STATEOF NEW JERSEY v. PERRY ALSTON a/k/a PERRY AUSTIN, ALSTON PERRY

NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-0140-16T1

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

PERRY ALSTON a/k/a
PERRY AUSTIN, ALSTON PERRY,

        Defendant-Appellant.


              Submitted January 24, 2018 – Decided February 21, 2018

              Before Judges Alvarez and Nugent.

              On appeal from Superior Court of New Jersey,
              Law Division, Camden County, Indictment No.
              08-12-3640.

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

              Mary Eva Colalillo, Camden County Prosecutor,
              attorney for respondent (Natalie A. Schmid
              Drummond, Assistant Prosecutor, of counsel and
              on the brief).

PER CURIAM

        On June 7, 2016, the Honorable Frederick J. Schuck rendered

a thorough and thoughtful oral decision denying defendant Perry
Alston's petition for post-conviction relief (PCR).               After our

consideration of the arguments made on appeal and review of the

record, we affirm for the reasons stated by Judge Schuck.

       Defendant and a co-defendant were tried on a multi-count

indictment charging, among other offenses, first-degree robbery,


N.J.S.A. 2C:15-(a)(1), and third-degree possession with intent to

distribute,   
N.J.S.A.   2C:35-10.5.       Defendant,   who   represented

himself during the trial, was acquitted of the latter offense.             He

was,   however,   convicted   of   the   first-degree   robbery    and   the

remaining offenses.

       After denying the State's motion to sentence defendant as a

persistent offender to a discretionary extended term, 
N.J.S.A.

2C:44-3, the trial judge sentenced defendant to an aggregate

nineteen-year term of incarceration.        The term was subject to the

No Early Release Act (NERA), 
N.J.S.A. 2C:43-7.2.

       The underlying incident occurred on August 27, 2008, when a

police officer on routine patrol happened upon three men standing

behind a methadone clinic.         Two of them, defendant and his co-

defendant, immediately ran upon seeing the uniformed officer.

Defendant dropped a pocket knife while being pursued.          The amount

of money that the third man said had been stolen from him was

found in defendant's pocket; the bills were crumpled into a ball.



                                     2                              A-0140-16T1
Defendant and his co-defendant claimed they had been engaged in a

drug deal with the third man, while he claimed he was robbed.

      The   trial   judge   conducted   a   lengthy   Crisafi1   hearing.

Defendant said he wanted to represent himself because:

            [T]he State is in a crisis and money is tight
            and things is really not up to par.

                 . . . I understand that [the Office of
            Public Defender] have big caseloads and when
            the issue at hand, when you're dealing with
            life, I don't want to be able to -- be able
            to go back and say that [defense counsel] made
            a mistake because he didn't have enough time.

                 I want to be able to say that I did
            everything myself possibly, human possibly, to
            defend myself. So, I don't have no reason to
            blame anyone when -- if I win, I win. If I
            lose, I have nobody to blame but myself.

                 So, therefore, I'm asking you to give me
            that opportunity to do so. I -- I have plenty
            of time to go down to the library and have --
            do research. I'm in the library five days a
            week and I stay updated on cases. . . .

                 . . . .

                 . . . And I know that if I lose, that
            it can cost me 60 to life. . . . I need to
            protect -- to defend myself.

                 And if you're telling me that you're
            going to give me 60 years, I don't want to
            leave any table unturned, any table. I want
            to fight vigorously, hard, and I'm not going
            to stop at any time until the end and the best
            man win. . . .


1
    State v. Crisafi, 
128 N.J. 499 (1992).

                                   3                              A-0140-16T1
                  . . . .

                 . . . I think I can do a better job than
            [defense    counsel]    when   it    comes   to
            representing myself. But, if I make mistakes,
            then that's a chance I might have to take.
            But, I would -- I can be able to live with
            that. I won't be able to live with getting
            60 to life because a person has too much things
            on their plate and they really wanted to help
            me but they didn't have the time to do it.

     Despite prolonged questioning by the trial judge, defendant

remained unshaken in his conviction that he wanted to represent

himself.

     The judge's explanation of the rights that defendant was

waiving if he represented himself, and the risks he was assuming,

included the ability to claim ineffective assistance of counsel

if convicted.    The judge also explained that because defendant and

the co-defendant were being tried together, and the offenses

included    a    charge     of     conspiracy,      there    were     particular

difficulties involved.          The judge described the role of standby

counsel, which defendant requested, and that standby counsel would

not be able to interfere during the trial or influence trial

strategy.

     Ultimately,     the    judge    found   that   defendant       had   made   an

unequivocal     request    to    represent   himself   and   utilize      standby

counsel.    Defendant made the decision knowingly and intelligently,

with full disclosure of the potential consequences.

                                       4                                  A-0140-16T1
    The Crisafi hearing was conducted fifteen days prior to trial.

Defendant did not file any motions, although some which had been

previously scheduled were addressed before jury selection.                 This

included a Sands/Brunson hearing, a Rule 104 hearing about the

admissibility of certain statements made by the victim, and the

marking of exhibits.

    Defendant's direct appeal was denied.              State v. Alston, No.

A-2292-10 (App. Div. Aug. 21, 2013).            Certification was denied by

the Supreme Court.       State v. Alston, 
217 N.J. 294 (2014).

    In his denial of PCR, Judge Schuck first reviewed the familiar

standard set forth in Strickland v. Washington, 
466 U.S. 668

(1984).    He then addressed whether defense counsel's services —

both before defendant assumed his own representation and while

acting as standby counsel — fell within the range of competent

representation.    Since, despite making numerous claims of steps

his lawyer should have taken, defendant did not identify any

overlooked   information,     benefit,     or    favorable   effect   on   the

outcome,   the   judge    found   he   did      not   demonstrate   that    the

representation fell below competent representation.

    The    judge   considered     it   was      noteworthy   that   defendant

contended that but for his attorney's failure to communicate, he

would have never had to fire him and proceed pro se.                The judge



                                       5                              A-0140-16T1
observed that it was defendant's choice to represent himself, and

that his waiver of counsel was knowing and intelligent.

     The judge also observed that defendant's contention that

counsel failed to discuss any plea offer was refuted by a letter

from the Office of Public Defender addressed to defendant, months

prior to his termination of his lawyer's services, stating that

"[n]o more agreements will be discussed because you have indicated

you want a trial and you are scheduled for a trial."      [Emphasis

added.]     We were not provided with a transcript of the pretrial

conference at which the matter was placed on the trial list, nor

do we know the date it was conducted.

     Additionally, in his PCR petition, defendant reiterated his

claim of innocence, that the incident was not a robbery but a drug

deal gone wrong. Judge Schuck said that under those circumstances,

it was not likely that defendant would have accepted a plea bargain

in any event.

     Judge Schuck also reviewed federal and state precedents with

regard to the appointment of standby counsel.    He stated that in

New Jersey standby counsel is appointed to "act as a safety net"

and "to allow the trial to proceed without the undue delays likely

to arise when a layperson represents his own case[,]" citing State

v. Ortisi, 
308 N.J. Super. 573, 591 (App. Div. 1998) (citation

omitted).     The appointment of standby counsel is discretionary

                                 6                          A-0140-16T1
under federal and state law, and a delicate balance must be

maintained between allowing a defendant to exercise the privilege

of representing himself and extending the protection afforded by

standby counsel.     Thus, contrary to defendant's assertions in his

petition, defense counsel had no obligation to intercede during

the trial and make objections or argue a mitigating factor at

sentencing as defendant claimed.

     With   regard   to   appellate    counsel,   the   judge   noted    that

defendant did not have a constitutional right to have appellate

counsel raise every nonfrivolous issue he requested on appeal.

Thus, defendant's assertion that appellate counsel should have

contended the Crisafi hearing was inadequate, an argument without

merit, did not establish that appellate counsel was ineffective.

Applying    the   Strickland   test,   the   judge   held   that   counsel's

representation was not inadequate, and that it had no prejudicial

effect on the outcome.     The judge denied the petition.

     Now on appeal, defendant raises the following points:

            POINT I:
            THE TRIAL COURT ERRED IN DENYING DEFENDANT'S
            PETITION FOR POST CONVICTION RELIEF WITHOUT
            AFFORDING HIM AN EVIDENTIARY HEARING TO
            DETERMINE THE MERITS OF HIS CONTENTION THAT
            HE WAS DENIED THE RIGHT TO THE EFFECTIVE
            ASSISTANCE OF COUNSEL.

                  A.   The Prevailing Legal Principles
                  Regarding   Claims    Of  Ineffective
                  Assistance  Of   Counsel, Evidentiary

                                       7                             A-0140-16T1
                 Hearings   And   Petitions              For     Post
                 Conviction Relief.

                 B.   Trial Counsel Rendered Ineffective
                 Legal Representation By Virtue Of His
                 Failure   To   Investigate   Defendant's
                 Matter Or File Any Pre-trial Motions, To
                 Explain The Strengths and Weaknesses Of
                 The State's Case To Defendant, And To
                 Engage In Plea Negotiations.

                 C.   Standby       Counsel       Rendered
                 Ineffective   Legal   Representation   By
                 Virtue Of His Failure To Object To The
                 Admittance Of The Victim's Hearsay
                 Statements And To Present Mitigating
                 Evidence At Sentencing.

                 D.   Appellate      Counsel      Rendered
                 Ineffective   Legal   Representation   By
                 Virtue Of His Failure To Raise The Issue
                 That The Court's Warnings To Defendant
                 About Waiving His Right To Counsel Were
                 Inadequate.

                 E.   Defendant Is Entitled To A Remand To
                 The Trial Court To Afford Him An
                 Evidentiary Hearing To Determine The
                 Merits Of His Contention That He Was
                 Denied The Effective Assistance Of Trial,
                 Standby, and Appellate Counsel.

    We   add    the   following     brief    comments     to     Judge    Schuck's

decision.      Defendant    was    advised    on   the    record    that       if    he

represented himself, he would be waiving his right to claim

ineffective    assistance     of    counsel.        He    raises        the     issue

nonetheless.     The argument that but for his trial counsel's

ineffectiveness,      defendant    would     not   have    had     to    represent

himself, seems but a device fashioned to sidestep his waiver.

                                      8                                       A-0140-16T1
    The only additional observation we make is that it follows

as night does the day that defendant's meritless claims did not

establish a prima facie case entitling him to an evidentiary

hearing.   See R. 3:22-10(b); State v. Preciose, 
129 N.J. 451, 462

(1992).

    Affirmed.




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