Opinion
DOCKET NO. A-2752-10T4
01-11-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. DAVID WILSON, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief). Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney for respondent (Timothy P. Ward, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo and Maven.
On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 98-03-0272.
Joseph E. Krakora, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief).
Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney for respondent (Timothy P. Ward, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant David Wilson appeals from an order of the Law Division denying his petition for post-conviction relief (PCR). We affirm.
Tried by a jury, defendant was convicted of two counts of first-degree attempted murder against Craig Williams, N.J.S.A. 2C:11-3 and N.J.S.A. 2C:5-1 (counts one and five); two counts of second-degree aggravated assault for attempting to cause or causing serious bodily injury to Craig Williams, N.J.S.A. 2C:12-1(b)(1) (counts two and six); two counts of fourth-degree aggravated assault of Craig Williams, N.J.S.A. 2C:12-1(b)(4) (counts three and seven); and two counts of second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (counts four and eight). Co-defendants Jerry Goldware and John Henry Lewis, who were charged with various of these same counts, both pleaded guilty prior to trial and testified for the State.
According to the State's proofs, defendant became upset at Craig Williams, a long-time acquaintance and known drug addict, for using a tavern's public restroom where defendant supposedly dealt drugs. Following this incident, defendant tracked Williams down and unsuccessfully attempted to kill him on two separate occasions within the span of a couple of hours.
At defendant's sentencing, the court merged counts two, three, and four into count one and counts six and seven into count five, imposing for the crimes of attempted murder concurrent twenty-year terms subject to serving eighty-five percent of the sentence before parole, pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant appealed and we affirmed the judgment of conviction. State v. Wilson, No. A-5170-99 (App. Div. December 27, 2001). The Supreme Court then denied defendant's petition for certification. State v. Wilson, 171 N.J. 443 (2002).
Prior to trial, on April 13, 1998, defendant was offered a plea deal of ten years subject to an eighty-five percent parole disqualifier, which he never accepted, and was subsequently offered a deal in which he would receive a sentence of "time served" in exchange for pleading guilty to third-degree unlawful possession of a weapon. The "time served" offer was conditioned on defendant providing a truthful statement against his co-defendants and testifying against them at trial if they did not accept their plea offers. The trial order dated April 12, 1999 indicated that by proceeding to trial, defendant gave up his right to accept the plea offer.
Defendant filed a timely PCR petition in which he alleged ineffective assistance of both trial and appellate counsel. Specifically, defendant claimed that: (1) trial counsel failed to advise him of the NERA ramifications; (2) trial counsel failed to have defendant's father Donald Matlock, testify as an alibi witness; (3) appellate counsel failed to argue that the court improperly allowed the jury to consider that the argument between defendant and the victim was drug-related; and (4) trial and appellate counsel failed to move for a mistrial due to juror inattention. In a comprehensive written opinion of July 20, 2010, the PCR judge addressed and rejected each of these claims and, accordingly, denied defendant's petition. The judge concluded:
Defendant also raised other claims not relevant to this appeal, namely that trial and appellate counsel failed to challenge Craig Williams' competency, and that defendant received an illegal sentence because the judge, rather than the jury, applied aggravating factors in determining to enhance his sentence.
[Defendant] fails to establish that he was in fact misinformed by trial counsel. As argued by the State, a written plea offer for ten years, subject to NERA, was conveyed to [first defense counsel] on April 9, 1998. Additionally, a transcript of the December 14, 1998 Status Conference reveals that [first defense counsel] was in possession of the plea offer, and there is no evidence to believe that this offer was not conveyed to [defendant] or that [first defense counsel] did not discuss the offer with him. Moreover, the record indicates that [defendant] was present at the status conference in which the judge repeatedly made mention of the 85% NERA parole disqualifier. As for [second defense counsel's] representation, it is reasonable that he would not have detailed recollections of conversations he had with a client almost five years prior. This, in itself, is not evidence that the conversation did not actually take place.
. . . .
It is clear that a plea offer was extended to [defendant] however; he chose to decline the offer and take his chances at trial.
. . . .
Most significant is that the record indicates [defendant] was present at a status hearing in which the 85% parole disqualifier was discussed in relation to a plea offer extended to him. Moreover, there is no right to a plea bargain. [Defendant] had the opportunity to accept a plea offer subject to time-served, but chose not to, most likely because it required him to provide a truthful statement against his co-defendants.
. . . .
The record [also] indicates that [first defense counsel] made a reasonable effort to locate Mr. Matlock. Additionally, [defendant] was made aware of the problems in locating his father by both trial counsel and the court; however he failed to provide either with his whereabouts. Even if Mr. Matlock had testified, [defendant] has failed to establish that his testimony would have affected the outcome of the case. The affidavit submitted by Mr. Matlock conflicts with the testimony of [Craig] Williams, [and the two co-defendants,] who all stated that they saw [defendant] at 813 Bar at approximately 9:00 P.M. Moreover, in [defendant's] own recitation of the facts, which he provided to an investigator on October 30, 1997, he claimed that he did not go to his father's house until sometime between 9:15 and 9:30 p.m.
. . . .
After hearing from both sides, and considering the fact that the argument [between defendant and Williams] took place on the same evening as the shootings, the Judge determined the information [as to the nature of the argument] to be "highly
probative and highly relevant" to establishing motive.
On appeal, counsel made a strategic decision not to question the judge's ruling [allowing testimony that the underlying argument between defendant and Williams was drug-related] most likely because the claim had no merit. Moreover, [defendant] presents no evidence to conclude that the jury verdict would have been any different had the nature of the argument not been disclosed. Furthermore, based on the overwhelming evidence against [defendant], there is no indication that he was unduly prejudiced.
. . . .
[T]he trial judge in the present case asked Juror Number 10 if she had in fact been sleeping or if she was tired, to which she responded, "I'm okay." Furthermore, there is no indication that Juror Number 10 was in fact sleeping, as her responses to the judge's inquiry were not delayed nor did they otherwise indicated that she had been sleeping. The record indicates that [the judge] was satisfied that Juror Number 10 had heard his charge. However, recognizing the length of the charge given, the court decided to take a fifteen minute break shortly thereafter in which jurors were provided refreshments and instructed to "charge up [their] batteries" for the remainder of the charge.
Based on the foregoing analysis, there is no evidence to suggest that a manifest injustice occurred during the proceedings which could have warranted a mistrial and therefore, trial and appellate counsel's strategic decision not to move for a mistrial was reasonable.
This appeal follows, in which defendant raises the following issues:
On September 30, 2011, we granted defendant's motion for a temporary remand to the PCR court to have his motion to reconsider heard. On March 20, 2012, the PCR judge denied the motion for reconsideration.
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I. THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE DEFENDANT ESTABLISHED A PRIMA FACIE CASE OF COUNSELS' INEFFECTIVENESS.
A. Trial Counsel Failed to Inform Defendant Of His Sentencing Exposure.
B. Trial Counsel Failed To Investigate Adequately And/Or Locate An Alibi Witness.
C. Appellate Counsel Failed To Raise That The Trial Court Erred By Allowing Testimony That The Underlying Argument Between Defendant And The Victim Was Drug Related.
D. Trial And Appellate Counsel Failed To Raise The Issue Of A Juror's Inattention.
It is axiomatic that 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. See, e.g., Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 58 (1987). We are persuaded that the alleged deficiencies here clearly fail to meet either the performance or prejudice prong of the Strickland test. We reject defendant's claims to the contrary as without sufficient merit to warrant discussion in this opinion, Rule 2:11-3(e)(2)(E), and accordingly affirm substantially for the reasons stated by Judge Billmeier in his cogent and thoughtful written opinion of July 20, 2010.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION