Opinion
DOCKET NO. A-5238-11T1
03-04-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. CLARENCE SCOTT, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Alison Perrone, Designated Counsel, on the brief). Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Keith E. Hoffman, Senior Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo and Guadagno.
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 97-06-0581.
Joseph E. Krakora, Public Defender, attorney for appellant (Alison Perrone, Designated Counsel, on the brief).
Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Keith E. Hoffman, Senior Assistant Prosecutor, on the brief). PER CURIAM
Defendant Clarence Scott appeals from an order of the Law Division denying his petition for post-conviction relief (PCR). We affirm.
Defendant was indicted for second-degree aggravated assault, N.J.S.A. 2C:12-1b(1) (count one); third-degree aggravated assault, N.J.S.A. 2C:12-1b(2) (count two); fourth-degree aggravated assault, N.J.S.A. 2C:12-1b(4) (count three); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (count four); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b (count five); second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7 (count six); and third-degree tampering with a witness, N.J.S.A. 2C:28-5a(1) (count seven).
Tried by a jury, defendant was convicted of fourth-degree pointing of a firearm, N.J.S.A. 2C:12-1b(4), second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a, third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b, and second-degree possession of a weapon by a convicted felon, N.J.S.A. 2C:39-7. He was sentenced to an extended Graves Act term of twenty years with ten years' parole ineligibility on the possession of a weapon for an unlawful purpose charge, and a consecutive extended term of twenty years with ten years' parole ineligibility on the possession of a weapon by a convicted felon charge. The two remaining counts were merged.
At the time of trial, defendant had another indictment pending in Passaic County charging him with murder, armed robbery, and the attempted murders of two Paterson police officers. State v. Scott, No. A-1732-03 (App. Div. Feb. 2, 2006), certif. granted, 187 N.J. 488 (2006). The matter was tried in January 2002 and a jury found defendant guilty of murder, attempted murder, second-degree aggravated assault, and armed robbery. Defendant was sentenced to 115 years, with sixty-nine years parole ineligibility. The sentence was to be served consecutively to the sentence imposed in the case at bar. Defendant's judgment of conviction has been upheld on appeal. State v. Scott, No. A-2047-08 (App. Div. Aug. 3, 2010) certif. denied, 205 N.J. 101 (2011). Defendant was represented in both matters by the same attorney.
Defendant appealed, and in an unpublished opinion, we affirmed defendant's conviction but remanded the matter for resentencing. State v. Scott, No. A-2819-01 (App. Div. Apr. 30, 2003). The Supreme Court denied defendant's petition for certification. State v. Scott, 177 N.J. 577 (2003). Defendant was resentenced to an aggregate thirty-year prison term with a fifteen-year period of parole ineligibility.
Defendant filed a timely PCR on January 30, 2004, wherein he alleged counsel was ineffective for failing to: (1) conference sufficiently with defendant in preparing for pre-trial and trial proceedings; (2) request an instruction to the jury regarding the mistake of fact defense pursuant to N.J.S.A. 2C:2-4; (3) request the trial court to mold instructions to the jury incorporating facts favorable to the defense with respect to the charge of possession of a weapon for unlawful purposes; 4) give an effective summation regarding defendant's position at the time of the incident; (5) object to the omission of facts favorable to the defense from the jury instruction regarding possession of a weapon for an unlawful purpose; and (6) ensure defendant's right to be present at every stage of the proceeding by allowing his exclusion from portions of the jury voir dire. In addition, defendant alleged he was denied the effective assistance of appellate counsel in that counsel failed to consult with defendant and failed to raise "winning issues" on appeal.
At the request of both parties, the court scheduled an evidentiary hearing on June 2, 2006. On that date, defendant's trial counsel, who was to testify at the hearing as to his representation of defendant, did not appear. Despite his absence, the PCR judge heard argument on the legal issues raised by defendant. With respect to defendant's claim that his trial counsel was ineffective for failing to request a mistake of fact charge to the jury, the PCR judge did not "find there's any basis to find that [trial counsel's] failure to charge - - or failure to request that charge amounted to ineffective assistance of counsel." In addition, the judge heard argument on defendant's allegation that his trial counsel was ineffective for failing to object to the court's charge on possession of a weapon for an unlawful purpose, and reserved judgment. At the request of defendant's PCR counsel, the judge rescheduled the evidentiary hearing and oral argument on the remainder of defendant's issues, for August 4, 2006.
The matter was not heard again until September 30, 2011. By then, the matter had been transferred to the presiding judge, Judge Marilyn C. Clark, who recognized the substantial delay in hearing the matter, and "apologize[d]" to defendant, explaining:
[This case] was tried by Judge Gannon who was transferred out of County. It was assigned to Judge DeLuccia who hears Judge Gannon's matters. Judge Gannon is now retired, or else I literally would call him up and say, could he hear it even if he was out of County.The presiding judge then scheduled an evidentiary hearing, at which time she would be "fully versed" on the case, would have read all transcripts, and allow defendant's PCR counsel to make full arguments.
Judge DeLuccia's workload in Civil was tremendous and he asked if it could be taken back to the Criminal Division to be heard.
It was assigned to Judge Marmo, who was very, very busy. And I know he retired soon after that.
It was assigned to Judge Honigfeld who was a recall Judge. . . . and he is no longer with the Criminal Division.
Again, I apologize for the delay.
On the return date, February 3, 2012, the presiding judge initially observed that, after "read[ing] through the entire . . . trial transcript," "the hearing before Judge DeLuccia," and "all of the papers that [were] [] submitted," Judge DeLuccia had not previously found that defendant presented a prima facie case of ineffective assistance of counsel. Therefore, Judge Clark decided that "unless either side ha[d] a comment, [she] [was] just going to start from square one, hear [the] arguments and then make a determination[,]", and if necessary, she was prepared to take testimony from defendant's trial counsel.
The State acknowledged having agreed to an evidentiary hearing in 2006, but indicated that it never conceded that defendant established a prima facie case. The State agreed that it was better to "start anew" and to allow Judge Clark to hear arguments and "make the call." Defense counsel also agreed with Judge Clark's "decision as far as starting over again . . . ."
Consequently, the court entertained argument from both parties. Following argument, the court denied the PCR petition, finding defendant failed to establish a prima facie case of ineffective assistance of trial and appellate counsel. In its determination, the court analyzed each of defendant's six claims of counsel's ineffective assistance and rejected them all.
As to counsel's alleged unpreparedness for trial, the court found, after its thorough review of the record, that trial counsel "questioned every witness in detail, made motions. This [wa]s not an unprepared attorney." The court further found that the trial judge allowed defendant to confer privately with his counsel, after which defendant indicated "he was ready to proceed and that he still wanted [his trial counsel] as his attorney. And basically, . . . there were no issues between them, or as to preparedness."
As for defendant's absence from voir diring prospective jurors in the judge's chambers, the court determined that the trial judge "took painstaking time and effort to explain to [defendant] what his rights were. [Trial counsel] expressed the opinion that [he] believe[d] it's better that [defendant] . . . not be inside." While Judge Clark recognized that defendant did not agree with his attorney's opinion initially, he was given time to discuss the matter with the trial judge, "and then [had a] private discussion with his attorney [and] he changed his mind." Judge Clark found that "this [was] a scenario, in terms of the decision to go into chambers or not, that attorneys make different decisions on . . . . it's a matter of best serving their client. That's how [trial counsel] felt he best served his client." Judge Clark found that "with the defendant agreeing on the record, [she] [was] not going to second guess that."
At oral argument, the State explained that during voir dire questioning of a particular juror in the judge's chambers, an officer must be present with defendant and that many defense attorneys instruct their clients that this is going to happen and that it does not look good.
--------
The trial judge asked defendant specifically "whether [he] want[ed] to be present in [] chambers when the jury selection process is taking place." Moreover, the trial judge informed defendant that he had "a right to be present at all stages throughout the proceedings . . . . [and] [o]nly [defendant] [could] give up that right, if [he] [chose] to do so voluntarily after [he] confer[ed] with [his] attorney." After discussing the matter with his trial counsel, defendant's "position remain[ed] that he [was] satisfied that it [was] in his best interest that he not join [counsel] in chambers for purposes of voir diring any of the jurors."
Judge Clark also rejected defendant's claim that trial counsel was ineffective for failing to request a jury instruction on a mistake of fact defense, based on the defense theory that defendant was handed a gun that went off before he had an opportunity to form an intent. The court found that the trial "judge's charge on possession was very, very thorough" in that in order to be guilty of possession, "you must have knowing, intentional control over an item. That it [cannot] be fleeting in nature. That you have to know the character of what it is that you possess, i.e., that it is a firearm." In this case, the trial judge's charge on possession was "very thorough and certainly covered what the defendant's concerns were about his theory of the case."
The PCR court found defendant's other complaint about the jury charge on possession of a weapon for an unlawful purpose to be similarly without merit. In this regard, defendant argued pro se that there must be a "specific fact finding to acknowledge what the unlawful purpose is, not just the reading of unlawful purpose . . . [which] [was] not in the instruction at all." Defendant further argued that since he was acquitted of aggravated assault with a deadly weapon, the unlawful purpose no longer existed.
Judge Clark rejected this argument, finding that defendant had been convicted of pointing a firearm, and the trial judge repeatedly informed the jury the unlawful purpose was "against the person of [defendant's victim]." The court found it was "so obvious that the [trial] [j]udge was indicating it ha[d] to be possession of a gun for unlawful purpose to use unlawfully against the person of [defendant's victim]." If, on the other hand, "[defendant] had not been convicted of pointing a firearm then [the court] would consider possession for an unlawful purpose to be [an] inconsistent verdict." Consequently, the PCR judge was "satisfied with the jury charge[,]" and "any error, if there was one, was harmless beyond a reasonable doubt because [defendant] was convicted of pointing a firearm."
Defendant's fifth claim of ineffective assistance alleged trial counsel failed to present the facts during summation "in the way that was most advantageous to [him]." In rejecting this claim as well, the court, citing to the trial transcript, pointed out the "major topics" of defense counsel's summation, and meticulously and with precision detailed excerpts from counsel's summation indicating counsel was more than effective. The court determined trial counsel "went through everything at great length[,]" and delivered "a very, very good summation." The court also noted "the jury acquitted [defendant], all but the pointing a firearm. And the reason they convicted him of the firearm, I think was the mother's testimony. Because if the mother didn't walk in on it, maybe the verdict would have been different."
Lastly, defendant complained that appellate counsel was ineffective for "not having proper contact, enough contact, or any contact with [defendant]. And, also, not raising some of the points" raised at his PCR hearing. Judge Clark denied defendant's claim, stating,
[t]he Appellate Division decision indicated that essentially the motion for acquittal was clearly without merit, did not merit further written discussion by them. So, they read the same transcript I did and believed that the verdicts were supported by the evidence.
I can only say that I read this transcript extremely, extremely carefully. I believe I have a good sense of what went on in the trial.
[Trial counsel] was very successful on the aggravated assault charges. Again, I believe, the conviction on the fourth degree was because [the victim's mother] walked in on it.
There was a Sands hearing, there was a Wade hearing, there was a Miranda hearing. There was a motion for a new trial. And he performed very, very well in his questioning during the trial, and brought up, I think, every reasonable point that you could possibly bring up.
So, under all the circumstances, I do not believe that there is any prima facie case that would justify a testimonial hearing. And I'm going to deny the post-conviction relief motion.
On appeal, defendant raises the following issues:
I. WHERE THE FIRST PCR JUDGE GRANTED DEFENDANT AN EVIDENTIARY HEARING ON HIS PCR AND THE MATTER WAS THEN, AT NO FAULT OF DEFENDANT, NOT HEARD AGAIN FOR FIVE YEARS, THE NEW PCR JUDGE SHOULD HAVE, AS A MATTER OF FUNDAMENTAL
FAIRNESS, GRANTED DEFENDANT AN EVIDENTIARY HEARING.
II. DEFENDANT ESTABLISHED A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF COUNSEL, ENTITLING HIM TO AN EVIDENTIARY HEARING.
It is axiomatic that in order for defendant to obtain relief based on ineffective assistance grounds, he is obliged to show that: (1) trial counsel's performance was deficient such that "counsel made errors so serious that [he] was not functioning as the 'counsel' guaranteed by the Sixth Amendment; and (2) this deficient performance prejudiced the defense such that it "deprive[d] the defendant of a fair trial." Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); see also State v. Parker, 212 N.J. 269, 279-80 (2012); State v. Fritz, 105 N.J. 42, 58 (1987). In order to prove a claim, defendant must establish both factors. State v. Allegro, 193 N.J. 352 (2008) ("to sustain a claim . . . [these] two separate elements must coalesce.").
To sustain that burden, the defendant must allege and articulate specific facts, which "provide the court with an adequate basis on which to rest its decision." State v. Mitchell, 126 N.J. 565, 579 (1992). However, 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. State v. Preciose, 129 N.J. 451, 462-63 (1992).
On this score, there is a strong presumption that counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. Further, because prejudice is not presumed, Fritz, supra, 105 N.J. at 52, the defendant must demonstrate "how specific errors of counsel undermined the reliability" of the proceeding. United States v. Cronic, 466 U.S. 648, 659 n.26, 104 S. Ct. 2039, 2047 n.26, 80 L. Ed. 2d 657, 668 n.26 (1984). Moreover, such acts or omissions of counsel must amount to more than mere tactical strategy. Strickland, supra, 4 66 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694-95. Thus, "in order to establish a prima facie claim, [the defendant] 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.
Trial counsel's representation must be viewed as a whole and in light of the State's evidence of guilt. See State v. Marshall, 123 N.J. 1, 165 (1991), cert. denied, 507 U.S. 929, 113 S. Ct. 1306, 122 L. Ed. 2d 694 (1993). Furthermore, a valid conviction will not be overturned merely because defendant is dissatisfied with counsel's exercise of judgment during trial. State v. Coruzzi, 189 N.J. Super. 273, 319-20 (App. Div.), certif. denied, 94 N.J. 531 (1983).
Simple mistakes, bad strategy, or bad tactics "do not amount to ineffective assistance of counsel unless, taken as a whole, the trial was a mockery of justice." State v. Bonet, 132 N.J. Super. 186, 191 (App. Div. 1975). The simple fact that a trial strategy fails does not necessarily mean that counsel was ineffective. State v. Bey, 161 N.J. 233, 251 (1999) (citing State v. Davis, 116 N.J. 341, 357 (1989), cert. denied, 530 U.S. 1245, 120 S. Ct. 2693, 147 L. Ed. 2d 964 (2000).
Measured by these standards, we are persuaded that defendant has failed to satisfy either the performance or prejudice prongs of the Strickland test. We therefore affirm substantially for the reasons stated in Judge Clark's thorough and well-articulated oral opinion of February 3, 2012. We add only the following comments.
Defendant argues he is nevertheless entitled to an evidentiary hearing based on principles of fundamental fairness given that the first PCR judge granted his request and because five years have elapsed since then. We disagree.
Although the initial PCR judge granted defendant's request for an evidentiary hearing, there was no finding that defendant presented a prima facie case of ineffective assistance of counsel, and the State made no such concession. Without such a demonstration, the second PCR judge was not bound by the first PCR judge's grant as there is no entitlement to an evidentiary hearing. As noted, a defendant is not entitled to an evidentiary hearing simply because he raises a claim of post-conviction relief. Cummings, supra, 321 N.J. Super. at 170. Rule 3:22-1 does not require that an evidentiary hearing be granted for every PCR proceeding, leaving, under Rule 3:22-10, the decision to conduct an evidentiary hearing to the judge's discretion. Preciose, supra, 129 N.J. at 462.
Therefore, where a "court perceives that holding an evidentiary hearing will not aid the court's analysis of whether the defendant is entitled to post-conviction relief, . . . or that the defendant's allegations are too vague, conclusory, or speculative to warrant an evidentiary hearing, . . . then an evidentiary hearing need not be granted." State v. Marshall, 148 N.J. 89, 158 (internal citations omitted), cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). Here, after Judge Clark's painstaking review of the trial record, she concluded that defendant failed to establish a prima facie case of ineffective assistance of counsel, and therefore denied his request for an evidentiary hearing. For reasons already stated, we concur in this determination.
As for the five-year delay in hearing defendant's PCR petition, although regrettable and inexplicable, defendant suffered no prejudice therefrom inasmuch as defendant continues to serve a 115-year term of imprisonment on an unrelated criminal matter.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELATE DIVISION