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NOT FOR PUBLICATION WITHOUT THE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

RUSSELL MITCHELL, a/k/a

RUSSELL HOLMES and

MITCHELL A. RUSSELL,

Defendant-Appellant.

______________________________________________

July 21, 2015

Submitted May 19, 2015 Decided

Before Judges Simonelli and Guadagno.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 10-09-2185.

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

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Jane Deaterly Plaisted, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Russell Mitchell appeals from a Law Division order denying his petition for post-conviction relief (PCR) without a hearing. Defendant argues that the PCR judge erred in denying oral argument and a hearing on his petition. We are not persuaded by these arguments and affirm.

I.

The facts are not in dispute. On May 30, 2010, defendant and Jerome Cummings had a verbal disagreement. Later that day, defendant saw Cummings near the intersection of Springfield Avenue and South 20th Street in Newark. Cummings was leaning against a fence when defendant approached him from behind and struck him in the back of the head with a galvanized pipe "with considerable force." He fell to the ground unconscious and was later pronounced dead.

A grand jury sitting in Essex County returned an indictment charging defendant with first-degree murder, N.J.S.A. 2C:11-3(a)(1),(2) (count one); fourth-degree possession of a weapon, N.J.S.A. 2C:39-5(d) (count two); and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count three).

On October 12, 2011, defendant entered a guilty plea pursuant to a plea agreement to an amended count-one charge of first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a), and to count three. In exchange, the State agreed to recommend a ten-year sentence with eighty-five percent parole ineligibility under the No Early Release Act, N.J.S.A. 2C:43-7.2, on the manslaughter charge and a five-year term on count three to run concurrently. Count two would be dismissed. On November 17, 2011, the court imposed a sentence consistent with the plea agreement.

No direct appeal was taken, but on February 2, 2012, defendant filed a pro se PCR petition. After counsel was appointed, a comprehensive fifty-five page brief was filed, seeking oral argument and a hearing on the petition. In his brief, defendant argued that his plea counsel failed to pursue a diminished capacity defense based on defendant's 1997 diagnosis of schizophrenia; failed to request a Wade1 hearing on out-of-court identifications; failed to review discovery with defendant; failed to inform defendant of the consequences of his guilty plea; and failed to make "meaningful" arguments at sentencing. Defendant sought withdrawal of his guilty plea and a trial. In the alternative, he sought a modification of his sentence.

On March 4, 2013, the parties appeared before the Law Division judge, who informed them that he was going to deny the petition and would provide a written decision. Counsel for defendant said only that he was seeking a plenary hearing on the issue of ineffectiveness. Later that day, the judge filed an order denying the petition accompanied by a twenty-one page written opinion.

On appeal, defendant raises two points

point i

the pcr court erred in denying mr. mitchell's petition for post conviction relief without affording post conviction relief counsel an opportunity to present oral argument.

point ii

the pcr court erred in denying mr. Mitchell an evidentiary hearing to determine the merits of his claims that trial counsel was ineffective.

II.

Claims of ineffective assistance of counsel must satisfy the two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), as adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). The test requires a showing of deficient performance by counsel, and "'that the deficient performance prejudiced the 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).

A petitioner must establish the right to relief by a preponderance of the evidence. State v. Preciose, 129 N.J. 451, 459 (1992). "[B]ald assertions" of ineffective assistance are not enough. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). A petitioner "must allege facts sufficient to demonstrate counsel's alleged substandard performance," and the court must view the facts alleged in the light most favorable to the petitioner. Ibid.

Defendant argues that the Law Division's denial of oral argument represents an abuse of judicial discretion and seeks a remand to the Law Division for oral argument. Rule 3:22-1 provides that

Any person convicted of a crime may, pursuant to this rule, file with the criminal division manager's office of the county in which the conviction took place a petition for post-conviction relief captioned in the action in which the conviction was entered.

The Rule contains no explicit statement with respect to whether a defendant is entitled to present oral argument in support of his PCR petition. In State v. Parker, 212 N.J. 269 (2012), the Court outlined the considerations governing whether a PCR court should entertain oral argument. Id. at 279-80. Noting that court rules do not explicitly mandate oral argument, the Court held that a PCR court should approach a PCR petition "with the view that oral argument should be granted[,]" and, in making that decision, "facts should be viewed through the same generous lens" used to decide whether to hold an evidentiary hearing. Id. at 280-82.

The Parker Court reaffirmed our decision in State v. Mayron, 344 N.J. Super. 382 (App. Div. 2001), where we held that "there is a strong presumption in favor of oral argument in connection with an initial petition for post-conviction relief." Parker, supra, 212 N.J. at 283.

In Mayron, we reversed the denial of the defendant's PCR petition because the judge disposed of the matter "on the papers" without oral argument. Mayron, supra, 344 N.J. Super. at 385. We held,

The question of whether oral argument is granted on a petition for post-conviction relief remains within the sound discretion of the post-conviction relief court. That discretion 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.]

Here, defendant's counsel appeared before the PCR judge. Although counsel had requested oral argument in his brief, he did not object or ask to present argument when the judge announced that he was going to deny the petition. Counsel did reiterate that he was seeking a hearing on defendant's claims of ineffective assistance, but offered nothing more. While it would have been preferable for the judge to ask the parties if they wished to add anything to their briefs, we find no abuse of discretion here.

As we have noted, counsel's brief was exceedingly thorough and presented defendant's ineffective assistance arguments with considerable clarity. Defendant has not indicated that he would have presented any additional arguments that were not already included in his brief had he argued before the PCR judge.

Although counsel's brief contained detailed and comprehensive arguments, it lacked a certification that might have supported defendant's ineffective assistance claims, especially his mental health claim. In his decision, the PCR judge referenced plea counsel's statement at sentencing where she brought defendant's history of mental illness to the court's attention. After mentioning this history, counsel quickly noted that she did not believe that defendant's illness "would have risen to the level of a defense," but asked the court to consider it in mitigation.

Clearly, plea counsel made a tactical decision not to pursue a defense based on defendant's mental health. To attack this decision in a PCR petition, defendant "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." Cummings, supra, 321 N.J. Super. at 170 (citing R. 1:6-6). Without such proof, this type of bald assertion must be rejected. Ibid.

Similarly, defendant's argument that plea counsel was ineffective for not filing a Wade motion must fail. There was no showing before the PCR court that the identification of defendant by the two witnesses who saw him strike Cummings was in any way suggestive. "It is not ineffective assistance of counsel for defense counsel not to file a meritless motion[.]" State v. O'Neal, 190 N.J. 601, 619 (2007).

The remaining arguments raised by defendant lack sufficient merit to warrant discussion in our opinion, beyond this comment. R. 2:11-3(e)(2). Defendant engaged in a completely unprovoked attack against a defenseless Cummings, approaching him from behind, striking him in the head with a pipe, and killing him. On the first-degree murder charge, defendant faced a sentence between thirty years and life imprisonment. N.J.S.A. 2C:11-3(b)(1). Plea counsel negotiated an agreement where his sentence would not exceed ten years, and the State would not move for a discretionary extended term as a persistent offender. No reasonable assessment of counsel's prowess in negotiating this agreement could conclude that her representation of defendant was anything short of extraordinary.

Affirmed.

1 United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967).