Opinion
DOCKET NO. A-0411-14T3
05-25-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. DAVID THOMPSON, a/k/a DONALD THOMPSON, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (David A. Gies, Designated Counsel, on the briefs). Angelo J. Onofri, Acting Mercer County Prosecutor, attorney for respondent (Laura Sunyak, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fisher and Espinosa. On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 06-10-1055. Joseph E. Krakora, Public Defender, attorney for appellant (David A. Gies, Designated Counsel, on the briefs). Angelo J. Onofri, Acting Mercer County Prosecutor, attorney for respondent (Laura Sunyak, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant David Thompson appeals from the denial of his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.
Defendant presents the following issues for our consideration in this appeal:
POINT I
MEANINGFUL APPELLATE REVIEW IS INHIBITED WHERE, AS HERE, THE PCR COURT DID NOT SET FORTH ITS REASONS FOR NOT DECIDING THE ISSUE OF WHETHER THE TRIAL COURT'S LATE AMENDMENT OF THE INDICTMENT OVER OBJECTION FROM THE DEFENDANT HIMSELF WAS PROPER.
POINT II
THE DEFENDANT WAS DEPRIVED OF THE OPPPORTUNITY TO PREPARE OR PRESENT A DEFENSE AS A RESULT OF THE LATE AMENDMENT TO WHICH HIS TRIAL ATTORNEY DID NOT OBJECT.
POINT III
THE EVIDENCE DID NOT SUPPORT AN AMENDMENT TO THE INDICTMENT TO INCLUDE AS A LESSER INCLUDED OFFENSE OF KIDNAPPING AN ATTEMPTED KIDNAPPING INSTRUCTION, PARTICULARLY WHERE NONE OF THE DEFENDANT'S ACTS COULD BE CONSIDERED A FIRMNESS OF PURPOSE TO CONFINE T.S. FOR A SUBSTANTIAL PERIOD OF TIME.
POINT IV
THE DEFENDANT INCORPORATES HEREIN ALL OF HIS PRO SE ARGUMENTS FOR POST-CONVICTION RELIEF.
The arguments raised by defendant pro se are that his trial counsel was constitutionally ineffective for: failing to argue the verdict was against the weight of the evidence; failing to object to the jury charge on attempted kidnapping; failing to adequately investigate and prepare a defense, i.e., failing to challenge the search warrant, failing to require surveillance footage to support defendant's testimony and failing to prepare defendant to testify on his own behalf; failing to file a motion to suppress defendant's statement; and failing to move for a speedy trial. Defendant also argued his appellate counsel was constitutionally ineffective in his selection of issues addressed on appeal.
After reviewing these arguments in light of the record, including our decision in the direct appeal, and applicable legal principles, we conclude that none have any merit.
I.
Defendant was convicted of attempted kidnapping, sexual assault, aggravated assault and criminal restraint. In his direct appeal, defendant raised the following issues: (1) the verdict was against the weight of the evidence; (2) the trial court erred by failing to include criminal restraint as a lesser-included offense of kidnapping on the verdict sheet and incorrectly charged the jury on this offense; (3) he was deprived of a speedy trial; and (4) his sentence was excessive.
We affirmed his convictions and sentence in an unpublished opinion. State v. Thompson, No. A-0674-08 (App. Div. Aug. 16, 2011), certif. denied, 209 N.J. 233 (2012). The facts underlying his convictions are set forth in our opinion and need not be repeated here.
Defendant timely filed a pro se PCR petition in March 2012. Thereafter, PCR counsel filed a brief on behalf of defendant and defendant filed a pro se brief in reply to the State's brief. The PCR judge denied defendant's PCR petition and set forth his reasons in a written opinion.
He concluded that defendant's challenges regarding the weight of evidence, criminal restraint charge, speedy trial and sentence were procedurally barred because they had been raised and decided on direct appeal. See R. 3:22-5. The PCR judge then addressed defendant's remaining claims. In regards to the claimed deficiencies of trial counsel's performance in investigating and preparing a defense, the judge stated:
[Defendant] failed to provide the court with affidavits or certifications that assert facts that such an investigation would have revealed. [Defendant] does not provide any specific facts, potential witnesses or possible defenses in support of his argument that trial counsel failed to investigate his case. Even assuming that trial counsel's performance was inadequate, [defendant] has failed to demonstrate that he would likely succeed on the merits.
The PCR judge found no merit in defendant's contention that trial counsel was ineffective in failing to request a Miranda hearing:
[Defendant] claims that a four-page statement was provided to law enforcement, but fails to cite to the transcript in support of his claim that such statement existed, let alone [was] introduced at trial. A review of the record however, reveals that [defendant] refused to give a statement. A N.J.R.E. 104 hearing was unnecessary since the State did not attempt to introduce a statement made by [defendant], especially since no statement was taken.
The PCR judge also found no merit to defendant's claims against appellate counsel, noting that counsel raised "the meritorious claims available on behalf of [defendant]."
II.
We first address defendant's contention in Point III, that "the evidence did not support an amendment to the indictment to include" attempted kidnapping as a lesser-included offense of kidnapping. As the PCR judge found, this argument is procedurally barred under Rule 3:22-4, as it could have been, but was not, raised on direct appeal. However, even if the argument was not barred, the charge was warranted on the proofs because "the facts in evidence 'clearly indicate[d]' the appropriateness of [the attempted kidnapping] charge." State v. Savage, 172 N.J. 374, 397 (2002) (quoting State v. Choice, 98 N.J. 295, 298 (1985)) (discussing trial court's duty to sua sponte charge a lesser included offense).
As defendant's underlying claim is without merit, his argument under Point II also fails; trial counsel was not ineffective for failing to object to the appropriate attempted kidnapping charge. Moreover, trial counsel did advise the court during the charge conference that defendant objected to the charge.
In Point I, defendant argues the PCR court did not address his argument that there was a "late amendment" of the indictment. Defendant contends this act incorrectly added attempted kidnapping as a lesser-included offense of the original first-degree kidnapping charge. He contends this claim should be remanded in accordance with Rule 3:22-11, or this court should exercise its original jurisdiction.
When deciding a petition for PCR, the court must "make specific fact findings . . . and state [its] conclusions of law." State v. Thompson, 405 N.J. Super. 163, 172 (App. Div. 2009); see R. 1:7-4(a); R. 3:22-11. "Anything less is a 'disservice to the litigants, the attorneys, and the appellate court.'" Thompson, supra, 405 N.J. Super. at 172 (quoting Curtis v. Finneran, 83 N.J. 563, 569-70 (1980)).
Our review of the record confirms that the PCR court did not specifically address this claim. Nevertheless, this constitutes, at most, harmless error because, as we have discussed, these issues were procedurally barred and meritless.
As for the remaining claims defendant presented pro se, we agree with the PCR court that defendant's contentions of ineffectiveness based upon his counsel's failure to make motions regarding the weight of evidence, suppression of his statement and speedy trial are procedurally barred by Rule 3:22-5. We find no merit to defendant's remaining contentions, R. 2:11-3(e)(2).
Suffice it to say, in order for defendant to obtain relief based on ineffective assistance grounds, he is obliged to show not only the particular manner in which counsel's performance was deficient, but also that the deficiency prejudiced his right to a fair trial. Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984); State v. Fritz, 105 N.J. 42, 52 (1987). We are satisfied from our review of the record that defendant failed to make a prima facie showing of ineffectiveness of trial and appellate counsel under the Strickland-Fritz test. Accordingly, the PCR court correctly concluded that an evidentiary hearing was not warranted. See State v. Preciose, 129 N.J. 451, 462-63 (1992).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION