Opinion
DOCKET NO. A-1632-11T1
04-11-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. REGGIE MORRISON, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Arthur J. Owens, Designated Counsel, on the briefs). Marlene Lynch Ford, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Supervising Assistant Prosecutor, of counsel; Sarah M. Mielke, Special Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Grall and Koblitz.
On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 05-10-1421.
Joseph E. Krakora, Public Defender, attorney for appellant (Arthur J. Owens, Designated Counsel, on the briefs).
Marlene Lynch Ford, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Supervising Assistant Prosecutor, of counsel; Sarah M. Mielke, Special Assistant Prosecutor, on the brief).
Appellant filed a pro se supplemental brief. PER CURIAM
Defendant Reggie Morrison appeals from the April 4, 2011 denial of his petition for post-conviction relief (PCR), decided without a plenary hearing, but after oral argument. Defendant, who pled guilty to first-degree attempted murder, N.J.S.A. 2C:11-3 and N.J.S.A. 2C:5-1, claims that he was deprived of the assistance of effective trial, appellate and PCR counsel. After reviewing the record in light of the contentions advanced on appeal, we affirm.
Defendant was charged in Indictment No. 05-10-1421 with nine counts, including two charges of aggravated assault, various weapons charges, witness tampering, hindering apprehension or prosecution, as well as attempted murder. The charges stem from defendant shooting at his girlfriend's former boyfriend, who was the father of her child. Defendant pointed his gun at the victim's head, but that shot did not strike the victim. The victim was subsequently hit twice and survived. Defendant was driven to the shooting by a woman who lived in his neighborhood, who was not indicted. Two of defendant's friends were also in the car and these friends were indicted with defendant. The car, which matched the description reported by witnesses, was stopped by police, who found a gun with four spent shells and an unfired round. The driver told the police what happened. The victim identified defendant as the shooter, and defendant confessed to the police.
Defendant pled guilty to attempted murder and the remaining counts of the indictment were dismissed. Defendant expressly waived his right to file a motion to suppress evidence pursuant to Rule 3:5-7(d), and the State moved to dismiss the remaining counts of the indictment. Although defendant faced a maximum of twenty years in prison, the judge sentenced him to eighteen years in prison, subject to an 85% period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2, and a five-year period of parole supervision upon his release.
The Graves Act, N.J.S.A. 2C:43-6(c), period of parole ineligibility, of nine years, which was also imposed, has no practical effect.
After defendant appealed the length of his sentence, on November 14, 2007, we remanded for resentencing after determining that there was "no rational basis" for aggravating factors one and two, which had been found by the judge. On remand the judge re-imposed the same sentence. After defendant's subsequent unsuccessful motions to withdraw his guilty plea and for a reduction of sentence, defendant filed a timely PCR petition.
On appeal defendant raises the following issues:
POINT I: THE POST-CONVICTION RELIEF COURT ERRED IN FINDING THAT DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF WAS PROCEDURALLY BARRED.Defendant raised the following points in his pro se supplemental brief:
POINT II: THE POST-CONVICTION RELIEF COURT ERRED IN FINDING THAT DEFENDANT FAILED TO
DEMONSTRATE THAT HE WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
A. TRIAL COUNSEL'S FAILURE TO OBJECT TO PROSECUTORIAL MISCONDUCT CONSTITUTED INEFFECTIVENESS OF COUNSEL.POINT III: THE POST-CONVICTION RELIEF COURT ERRED IN FINDING THAT DEFENDANT FAILED TO DEMONSTRATE THAT HE WAS DENIED THE EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL.
B. TRIAL COUNSEL'S FAILURE TO ZEALOUSLY ARGUE AT DEFENDANT'S RESENTENCING CONSTITUTED INEFFECTIVENESS OF COUNSEL.
POINT IV: THE POST-CONVICTION RELIEF COURT ERRED IN FAILING TO GRANT DEFENDANT AN EVIDENTIARY HEARING ON THE ISSUE OF INEFFECTIVENESS OF TRIAL COUNSEL.
POINT V: DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL ON HIS PETITION FOR POST-CONVICTION RELIEF.
POINT I: THE DEFENDANT HAS SET FORTH A PRIMA FACIE CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL AND POST[-]CONVICTION RELIEF IS WARRANTED. STATE V. NORMAN[, 405 N.J. SUPER. 149 (APP. DIV. 2009)] IS DISPOSITIVE OF THIS MATTER.
POINT II: DEFENSE COUNSEL['S] FAILURE TO CONSULT WITH OR CALL A MEDICAL EXPERT AS IT RELATES TO THE VICTIM'S ALLEGED "SERIOUS" BODILY INJURIES AMOUNTED TO INEFFECTIVE ASSISTANCE OF COUNSEL.
POINT III: THE DEFENDANT'S CLAIMS ARE NOT PROCEDURALLY BARRED.
The legal principles that govern our analysis of defendant's claim that he was deprived of the effective assistance of counsel are settled. State v. Parker, 212 N.J. 269, 279 (2012) (citing State v. Fritz, 105 N.J. 42, 58 (1987)). To prevail on such a claim, not only must a defendant overcome a "strong presumption that [defense] counsel's conduct falls within the wide range of reasonable professional assistance[,]" Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 2065, 80 L. Ed. 2d 674, 694 (1984), but defendant must also prove that counsel's performance was "deficient" and "that the deficient performance prejudiced the defense." Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. See also United States v. Cronic, 466 U.S. 648, 653-57, 104 S. Ct. 2039, 2043-46, 80 L. Ed. 2d 657, 664-67 (1984) (discussing the requirements of effective counsel).
A defendant claiming that his attorney was ineffective in his representation "must demonstrate first that counsel's performance was deficient, i.e., that 'counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment.'" Parker, supra, 212 N.J. at 279 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). A showing that the error complained of might conceivably have had some effect on the outcome of the trial is not sufficient. "'The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Id. at 279-80 (quoting Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698; State v. Hess, 207 N.J. 123, 146 (2011); State v. Winder, 200 N.J. 231, 254-55 (2009)). This two-pronged standard has been expressly adopted in New Jersey. Id. at 279 (citing Fritz, supra, 105 N.J. at 58). To establish prejudice, a defendant who has pled guilty must demonstrate that he would not have pled guilty but for his counsel's defective representation. State v. Nuñez-Valdéz, 200 N.J. 129, 139 (2009) (citing State v. DiFrisco, 137 N.J. 434, 457 (1994)).
We agree with defendant that his claims are not procedurally barred. He filed his May 28, 2010 PCR petition within five years of his initial October 27, 2006 judgment of conviction as required by the Rules. R. 3:22-12(a)(1). He properly did not raise the claim of ineffective counsel on direct appeal when he argued that his sentence was excessive. See State v. Preciose, 129 N.J. 451, 460 (1992) (citations omitted).
Defendant argues that his trial counsel was ineffective in failing "to object to the prosecutor's inflammatory statement" at his first sentencing. The prosecutor stated that he had met with the victim, who had previously been present in court. The prosecutor stated, "I was told about some incidents of his possible harassment, and there may be a factor of fear that is preventing him from coming today." Defense counsel did not object. Any prejudice caused by this statement, however, was negated by defendant's resentencing sixteen months later.
Defendant also argues that his attorney at his resentencing failed to zealously argue that he was entitled to mitigating factors four and five, that there were substantial grounds tending to excuse or justify his conduct and the victim induced the offense. N.J.S.A. 2C:44-1(b)(4) and (5). Specifically, defendant claims that the victim had been behaving in a threatening manner toward defendant and his girlfriend before he shot the victim. Defendant also claimed that he was under the influence of drugs at the time of the shooting, which tended to excuse his conduct; the victim threw rocks at his residence on a number of occasions; and on another occasion the victim struck defendant with his vehicle, scarring his leg. The sentencing judge rejected these mitigating factors at the original sentencing, and it was not ineffective for counsel not to raise the factors again at defendant's resentencing.
Intoxication is not a mitigating factor. State v. Setzer, 268 N.J. Super. 553, 567 (App. Div. 1993), certif. denied, 135 N.J. 468 (1994). Shooting the victim at point-blank range with the intent to kill him is not "induced" by a prior non-lethal assault. Victims of harassment are not in any way excused or justified in exacting revenge after a cooling-off period. See State v. Mauricio, 117 N.J. 402, 411, 412-13 (1990) (applying the reasonableness standard in the context of passion/provocation manslaughter to determine whether a defendant "should have cooled off before the killing" since "it is well-nigh impossible to set specific guidelines in temporal terms").
At his resentencing, his attorney appropriately focused on defendant's post-incarceration rehabilitative efforts. State v. Towey, 244 N.J. Super. 582, 593-94 (App. Div.) (holding "that when resentencing has been ordered, all current information relevant to an appropriate appraisal of the factors should be considered" including a defendant's post-sentencing rehabilitation accomplishments (citation omitted)), certif. denied, 122 N.J. 159 (1990).
Defendant argues that his appellate counsel was ineffective in not raising appropriate mitigating factors before us. He argues that counsel should have argued the applicability of mitigating factors three, four and five. N.J.S.A. 2C:44-1(b)(3)-(5) (listing as mitigating factors: a strong provocation, substantial grounds to justify a defendant's criminal conduct and the victim induced or facilitated the offense). Appellate counsel prevailed in defendant's quest for a resentencing. Mitigating factors three, four and five were unsupported by the record and the resentencing judge was justified in rejecting those factors.
In his brief, defendant first argues that appellate counsel failed to raise mitigating factors three and four, then states that counsel failed to raise mitigating factors four and five, and ultimately concludes his argument stating that mitigating factors three and four apply. At resentencing, appellate counsel did not raise mitigating factors three, four or five, but argued for a reduced sentence as aggravating factors one and two were no longer being considered by the court.
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Defendant also argues that his PCR counsel was ineffective in that his brief included various inaccuracies and he did not produce supporting documentation for his claim that trial counsel should have more thoroughly investigated the witnesses. PCR counsel corrected the mistakes in his brief at oral argument. Defendant does not present any indication that documentation of a lack of investigation is available. We do not require that an attorney "craft[] a defense when none actually exists." State v. Velez, 329 N.J. Super. 128, 133 (App. Div. 2000).
Defendant's argument that he was improperly denied an evidentiary hearing is similarly without merit. Defendant must establish a prima facie claim of ineffective assistance before an evidentiary hearing should be granted. Preciose, supra, 129 N.J. at 462-63. "Bald assertions" are insufficient for this purpose. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).
In his pro se supplemental brief, defendant focuses on his misunderstanding that the charge of attempted murder requires proof of "serious bodily injury" as defined in N.J.S.A. 2C:11-1(b). He then argues that his counsel was ineffective in advising him to plead guilty to first-degree attempted murder when no evidence of "serious bodily injury" was proven by the State. He also faults trial counsel for not obtaining a defense expert on the issue of "serious bodily injury." Because the charge of attempted murder does not require proof of "serious bodily injury," these arguments are without sufficient merit to require discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APELATE DIVISION