STATE OF NEW JERSEY v. STANLEY CLIFF SMITH
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2125-16T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
STANLEY CLIFF SMITH, a/k/a
JERRY JOHNSON,
Defendant-Appellant.
___________________________
Submitted October 31, 2018 – Decided November 26, 2018
Before Judges Currier and Mayer.
On appeal from Superior Court of New Jersey, Law
Division, Mercer County, Indictment No. 02-10-1409.
Joseph E. Krakora, Public Defender, attorney for
appellant (Steven M. Gilson, Designated Counsel, on
the brief).
Angelo J. Onofri, Mercer County Prosecutor, attorney
for respondent (Monica A. Martini, Assistant
Prosecutor, of counsel and on the brief).
Appellant filed a pro se supplemental brief.
PER CURIAM
Defendant Stanley Cliff Smith appeals from a September 6, 2016 order
denying his petition for post-conviction relief (PCR) after a limited evidentiary
hearing conducted on July 8, 2016. 1 We affirm.
Defendant was convicted of first-degree murder, N.J.S.A. 2C:11-3(b),
second-degree possession of a weapon for an unlawful purpose, N.J.S.A 2C:39-
4(d), and third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b).
The sentencing judge merged the gun possession charges into the murder charge,
and imposed a thirty-year sentence with a thirty-year parole disqualifier.
Defendant filed a direct appeal, and we affirmed. State v. Smith, No.
A-2439-07 (App. Div. Aug. 4, 2010). The New Jersey Supreme Court granted
defendant's petition for certification, and affirmed the conviction on October 25,
2012. State v. Smith, 212 N.J. 365 (2012). 2
1
The evidentiary hearing was limited to whether certain individuals were proper
alibi witnesses and, if so, whether defendant's trial counsel failed to investigate
either individual as an alibi witness to testify at trial.
2 On March 4, 2013, the United States Supreme Court denied defendant's
petition.
A-2125-16T4
2
Defendant filed a pro se PCR petition on July 2, 2012. The judge
reviewing this first PCR petition denied the application because defendant's
direct appeal was still pending.
On May 10, 2013, defendant filed a new pro se PCR petition. The PCR
judge granted defendant's request for an evidentiary hearing limited to potential
alibi witnesses. At the evidentiary hearing, the court heard testimony from
defendant, defendant's trial counsel, and two potential alibi witnesses.
In a thorough and comprehensive forty-six page written decision, Judge
Timothy P. Lydon denied defendant's PCR application. We need not repeat the
judge's detailed recitation of the testimony from the trial and PCR evidentiary
hearing.
On appeal, defendant raises the following arguments in his counseled
brief:
POINT I
DEFENDANT'S PCR PETITION SHOULD NOT
HAVE BEEN TIME BARRED.
POINT II
DEFENDANT'S CONVICTION MUST BE
REVERSED BECAUSE TRIAL COUNSEL WAS
INEFFECTIVE FOR FAILING TO INVESTIGATE
A-2125-16T4
3
P.J.3 AND S.F. AS EXCULPATORY WITNESSES
AND/OR HAVE THEM TESTIFY.
POINT III
TRIAL COUNSEL EFFECTIVELY INDUCED
DEFENDANT NOT TO TESTIFY.
POINT IV
THIS MATTER MUST BE REMANDED FOR AN
EVIDENTIARY HEARING BECAUSE
DEFENDANT ESTABLISHED A PRIMA FACIE
CASE OF PRETRIAL COUNSEL'S
INEFFECTIVENESS FOR NOT INFORMING HIM
THAT HE HAD THE RIGHT TO TESTIFY AT THE
MIRANDA4 HEARING.
POINT V
THIS MATTER MUST BE REMANDED FOR
FINDINGS OF FACT AND CONCLUSIONS OF
LAW REGARDING DEFENDANT'S CLAIM THAT
TRIAL COUNSEL WAS INEFFECTIVE FOR
FAILING TO INVESTIGATE D.S. AND J.R.
AND/OR HAVE THEM TESTIFY AS
EXCULPATORY WITNESSES. (Not raised below).
In his pro se supplemental brief, defendant raises the following arguments:
POINT I
THE TRIAL COURT ERRED IN DENYING THE
DEFENDANT'S PETITION FOR POST-
3
We use initials to protect the identities of the potential witnesses.
4
Miranda v. Arizona, 384 U.S. 436 (1966).
A-2125-16T4
4
CONVICTION RELIEF[.] THE DEFENDANT['S]
CONVICTION MUST BE REVERSED DUE TO
TRIAL COUNSEL'S INEFFECTIVENESS FOR
FAILING TO INVESTIGATE AND INTERVIEW
ALIBI WITNESS P.J. AND PARTIAL ALIBI
WITNESS S.F., AS EXCULPATORY WITNESSES
AND HAVE THEM TESTIFY AT DEFENDANT'S
TRIAL.
POINT II
THE DEFENDANT'S PCR ATTORNEY WAS
INEFFECTIVE FOR NOT PROVIDING THE PCR
COURT WITH THE CELLPHONE SUBSCRIBER
INFORMATION.
We affirm the denial of defendant's PCR petition for the reasons set forth
in Judge Lydon's thoughtful and cogent written opinion. We add only the
following comments.
In accordance with Rule 3:22-6A(2), when a first PCR petition is
dismissed without prejudice, the petition may be refiled as a first petition if it is
filed "within 90 days of the date of the judgment on direct appeal" or within five
years of the date of the entry of the judgment of conviction. In this case,
defendant's PCR petition refiled on May 10, 2013 was not timely under the Rule
because ninety days from the New Jersey Supreme Court's denial of defendant's
petition for certification was January 20, 2013, and five years from the entry of
the judgment of conviction was May 17, 2012.
A-2125-16T4
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Defendant contends his May 2013 petition was timely because it was filed
within ninety days of the denial of his writ of certiorari to the United St ates
Supreme Court. We reject this argument because "[f]ederal habeas corpus
proceedings will not be deemed to toll the time prescribed by [Rule 3:22-12]."
Pressler & Verniero, N.J. Court Rules, cmt. 2 to R. 3:22-12 (2019) (citing State
v. Milne, 178 N.J. 486, 494 (2004)) ("[A] defendant's pursuit of federal review
ordinarily would not extend the time frame within which to file a PCR petition
in State court.").
On this record, we are satisfied the May 2013 PCR application was
untimely and therefore should be treated as defendant's second petition. As a
second or subsequent PCR petition, Rule 3:22-4(b) and Rule 3:22-12(a)(2)
apply.
A second or subsequent PCR petition is untimely when filed more than
one year after the latest date of: (A) a newly asserted constitutional right was
recognized and made retroactive; (B) a newly discovered factual predicate was
discovered, if it could not have been discovered earlier through reasonable
diligence; or (C) a prior PCR petition was denied in which PCR counsel was
allegedly ineffective. R. 3:22-4(b); R. 3:22-12(a)(2).
A-2125-16T4
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Defendant's second PCR application did not concern a newly recognized
constitutional right or a newly discovered factual predicate that could not have
been discovered earlier. All of the information raised in defendant's second PCR
petition related to his ineffective assistance of counsel claim could have been
discovered sooner through the exercise of reasonable diligence. See State v.
Brewster, 429 N.J. Super. 387, 399-400 (App. Div. 2013). Nor does defendant
raise ineffective assistance of PCR counsel, as he did not have counsel on his
first PCR petition.
Even though the PCR judge determined defendant's PCR application was
time barred, the judge reviewed the merits of his petition. To establish a prima
facie claim of ineffective assistance of counsel, a convicted defendant must
satisfy the two-part test enunciated in Strickland by demonstrating: (1) counsel's
performance was deficient, and (2) the deficient performance actually
prejudiced the accused's defense. Strickland v. Washington, 466 U.S. 668, 687
(1984); see also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland
test in New Jersey).
In reviewing ineffective assistance claims, courts apply a strong presumption
that a defendant's trial counsel "rendered adequate assistance and made all
significant decisions in the exercise of reasonable professional judgment."
A-2125-16T4
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Strickland, 466 U.S. at 690. "[C]omplaints 'merely of matters of trial strategy' will
not serve to ground a constitutional claim of inadequacy[.]" Fritz, 105 N.J. at 54
(quoting State v. Williams, 39 N.J. 471, 489 (1963), overruled on other grounds by
State v. Czachor, 82 N.J. 392 (1980)). To demonstrate the likelihood of succeeding
under the Strickland/Fritz test, a defendant "must do more than make bald
assertions[,] . . . [and] must allege facts sufficient to demonstrate counsel's alleged
substandard performance." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.
1999).
We reject all of defendant's arguments asserting ineffective assistance of
counsel for the reasons expressed in Judge Lydon's comprehensive written
decision.
The PCR judge found the testimony of defendant's trial counsel credible
and the testimony of defendant's alibi witnesses unreliable and poor. The judge
concluded defense counsel made a strategic litigation decision that the testimony
of the proffered witnesses was more problematic than helpful to defendant.
The PCR judge also determined defendant's trial counsel discussed the
right to testify at the Miranda hearing and trial, and defendant deferred to his
attorney on the matter. Further, the judge found defendant knowingly and
intelligently waived his right to testify, his waiver was well documented in the
A-2125-16T4
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record based upon the discussions with his trial counsel, defendant was not
compelled or coerced regarding his decision not to testify, and defendant had
sufficient time to consider whether to testify at trial. Nor is there any evidence
in the record to support a conclusion that had defendant testified at the Miranda
hearing or at trial, the outcome of the case would have been different.
The PCR judge further found defense trial counsel effectively cross-
examined the State's witnesses and his representation of defendant throughout
the trial was not ineffective. The judge concluded defense trial counsel
exercised reasonable and professional judgment in his strategy decisions
regarding his representation of defendant throughout the trial.
Regarding the failure of defense trial counsel to investigate whether D.S.
and J.R. had information to serve as exculpatory witnesses at defendant's trial,
this issue was not presented to the PCR judge. We decline to review issues not
presented to the trial court unless the issue is jurisdictional or concerns a matter
of public importance. See Zawan v. Felton, 219 N.J. 199, 227 (2014) (quoting
Nieder v. Royal Idem. Ins. Co., 62 N.J. 229, 234 (1973)). Because the issue
raised by defendant for the first time on appeal is not jurisdictional or a matter
of public importance, we decline to consider the argument.
A-2125-16T4
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Having reviewed the record, we find defense counsel's actions did not fall
below the requisite standard to satisfy the Strickland/Fritz test. The trial
evidence against defendant was overwhelming. Defendant presented no
competent evidence demonstrating satisfaction of either prong under the
Strickland standard. Without presenting a prima facie case of ineffective
assistance of counsel, defendant was not entitled to an evidentiary hearing on
those issues. See State v. Preciose, 129 N.J. 451, 462-63 (1992).
The arguments in defendant's supplemental pro se brief are without
sufficient merit to warrant further discussion. R. 2:11-3(e)(2).
Affirmed.
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