Opinion
DOCKET NO. A-2078-11T4
05-09-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. HERBERT COWAN, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief). Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Christopher W. Hsieh, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Messano and Kennedy.
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 04-04-0479.
Joseph E. Krakora, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief).
Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Christopher W. Hsieh, of counsel and on the brief). PER CURIAM
Defendant Herbert Cowan appeals from the denial of his petition for post-conviction relief (PCR) without an evidentiary hearing. Defendant was convicted after a jury trial of second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and 15-1; four counts of first-degree robbery, N.J.S.A. 2C:15-1; second- degree possession of a weapon, N.J.S.A. 2C:39-4(a); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a); and second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7(b). On February 9, 2007, he was sentenced to an aggregate extended term of fifty years' imprisonment, with an eighty-five percent period of parole ineligibility, pursuant to N.J.S.A. 2C:4 3-7.2, and a consecutive term of eight years with a mandatory five-year period of parole ineligibility on the certain persons offense.
We affirmed defendant's conviction and sentence. See State v. Herbert Cowan, A-5387-06 (App. Div. Jan. 29, 2009). The Supreme Court denied defendant's petition for certification. See State v. Cowan, 200 N.J. 208 (2009).
On October 20, 2009, defendant filed a pro se PCR petition alleging ineffective assistance of trial counsel. Specifically, defendant alleged trial counsel rendered ineffective assistance in that he failed to: object to a State's witness appearing in prison garb; object to the "chain of custody" regarding incriminating DNA evidence adduced at trial; adequately prepare defendant's "alibi witness" for testimony; and present to the jury evidence "that the State['s] witness was an FBI informant." Defendant also alleged that the prosecutor committed misconduct in summation.
PCR counsel was appointed and subsequently submitted a brief and supplemental certification in support of the petition. In addition to the allegations already made, defendant claimed that he was not informed by trial counsel that he was subject to an extended term of imprisonment, and the judge failed to review his potential exposure at a pre-trial conference. See R. 3:9-1(e)(2) (requiring that, at a pre-trial conference, the judge shall "address the defendant to determine that [he] understands . . . the sentencing exposure for the offenses charged, if convicted"). Defendant claimed he "was not able to fairly evaluate the State's plea offer."
After conducting a hearing on the petition, Judge Raymond A. Reddin, who was not the trial judge, denied the application. Judge Reddin filed a written statement of reasons.
The trial judge had retired.
The judge concluded defendant failed to produce any evidence that witnesses testified in prison garb. Judge Reddin also noted this court had already considered on direct appeal defendant's argument regarding the chain of custody of the DNA evidence. See Cowan, supra, slip op. at 20-21. Regarding defendant's alleged alibi witness, Teresa Branham, the judge noted that she had testified at defendant's extradition proceeding in West Virginia, and the West Virginia judge found her testimony "was lacking in credibility." Judge Reddin also noted that this court already considered defendant's argument regarding the prosecutor's summation comments and found they did not deprive defendant a fair trial. Id. at 19-20. The judge also noted that defendant failed to identify the witness who was a supposed FBI informant. Lastly, noting that defendant failed to provide transcripts from all the pre-trial conferences, Judge Reddin concluded defendant "failed to meet his burden of proof" regarding the claim that trial counsel did not explain defendant's sentencing exposure if he went to trial. Judge Reddin entered an order on July 25, 2011, denying defendant's PCR petition.
Defendant raises the following point on appeal:
THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE DEFENDANT ESTABLISHED A PRIMA FACIE CASE OF TRIAL COUNSEL'S INEFFECTIVENESSHaving considered these arguments in light of the record and applicable legal standards, we affirm.
A. Trial Counsel Misinformed Defendant As To The Sentencing Consequences If He Were Found Guilty
B. Trial Counsel Failed To Pursue An Exculpatory Witness
The standards that guide our review are well-known. To establish a claim of ineffective assistance of counsel, 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, he 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, 4 66 U.S. at 691-92, 104 S. Ct. at 2066-67, 80 L. Ed. 2d at 696. Defendant must show by a "reasonable probability" that the deficient performance affected the outcome. Fritz, supra, 105 N.J. at 58.
"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). "[I]n order to establish a prima facie claim, a [defendant] must do more than make bald assertions that he was denied the effective assistance of counsel." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.) (emphasis omitted), certif. denied, 162 N.J. 199 (1999); see also R. 3:22-10(e)(2) (providing that the court "shall not grant an evidentiary hearing . . . if the defendant's allegations are too vague, conclusory or speculative").
"To establish a prima facie case, defendant must demonstrate a reasonable likelihood that his or her claim will ultimately succeed on the merits." State v. Russo, 333 N.J. Super. 119, 138 (App. Div. 2000) (citations and emphasis omitted); see also R. 3:22-10(b) ("To establish a prima facie case, defendant must 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.").
Importantly, a "[d]efendant must demonstrate a prima facie case for relief before an evidentiary hearing is required, and the court is not obligated to conduct an evidentiary hearing to allow defendant to establish a prima facie case not contained within the allegations in his PCR petition." State v. Bringhurst, 401 N.J. Super. 421, 436-37 (App. Div. 2008) (emphasis added); see also R. 3:22-10(e)(3) (providing that no evidentiary hearing shall be held "for the purpose of permitting a defendant to investigate whether additional claims for relief exist for which defendant has not demonstrated a reasonable likelihood of success"). It remains within the court's discretion whether such a hearing is necessary. State v. Preciose, 129 N.J. 451, 462 (1992).
Here, defendant's claim that he was unaware of his sentencing exposure if he proceeded to trial is a "bald assertion" unsupported by the record or any submission made as part of the PCR petition. Cummings, supra, 321 N.J. Super. at 170. Judge Reddin noted that the transcripts of every pre-trial proceeding were not produced, and, we note that during a pre-trial conference held on July 20, 2006, the prosecutor listed defendant's seven prior indictable convictions and advised the judge that defendant faced pending murder charges in West Virginia.
Most importantly, defendant never stated in his petition what the State's pre-trial plea offer was and also failed to assert that he would have accepted the offer and pled guilty, rather than go to trial, had he known of his sentencing exposure. At trial, defendant vigorously asserted his innocence through cross-examination of the State's witnesses and by challenging other evidence. See State v. Taccetta, 200 N.J. 183, 195 (2009) (noting that "[t]he notion that a defendant can enter a plea of guilty, while maintaining his innocence, is foreign to our state jurisprudence," and provides no basis for a PCR claim of ineffective assistance of counsel).
The PCR petition did not contain a certification from Branham regarding her potential testimony if called as a witness at defendant's trial. However, Judge Reddin had the benefit of Branham's testimony from an extradition hearing held approximately two and one-half years before trial. The judge conducting the hearing found Branham not to be a credible witness. At that hearing, Branham testified that, in 2003, defendant would spend "four out of seven days a week" with her in West Virginia, although she claimed to have seen him on a daily basis during the month of May 2003. She never testified where defendant was on the date of the crime. Thus, Branham's testimony would not have provided defendant with an alibi, and Branham's testimony undoubtedly would have been unlikely to change the verdict, particularly given the State's overwhelming evidence. See Cowan, supra, slip op. at 4 (characterizing the State's proof as "substantial, incriminating evidence").
Defendant certifies that he told trial counsel about Branham "more than once." However, at the July 2006 pre-trial conference, the judge asked if there was any response to the State's "alibi demand." Trial counsel responded in the negative.
We must conclude that trial counsel's decision not to call Branham as a defense witness evinces trial strategy and not ineffective assistance. See State v. Echols, 199 N.J. 344, 358 (2009) (quoting State v. Castagna, 187 N.J. 293, 314 (2006)) ("[A]n otherwise valid conviction will not be overturned merely because the defendant is dissatisfied with his or her counsel's exercise of judgment during the 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