Opinion
DOCKET NO. A-0776-14T3
05-09-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. THOMAS J. BROCKINGTON, a/k/a THOMAS JOHNSON, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Emily Anderson, Deputy Attorney General, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Messano and Simonelli. On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 08-05-0475. Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Emily Anderson, Deputy Attorney General, of counsel and on the brief). PER CURIAM
Following a jury trial, defendant Thomas Brockington was convicted of second-degree robbery, N.J.S.A. 2C:15-1; second-degree burglary, N.J.S.A. 2C:18-2; third-degree criminal restraint, N.J.S.A. 2C:13-2; and third-degree terroristic threats, N.J.S.A. 2C:12-3. He was sentenced to a nine-year term of imprisonment with an 85% period of parole ineligibility on the robbery, and a consecutive four-year term on the criminal restraint conviction. The only substantive point raised on direct appeal was the trial court's alleged error in denying defendant's request for a Wade hearing, and in a pro se submission, defendant argued the verdicts were against the weight of the evidence. State v. Brockington, No. A-4107-09 (App. Div. Jan. 30, 2012) (slip op. at 5-6).
United State v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967).
We specifically concluded that the trial judge "properly denied defendant a Wade hearing because he did not make a prima facie showing that the photo identification made within twenty-four hours of the attack on the victim was either impermissibly suggestive or unreliable." Id. at 9. We affirmed defendant's conviction and sentence, id. at 2, and the Supreme Court denied his petition for certification. 210 N.J. 480 (2012).
Defendant filed a timely pro se petition for post-conviction relief alleging, among other things, the ineffective assistance of counsel (IAC). PCR counsel was appointed, defendant filed a supplemental certification and counsel filed a brief arguing, among other things, that trial counsel provided ineffective assistance by "failing to make a viable challenge to the out-of-court and in-court identifications," and "failed to properly represent [defendant] on the Wade issue."
At oral argument and in his brief, PCR counsel contended that trial counsel failed to challenge the victim's "evolving" identification of defendant, and, instead, only challenged the photographic array used by police. He asserted that police prepared a sketch with the victim's assistance prior to the photo identification, and the sketch looked nothing like defendant. Counsel also noted that the victim had identified defendant's photograph from an array of six as being that of her attacker with ninety-five percent certainty, expressing doubt only because defendant did not have a hood drawn over his head. Thereafter, police showed the victim a lone photograph of defendant taken after his arrest when he was wearing a hooded outer garment. The victim expressed with one-hundred percent certainty that it was her attacker in the photograph.
Any argument regarding inconsistencies in the victim's description of her assailant, or inconsistencies between the descriptions, the sketch and defendant's actual appearance, lacks any merit. R. 2:11-3(e)(2). It suffices to say that the victim was subjected to vigorous cross-examination on these issues before the jury.
Before the jury, the victim confirmed her out-of-court identification of defendant based upon the photographic array and the single photograph, and she also identified him in-court as her attacker. --------
The PCR judge, who was not the trial judge, filed a short written opinion explaining his reasons for denying defendant's petition. Initially, the judge concluded that defendant's arguments were procedurally barred pursuant to Rule 3:22-5. The judge further stated that "nothing in the record . . . suggests the identifications were tainted or were the product of improper procedures." The judge also concluded that since the out-of-court identifications would not have been suppressed even if there had been a Wade hearing, trial counsel did not render ineffective assistance by basing his request for a Wade hearing solely on the photographic array. The judge entered a conforming order denying defendant's PCR petition, and this appeal ensued.
Before us, defendant argues he was entitled to an evidentiary hearing to "fully address" trial counsel's ineffective assistance by failing to "present a comprehensive and cogent argument in support of his pretrial motion requesting a Wade hearing." Defendant further argues that his PCR petition was not procedurally-barred by Rule 3:22-5. We have considered these arguments and affirm.
To establish an IAC claim, a defendant must satisfy the two prong test formulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). First, a defendant must show "'that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed . . . by the Sixth Amendment.'" Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693).
Second, a defendant must prove that he suffered prejudice due to counsel's deficient performance. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. A defendant must show by a "reasonable probability" that the deficient performance affected the outcome. Fritz, supra, 105 N.J. at 58. "If [a] defendant establishes one prong of the Strickland-Fritz standard, but not the other, his claim will be unsuccessful." State v. Parker, 212 N.J. 269, 280 (2012).
"A defendant shall be entitled to an evidentiary hearing only upon the establishment of a prima facie case in support of post-conviction relief . . . ." R. 3:22-10(b). A "prima facie case" requires that a defendant "demonstrate a reasonable likelihood that his or her claim, viewing the facts alleged in the light most favorable to the defendant, will ultimately succeed on the merits," ibid., and must be supported by "specific facts and evidence supporting his allegations." State v. Porter, 216 N.J. 343, 355 (2013); see also State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.) ("[A] petitioner must do more than make bald assertions that he was denied the effective assistance of counsel"), certif. denied, 162 N.J. 199 (1999).
"Because post-conviction relief is not a substitute for direct appeal and because of the public policy 'to promote finality in judicial proceedings,' our rules provide various procedural bars." State v. Echols, 199 N.J. 344, 357 (2009) (citation omitted) (quoting State v. McQuaid, 147 N.J. 464, 483 (1997)). "[A] petitioner may be barred from relief if the petitioner could have raised the issue on direct appeal but failed to do so, Rule 3:22-4[, or] the issue was previously decided on direct appeal, Rule 3:22-5[.]" Ibid. The effect of Rule 3:22-5 is that "PCR will be precluded 'only if the issue is identical or substantially equivalent' to the issue already adjudicated on the merits." State v. Afanador, 151 N.J. 41, 51 (1997) (quoting McQuaid, supra, 147 N.J. at 484).
Here, trial counsel's motion sought a Wade hearing based on the alleged suggestiveness of the photographic array. The denial of defendant's motion was the only identification issue presented on direct appeal. However, in considering defendant's claim, we explained in detail the factual circumstances regarding the victim's out-of-court identifications of defendant, including the second, single-photo identification, and why there was no risk of "'a substantial likelihood of irreparable misidentification.'" Brockington, supra, slip op. at 9-10 (quoting State v. Adams, 194 N.J. 186, 204 (2008)). Therefore, we squarely reject defendant's IAC claim on appeal pursuant to Rule 3:22-5.
Moreover, based upon our consideration of the merits of the out-of-court identification procedures on direct appeal, defendant's claim that counsel should have provided a more comprehensive and cogent argument in support of the Wade motion at trial cannot support an IAC claim. See, e.g., Echols, supra, 199 N.J. at 361 (noting that an IAC claim cannot rest upon the failure to raise an unsuccessful argument at trial).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION