Opinion
DOCKET NO. A-2784-12T1
06-27-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. MARCUS PETTIFORD, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief). Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Miriam L. Acevedo, Special Deputy Attorney General/ Acting Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Koblitz and O'Connor.
On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 08-07-1367.
Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief).
Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Miriam L. Acevedo, Special Deputy Attorney General/ Acting Assistant Prosecutor, on the brief). PER CURIAM
Defendant Marcus Pettiford appeals an October 25, 2012 order denying his petition for post-conviction relief (PCR). For the reasons that follow, we affirm in part, reverse in part and remand for further proceedings.
Defendant was charged with first-degree robbery, N.J.S.A. 2C:15-1; second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); third-degree possession of a handgun by a convicted person, N.J.S.A. 2C:39-7; fourth-degree possession of hollow point bullets, N.J.S.A. 2C:39-3(f); and fourth-degree possession of a defaced firearm, N.J.S.A. 2C:39-3(d).
A jury convicted defendant of second-degree robbery as a lesser-included offense and acquitted him of all other charges. He was sentenced to an eight-year term, with an eighty-five percent period of parole ineligibility. Defendant appealed his conviction and sentence, which we affirmed. State v. Pettiford, No. A-5241-09 (App. Div. August 15, 2011).
I
The pertinent evidence adduced during the trial was as follows.
Ramon Lopez and Victor Lopez, brothers, co-owned a grocery store in Jersey City. Both were in the store the evening of November 10, 2006. Ramon testified that, at about 8:15 p.m., he was behind the cash register preparing scratch-off lottery tickets for sale the following day when an African-American man, wearing a "hoodie" and red bandana across his face, went behind the counter and threw Ramon to the floor. A taller, African-American man, whose face was covered with a green bandana, came into the store, approached Ramon and hit him in the arm with a handgun. The two men grabbed a total of $800 in cash, scratch-off lottery tickets, T-Mobile calling cards, and two "Dutch Master Cigar" boxes, in which were kept telephone calling cards. They then fled.
As both share the same surname, for clarity we refer to each by his first name.
Victor testified that he was in the back of the store when he heard voices and realized his brother was being assaulted. He took a few steps toward the front of the store and saw in the reflection of an object a man with a green bandana over his face holding a gun. Another man wearing a gray sweatshirt with a hood was attacking his brother. Victor pushed the alarm button and exited the back door. He went around to the front of the store and saw the two men leave. Victor followed them and saw them run into an apartment building. A friend who passed by called the police. The police arrived between 8:25 p.m. and 8:30 p.m.
The police surrounded and searched the building and, by 9:05 p.m., gained entrance to an apartment where they found defendant and co-defendant Benjamin Wilson in a "back bedroom." The police also found a Dutch Masters Cigar box in a closet just off the back bedroom; T-Mobile calling cards on the bed in the back bedroom; cash, twenty-one lottery tickets, two bandanas, and a .22 caliber handgun in the back bedroom closet; a gray hooded sweatshirt on the living room floor; and seventy-seven vials of crack-cocaine in other areas of the apartment. Ramon identified the lottery tickets and Dutch Masters Cigar boxes as those that had been in the store just before the robbery. Testing revealed Wilson's DNA on the red bandana.
Although the State's brief states Wilson pled guilty and was sentenced to a ten-year term with a five-year period of parole ineligibility, the record does not reflect the crime to which he pled.
An officer found cash in defendant's pocket when he was arrested. The officer noted that the cash was wet. Defendant told the officer that "somebody" tried to flush the cash down the toilet and he retrieved it. Defendant refused to tell the officer who had put the money in the toilet.
According to the officer's testimony, defendant provided this information after he was "advised of his rights . . . . [and] waive[d] those rights." We presume the officer was referring to defendant's Miranda rights. Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Five other individuals were in the apartment when defendant and Wilson were apprehended; two were residents of the apartment and the other three were guests. None of these other individuals were charged with any crimes having to do with the robbery, but one of the guests, Eric Sessoms, was charged with possession of some of the crack-cocaine found in the apartment.
One of the residents, Nailah Mayweathers, testified that, around 8:30 p.m., defendant and Wilson ran in the apartment "out of breath" with money in their hands. They sat and counted money in the living room and then retreated to the back bedroom. She went to look inside the back room and saw "scratch-offs in a Dutch box which is like a box of cigars." She also testified that Eric Sessoms had been in the apartment since at least five or six o'clock.
Another guest, Marcel Hogan, was called as a witness by the State. He initially testified he ran into his friends, defendant and Wilson, on the street on the day of the robbery between 5:00 p.m. and 6:00 p.m. The State then showed Hogan a statement he had given to the police and asked if it refreshed his recollection as to the time he met his friends. Hogan replied that it did, and then testified he met defendant and Wilson between 7:00 p.m. and 8:00 p.m. On cross-examination, Hogan again changed his testimony and stated he first met his friends between 5:00 p.m. and 6:00 p.m.
Hogan also testified that fifteen minutes after he saw his friends on the street, he went to the apartment where the police later found defendant and Wilson. Sessoms was already present. Ten or fifteen minutes after Hogan arrived, Wilson and defendant, who was wearing a gray hooded sweatshirt, came in and rushed to the back room. Eight minutes later, police cars surrounded the building. The police eventually gained access to the apartment and apprehended defendant and Wilson.
II
On appeal, defendant raises the following points:
Point I - THE PCR COURT ERRED IN APPLYING THE PROCEDURAL BAR OF R. 3:22-5 BECAUSE DEFENDANT'S CLAIM THAT TRIAL COUNSEL WAS DEFICIENT BY FAILING TO OBJECT TO THE PROSECUTOR'S SUMMATION WAS RAISED IN THE CONTEXT OF A VIOLATION OF HIS SIXTH AND FOURTEENTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL
POINT II - THE MATTER SHOULD BE REMANDED FOR A FULL EVIDENTIARY HEARING BECAUSE DEFENDANT MADE A PRIMA FACIE SHOWING OF INEFFECTIVE ASSISTANCE OF COUNSEL UNDER THE STRICKLAND/FRITZ TEST
POINT III - THE COURT'S RULING DENYING POST-CONVICTION RELIEF VIOLATED DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION
POINT IV - THE PCR COURT MISAPPLIED ITS DISCRETION IN FAILING TO CREDIT DEFENDANT WITH ADDITIONAL TIME SERVED
The standard for determining whether counsel's performance was ineffective for purposes of the Sixth Amendment was formulated in Strickland v. Washington, 466 U.S. 668, l04 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted by our Supreme Court in State v. Fritz, l05 N.J. 42 (l987). In order to prevail on a claim of ineffective assistance of counsel, defendant must meet the two-prong test of establishing both that: (1) counsel's performance was deficient and he made errors that were so egregious that counsel was not functioning effectively as guaranteed by the Sixth Amendment to the United States Constitution; and (2) the defect in performance prejudiced defendant's rights to a fair trial such that there exists a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 687, 694, l04 S. Ct. at 2064, 2068, 80 L. Ed. 2d at 693, 698.
We are satisfied from our review of the record that defendant failed to make a prima facie showing of ineffectiveness of trial counsel within the Strickland-Fritz test. Accordingly, the PCR court correctly concluded that an evidentiary hearing was not warranted. See State v. Preciose, 129 N.J. 452, 462-63 (1992).
A
On direct appeal, defendant argued that during his summation the prosecutor improperly commented upon defendant's post-arrest silence, in violation of his Fifth Amendment rights. Specifically, the prosecutor pointed out defendant refused to identify the person who tried to flush the cash down the toilet. The State suggested in its summation that defendant resisted identifying the person because in fact no such person existed; that is, defendant merely concocted the story to explain why he had so much cash in his pocket in an effort to disassociate himself from the proceeds of the robbery.
U.S. Const. amend. V.
We did not find any constitutional violation, noting the State merely made use of defendant's own statement to show his version of events was not supported by the evidence. We also cited State v. Tucker, 190 N.J. 183, 190 (2007), for the premise the State could use any statement given by a defendant that was voluntarily given to law enforcement.
Here, defendant argues trial counsel's failure to object to the prosecutor's comments was a violation of his Sixth Amendment and Fourteenth Amendment rights to effective assistance of counsel.
U.S. Const. amend. VI.
U.S. Const. amend. XIV.
We do not find any merit in defendant's contentions. The prosecutor's comments were based on the evidence introduced at trial and he was free to discuss that evidence during summation. See State v. Wakefield, 190 N.J. 397, 457 (2007). There was not any reasonable objection defense counsel could have made. Defendant does not specify what objection his attorney should have articulated, let alone any error that was so egregious that counsel failed to function effectively as guaranteed by the United States Constitution.
B
Defendant complains his attorney should have objected when the State used Marcel Hogan's prior statement to refresh his recollection on the issue of when Hogan met with defendant and Wilson on the street. Defendant claims the State's case would have been weaker if Hogan met with defendant and Wilson much earlier than 8:15 p.m., the time when the State claimed the robbery took place. Defendant argues that his attorney should have objected to the use of the prior statement because Hogan never said his memory needed refreshing. See State v. Williams, 226 N.J. Super. 94, 103 (App. Div. 1988).
First, there was considerable evidence establishing defendant's guilt. Although masked at the time of the robbery, there was enough identifying criteria to have enabled Victor Lopez to follow defendant and Wilson to the apartment building, where they were located shortly thereafter with property that specifically linked them to the victims' store. The testimony of the victims and Nailah Mayweathers dovetailed on when events took place. Second, even if there were legitimate grounds to object to the use of the prior statement, on cross-examination defense counsel deftly managed to obtain Hogan's admission that he first met with his friends between 5:00 p.m. and 6:00 p.m. Under these circumstances, any error was harmless. State v. Macon, 57 N.J. 325, 340 (1971).
C
Defendant also contends his attorney should have called Eric Sessoms as a witness because, had he testified, counsel may have been able to raise the inference that it was Sessoms and not defendant who robbed the store with Wilson. Defendant's theory is that, because Sessoms was charged with possession of drugs found in the apartment, the jury might have believed that he and not defendant was one of the perpetrators. There is no basis for this supposition. A disagreement with trial strategy is not grounds for PCR. Strickland, supra, 466 U.S. at 691, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695; Fritz, supra, 105 N.J. at 54.
The victims testified they were robbed at 8:15 p.m. There was evidence that, by that time, Sessoms was already in the apartment. Defendant and Wilson entered the apartment at 8:30 p.m., where they were observed counting cash. The two then hastily withdrew to a back bedroom, where proceeds from the robbery — cash, lottery tickets, calling cards, the Dutch Masters Cigar box - were observed in or very close to that bedroom. The drugs were found elsewhere in the apartment and were unrelated to the robbery. The contention that had Sessoms testified the jury would have concluded he and not defendant participated in the robbery is mere speculation.
D
In Point IV of his brief, defendant argues he should have received
credit for additional time served, either as jail credits or gap-time credits, because of the maximum 3 year sentence imposed on the violation of ISP when he was arrested in this case. The PCR court rejected defendant's argument on the basis it was "counterproductive" to the ISP program to give defendant additional jail credits.
The parties do not provide any additional information about defendant's criminal history. The issue of jail credit after the ISP violation was not raised in defendant's original PCR petition or trial brief, but the issue was raised in a letter from counsel to the PCR court seeking credit for the time defendant served on the "parole violation."
We presume defendant intended to refer to "ISP" and not "parole."
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Defendant had been previously convicted of distribution of drugs within 1,000 feet of school property, N.J.S.A. 2C:35-7(a), his first offense, for which he was sentenced in September 2005 to a "flat" three-year term. He was then admitted into the Intensive Supervision Program (ISP). R. 3:21-10(b)(6), (e). On November 11, 2006, he was arrested in connection with the robbery of the Lopez' store. The arrest was a violation of ISP and, as a result of the violation, he was ultimately ordered to serve the full three-year sentence originally imposed on the distribution conviction. He completed that sentence on July 24, 2008 and was released. Thereafter, in October and November 2009, the trial on the robbery took place and defendant was sentenced on December 18, 2009.
In his oral argument before the PCR court, defendant argued that he is entitled to jail credits toward the sentence on the robbery conviction for the time he was incarcerated after the ISP violation. The PCR court denied his request, finding that if "a parole hit takes place," one does not get any jail credits for time "due a parole violation." Indeed, that is accurate. "When 'a parolee is taken into custody on a parole warrant, the confinement is attributable to the original offense on which the parole was granted and not to any offense or offenses committed during the parolee's release.'" State v. DiAngelo, 434 N.J. Super. 443, 456 (App. Div. 2014) (citing State v. Black, 153 N.J. 438, 461 (App. Div. 1998)).
In DiAngelo, we held that a defendant confined for violating probation was entitled to jail credits while waiting resentencing on the violation. Id. at 462. We recently held in State v. Adams, ___ N.J. Super. ___, ___ (App. Div. 2014)(slip op. at 11), that a failed participant in ISP is similarly situated to a failed probationer who is pending resentencing, as upon a failure to comply with ISP, the ISP participant faces a resentencing that could result in a custodial sentence. In Adams, we awarded the defendant, a failed participant in ISP, jail credits from the day he was arrested for committing a new offense while in the ISP program to the day before he was resentenced by the ISP panel. Id. (slip opinion at 13). The defendant in Adams had not received credit for 330 days in jail on either the original offense resulting in ISP or the new offense, which caused the ISP violation. Id. at 5-6, 13.
Here, given the limited history provided in the record, we are unable to discern how many days defendant was in jail awaiting the ISP resentencing. We remand this matter to the trial court to reconsider whether defendant is entitled to jail credits, in light of our decision in Adams.
The remaining issues raised by defendant are without sufficient merit to warrant further discussion. R. 2:11-3(e)(2).
Affirmed in part, reversed in part and remanded for further proceedings in conformity with this opinion. We do not retain jurisdiction.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION