STATE OF NEW JERSEY v. ANDREW ROSS

NOT FOR PUBLICATION WITHOUT THE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.

ANDREW ROSS,

Defendant-Appellant.

___________________________

August 30, 2016

Submitted June 6, 2016 Decided

Before Judges Simonelli and Carroll.

On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 03-06-1187.

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

Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Monica do Outeiro, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Andrew Ross appeals from the August 13, 2014 Law Division order, which denied his petition for post-conviction relief (PCR) without an evidentiary hearing. For the following reasons, we affirm.

We derive the following facts from the record. On April 11, 2003, Asbury Park Police Officers Jason LaRusso and April Bird responded to defendant's apartment building regarding a domestic dispute between defendant and his then-girlfriend, Tia Slocum, whom he later married. Defendant became irate and started walking toward LaRusso and raised his voice. LaRusso told defendant to step back away from him, but defendant did not withdraw. LaRusso then informed defendant he was being placed under arrest. When LaRusso attempted to handcuff defendant, defendant spun away and elbowed the officer. LaRusso called for backup and sprayed defendant with mace. Defendant walked to the door and walked out of the apartment and into the hallway. As LaRusso and Bird were attempting to stop and handcuff defendant, he struck Bird in the face. Throughout this encounter, LaRusso repeatedly told defendant that he was under arrest and to stop resisting.

Defendant struggled with the officers in the hallway until they reached the stairs. Defendant ran down the stairs and LaRusso followed him to the first landing, where LaRusso attempted to grab defendant, but defendant pulled away. LaRusso fell down a flight of stairs, suffering a large bruise to the underside of his arm. He pursued defendant outside the building and attempted to restrain defendant by twisting defendant's arm behind his back and pushing him up against a car. Defendant and LaRusso struggled and Bird came out of the building to assist LaRusso. LaRusso continued to instruct defendant to stop resisting arrest.

Police Officer Carl Christie arrived at the scene and saw LaRusso and Bird wrestling with defendant and trying to handcuff him. Christie tried to grab defendant's arm, but defendant pushed him away. Christie tried again, but defendant "yanked his arm away." Christie then grabbed defendant's arm and there were "a few punches." Defendant grabbed Christie around the waist and they fell to the ground, where punches were exchanged. Defendant was eventually handcuffed and transported to police headquarters.

A grand jury indicted defendant on two counts of third-degree aggravated assault of a law enforcement officer, N.J.S.A. 2C:12-1(b)(5)(a) (counts one and two); and one count of third-degree resisting arrest, N.J.S.A. 2C:29-2(a) (count three). Defendant claimed he did not resist arrest and was the subject of police brutality.

Prior to trial, on February 3, 2004, defense counsel requested that an investigator from the Public Defender's Office take a statement from Lionel Peterson, who allegedly saw the police beating defendant outside the apartment building when defendant was on the ground. The investigator advised defense counsel that he had mailed a contact letter to Peterson and left a message on his cellphone for Peterson to call back. After not hearing from Peterson, the investigator went to his home, spoke to his brother, and gave the brother another contact letter to give to Peterson. The investigator made several subsequent attempts to contact Peterson on his cellphone, but as of May 4, 2004, the investigator had not heard from him. The investigator advised defense counsel that he would notify counsel if Peterson made contact in the future. Having not heard from Peterson, defense counsel did not place him on defendant's witness list.

Trial was scheduled for May 17, 2004, but was twice adjourned. The trial began on July 27, 2004. After the State had rested, defense counsel informed the trial judge that defendant gave him a note, purportedly from Peterson, which stated

To whom it may concern, my name is Lionel Peterson. I witnessed the events on 4/11/03. I am willing to come in and give a statement as to what I saw.

I am unable to be excused from work. I'm asking to be subpoenaed from work to be able to come in. If you have any questions, please contact me at work or home. . . . P.S., I did speak to one of the investigators and I explained to him I need to be subpoenaed by [a] subpoena so I could still be paid for my absence.[1]

Defense counsel requested time to call Peterson and subpoena him, but the judge denied the request. The judge found that the trial had twice been adjourned; defense counsel attempted to contact Peterson; Peterson was uncooperative; defendant had time to obtain Peterson's cooperation; and the State would be prejudiced.

The jury found defendant guilty of resisting arrest and not guilty on the two aggravated assault charges. The judge sentenced defendant to a one-year probationary term conditioned on forty-two days in the county jail with credit for time served. The judge entered a judgment of conviction (JOC) on November 5, 2004.

Defendant appealed his conviction and sentence and also challenged the judge's decision that he violated probation. Defendant argued, in part, that the judge erred in denying his request to contact an exculpatory witness. We affirmed, holding as follows, in pertinent part

We find no merit in defendant's assertion that the judge abused his discretion by denying defendant's request to telephone a "possibly exculpatory" witness in the middle of the trial. We are convinced that defendant had ample time prior to trial to locate the purported witness and secure his testimony. Moreover, defendant made no proffer regarding this witness' anticipated testimony. Thus, the record does not establish that the testimony of this witness would have benefited defendant in any way. Clearly, the judge did not abuse his discretion by denying defendant's application for an adjournment.

[State v. Ross, No. A-2989-04 (App. Div. June 28, 2006) (slip op. at 21-22).]

Defendant did not file a petition for certification with our Supreme Court.

On November 9, 2009, defendant filed a PCR petition. His new attorney later informed the judge that defendant wished to withdraw his petition. The attorney submitted defendant's handwritten signed statement, dated June 24, 2010, which was witnessed by the attorney and confirmed that defendant wished to withdraw his petition. Believing that defendant had until July 28, 2010 to file a PCR petition, the judge entered an order on July 2, 2010, withdrawing the petition without prejudice.2

Over three years later, defendant filed a PCR petition on August 19, 2013. He claimed he had no knowledge that his attorney withdrew his prior petition and argued, in part, that trial counsel rendered ineffective assistance by failing to subpoena and adequately investigate Peterson.3 Defendant asserted that Peterson would have testified that defendant did not resist arrest and was the subject of police brutality. Defendant did not submit a sworn statement from Peterson.

The judge held the petition was time-barred by Rule 3:22-12(a)(1), and defendant failed to demonstrate excusable neglect to warrant relaxation of the five-year time limit. The judge found that defendant did not provide any proof to dispute he had authored, signed, and authorized submission of his June 24, 2010 written statement confirming the withdrawal of his prior petition.

Addressing the merits, the judge held that defendant failed to establish a prima facie case of ineffective assistance of trial counsel. The judge found that defendant did not submit a sworn statement from Peterson as to what testimony he would present, and that trial counsel attempted to contact Peterson, but Peterson was uncooperative. The judge noted that the incident began inside the building, and Peterson only saw what happened outside the apartment. The judge also noted that Slocum did not mention Peterson during her trial testimony or in her statement to the police. This appeal followed.

On appeal, defendant raises the following contentions

POINT I: THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S [PCR], IN PART, ON PROCEDURAL GROUNDS PURSUANT TO RULE3:22-12.

POINT II: THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S [PCR] WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION THAT HE FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION FROM TRIAL COUNSEL.

We review a judge's decision to deny a PCR petition without an evidentiary hearing for abuse of discretion. State v. Preciose, 129 N.J. 451, 462 (1992). We discern no abuse of discretion here.

The mere raising of a claim for PCR does not entitle the defendant to an evidentiary hearing. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Rather, trial courts should grant evidentiary hearings and make a determination on the merits only if the defendant has presented a prima facie claim of ineffective assistance. Preciose, supra, 129 N.J. at 462. To establish a prima facie claim of ineffective assistance of counsel, the defendant

must satisfy two prongs. First, he must demonstrate that counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment. An attorney's representation is deficient when it [falls] below an objective standard of reasonableness.

Second, a defendant "must show that the deficient performance prejudiced the defense." A defendant will be prejudiced when counsel's errors are sufficiently serious to deny him a fair trial. The prejudice standard is met if there is "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." A reasonable probability simply means a probability sufficient to undermine confidence in the outcome of the proceeding.

[State v. O'Neil, 219 N.J. 598, 611 (2014) (quoting Strickland v. Washington, 466 U.S. 668, 687-88, 694, 104 S. Ct. 2052, 2064, 2068 80 L. Ed. 2d 674, 693, 698 (1984)).]

When petitioning for PCR, the defendant must establish, by a preponderance of the credible evidence, that he or she is entitled to the requested relief. State v. Nash, 212 N.J. 518, 541 (2013). To sustain that burden, he "must do more than make bald assertions that he was denied the effective assistance of counsel. He must allege facts sufficient to demonstrate counsel's alleged substandard performance." Cummings, supra, 321 N.J. Super. at 170. Where the 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 based upon the personal knowledge of the affiant or the person making the certification." State v. Petrozelli, 351 N.J. Super. 14, 23 (App. Div. 2002) (citation omitted).

We have considered defendant's contentions in light of the record and applicable legal principles and conclude they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by the judge. However, we make these brief comments.

Defendant provided no sworn statement from Peterson and made nothing more than a bald assertion that Peterson would have exculpated him. In any event, defendant could not demonstrate there was a reasonable probability that the outcome would have been different. Defendant claimed that Peterson saw the police beating him outside the apartment building when he was on the ground. Defendant did not claim that Peterson saw what happened inside the building, where defendant first resisted arrest.

Affirmed.

1 The note itself is not in the record on appeal. The record does not indicate that the note was signed or certified.

2 At oral argument of the PCR petition under review here, the judge stated that the JOC was entered on July 28, 2005, and the reason he entered the July 2, 2010 order without prejudice was "because there were still several weeks left within the five-year time period for the petition to be refiled." However, the JOC was entered on November 5, 2004.

3 Defendant raised other claims of ineffective assistance of counsel that are not pertinent to this appeal.