STATE OF NEW JERSEY v. IVAN WYNN

NOT FOR PUBLICATION WITHOUT THE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.

IVAN WYNN,

Defendant-Appellant.

________________________________

November 25, 2015

Submitted October 21, 2015 Decided

Before Judges Fuentes and Koblitz.

On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 04-04-0281.

Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief).

Angelo J. Onofri, Acting Mercer County Prosecutor, attorney for respondent (Dorothy Hersh, SpecialDeputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Ivan Wynn was tried before a jury and convicted in 2008 of three first degree armed robberies and related unlawful possession of a handgun offenses. The trial court sentenced him to an aggregate term of forty-two years with mandatory periods of parole ineligibility. In this appeal, defendant seeks reversal of an order entered by the Criminal Part denying his petition for post-conviction relief (PCR). We affirm substantially for the reasons expressed by Judge Pedro J. Jimenez, Jr., in his memorandum of opinion.

The process that led to defendant's conviction was delayed due to his continuous misconduct. In fact, it took three separate attempts before the matter was presented to a jury for deliberations and the return of a final verdict. The other two previous attempts resulted in mistrials prompted by defendant's intentionally disruptive behavior.

The first trial began in February 2008. Because of defendant's misconduct, the judge ordered that defendant be shackled during the trial. Despite these preventive measures, defendant managed to stand up and urinate in open court. The judge declared a mistrial after the jury announced it was unable to reach a unanimous verdict. Defendant was again shackled when the second trial began in March 2008. Once again these precautionary measures proved to be ineffective. Defendant became so unruly and disruptive during the jury selection process, that the judge directed the Sheriff's Officers to remove him from the courtroom. The trial judge thereafter dismissed the assembled prospective jurors who had reported to the courtroom and adjourned the proceedings.

The third trial began in May 2008. This time, the judge declared defendant had forfeited his right to be present during the trial. The court arranged for defendant to see and hear the proceedings via a real-time video/audio transmission of the trial. The judge also provided defendant a private telephone line to speak with his attorney during the trial, thereby allowing him to remain in contact with his attorney while preserving the confidentiality of attorney/client communications. This arrangement also permitted defendant to testify at trial in his own defense.

The jury heard evidence over a five-day period commencing on May 9 and ending on May 16, 2008, when it returned a verdict finding defendant guilty of three counts of first degree robbery, N.J.S.A. 2C:15-1; three counts of third degree theft, N.J.S.A. 2C:20-3a; and one count of third degree unlawful possession of a handgun and second degree possession of a handgun by a person previously convicted of one of the offenses listed in N.J.S.A. 2C:39-7b. Given his criminal history, defendant was subject to a mandatory extended term of imprisonment pursuant to N.J.S.A. 2C:43-7.1b. The court ultimately sentenced defendant to an aggregate term of forty-two years of imprisonment. The first thirty-five years of this forty-two- year term is also subject eighty-five percent parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The court also imposed a consecutive seven-year term with five years of parole ineligibility for the conviction under N.J.S.A. 2C:39-7b involving possession of a firearm by a previously convicted individual.

We affirmed defendant's conviction and sentence on direct appeal, State v. Ivan Wynn, Docket No. A-4452-08 (App. Div. April 15, 2011), and the Supreme Court denied certification, 208 N.J. 369 (2011). Defendant first filed a PCR petition alleging ineffective assistance of counsel on May 18, 2009. The trial court dismissed the petition without prejudice because defendant's direct appeal was still pending at the time. Defendant refiled the PCR petition on May 25, 2011; the court thereafter assigned counsel to represent him in the prosecution of the petition.

Defendant alleged his trial counsel was ineffective when he misrepresented or miscommunicated the State's plea offer. According to defendant, he would have accepted the State's offer to plead guilty to first degree robbery in exchange for a recommendation to serve a maximum sentence of fifteen years. Defendant claims his trial attorney told him he had to say he owned, not merely possessed the handgun involved in the robbery. Defendant alleges he was unwilling to admit ownership of the weapon because the handgun actually belonged to a codefendant.

Judge Jimenez conducted an evidentiary hearing on July 9, 2013. PCR counsel called defendant's trial attorney as her first witness. The trial attorney was assigned to represent defendant by the Public Defender's Office.1 Trial counsel testified he was "the seventh or eighth" attorney who had been assigned to represent defendant in this case. It thus appears that defendant's unruly behavior rebounded to disrupt his own defense in the case. Despite the inherent confusion associated with the involvement of multiple successive defense attorneys, trial counsel emphatically testified that the plea offer extended by the State did not include a fifteen-year term of imprisonment. In defense trial counsel's own words: "They said, we're not -- absolutely not committing to anything under 20; we'll only guarantee that we'll cap at 20."

Defendant also testified at the PCR evidentiary hearing. He claimed the State offered "fifteen with 85," presumably referring to a term of fifteen years, subject to the eighty-five percent period of parole ineligibility under NERA. In response to his PCR counsel, defendant qualified his answer by noting that this alleged offer was made by the prosecutor "early on in the criminal proceedings." Defendant testified he rejected the plea offer because "my lawyer told me I would have to say the gun was mine." According to defendant, this admission on his part would have required him to "technically perjure myself."

At the conclusion of the evidentiary hearing, PCR counsel claimed the record showed defendant was confused or misinformed about the requirements of the plea offer extended by the State. PCR counsel thus argued his trial counsel was ineffective when he failed to explain to defendant that all he was required to do was admit to possessing the handgun at the time of the robbery, not actual ownership of the weapon.

When Judge Jimenez noted his incredulity of defendant's account of the plea offer, PCR counsel responded

As implausible as that may seem, when I tried to raise this with [trial counsel] he didn't seem to get the distinction that -- that a non-lawyer could be confused when told, you've got to own the gun; you -- and that -- that's -- he couldn't articulate, either, what the problem was. He just kept saying, it's immaterial, it's not relevant, it's first degree armed robbery.

But to Mr. Wynn it was something significant, because it also meant that his co-defendant was getting to say that the gun was all his, and that was certainly an issue.

Defendant also attacked his trial counsel's performance by claiming he failed to object to inadmissible evidence, commented on defendant's indigency status before the jury when he noted he had been appointed to represent defendant by the Public Defender's Office, and made the comment "let the chips fall where they may." After reviewing the evidence presented at the PCR hearing and considering our decision affirming defendant's conviction on direct appeal, Judge Jimenez denied defendant's PCR petition. Judge Jimenez explained his ruling in a seventeen-page memorandum of opinion in which he reviewed the State's case as well as defendant's histrionics that caused two aborted trials, and required an elaborate technological accommodation to permit him to participate in his own defense, without compromising the integrity of the proceedings or tainting the jury's impartiality.

As a threshold issue, Judge Jimenez rejected defendant's arguments based on defense counsel's performance during the trial. Judge Jimenez noted that the allegations concerning counsel's failure to object to inadmissible evidence was addressed and rejected by this court on direct appeal. Defendant is thus barred from rearguing these same issues in the context of a petition for PCR. R. 3:22-5. Defense counsel's comment about "let[ting] the chips fall where they may" was cited by defendant out of context. The attorney used this metaphor to express his frustration with defendant's prior disruptive behavior that was covered by the local news outlets and other media. Stated differently, counsel's remarks were intended to convey that defendant was the architect of his problems by drawing attention to his misconduct at trial. Citing State v. Luna, 193 N.J. 202, 210 (2007), Judge Jimenez noted that the constitutional right to be present in one's own trial is subject to waiver by explicit request or implicit misconduct.2

Finally, Judge Jimenez noted that defense counsel's comment about being appointed by the Public Defender's Officer was also taken out of context. Defense counsel made this comment in response to a question defendant asked him in the presence of the jury. Specifically, defendant asked his own attorney whether he had been appointed by God to defend him in this trial. The record shows this question was part of defendant's pattern of bizarre, unresponsive, and intentionally disruptive behavior during the course of the trial. Defendant's use of this strategy intensified when he testified in his own defense.

Judge Jimenez found defendant failed to show his trial counsel provided him with ineffective legal representation, as defined by the by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and subsequently adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). Against his backdrop defendant now appeals raising the following argument.

POINT I

THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED BECAUSE THE CONFLICT OF INTERESTS THAT EXISTED BETWEEN TRIAL COUNSEL AND DEFENDANT RESULTED IN CONSTITUTIONALLY DEFECTIVE REPRESENTATION.

We reject this argument and affirm substantially for the reasons expressed by Judge Jimenez in his memorandum of opinion dated October 16, 2013. We add only the following brief comment. The record shows defendant's conduct during the trial was disrespectful, antagonistic, and intentionally disruptive. Notwithstanding these obstacles, defense counsel's performance during the trial reflects he did not permit any alleged animosity he may have felt or developed against defendant to interfere with his professional obligation to provide his client with the best defense possible under the circumstances. Despite defendant's efforts to undermine the integrity of the adjudicative proceedings that led to his conviction, there is no evidence from which a rational and impartial observer can infer he succeeded.

Affirmed.

1 Private attorneys who serve in this capacity are commonly known as "pool attorneys."

2 Rule 3:16(b) codifies the balancing test a trial court must use to determine whether a defendant has waived his right to be present at trial, explicitly or implicitly.