STATE OF NEW JERSEY v. SHAWN SOUTHERLAND
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APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3299-15T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
SHAWN SOUTHERLAND,
Defendant-Appellant.
________________________________
Submitted December 21, 2017 – Decided March 19, 2018
Before Judges Rothstadt and Gooden Brown.
On appeal from Superior Court of New Jersey,
Law Division, Hudson County, Indictment No.
09-10-1750.
Shawn Southerland, appellant pro se.
Esther Suarez, Hudson County Prosecutor,
attorney for respondent (Kerry J. Salkin,
Assistant Prosecutor, on the brief).
PER CURIAM
Defendant, Shawn Southerland, appeals from the denial of his
petition for post-conviction relief (PCR) without an evidentiary
hearing. For the reasons that follow, we affirm.
Following a bench trial, defendant was convicted of murder,
N.J.S.A. 2C:11-3(a), and hindering apprehension,
N.J.S.A. 2C:29-
3(b)(1). Defendant's motion for a new trial was denied, and the
sentencing court imposed an aggregate sentence of thirty years'
imprisonment subject to a No Early Release Act,
N.J.S.A. 2C:43-
7.2, parole disqualifier.
Defendant appealed and we affirmed his convictions and
sentence in an unpublished opinion. See State v. Southerland, No.
A-4663-11 (App. Div. Jan. 30, 2015) (slip op. at 5, 29). The
Supreme Court denied his petition for certification. State v.
Southerland,
221 N.J. 566 (2015).
The facts underlying defendant's convictions are set forth
in our earlier opinion and need not be repeated here. See
Southerland, slip op. at 5-14. For our purposes, it is sufficient
to summarize the facts leading to defendant representing himself
at trial, with his trial counsel remaining involved only as standby
counsel.1
1
When a defendant waives the right to counsel, the court "should"
appoint standby counsel to assist the defendant. State v.
Sinclair,
49 N.J. 525, 552 (1967); accord State v. Slattery,
239 N.J. Super. 534, 549 (1990). The purpose of appointing standby
counsel is to provide "a 'safety net' to insure that the litigant
receives a fair hearing and to allow the trial to proceed without
the undue delays likely to arise when a layperson represents his
own case." State v. Ortisi,
308 N.J. Super. 573, 591 (App. Div.
1998). A court "may even-over objection by the accused—appoint a
2 A-3299-15T3
On November 19, 2010, defendant filed a motion to waive his
right to an attorney and to represent himself. During the motion
hearing held on February 2, 2011, the motion judge explained to
defendant the consequences of self-representation, and defendant
waived his right to bring a claim of ineffective assistance of
counsel. The record reflects the following exchange between
defendant and the motion judge:
THE COURT: Now, here is something very
important that I want you to know. When you
have an attorney and the attorney makes a
mistake, what we call, in the law, "provides
ineffective assistance of counsel," you have
recourse.
[DEFENDANT]: I understand, Your Honor.
. . . .
[DEFENDANT]: I'm aware that I can't -- I can't
claim ineffective assistance of counsel.
THE COURT: So, the whole area of law . . .,
which we refer to as [PCR] petitions, which
many times can involve someone saying, "My
attorney made a mistake I didn't get effective
assistance. My Constitutional right to
counsel was – was jeopardized by my attorney."
That whole area of law and all the benefits
that you would have under that area of the law
would not be available to you.
"standby counsel" to aid the accused if and when the accused
requests help, and to be available to represent the accused in the
event that termination of the defendant's self-representation is
necessary." State v. Reddish,
181 N.J. 553, 597 (2004) (quoting
Faretta v. California,
422 U.S. 806, 834 n.46(1975)). Whether to
appoint standby counsel is within the trial court's discretion.
Sinclair,
49 N.J. at 552.
3 A-3299-15T3
[(Emphasis added).]
After the hearing, on February 18, 2011, the court granted
defendant's motion and appointed his trial counsel to serve as
standby counsel. It then denied defendant's subsequent motions
for the appointment of new standby counsel. A bench trial was
held over the course of nine nonconsecutive days and concluded
with defendant's conviction and sentence.
Defendant filed a PCR petition on July 16, 2015, in which he
argued his counsel provided ineffective assistance based upon: (1)
counsel's incorrect legal advice regarding the anticipated
testimony of the State's medical expert, "which caused him to
reject the State's plea offer"; (2) standby counsel's failure "to
retain a medical expert on defendant[']s behalf"; and (3) standby
counsel's "deliberate act of sitting on the other side of the bar
during . . . trial[, which] was an unacceptable conflict of
interest[.]" In an amended petition filed in August 2015,
defendant also alleged ineffective assistance of appellate counsel
based on counsel's failure to raise a Fourth Amendment issue on
direct appeal.
Judge Sheila A. Venable denied defendant's petition by order
dated December 15, 2015. She issued a comprehensive, twenty-four
4 A-3299-15T3
page written decision setting forth her reasons for denying
defendant's petition without an evidentiary hearing.
Addressing each of defendant's arguments, Judge Venable first
determined that defendant "misrepresent[ed] the legal advice
provided by [his] counsel." Although defendant argued that counsel
informed him in a letter that the State's medical expert would
estimate that the victim died on Tuesday, April 6, 2007, which was
contrary to the State's theory that the victim died on April 3,
2007, Judge Venable examined the letter,2 and found "[d]efendant
fail[ed] to consider that the [m]edical [e]xaminer's opinion as
2
In the letter sent to defendant on August 11, 2010, counsel
stated:
The only direct piece of evidence relating to
[the victim's] death was that she was
certainly dead when her body was discovered
inside a duffle bag along the Henry Hudson
Parkway on April 7, 2007 at approximately 8:45
a.m. In this regard the [m]edical [e]xaminer
from the Bronx is anticipated to estimate that
at the time of her initial observation of [the
victim] on April 7, 2007 at 2:00 p.m., [the]
victim had been dead for at least [twenty-four
to thirty-six] hours, which would put her
estimated time of death somewhere between 2:00
a.m. on April 6, 2007 and 2:00 p.m. on April
6, 20[07]. It is of course, possible and
indeed probable that [the victim] somehow died
at an earlier point in time, a point I doubt
the [m]edical [e]xaminer would seriously
dispute, especially if asked by the
prosecutor.
[(Emphasis added).]
5 A-3299-15T3
to time of death was in fact only an estimate . . . and the
possibility that the [m]edical [e]xaminer would and could state
the [v]ictim died at an earlier point than the time frame listed."
She observed that in the same letter, counsel also advised
defendant:
The best circumstantial evidence indicates
that [the victim] was killed in her residence
sometime between the late evening hours of
April 2, 2007 and approximately 8:00 a.m. on
April 3, 2007, at a time when it is anticipated
the victim's son will testify you were not
only present but prevented him from entering
his mother's bedroom before he went to school
that morning.
Therefore, the judge concluded:
It is relatively apparent from the letter that
. . . [c]ounsel was attempting to provide
[defendant] with all possible avenues of
attack by the State as well as potential
issues relating to . . . [d]efendant's
defense relating to the [v]ictim's time of
death and any potential alibi defense that
[d]efendant wished to raise.
Addressing defendant's argument that this "incorrect" legal
advice caused him to reject the State's plea offer, Judge Venable
noted that defendant "made clear his intentions of not accepting
a plea [and that he] reiterated various times throughout the action
that he would not accept a plea."
Turning to defendant's argument that standby counsel was
ineffective because he failed to retain a medical expert on behalf
6 A-3299-15T3
of defendant, Judge Venable relied on McKaskle v. Wiggins,
465 U.S. 168, 174 (1984), and found because defendant chose to
represent himself, "it [was] ultimately his obligation to control
and organize [the] content of his own defense, to make motions,
to argue points of law, to participate in voir dire, to question
witnesses, and to address [the] court and jury [during] trial."
Therefore, she concluded it was defendant's responsibility to
retain a medical expert if he felt one was needed at trial, and
it was not standby counsel's obligation to provide one.
The judge was also unpersuaded that "[s]tandby [c]ounsel's
location in the court room alone amount[ed] to deficient
representation especially . . . within the scope of
representation specifically granted by [d]efendant." She
explained that "defendant did not want the assistance of [s]tandby
[c]ounsel and effectively obstructed most [of his] efforts to
assist. Defendant . . . failed to show other than via bald
assertions that had [counsel] sat next to him, the outcome of the
trial would have been different."
Last, Judge Venable found that defendant's argument that
appellate counsel was ineffective because he failed to argue the
admissibility of statements defendant made on the phone when a
police officer was present on the other line was meritless. The
judge observed that appellate counsel explained to defendant that
7 A-3299-15T3
he was "reluctant to raise [the] issue on direct appeal as [he]
believe[d], strategically, that it would detract from the issues
that [he] intend[ed] to raise[.]" Further, defendant raised the
issue himself in a pro se supplemental appellate brief, and we
found his argument to be meritless.
On appeal, defendant presents the following arguments:
POINT I
THE PCR COURT COMMITTED CLEAR ERROR
OF LAW BY DENYING DEFENDANT'S
PETITION FOR POST-CONVICTION RELIEF
WITHOUT AFFORDING HIM AN
EVIDENTIARY HEARING BECAUSE,
DEFENDANT PRESENTED PRIMA FACIE
EVIDENCE THAT JOHN J. CONVERY, ESQ.,
DESIGNATED PLEA COUNSEL, PROVIDED
HIM WITH MISLEADING, INCORRECT,
LEGAL ADVICE WHICH CAUSED NON
ACCEPTANCE OF THE STATE[']S AMENDED
PLEA; BECAUSE, IT'S DECISION WAS
CONTRARY TO OR, UNREASONABLE
APPLICATION OF LAFLER V. COOPER
. . . AND, FRYE V. MISSOURI.
A. DESIGNATED PLEA COUNSEL
FAILED TO PROPERLY ADVISE DEFENDANT
ON WHETHER A CONDITIONAL PLEA WAS
WARRANTED. (NOT RAISED BELOW).
B. THE PCR COURT FAILED TO
TAKE THE FACTS IN THE LIGHT MOST
FAVORABLE TO DEFENDANT.
POINT II
THE PCR TRIAL COURT ERRED IN DENYING
DEFENDANT'S PETITION FOR POST-
CONVICTION RELIEF WITHOUT AFFORDING
HIM AN EVIDENTIARY HEARING TO
8 A-3299-15T3
DETERMINE THE MERITS OF HIS CLAIM
THAT STANDBY COUNSEL'S FAILURE TO
OBTAIN AN EXPERT ON HIS BEHALF,
PREJUDICED HIS CASE, HIS DEFENSE AND
VIOLATED HIS DUE PROCESS RIGHT TO A
FAIR TRIAL.
A. THE PCR TRIAL COURT ERRED
IN DENYING DEFENDANT'S PETITION FOR
POST-CONVICTION RELIEF ON HIS CLAIM
THAT THE TRIAL COURT'S FAILURE TO
CONDUCT PROPER HEARING ON
DEFENDANT'S CONFLICT OF INTEREST
CLAIM BETWEEN DEFENDANT AND STANDBY
COUNSEL CREATED AN UNWAIVED
CONFLICT OF INTEREST WHICH
ULTIMATELY LED TO STANDBY COUNSEL
ABANDONING DEFENDANT AT DEFENSE
TABLE AT TRIAL; AND BECAUSE
DEFENDANT WAS PREJUDICED THEREBY,
HE IS ENTITLED TO REVERSAL OF HIS
CONVICTION AND SENTENCE AND NEW
TRIAL. (THE PCR COURT FAILED TO
PASS ON ISSUE IN ITS 24-PAGE
OPINION).
POINT III
THE TRIAL COURT COMMITTED
REVERSIBLE ERROR BY FAILING TO
CONDUCT AN EVIDENTIARY HEARING ON
POINTS
1 AND 2.
POINT IV
THE PCR TRIAL COURT ERRED IN FINDING
THAT DEFENDANT'S CLAIM OF
INEFFECTIVE ASSISTANCE OF COUNSEL
ON DIRECT APPEAL WAS PROCEDURALLY
BARRED UNDER [RULE] 3:22-5.
DEFENDANT'S FOURTH AMENDMENT CLAIM
WAS ARGUABLY MERITORIOUS; WAS NOT
FULLY ADJUDICATED ON THE MERITS AND
COUNSEL'S FAILURE TO RAISE ISSUE CAN
NOT BE REGARDED AS PURELY
9 A-3299-15T3
STRATEGICAL, RATHER, INEFFECTIVE
ASSISTANCE. THE PCR COURT DECISION
WAS CONTRARY TO OR, UNREASONABLE
APPLICATION OF KIMMELMAN V.
MORRISON . . . AND; EVITTS V. LUCEY.
THIS COURT SHOULD REVERSE THE
DEFENDANT'S CONVICTION, VACATE
SENTENCE AND REMAND FOR NEW TRIAL,
ABSENT THE EXCLUDABLE EVIDENCE.
A. THE APPELLATE DIVISION
PANEL REVIEW ON DIRECT APPEAL DID
NOT ADDRESS THE LEGAL QUESTION OF
WHETHER THE ALLEGED THIRD PARTY
CONSENT WAS LEGITIMATE OR VALID.
B. STATE V. NASH, IS
DISPOSITIVE OF THIS MATTER.
C. THE TRIAL COURT'S JUNE
23, 2011, ORDER GRANTING THE STATE'S
MOTION WAS CLEARLY MISTAKEN AND MUST
BE REVERSED.
D. DEFENDANT'S MOTION TO
SUPPRESS SHOULD HAVE BEEN GRANTED.
E. DEFENDANT DID NOT RECEIVE
THE EFFECTIVE ASSISTANCE OF COUNSEL
ON DIRECT APPEAL AND HAS SATISFIED
THE FIRST PRONG OF STRICKLAND/FRITZ
TEST.
F. DEFENDANT HAS SATISFIED
THE SECOND PRONG OF
STRICKLAND/FRITZ, BECAUSE ABSENT
THE EXCLUDABLE EVIDENCE THE RESULT
OF THE VERDICT WOULD HAVE BEEN
DIFFERENT.
We are not persuaded by any of these arguments and affirm.
The standard for determining whether counsel's performance
was ineffective for purposes of the Sixth Amendment was formulated
10 A-3299-15T3
in Strickland v. Washington,
466 U.S. 668, 687 (1984), and adopted
by our Supreme Court in State v. Fritz, l
05 N.J. 42, 49 (l987).
In order to prevail on a claim of ineffective assistance of
counsel, defendant must meet the two-prong test of establishing
both that: (l) counsel's performance was deficient and he or she
made errors that were so egregious that counsel was not functioning
effectively as guaranteed by the Sixth Amendment to the United
States Constitution; and (2) the defect in performance prejudiced
defendant's rights to a fair trial such that there exists a
"reasonable probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been different."
Strickland,
466 U.S. at 687, 694.
We conclude from our review of the record that defendant's
arguments are without merit. We affirm substantially for the
reasons expressed by Judge Venable in her thorough written
decision, as we agree with the judge that defendant failed to make
a prima facie showing of ineffectiveness of counsel within the
Strickland-Fritz test, and therefore an evidentiary hearing was
not warranted. See State v. Preciose,
129 N.J. 452, 462-63 (1992).
We add only the following comments.
Under the facts of this case, counsel filled two separate
roles at different times. Up until February 18, 2011, he was
defendant's assigned counsel and his performance as such was
11 A-3299-15T3
subject to the Strickland-Fritz test. After defendant elected to
proceed pro se, counsel's role shifted to a standby role as
instructed by the trial court, and any claims of ineffectiveness
defendant alleged while counsel was serving in that capacity were
waived. Applying the Strickland-Fritz test as Judge Venable did,
counsel was not ineffective for his actions during plea
negotiations.
For defendant's remaining claims against counsel in his
standby role, we are guided by the following principles. "[A]
defendant who elects to represent himself cannot thereafter
complain that the quality of his own defense amounted to a denial
of 'effective assistance of counsel.'" Faretta,
422 U.S. at 834
n.46. Thus, a defendant's choice of "self-representation[]
constitutes a waiver of any future ineffective assistance of
counsel claims under the [Strickland-Fritz] test in respect of
those matters in which the defendant represents himself." State
v. Figueroa,
186 N.J. 589, 595 (2006) (citations omitted).
Here, the trial court warned defendant about the consequences
of self-representation and he acknowledged that he understood he
could not claim ineffective assistance of counsel. The trial
court's appointment of defendant's trial counsel as his standby
counsel did not affect defendant's waiver of any future
ineffectiveness claims because there is no "constitutional right
12 A-3299-15T3
to standby counsel[.]" United States v. Oliver,
630 F.3d 397, 414
(5th Cir. 2011) (quoting United States v. Morrison,
153 F.3d 34,
55 (2d Cir. 1998)) ("[W]ithout a constitutional right to standby
counsel, a defendant is not entitled to relief for the
ineffectiveness of standby counsel." (alteration in original));
accord Rishor v. Ferguson,
822 F.3d 482, 500 (9th Cir. 2016);
Simpson v. Battaglia,
458 F.3d 585, 597 (7th Cir. 2006).
Although courts have held "in a case where standby counsel
held that title in name only and, in fact, acted as the defendant's
lawyer throughout the proceedings, [they] would consider a claim
of ineffective assistance of standby counsel[,]" United States v.
Schmidt,
105 F.3d 82, 90 (2d Cir. 1997); Morrison, 153 F.3d at 55,
that was not the case here. As the record reflects and as Judge
Venable noted in her written opinion, defendant chose to severely
limit the role of his standby counsel.
Accordingly, defendant's apparent indecisiveness on whether
or not he wanted standby counsel to aid in his defense does not
resuscitate a right to challenge the effectiveness of counsel he
had foresworn. See State v. Crisafi,
128 N.J. 499, 517-18 (1992)
(holding a defendant who "sought to manipulate the system by
wavering between assigned counsel and self-representation . . .
'cannot have it both ways'" (citation omitted)).
13 A-3299-15T3
Regardless of whether defendant's claims on PCR were related
to his attorney's role as defense counsel or standby counsel, we
agree with Judge Venable that defendant's claims were without
merit.
Affirmed.
14 A-3299-15T3
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