Opinion
DOCKET NO. A-0829-12T4
05-29-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. EARL SANDERS, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief). Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Mary R. Juliano, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Alvarez, Maven, and Carroll. On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 03-07-1389. Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief). Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Mary R. Juliano, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Earl Sanders appeals from a February 29, 2012 Law Division order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.
After an October 2005 jury trial, defendant was convicted of third-degree theft of movable property, N.J.S.A. 2C:20-3(a); two counts of second-degree eluding, N.J.S.A. 2C:29-2(b); two counts of simple assault, N.J.S.A. 2C:12-1(a)(1); and resisting arrest, N.J.S.A. 2C:29-2(a). On January 27, 2006, defendant was sentenced to an aggregate twenty-year term of imprisonment, with an eight-year period of parole ineligibility.
We affirmed defendant's conviction and sentence on direct appeal. State v. Sanders, No. A-3838-05 (App. Div. Dec. 19, 2008). In an unpublished opinion, we rejected the various points of error asserted in defendant's counseled brief, as well as defendant's argument in Point One of his pro se supplemental brief that the trial court erred in terminating his self-representation. We declined to rule on the claims of ineffective assistance of counsel that defendant raised in Point Two of his pro se brief on the basis that they were better suited for a PCR proceeding because they implicated matters outside of the record. The Supreme Court thereafter denied defendant's petition for certification. 198 N.J. 317 (2009). We incorporate by reference the salient facts leading to defendant's conviction, as described in our unpublished opinion affirming the jury's verdict. Sanders, supra, (slip op. at 4-5).
On May 21, 2009, defendant filed a pro se petition for PCR, claiming (1) the trial judge violated defendant's rights to a fair trial and due process of law; (2) ineffective assistance of counsel during both pretrial and trial proceedings; (3) prosecutorial misconduct in forging defendant's medical records or allowing the records to be forged; and (4) ineffective assistance of appellate counsel. Defendant's petition was accompanied by an application for the assignment of counsel, which the court granted on May 28, 2009. In March 2010, assigned counsel filed a brief in support of defendant's petition that basically incorporated the claims of ineffective assistance of counsel that defendant had previously asserted in Point Two of his pro se supplemental brief on direct appeal.
In January 2010, defendant filed a series of documents with the trial court protesting the involvement of assigned counsel, including a motion to proceed pro se. On April 5, 2010, defendant sought to amend his PCR petition, setting forth twenty-four "fact/points" that were essentially unrelated to his criminal conviction. On May 14, 2010, Judge Jamie S. Perri, who was not the trial judge, entertained argument on defendant's application to proceed pro se. After considering defendant's remarks and his various written submissions, Judge Perri ordered that a competency evaluation be conducted "to determine whether or not [defendant] can, in fact, make a knowing and voluntary waiver of the right to counsel and understand and appreciate the consequences and implications of his decision."
The competency evaluation was performed by Peter D. Paul, Ph.D., who interviewed defendant twice and reviewed various medical records and court documents. In his October 7, 2010 report, Dr. Paul concluded:
[D]efendant displays thinking that is logical and clear, and he is well[-]oriented to person, place, and time. He has a good understanding of the operation of the legal system and of his specific legal situation. [D]efendant is capable of assisting in the preparation of his own defense and is able to follow the legal proceedings against him in court. It is the opinion of this examiner that he meets the criteria to be considered competent to stand trial as defined in N.J.S.A. 2C:4-4. It is also [my] opinion that . . . defendant has the capacity to waive counsel and represent himself in court. He is able to make this decision knowingly and willingly.
Should . . . defendant present unusual ideas or express illogical thoughts in the courtroom, he is doing so willfully and it is not the result of mental illness or a disturbance in his thinking.
The hearing on defendant's motion to dismiss appointed counsel and proceed pro se continued on April 13, 2011. After noting Dr. Paul's conclusions, Judge Perri then engaged defendant in an extended colloquy to assess whether he was knowingly and intelligently waiving the right to counsel. Ultimately, Judge Perri was "satisfied that . . . defendant [was] knowingly, intelligently, and voluntarily waiving his right to be represented by counsel, [and] that he has given this matter a good deal of consideration." At defendant's request, assigned counsel was appointed to act as standby counsel to provide defendant with ancillary services and technical support, with defendant to argue all substantive issues.
The court next addressed scheduling issues. The State expressed confusion as to which arguments defendant intended to pursue, including any raised in the brief that had been filed by assigned counsel. The court's scheduling order was then memorialized in an April 13, 2011 letter from the assistant prosecutor. In relevant part, it provided that:
No later than May 13, 2011, . . . defendant shall file an amended petition, brief and/or supplemental paperwork that incorporates all of the post-conviction claims and arguments . . . defendant intends to raise in this post-conviction relief proceeding.
Defendant subsequently filed a series of documents, including (1) an April 21, 2011 document purporting to request the State's responses to 396 "Proof[s] of Claim;" (2) a May 7, 2011 document captioned "Proof of Claim Served on Respondents is Not a Motion for Discovery;" and (3) a June 1, 2011 "Notice of Fault and Opportunity to Cure and Contest Acceptance."
On July 13, 2011, the date established for the filing of its brief, the State by letter application requested that defendant's petition be dismissed. The State argued:
The [c]ourt's scheduling order of April 13, 2011 required defendant, by May 13, 2011, to file papers that incorporated all of his post-conviction claims and arguments. All defendant has filed . . . are the three aforementioned documents. The "Proof of Claim" document does not meet the requirements of a verified petition for post-conviction relief. See R. 3:22-8. Additionally, the "Proof of Claim" document does not plead any cognizable ground for post-conviction relief. See R. 3:22-2.
There is nothing in defendant's paperwork that purports to re-file, incorporate by reference, or state an intention to rely upon, any paperwork filed by defendant's former, dismissed PCR counsel. . . .
By letter dated July 18, 2011, defendant responded that his April 5, 2010 amended petition had been properly filed. Defendant indicated his intent to rely on the amended petition, supported by his April 21, 2011 "[p]roof/claim in the nature of discovery." Defendant also referenced "the [r]eserved [p]oint from [a]ppellate [r]eview, . . . 'Ineffective Assistance of Counsel,'" and stated "[a]t [ t]his time the u[n]dersigned has not [ad]vanced this issue." Defendant followed this with a letter dated August 1, 2011, arguing that his original petition filed on May 21, 2009, procedurally complied with Rule 3:22-8.
After hearing argument by both defendant and standby counsel, Judge John T. Mullaney, Jr. issued a comprehensive written opinion denying PCR on the basis that defendant had failed to establish a prima facie claim for relief. The judge noted that defendant relied on his original petition, supplemented by his amended petition and his "proof of claim" document. However, defendant had conceded in his July 18, 2011 letter to the court that he was not raising a claim of ineffective assistance of counsel, as previously advanced on his direct appeal. The judge concluded:
In [defendant's] amended PCR petition, he sets forth [twenty-four] fact/points and accompanies these . . . with a three[-]page memorandum of law. The majority of the [twenty-four] fact/points refer to contracts and the fact that both the State and [defendant] are corporations in this case, and frankly makes little sense. The supporting brief speaks to maritime claims and does little to clear up the amended petition. However, nowhere in either document is there any claim of ineffective assistance of counsel or any other grounds sufficient to satisfy the cognizable requirement under [Rule] 3:22-2. Further, out of the 396 numbered "proof of claim" paragraphs, not one, even remotely, sets forth any claim upon which relief may be granted.
On appeal, defendant presents the following arguments:
POINT I: THE POST CONVICTION RELIEF COURT ERRED IN GRANTING THE DEFENDANT'S MOTION TO REPRESENT HIMSELF WITH STANDBY COUNSEL WITH RESPECT TO HIS PETITION FOR POST CONVICTION RELIEF
A. FACTUAL BACKGROUND
B. THE POST CONVICTION RELIEF COURT ERRED IN GRANTING THE DEFENDANT'S REQUEST TO WAIVE COUNSEL AND PROCEED PRO SE, THEREBY PRECLUDING HIM FROM RECEIVING THE BENEFITS OF POST CONVICTION RELIEF COUNSEL'S BRIEF WHICH REINFORCED THE DEFENDANT'S PRIMARY CONTENTION THAT HE FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION FROM TRIAL COUNSEL
POINT II: THE POST CONVICTION RELIEF COURT ERRED IN SUMMARILY DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT REVISITING THE ISSUE OF WHETHER THE DEFENDANT WAS COMPETENT TO MAKE AN INFORMED DECISION AS TO WHETHER HE STILL DESIRED TO RELINQUISH HIS RIGHT TO COUNSEL AND PROCEED PRO SE
POINT III: THE POST CONVICTION RELIEF COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT ADDRESSING THE MERITS OF HIS CENTRAL CONTENTION THAT HE FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION FROM TRIAL COUNSEL, AS SET FORTH AT LENGTH IN HIS PRO SE SUPPLEMENTAL BRIEF FILED AS PART OF HIS DIRECT APPEAL, WHICH THE APPELLATE DIVISION DID NOT ADDRESS, INDICATING THE ISSUE WAS MORE APPROPRIATELY SUITED FOR POST CONVICTION RELIEF PROCEEDINGS
We have considered these arguments in light of the record and applicable legal standards and conclude they lack merit. We affirm the denial of defendant's petition substantially for the reasons set forth in Judge Mullaney's cogent written opinion. We add the following comments.
Defendant first argues that the court erred in granting his request to waive counsel and proceed pro se. We disagree.
It is well-established that defendants possess not only the right to counsel, but the right to waive counsel and to proceed pro se. Faretta v. California, 422 U.S. 806, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975). However, "[a] defendant can exercise the right to self-representation only by first knowingly and intelligently waiving the right to counsel." State v. Crisafi, 128 N.J. 499, 509 (1992). As the Court noted, we have "consistently required trial judges to engage in a searching inquiry with defendants seeking to proceed pro se." Id. at 510 (citations omitted). In State v. DuBois, 189 N.J. 454, 475 (2007), the Court entrusted the issue of a defendant's waiver of the right to counsel to the "sound discretion" of our trial judges, explaining that they are "in the best position to evaluate [a] defendant's understanding of what it mean[s] to [self-]represent [] and whether [a] defendant's decision to proceed pro se [i]s knowing and intelligent."
Examining the record, it is clear that the court went to great lengths to ensure that defendant was both competent to waive counsel and was doing so knowingly and intelligently. Dr. Paul noted that defendant "appeared to have a better than average understanding of the legal system. Intellectually, [he] seemed to be of above average ability." Also, defendant's "thinking was logical and clear with no indication of any mental illness." Defendant has produced no expert opinion to the contrary.
Only upon satisfying herself that defendant was competent did Judge Perri proceed with the waiver hearing. The judge engaged defendant in a thorough and searching colloquy that led her to conclude, properly, that defendant's waiver of counsel was knowing and voluntary, and that he understood the nature and consequences of his waiver.
Defendant further argues that the court's decision granting defendant's request to waive counsel and proceed pro se precluded him from receiving the benefits of assigned counsel's brief, which essentially incorporated defendant's arguments of ineffective assistance of trial counsel that defendant had previously attempted to advance on direct appeal. However, Judge Perri ordered counsel to provide defendant with a copy of the brief, and gave defendant ample time to review it. Faced with a choice, defendant thereafter chose not to adopt counsel's brief, but rather to rely upon his own uncounseled submissions.
Further, as in Crisafi, "[t]he record demonstrates that [defendant] is a court-wise criminal who fully appreciated the risks of proceeding without counsel, and that he decided to proceed pro se with his eyes wide open." Crisafi, supra, 128 N.J. at 513 (citing Faretta, supra, 422 U.S. at 835, 95 S. Ct. at 2541, 45 L. Ed. 2d at 582). As Dr. Paul noted, defendant was forty-seven years old at the time of his evaluation. He had "an extensive criminal history with at least four arrests as a juvenile and [forty-four] arrests as an adult. He has been found guilty of at least [fourteen] [S]uperior [C]ourt charges." Defendant's criminal history included convictions for robbery and armed robbery, for which he received lengthy state prison sentences.
We likewise see no merit in defendant's next argument that the court erred in denying PCR without re-visiting the issue of whether defendant remained competent to waive counsel and proceed pro se. This argument "stems from the contents of the various documents filed by [] defendant . . . from the time of the waiver hearing on April 13, 2011 to the time of the [PCR] hearing on February 22, 2012." However, we discern no noticeable difference between the documents filed by defendant post-waiver and those filed previously, which had prompted Judge Perri to order a competency evaluation. It is true that defendant's written submissions both before and after the waiver hearing "make[] little sense," as Judge Mullaney correctly concluded. However, this is easily explained by Dr. Paul's report in which he expressly noted that "[s]hould [] defendant present unusual ideas or express illogical thoughts in the courtroom, he is doing so willfully and it is not the result of mental illness or a disturbance in his thinking."
Finally, we agree that, in the end, defendant failed to present any cognizable claims warranting PCR. His initial petition simply set forth four conclusory allegations, including ineffective assistance of trial and appellate counsel. However, defendant's petition was not supported by any affidavit or brief detailing how trial or appellate counsel was ineffective. "In evaluating whether a prima facie claim has been asserted, '[a]ny factual assertion that provides the predicate for a claim of relief must be made by an affidavit or certification . . . before the [c]ourt may grant an evidentiary hearing.'" State v. Porter, 216 N.J. 343, 355 (2013) (alteration in original) (quoting R. 3:22-10(c)). A "'petitioner must do more than make bald assertions that he was denied the effective assistance of counsel.'" Ibid. (citation omitted).
Judge Mullaney correctly concluded that defendant's ensuing submissions, including his amended petition and his "proof of claim" document, failed to set forth a cognizable basis for PCR. While Point Two of defendant's supplemental pro se brief on direct appeal specified areas in which trial counsel was allegedly deficient, defendant notified the court in his July 18, 2011 letter that "[a]t [t]his time . . . [he] has not [ad]vanced" his "[r]eserved [p]oint from [a]ppellate [r]eview." When defendant and standby counsel alluded to the arguments of ineffective assistance of counsel raised in defendant's appellate brief and assigned counsel's PCR brief at oral argument before Judge Mullaney and the State protested, defendant acknowledged that the State "didn't get a chance, an opportunity to oppose the brief or answer the brief because we said we weren't going to use that brief."
We conclude that defendant cannot manipulate the system by now attempting to argue on appeal the PCR court's failure to consider issues that defendant himself knowingly chose not to adopt or advance. Judge Mullaney was left with no alternative but to consider the submissions that were properly before him, which failed to establish defendant's entitlement to PCR.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION