STATE OF NEW JERSEY v. MERVIN MUNIZ (2011)

Defendant appeals the denial of his motion for post- conviction relief (PCR).  We affirm.

Defendant's conviction arose out of shooting incidents occurring on October 16, 2000 that caused life-threatening injuries to twin brothers, Dion and Antoin ¹ Jackson.²  The shootings followed an argument between defendant and Antoin concerning the latter's girlfriend.   The argument started in a residence and then continued outside.   Defendant retrieved a handgun from his vehicle and shot Dion in the chest and Antoin in the stomach.   Both victims were treated for life-threatening injuries at the Jersey Shore Medical Center.

The jury convicted defendant of first-degree attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3(a)(1), and of second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1).   The jury also found that defendant used a firearm in both offenses.   The court imposed an aggregate thirty-year custodial sentence and a fifteen-year period of parole ineligibility.   Defendant appealed but subsequently withdrew, and we entered an order dismissing his appeal.

Defendant filed a pro se PCR petition in 2007.   On June 24, 2009, the PCR court conducted oral argument and, by order dated July 14, 2009, denied defendant's petition.   However, because the original sentence imposed did not include a period of parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.1(a), the PCR judge resentenced defendant to the same sentence, but included an eighty-five percent NERA period of parole ineligibility.

In denying relief to defendant, the PCR court found that defendant failed to show that trial counsel was deficient or that he was prejudiced as a result of trial counsel's representation.   The judge rejected defendant's arguments that trial counsel was ineffective because (1) he failed to present a diminished capacity defense, (2) he presented conflicting theories, and (3) he failed to prepare properly for trial.   The present appeal followed.

On appeal, defendant raises the following points:

POINT I

THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE MATTER REMANDED FOR A FULL EVIDENTIARY HEARING BECAUSE THE COURT FAILED TO APPLY APPROPRIATE PRIMA FACIE CRITERIA FOR [RULE ] 3:22.

POINT II

THE COURT ERRED IN DENYING POST-CONVICTION RELIEF BECAUSE TRIAL COUNSEL'S DECISION TO PRESENT A SELF-DEFENSE CASE INSTEAD OF THE DEFENSE OF DIMINISHED CAPACITY SATISFIED BOTH PRONGS OF THE STRICKLAND /FRITZ TEST FOR INEFFECTIVE ASSISTANCE OF COUNSEL.

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

DEFENDANT REASSERTS ALL OTHER ISSUES RAISED IN DEFENDANT'S PRO SE PETITION FOR POST-CONVICTION RELIEF AND IN PCR COUNSEL'S BRIEF IN SUPPORT OF POST-CONVICTION RELIEF.

A. THE STATE'S REQUEST THAT DEFENDANT BE RESENTENCED TO A NERA TERM MUST BE DENIED AS THE PREREQUISITES OF A NERA TERM WERE NOT MET AT THE TIME OF THE SENTENCE.

B. IF NERA WERE TO APPLY[,] ․ DEFENDANT WOULD HAVE RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL[,] AS HE WAS UNAWARE OF POSSIBILITY OF NERA SENTENCE ON THE COUNTS HE WAS CONVICTED [OF] WHEN HE ELECTED TO PROCEED TO TRIAL.

C. DEFENSE COUNSEL'S LACK OF INVESTIGATION AND PREPARATION DEPRIVED DEFENDANT [OF] EFFECTIVE ASSISTANCE OF COUNSEL.

D. THE TRIAL COURT'S CHARGE ON FLIGHT DEPRIVED DEFENDANT HIS RIGHT TO A FAIR TRIAL AND DUE PROCESS OF LAW.

E. THE COURT'S CHARGE ON CIRCUMSTANTIAL EVIDENCE WAS HIGHLY PREJUDICIAL.

F. THE STATE ELICITED INADMISSIBLE HEARSAY.

G. STATE WITNESS DR. DAVID BURKE RENDERED AN IMPROPER OPINION.

H. THE TRIAL JUDGE'S CHARGE ON AGGRAVATED ASSAULT WAS ERRONEOUS.

I. THE TRIAL JUDGE'S FAILURE TO GIVE A CLAWANS CHARGE DENIED DEFENDANT HIS RIGHT TO A FAIR TRIAL.

POINT v.

THE SENTENCES IMPOSED SHOULD BE VACATED AND THE MATTER REMANDED FOR RESENTENCING.

POINT VI

THE PROSECUTOR WAS EQUITABLY ESTOPPED FROM ARGUING IN POST-CONVICTION RELIEF THAT THE SENTENCE IMPOSED SIX YEARS EARLIER WAS ILLEGAL (NOT RAISED BELOW).

We have considered the points raised in light of the record and applicable legal principles and reject all of defendant's contentions.   We affirm substantially for the reasons expressed by Judge James Den Uyl in his June 24, 2009 oral opinion.

I.

PCR represents New Jersey's counterpart to the federal writ of habeas corpus.   See State v. Goodwin, 173 N.J. 583, 593 (2002).   PCR relief based upon a claim of ineffective assistance of trial counsel requires a defendant to show (1) that trial counsel's performance was deficient and (2) that there exists “ ‘a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.’ ”  State v. Preciose, 129 N.J. 451, 463-64 (1992) (quoting Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L. Ed.2d 674, 698 (1984)).   See also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland test in New Jersey).   Under Fritz, a showing of ineffective assistance of counsel requires a defendant to state acts or omissions that show unreasonable judgment and to additionally show that the acts or omissions prejudiced defendant.  105 N.J. at 58.

“[T]rial courts ordinarily should grant evidentiary hearings to resolve ineffective-assistance-of-counsel claims if a defendant has presented a prima facie claim in support of post-conviction relief.”  Preciose, supra, 129 N.J. at 462.   An evidentiary hearing is warranted where oral testimony can assist the PCR judge in determining trial counsel's motivation for a particular trial strategy.  Ibid. However, an evidentiary hearing is unnecessary if it “will not aid the court's analysis of whether the defendant is entitled to post-conviction relief, or that the defendant's allegations are too vague, conclusory, or speculative to warrant an evidentiary hearing[.]”  State v. Marshall, 148 N.J. 89, 158, cert. denied, 522 U.S. 850, 118 S.Ct. 140, 139 L. Ed.2d 88 (1997) (internal citations omitted).

The record reflects sufficient reasons for trial counsel to forgo a diminished capacity defense.   The expert report submitted on behalf of defendant, as the PCR judge found, provided an insufficient factual basis to support her opinion that defendant suffered from schizophrenia.   Her report contained no findings that identified in defendant any of the symptoms of schizophrenia set forth in the DSM-IV.³  The State's expert report noted that the symptoms of schizophrenia are reported in the DSM-IV and include “affective flattening, alogia and avolition” and nothing in defendant's school records or any of the prior multiple psychological evaluations reported schizophrenia.   Further, both reports noted defendant's substance abuse, with the defense expert presupposing that defendant voluntarily ingested illegal narcotics on the evening of the shootings.   Hence, defendant's diminished capacity theory would also include his history of substance abuse.   Defense counsel expressed his and defendant's concern about “open[ing] up the door” as to drug usage.   In electing not to testify, defense counsel represented to the court defendant's concern of not only exposing his prior criminal record to the jury but also his drug usage.

Moreover, even if diminished capacity had been pursued, there was substantial evidence before the jury demonstrating the purposefulness of defendant's conduct.   Defendant engaged in an argument in a residence and, when asked to “take it outside,” complied with the request.   Rather than continue the argument outside, defendant went to his vehicle, retrieved a gun, pointed it at the victims, and said, “See me now,” and then shot them.   Given these facts, it is unlikely “the result of the proceeding would have been different.”   Fritz, supra, 105 N.J. at 52.

Likewise, as to the claim that trial counsel's performance was ineffective because he presented conflicting theories during the trial, the PCR judge properly observed that during the trial, based upon the vigorous cross-examination of the State's witnesses, trial counsel appropriately made the tactical decision to change the legal theory from self-defense to identity.   Defense counsel was able to demonstrate that despite the fact there were allegedly numerous people who saw the shooting, none of those witnesses testified during the trial, and that the victims gave conflicting accounts of what happened, including a statement from Dion to police days following the incident that he didn't remember the shooting or being shot by defendant.

Despite the multiple counts of the indictment, defendant was acquitted of all charges related to the victim, Racule Muldrow, acquitted of attempted murder of Antoin, and only found guilty of attempted murder of Dion. Under these circumstances, the change in theory as the evidence unfolded at trial did not demonstrate ineffective assistance of counsel.   Strategic decisions of trial counsel are “virtually unchallengeable.”  Strickland, supra, 466 U.S. at 690, 104 S.Ct. 2052 at 2066, 80 L. Ed.2d 674 at 695.

Turning to defendant's claim that trial counsel was ineffective due to his lack of preparedness, the PCR judge properly determined that this claim amounted to nothing more than a bald assertion.   Defendant presented no specific facts supported by affidavits or certifications from persons with personal knowledge that trial counsel failed to prepare for the trial.   Such bald assertions alone are insufficient to justify an evidentiary hearing.   State v. Cummings, 321 N.J.Super. 154, 170 (App.Div.), certif. denied, 162 N.J. 199 (1999).

To summarize, defendant failed to establish a prima facie case of ineffective assistance of counsel.   He showed neither that the trial counsel's actions deviated from an average attorney's performance, nor that but for trial counsel's performance, the outcome would have been different.  Preciose, supra, 129 N.J. at 463-64.   Therefore, defendant was not entitled to an evidentiary hearing.

II.

On the issue of the amended judgment to include the eighty-five percent period of parole ineligibility and the appropriate period of parole supervision requirement under NERA, the PCR court, after hearing oral arguments, found that defendant's original sentence, which did not reflect a NERA term, was illegal.   Failure to impose a NERA term creates an illegal sentence.   An illegal sentence may be corrected at any time.  State v. Johnson, 376 N.J.Super. 163, 169-70 (App.Div.), certif. denied, 183 N.J. 592 (2005).

Here, at the time defendant committed the offenses, not all attempt offenses were subject to a NERA term.   Attempted murder, however, is the type of attempt offense that was subject to NERA if the person convicted of an attempted murder caused serious bodily injury or used a deadly weapon.  State v. Staten, 327 N.J.Super. 349, 354-55 (App.Div.), certif. denied, 164 N.J. 561 (2000).   Such are the facts here.   The victims suffered serious bodily injury and the jury found that defendant used a handgun in the commission of the offenses.   As the PCR judge observed:

[I]n this case there was an interrogatory on count one as to D[i]on Jackson [.]  [T]he jury found guilty as to attempted murder[,] and in the question that followed that is, “If you have found the defendant guilty, determine did the defendant use a firearm in an attempt to commit the offense,” and the answer to that was yes, so doesn't that interrogatory essentially fit the parameters of what would have been required of NERA at the time to the extent a firearm was used they found, the jury made a specific finding that a firearm was used in the attempt to commit the offense?

․

․ [S]imilarly as to count five of the indictment, that would be the aggravated assault on Ant[oin] Jackson[,] the jury found the defendant guilty on attempt to cause serious bodily injury and also the following interrogatory presented to the jury is, “If guilty, determine did the defendant use a firearm in an attempt to commit the offense,” and they answered that in the affirmative, yes.

All of the requirements for imposition of a NERA term were satisfied at the time of defendant's conviction.   Therefore, the PCR court properly corrected the illegal sentence.  “This correction of defendant's illegal sentence does not offend well-established principles of double jeopardy.   An illegal sentence may be corrected at any time because a defendant has no expectation that an illegal sentence is final.”  Johnson, supra, 376 N.J.Super. at 170.

Nor is there any evidence to support defendant's contention that he was unaware of NERA consequences upon conviction when he elected to proceed to trial.   A plea offer extended to defendant prior to trial included a NERA term.   After defendant rejected the plea, the trial court entered an order placing defendant on notice that upon conviction he was subject to a NERA period of parole ineligibility in addition to any custodial term.

The remaining arguments advanced by defendant are without sufficient merit to warrant discussion in a written opinion.   R. 2:11-3(e)(2).

Affirmed.

FOOTNOTES

FN1. Also referred to as Antwon in the appellate record..  FN1. Also referred to as Antwon in the appellate record.

FN2. Because Dion and Antoin Jackson bear the same surname, we refer to them by their first names.   In doing so, we intend no disrespect..  FN2. Because Dion and Antoin Jackson bear the same surname, we refer to them by their first names.   In doing so, we intend no disrespect.

FN3. Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) published by the American Psychiatric Association..  FN3. Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) published by the American Psychiatric Association.

PER CURIAM