STATE OF NEW JERSEY v. STEFFAN A. 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NOT FOR PUBLICATION WITHOUT THE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,

Plaintiff-Respondent,

v.

STEFFAN A. FRANKLIN,

Defendant-Appellant.

_______________________________________________

Argued telephonically May 28, 2015

Before Judges Lihotz and St. John.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 97-04-0564.

Steffan A. Franklin, appellant, argued the cause pro se.

Sara M. Quigley, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Ms. Quigley, of counsel and on the brief).

PER CURIAM

Defendant Steffan A. Franklin appeals from a March 11, 2013 order denying his petition for post-conviction relief (PCR), and an August 21, 2013 order denying his motion for reconsideration. He contends that he received ineffective assistance of trial counsel. Having considered defendant's arguments in light of the record and controlling law, we affirm.

I.

The record reveals the following facts and procedural history. Tried to a jury, defendant was convicted of purposeful or knowing murder. N.J.S.A. 2C:11-3(a)(1), (2). He was sentenced to life imprisonment, with a thirty-year period of parole ineligibility. Defendant filed a direct appeal. In an unpublished opinion, we affirmed the conviction and sentence. State v. Franklin, No. A-7030-97 (App. Div. June 28, 2000) (slip op. at 2). Defendant's petition for certification was denied by the Supreme Court. State v. Franklin, 165 N.J. 606 (2000).

The facts concerning defendant's strangulation murder of the victim were set forth at length in our opinion and will not be repeated here. Defendant admitted at trial to strangulating the victim, but contended it was an accident.

We first note that in a December 7, 2012 certification, defendant waived oral argument and requested the PCR court "make its ruling in this PCR matter on the papers submitted by counsel." Judge Diane Pincus denied defendant's request for PCR in a comprehensive and cogent, twenty-seven-page written decision. In her opinion, the judge concluded

[I]t is clear that the State had an extremely strong case against [d]efendant, which demonstrated that [d]efendant premeditated and planned the murder of [the victim] and disposed of her body. Defendant never denied killing [the victim], but rather argued that he accidentally strangled her. The State was able to establish that [d]efendant and [the victim] had a tumultuous relationship in which there was a significant amount of arguing and fighting. Defendant kicked in the door of [the victim]'s mother's home after a fight. Defendant previously threatened to kill [the victim]. Defendant told a witness that he would like to have [the victim] killed, but since he could not afford to hire someone to do it, he would do it himself and bury her in a hole and pour lime on top of her. Defendant told another witness that he would like to get rid of [the victim] before the next custody hearing. Further, [d]efendant described to his friends the best way to kill somebody and dispose of the body. Defendant was angry at [the victim] due to issues related to custody and support of [their daughter]. Defendant did not tell anyone that he was meeting [the victim] on the day he murdered her. The medical examiner testified that the cause of death was asphyxia due to some type of strangulation and the manner of death was homicide. Defendant admitted he killed [the victim] and did nothing to resuscitate her. Defendant took many actions to avoid detection. He sent his girlfriend out to do some errands and advised her to call him before she returned home. Defendant testified that after instructing his girlfriend not to return home, [d]efendant wrapped up [the victim's] body and placed it, along with a shovel, in the trunk of his girlfriend's vehicle. Defendant then drove to Allentown, Pennsylvania, dug a hole in a construction site, and disposed of [the victim's] body. On the night of the murder [d]efendant phoned a friend to tell him that [the victim] was dead and [d]efendant described the strangulation as being easier than he thought it would be. Defendant asked the friend for his help in disposing of the body. The following night, [d]efendant phoned another friend to tell him that he had done a very bad thing. During another conversation, [d]efendant advised his friend that he had sex with a dead person and was going away for a long time. Moreover, [d]efendant provided the police with a false alibi as to where he had been at the time of the murder.

This testimony overwhelmingly demonstrates the strength of the State's case against [d]efendant and indicates the vast amount of evidence presented to the jury that [d]efendant murdered [the victim] and attempted to cover it up. Defendant has not established a prima facie case of ineffective assistance of counsel, in that [d]efendant has not demonstrated a reasonable probability that, but for his attorney's errors, the jury would have returned a different verdict. Therefore [d]efendant has not satisfied the burden for obtaining an evidentiary hearing.

On appeal, in a pro se brief,1 defendant presents the following issues for our consideration

POINT I

THIS COURT SHOULD EXERCISE ITS ORIGINAL JURISDICTION PURSUANT TO RULE 2:10-5 IN AN EFFORT TO BRING[ ]IT TO A CLOSE DUE TO ITS PROTRACTED HISTORY.

POINT II

TRIAL COUNSEL WAS BURDENED BY MULTIPLE CONFLICTS OF INTEREST WHICH RESULTED IN THE CONSTRUCTIVE DENIAL OF DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL WHICH IS GUARANTEED BY THE UNITED STATES CONSTITUTION AMENDMENTS VI AND XIV; AND NEW JERSEY'S STATE CONSTITUTION 1 and 10.

a. trial counsel's failure to obtain critical medical records of the decedent was caused by an actual conflict of interest and was prejudicial because records revealed a cardiomyopathy heart condition that would have impacted the manner of death.

i. trial counsel's failure to call defendant's medical expert to testify at trial for purely economic reasons was caused by an actual conflict of interest.

b. self-defense was a defense that was viable and available to defendant which should have been utilized in conjunction with defendant's accident defense but an actual conflict of interest caused counsel not to pursue or obtain the evidence.

c. an actual conflict of interest caused trial counsel to refrain from entering into plea negotiations and the PCR court erred in denying the claim based on erroneous view by the court that there had to be a plea offer from the State to prevail on the claim.

d. diminished capacity/voluntary intoxication was an alternative defense that was viable and available to defendant which should have been investigated by counsel and utilized in conjunction with defendant's accident defense.

e. trial counsel's failure to conduct an investigation into the facts of the defendant's case in order to establish all available defenses and failure to obtain evidence and interview witnesses was caused by counsel's self-interest in not financing the investigation with his personal funds and counsel's interest in not exposing himself to criminal and ethical charges or malpractice liability.

POINT III

DEFENDANT WAS DENIED HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE UNITED STATES CONSTIUTION AMENDMENTS VI & XIV; AND NEW JERSEY'S STATE CONSTITUTION 1 and 10 AND THE PCR COURT ERRED IN DENYING THE DEFENDANT POST-CONVICTION RELIEF.

a. the PCR court erred in not finding trial counsel per se deficient and/or per-se ineffective for counsel's disbarment.

b. the prosecutor's questioning of defendant's failure to report the death of the decedent was an improper comment on defendant's pre-arrest silence and trial counsel was ineffective in failing to object and for failing to request limiting instruction.

c. trial counsel was ineffective for failing to conduct any investigation into the law and facts of the defendant's case therefore counsel could not be found to have made any strategic choice since counsel was uninformed and the PCR court's strategic determinations were erroneous and could not be made without hearing from trial counsel and without evidence in the record to support the conclusions.

d. trial counsel was ineffective for failing to request a self-defense jury charge based on the trial facts.

POINT IV

THE STATE VIOLATED DEFENDANT'S RIGHT TO DUE PROCESS BY WITHHOLDING EVIDENCE THAT WAS MATERIAL AND FAVORABLE TO DEFENDANT VIOLATING THE STATE'S DISCOVERY OBLIGATION.

POINT V

THE TRIAL COURT VIOLATED DEFENDANT'S RIGHT TO DUE PROCESS AND HIS RIGHT TO A FAIR TRIAL.

a. trial judge's facial expressions during examination of medical expert was prejudicial to defendant.

b. trial court erred by not providing a self-defense charge to the jury sua sponte as the facts adduced at trial supported a self-defense charge.

c. trial court should have provided an instruction limiting use of defendant's pre-arrest silence.

POINT VI

PCR COURT ERRED IN NOT GRANTING AN EVIDENTIARY HEARING AS DEFENDANT PRESENTED A PRIMA FACIE CASE.

POINT VII

PCR COURT ERRED IN DENYING DEFENDANT'S MOTION FOR RECONSIDERATION AND TO AMEND FINDINGS.

POINT VIII

THE COURT ABUSED ITS DISCRETION IN NOT GRANTING DEFENDANT'S DISCOVERY MOTIONS.

a. the Ocean County court files sought by the defendant were previously released to the public.

b. defendant should have been provided the evidence in the State's possession.

POINT IX

PCR COURT ABUSED ITS DISCRETION IN DENYING DEFENDANT'S MOTION FOR AN EXTENSION OF TIME TO FINISH HIS INVESTIGATION AND SUBMIT BRIEF.

We find no merit to these contentions, R. 2:11-3(e)(2), and therefore affirm substantially for the reasons stated by Judge Pincus in her cogent and comprehensive written opinion. We add these brief comments.

II.

To show ineffective assistance of counsel, defendant must meet the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). State v. Miller, 216 N.J. 40, 58 (2013), cert. denied, ___ U.S. ___, 134 S. Ct. 1329, 188 L. Ed. 2d 339 (2014). First, "[t]he defendant must demonstrate [] that counsel's performance was deficient." 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." Ibid.

A.

To establish that his trial counsel was deficient, defendant must show his "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed . . . by the Sixth Amendment." Ibid. (citation and internal quotation marks omitted). In making that showing, defendant "must overcome a strong presumption that counsel rendered reasonable professional assistance." Ibid.

"[C]ounsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." State v. Chew, 179 N.J. 186, 217 (2004) (alteration in original) (citation and internal quotation marks omitted). "Whether this duty has been satisfied is measured by 'reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments.'" State v. Martini, 160 N.J. 248, 266 (1999) (quoting Strickland, supra, 466 U.S. at 691, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695). "[W]hen a petitioner claims his trial attorney inadequately investigated his case, he must assert the facts that an investigation would have revealed, supported by affidavits or certifications based upon the personal knowledge of the affiant or the person making the certification." State v. Porter, 216 N.J. 343, 353 (2013) (alteration in original) (citation and internal quotation marks omitted).

We agree with the PCR judge defendant did not, through sworn affidavits or certifications, demonstrate that trial counsel would have uncovered evidence supporting defendant's unsubstantiated assertions regarding the victim's health which caused her accidental death. Rather, as Judge Pincus noted, counsel did consult with a forensic pathologist prior to trial and the doctor's opinion was the victim's death was a homicide.

Defendant also failed to offer any support for his contention that his counsel's ethical violations, use of illegal drugs, and financial difficulties resulted in ineffective assistance of counsel. For example, defendant asserts, without evidential support, these issues caused counsel to not engage in plea negotiations. As the PCR judge pointed out in her opinion, the prosecutor's certification stated that no plea offer was extended by the State.

We therefore hold the PCR court correctly determined that these claims were entirely without merit.

B.

Moreover, we agree with the PCR judge that even if defendant could show deficient performance, his claims still fail under Strickland's second prong. As the judge noted, while it appears that trial counsel may have been ineffective by not obtaining the victim's medical records as support for defendant's contention that he did not intend to cause the victim's death, defendant did not satisfy the "second prong of Strickland" with regard to this assertion. To establish prejudice from a deficiency, the defendant must also show "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Parker, supra, 212 N.J. at 279-80 (citation and internal quotation marks omitted). 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) (alteration in original) (quoting State v. Castagna, 187 N.J. 293, 315 (2006)).

Defendant has proffered no facts to support a reasonable probability that the results of the trial would have been different. The PCR judge referred to the trial testimony of witnesses that defendant said in effect he would kill the victim, he would bury the body in the woods and cover it with lime. After the murder, defendant told a witness that he got rid of the victim by strangling her and that it was neat, bloodless, and easier than he thought. At trial, defendant admitted he did not try to resuscitate the victim or call anyone for help. Specifically, as the PCR judge stated, and we concur, "it is clear that the State had an extremely strong case against [d]efendant, which demonstrated that [d]efendant premeditated and planned the murder of [the victim] and disposed of her body." Consequently, we agree with the PCR judge defendant failed to present a prima facie case in support of post-conviction relief.

Therefore, although we recognize, as did the PCR judge, "[i]t is well-settled that, to the extent that a petition for [PCR] involves material issues of disputed facts that cannot be resolved by reference to the trial record, an evidentiary hearing must be held," Porter, supra, 216 N.J. at 347, we agree with the court's conclusion that an evidentiary hearing was not required and would not have assisted the court in its determination. State v. Marshall, 148 N.J. 89, 158 ("If the court perceives that holding an evidentiary hearing will not aid the court's analysis of whether the defendant is entitled post-conviction relief . . . then an evidentiary hearing need not be granted."), cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997).

Affirmed.

1 Defendant requested to represent himself in this matter. After a hearing, by order dated February 6, 2013, Judge Pincus granted his request, finding he provided "a voluntary, knowing, and intelligent waiver of his right to appellate counsel." State v. Coon, 314 N.J. Super. 426, 439 (App. Div.), certif. denied, 157 N.J. 543 (1998).