Opinion
DOCKET NO. A-3371-13T2
07-21-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JIMMY BERNARD DAVIS, a/k/a RASHAD, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Carolyn V. Bostic, Designated Counsel, on the brief). Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Meredith L. Balo, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Simonelli and Sumners. On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 89-05-0883. Joseph E. Krakora, Public Defender, attorney for appellant (Carolyn V. Bostic, Designated Counsel, on the brief). Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Meredith L. Balo, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Jimmy B. Davis appeals from the Law Division order denying his petition for post-conviction relief (PCR) to amend his sentence without an evidentiary hearing. For the reasons that follow, we affirm.
On May 24, 1989, a Union County grand jury indicted defendant for second-degree conspiracy to commit robbery, N.J.S.A. 2C:15-1 and 2C:5-2 (count one); first-degree murder, N.J.S.A. 2C:11-3(a)(1) and (2) (count three); first-degree felony murder, N.J.S.A. 2C:11-3(a)(3) (count four); first-degree robbery, N.J.S.A. 2C:15-1 (count five); and third-degree unlawful possession of a sawed-off shotgun, N.J.S.A. 2C:39-5(C) (count eight). The charges arose from the armed robbery and killing of a drug dealer. Charlton Holliday was also charged in the indictment as a co-defendant.
On April 12, 1990, defendant was convicted by a jury of second-degree conspiracy, the lesser offense of third-degree simple assault, first-degree felony murder, and first-degree robbery. Holliday, who pled guilty and admitted to shooting the victim, testified against defendant. Holliday and defendant were sentenced the same day and by the same judge with Holliday being sentenced first. Holliday received an imprisonment term of thirty-five years with a fifty-percent parole disqualifier. Defendant argued that his sentence should be similar. However, defendant was sentenced to an aggregate term of forty-five years in prison with a thirty-year period of parole ineligibility.
Defendant filed a direct appeal of his conviction and sentence. He maintained his sentence was excessive, referencing his co-defendant's sentence. We affirmed, and our Supreme Court denied certification. State v. Davis, No. A-6188-89 (App. Div. June 9), cert. denied, 134 N.J. 484 (1993).
On October 27, 2010, defendant filed a pro se motion to correct an illegal sentence based on disparity. In accordance with Rule 3:21-10(a), the Law Division denied the motion as untimely finding the sentence was not illegal and no other exception in Rule 3:21-10(b) applied. The court also determined there was no indication that his sentence was illegal. No appeal was filed.
On January 18, 2013, defendant filed a pro se PCR petition alleging an illegal sentence and improper jury charges. Assigned counsel subsequently filed amended pleadings and a brief arguing that defendant was entitled to a hearing to reduce his sentence because it was too disparate from his co-defendant's sentence.
Following argument on January 17, 2014, the PCR court issued an oral decision denying defendant a hearing and PCR. The court determined that the PCR request was procedurally deficient because it was time-barred and previously litigated. Moreover, on the merits, the court ruled: the sentence was consistent with our sentencing code; defendant was ineligible for placement in a drug program because he did not serve the statutory mandatory minimum sentence of thirty years, State v. Mendel, 212 N.J. Super. 110, 112-14 (App. Div. 1986); and there was no disparate treatment in sentencing defendant and his co-defendant, as defendant had a prior juvenile delinquency offense of felony-murder, was convicted at trial and sentenced in accordance with sentencing guidelines and his co-defendant, and co-defendant reached a plea agreement and cooperated with the State. This appeal followed.
Before us, defendant raises the following arguments:
POINT I
THE PCR COURT ERRED BY FINDING NO DISPARITY BETWEEN THE SENTENCES OF THE DEFENDANT AND CO-DEFENDANT HOLLIDAY, WHERE HOLLIDAY WAS THE ADMITTED SHOOTER.
POINT II
THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE THE DEFENDANT HAS SET FORTH A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF TRIAL, APPELLATE, AND PCR COUNSEL. (Not Raised Below).
A. The Strickland Standard for Ineffective Assistance Of Counsel.
B. Defendant's Trial Counsel Rendered Ineffective Assistance of Counsel by Failing to Vigorously Argue All Applicable Mitigating Factors and Sentencing Disparity at Sentencing. (Not Raised Below).
C. Defendant's Appellate Counsel Rendered Ineffective Assistance by Failing to Raise Meritorious Sentencing Issues on Direct Appeal. (Not Raised Below).
D. Defendant's PCR Counsel Provided Ineffective Assistance of Counsel. (Not Raised Below).
POINT III
THE PCR COURT ERRED BY HOLDING THAT THE DEFENDANT'S PETITION IS BARRED BY [RULE] 3:22-12(a).
POINT IV
THE PCR COURT ABUSED ITS DISCRETION BY HOLDING THAT THE DEFENDANT'S ARGUMENTS WERE PREVIOUSLY LITIGATED AND, THEREFORE, BARRED BY [RULE] 3:22-5.
We begin with the premise that a court may correct an illegal sentence "at any time before it is completed." State v. Schubert, 212 N.J. 295, 309 (2012). However, on April 4, 2011, almost two years before defendant filed for post-conviction relief, the Law Division rejected defendant's request to reduce his sentence when it denied his motion to correct an illegal sentence. In accordance with Rule 2:4-1(a), defendant had to challenge the denial of his motion within forty-five days of the date of the order. He failed to do so, thus, his contention in Point I that his sentence is illegal is time-barred.
Furthermore, "[a] prior adjudication upon the merits of any ground for relief is conclusive whether made in the proceedings resulting in the conviction or in any post-conviction proceeding brought pursuant to this rule or prior to the adoption thereof, or in any appeal taken from such proceedings." R. 3:22-5. Post-conviction relief proceedings are not an opportunity to re- litigate claims already decided on the merits in prior proceedings. State v. McQuaid, 147 N.J. 464, 483 (1997); R. 3:22-5. If an issue has been determined on the merits in a prior appeal, it cannot be re-litigated in a later appeal of the same case, even if the matter is of constitutional dimension. McQuaid, supra, 147 N.J. at 483-84; State v. White, 260 N.J. Super. 531, 538 (App. Div. 1992), certif. denied, 133 N.J. 436 (1993). Thus, we agree with the PCR court that defendant's request to reduce his sentence was procedurally barred by Rule 3:22-5 because it was previously litigated.
For the first time on appeal, defendant contends in Point II that trial counsel rendered ineffective assistance of counsel by failing to argue for applicable mitigating factors, and appellate counsel was ineffective for failing to raise this issue on appeal. We will not consider questions or issues not properly presented to the trial court unless the matter involves the trial court's jurisdiction or is of public importance. State v. Robinson, 200 N.J. 1, 20 (2009); see also R. 3:22-4(a) (holding that "[a]ny ground for relief not raised in . . . a PCR proceeding . . . is barred from assertion in a [subsequent petition.]"). No exception applies here. However, for the sake of completeness, and because defendant also contends that PCR counsel was ineffective for failing to raise trial and appellate counsels' deficiencies, we will address the issue.
A defendant's constitutional right to effective assistance of counsel extends to a PCR petition when raising IAC claims for the first time. State v. Quixal, 431 N.J. Super 502, 513 (App. Div. 2013); State v. Loftin, 191 N.J. 172, 198-99 (2007). Normally, we are inclined not to determine IAC against PCR counsel on an appeal from a denial of an initial PCR petition for the same reasons that we disapprove of IAC claims on direct appeal. The reason being that both circumstances pertain to "allegations and evidence that lie outside the trial record." Precoise, supra, 129 N.J. at 460 (citations omitted). We see no such obstacle in this case, as defendant's contention can be resolved based on the record.
It is well-settled that to establish a claim of ineffective assistance of counsel, a defendant must demonstrate the reasonable likelihood that his claim will ultimately succeed on the merits under the two-pronged test set forth 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). The first prong requires a "showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. The test is whether "counsel's representation fell below an objective standard of reasonableness." Id. at 688, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.
Under the second prong, a defendant must demonstrate that his counsel's errors prejudiced the defense to the extent that the defendant was deprived of a fair and reliable trial outcome. Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. To prove this element, a defendant must demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. Thus, "[t]he failure to raise unsuccessful legal arguments does not constitute ineffective assistance of counsel." State v. Worlock, 117 N.J. 596, 625 (1990) (citing Strickland, supra, 466 U.S. at 688, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; Fritz, supra, 105 N.J. at 52); see also State v. Echols, 199 N.J. 344, 361 (2009) (rejecting ineffective assistance claim, noting "there being no reversible error in the prosecutor's comments, the failure of trial counsel to object . . . could not lead to the conclusion that there is a reasonable probability that, but for the errors of trial and appellate counsel, the outcome would have been different").
A court reviewing a PCR petition based on claims of ineffective assistance has the discretion to grant an evidentiary hearing only if a defendant establishes a prima facie showing in support of the requested relief. Preciose, supra, 129 N.J. at 462. The mere raising of a claim for PCR does not entitle a defendant to an evidentiary hearing. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). When determining whether to grant an evidentiary hearing, the PCR court must consider the facts in the light most favorable to the defendant to determine if a defendant has established a prima facie claim. Preciose, supra, 129 N.J. at 462-63. A hearing should be conducted only if there are disputed issues as to material facts regarding entitlement to PCR that cannot be resolved based on the existing record. State v. Porter, 216 N.J. 343, 354 (2013).
Examining the merits of defendant's claim, our review of the record convinces us that defendant was not denied effective assistance of counsel and there is no need for an evidentiary hearing. Although trial counsel did not raise the specified mitigating factors, he argued for a sentence in line with co-defendant's sentence. Moreover, the trial court, in fact, considered those mitigating factors when imposing defendant's sentence. And as noted, appellant counsel argued that defendant's sentence was excessive and the trial court should have considered mitigating factors. Thus, trial and appellate counsel were not ineffective and defendant was not prejudiced by their conduct. Consequently, PCR counsel was not ineffective for failing to raise an unsuccessful argument that trial and appellate counsel were ineffective.
Lastly, given that defendant has not established a prima facie claim of IAC, an evidentiary hearing was not warranted.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION