of the sentencing proceeding would have been different if the court "had uttered the magic words, mitigating factor 4."

Once again, we agree. As the sentencing court correctly stated, "it's not the number of aggravating and mitigating factors; it's the weight of the aggravating and mitigating factors" that matters. See, e.g., State v. Fuentes, 217 N.J. 57, 72-73 (2014). Here, the court found that the need to deter defendant and others was "about as heavy as it can be," that the risk of re-offense was "very strong," and that his prior record deserved "significant weight." Thus, the trial court's failure to say the words "mitigating factor four" does not show a prima facie case of prejudice. We therefore reject the claim of ineffectiveness at sentencing raised in defendant's counseled brief.

IV.

Defendant's pro se PCR appellate brief raises the following arguments:

POINT I

THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE DEFENDANT ESTABLISHED A prima facie CLAIM OF TRIAL COUNSEL'S INEFFECTIVENESS.

 

A. The Defense Attorney's Professional Errors "Materially Contributed" to a Guilty Plea, in Violation of the Sixth Amendment of the United States Constitution.

 

B. Counsel Failed to Investigate and Provide Pertinent Information to the Trial Court Pertaining to the Defendant's Abnormal Mental Conditions and Failed to Inform the Defendant of the Affirmative Defenses Pursuant to N.J.S.A. 2C:2-2.8 [sic] Intoxication and N.J.S.A. 2C:4-2 Diminished Capacity Prior to the Defendant Accepting a Plea.

 

C. Defense Counsel Failed to Investigate the Affirmative Defense of Intoxication Pursuant to N.J.S.A. 2C:2-8(a).

 

POINT II

THE LOWER COURT ERRED IN NOT GRANTING DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING AND THE LOWER COURT'S ORDER MUST THEREFORE BE REVERSED.

 

A. Trial Counsel failed to Investigate, Interview and Present the Testimony of a Crucial Witness.

B. Trial Counsel Failed to Consult with the Defendant in a Meaningful Manner.

 

C. Trial Counsel Failed to Provide Effective Assistance During Plea Negotiations.

 

POINT III

 

PETITIONER'S GUILTY PLEA IS INVOLUNTARY AND MUST BE VACATED ON THE FOLLOWING GROUNDS:

 

A. Petitioner's Plea Attorney Never Explained to him the Nature of the Charges and that an Intent to Cause the Death of the Victim was an Element of the Offense.

 

B. The Factual Basis Given did not Support a Guilty Plea for Aggravated Manslaughter.

 

Nothing before us indicates that defendant raised any of these issues in his PCR petition. Defendant's pro se PCR petition listed thirty-six claims for relief, almost all of which concerned the suppression and 404(b) rulings, which we upheld on direct appeal. Only one claim raised ineffective assistance of counsel, which the PCR court interpreted as raising the claim of ineffective assistance at sentencing rejected in Section III of this opinion.

The only additional ineffectiveness claim defendant raised in his pro se PCR petition was that trial counsel "failed to bring any witnesses to tell what happened in the restaurant." However, defendant fails to identify what "crucial witness" counsel should have called, or what facts that witness would have testified to at trial. If a "defendant asserts that his attorney failed to call witnesses who would have exculpated him, he must assert the facts that would have been revealed, 'supported by affidavits or certifications.'" State v. Petrozelli, 351 N.J. Super. 14, 23 (App. Div. 2002) (quoting State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999)). Defendant failed to submit any affidavit or certification supporting his claims.

The remaining claims raised in defendant's pro se PCR appellate brief were not raised his pro se PCR petition. A PCR petition must "set forth with specificity the facts upon which the claim for relief is based, the legal grounds of complaint asserted, and the particular relief sought." R. 3:22-8; Cummings, 321 N.J. Super. at 164.3

In any event, the PCR court ruled that all of defendant's claims in his pro se submissions were without merit, and that there was no need for an evidentiary hearing. Defendant's pro se appellate brief presents no basis to disturb that ruling.

Here, trial counsel notified the prosecutor that counsel intended to rely on the defenses of self-defense and intoxication. Counsel retained an expert psychiatrist, who after interviewing defendant determined that his possible mental illness and intoxication "did not rise to the level" necessary to serve as a defense under New Jersey law. The trial court found defendant's alleged intoxication was insufficient even to justify suppressing his statements. After the court properly ruled against defendant on the suppression and 404(b) issues, defendant chose to plead guilty to the lesser offense of aggravated manslaughter rather than proceed to trial for murder. That plea agreement, reached after hours of consultation with counsel, reduced defendant's potential minimum term from thirty years to ten years, and his potential maximum term from life to thirty years. See N.J.S.A. 2C:11-3, -4.

In the court's careful plea colloquy, defendant expressly waived any defenses of intoxication or mental illness. He testified to a factual basis establishing aggravated manslaughter, specifically that he "recklessly cause[d] death under circumstances manifesting extreme indifference to human life." N.J.S.A. 2C:11-4(a)(1). Defendant claims that he lacked the intent or knowledge that the victim would die, but intent and knowledge are not required, only recklessness. See State v. Galicia, 210 N.J. 364, 378 (2012); N.J.S.A. 2C:2-2(b). Although defendant said he "cared that she lived," he admitted that he strangled the victim with extreme indifference to her life. The trial court found he entered his plea knowingly, intelligently, and voluntarily. We agree.

Defendant's claims are without sufficient merit to warrant further discussion. R. 2:11-3(e)(2).

Affirmed.

 

 

 

 

1 See N.J.S.A. 2C:44-1(b)(11) ("The imprisonment of the defendant would entail excessive hardship to himself or his dependents.").

2 Defendant had twenty-one arrests, at least nine known convictions, and several serious charges for which the records and results were unavailable.

3 The PCR court mentioned that another pro se document had eleven "possible issues to consider for PCR," but we have not been supplied with that document.