STATE OF NEW JERSEY v. LAWRENCE TOODLE ANTOINE GRAY HAROLD GRAY ADAM YOUNG ROBERT YOUNG (2013)

Defendant Lawrence Toodle appeals the March 30, 2011 order of the Law Division denying his petition for post-conviction relief (PCR).  We affirm, except we remand the matter for the judgment of conviction to be amended, as described below, to merge counts one and four.

A jury found defendant guilty of third-degree theft,¹ N.J.S.A. 2C:20–3(a) (count one);  second-degree burglary, N.J.S.A. 2C:18–2 (count two);  third-degree terroristic threats, N.J.S.A. 2C:12–3(a) (count three);  third-degree receiving stolen property, N.J.S.A. 2C:20–7 (count four);  and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39–4(d) (count six).   The jury acquitted defendant of fourth-degree possession of the weapon in circumstances not manifestly appropriate for use, N.J.S.A. 2C:39–5(d) (count five).

The trial court sentenced defendant on May 9, 2008, as a discretionary extended-term offender, N.J.S.A. 2C:44–3(a), to a term of fifteen years on the second-degree burglary, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43–7.2(a).   The judge imposed five-year terms on each remaining count, all to be served concurrent to count two.   On appeal, we affirmed the judgment of conviction.  State v. Toodle, No. A–3376–07 (App. Div. June 12, 2009).   The Supreme Court denied certification.  State v. Toodle, 201 N.J. 145 (2009).

Defendant's convictions arose from a burglary, interrupted by the homeowner.   Defendant confronted the victim, threatening him while brandishing a knife.   As defendant fled, the homeowner followed in his vehicle, snapping defendant's photograph until he ran out of sight.

Eventually, defendant was questioned by an officer from the East Orange Police Department who had obtained a warrant to search defendant's one-room apartment.   When the officer arrived, defendant was present with his girlfriend.   Upon being informed that if any stolen property was recovered during the search whoever was in the room would be charged, defendant absolved his girlfriend of culpability and told the officer the stolen jewelry was located in a brown paper bag near his bed.   Four pieces of jewelry in the bag were later identified as having been taken in the course of the burglary.

Following denial of his petition for certification, defendant filed a timely PCR petition, raising a host of ineffective assistance of counsel claims.   The PCR judge denied the petition, noting initially that but for the points raised as to defendant's sentence, all the issues were barred by Rule 3:22–4, as they could have been raised on appeal.   The PCR judge went on to state, however, that even if considered on their merits the alleged errors by counsel in reality constituted decisions of trial strategy given the State's strong proofs:

pictures taken by ․ the victim, of the defendant as the defendant was fleeing the house;  the identification of some of the jewelry that was discovered at defendant's apartment as, in fact, belonging to the [victims];  the [identification] by the victim of the defendant, and that the clothes that the defendant wore ․ matched the clothing that was found in his apartment.

Furthermore, with regard to the sentencing, the PCR judge concluded that trial counsel did vigorously argue against discretionary extended-term sentencing and for a lesser sentence, but defendant “had 35[ ² ] arrests ․ [and] nine prior indictable convictions.”

With regard to claims of alleged ineffective assistance of appellate counsel, the court said defendant simply failed to produce any proof that counsel's failure to raise the issue of allegedly erroneous instructions had a prejudicial effect on the outcome of the appeal.   Defendant's position was not that the court had strayed from the model jury charges, but that the manner in which the instructions were given was confusing, and that at one point, the court misspoke and the jury had to be recharged.   With regard to defendant's claim that appellate counsel failed to properly address defendant's sentence, the court found the arguments were actually raised, and that they were unpersuasive.   Thus the PCR judge denied the petition, having determined that defendant failed to establish a prima facie case, because he failed to meet the Strickland ³ standard in any respect.   On this appeal, defendant now argues:

POINT I – THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

A. TRIAL COUNSEL FAILED TO PROVIDE EFFECTIVE ASSISTANCE DURING SENTENCING.

B. TRIAL COUNSEL FAILED TO CONDUCT AN ADEQUATE INVESTIGATION AND FAILED TO INTERVIEW AND CALL WITNESSES.

POINT II – THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL ON THE DIRECT APPEAL.

A. APPELLATE COUNSEL FAILED TO CHALLENGE THE ERRONEOUS JURY CHARGE.

B. APPELLATE COUNSEL FAILED TO CHALLENGE THE VERDICT.

C. APPELLATE COUNSEL FAILED TO CHALLENGE AN IMPROPER SENTENCE ON APPEAL.

POINT III – THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT'S CLAIMS ARE NOT PROCEDURALLY BARRED UNDER R. 3:22–4.

POINT IV – THE LOWER COURT ORDER DENYING THE PETITION MUST BE REVERSED SINCE DEFENDANT'S CLAIMS ARE NOT PROCEDURALLY BARRED UNDER R. 3:22–5.

POINT V – THE LOWER COURT ERRED IN NOT GRANTING DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING AND THE LOWER COURT ORDER MUST THEREFORE BE REVERSED.

It is virtually axiomatic that in order for defendant to obtain relief based on ineffective assistance grounds, he is obliged to demonstrate not only the particular manner in which counsel's performance was deficient, but also to establish that the deficiency prejudiced his right to a fair trial.   See, e.g., Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L. Ed.2d at 693;  State v. Fritz, 105 N.J. 42, 58 (1987).   We are persuaded that the alleged deficiencies here clearly failed to meet either the performance or prejudice prongs of the Strickland test.

The alleged deficiencies in trial counsel's representation at sentencing include his purported failure to urge the sentencing court to find mitigating factors, and to argue for the merger of count two, armed burglary, and six, possession of a weapon for an unlawful purpose, and the merger of count one, theft, and four, receiving stolen property.   We note that in sentencing defendant, the trial court specifically said no mitigating factors were found because “none exist in light of the facts of this case and the history of the defendant.”   Defendant does not identify any mitigating factors that would apply.   Our own review of the record does not uncover any circumstances that would warrant such a finding.   Counsel cannot be faulted for failing to make arguments that have no merit.

Regarding trial and appellate counsel's failure to argue merger, we first note that we do not agree that the possession of a weapon for an unlawful purpose would have merged with the armed burglary.   In addition to presumably using the tool to cut through a screen, the unlawful purpose charged was the use of the weapon against the victim, which prevents the merger of the two offenses.   See State v. Jones, 213 N.J.Super. 562, 569 (App.Div.1986), certif. denied, 107 N.J. 90 (1987).

The State agrees that the two theft offenses do merge.   Counsel's failure to make this argument, even were we to assume it was deficient, did not prejudice defendant.   The controlling sentence in his case is fifteen years subject to NERA, and not the five-year sentences imposed on the theft offenses.   There was no ineffective assistance of counsel by virtue of failing to raise the merger issue.   Since the now merged offenses result in no change in defendant's status, the second prong of Strickland has not been met and defendant's claim therefore lacks merit.

Defendant claims trial counsel was ineffective because he failed to investigate the matter adequately or interview witnesses to refute the State's versions of events.   We note that the State's proofs included, as enumerated by the PCR judge, photographs of defendant as well as eyewitness identification, and the victim's identification of the stolen items.

Other than his now-deceased girlfriend, defendant does not specify potential witnesses that would have been helpful.   Furthermore, his claim is not supported by any certification or affidavit, but was merely raised in his attorney's brief in support of PCR. Rule 3:22–10(c) requires that “[a]ny factual assertion that provides the predicate for a claim of relief must be made by an affidavit or certification pursuant to Rule 1:4–4 and based upon personal knowledge of the declarant․”  In light of the State's proofs, and defendant's failure to substantiate his claim, we find the alleged failure to investigate to be nothing more than a bald assertion that does not meet either Strickland prong.  State v. Cummings, 321 N.J.Super. 154, 170 (App.Div.), certif. denied, 162 N.J. 199 (1999).

Defendant contends appellate counsel was ineffective for failing to challenge the trial court's jury instructions, which he alleges were confusing.   He also asserts that the jury's finding of a lesser-included on the charge of first-degree armed robbery and outright acquittal on the charge of fourth-degree possession of a weapon in circumstances not manifestly appropriate for use were inherently inconsistent, and reflected the jury's confusion resulting from the court's erroneous instructions.   We have considered each of these issues in light of the record, and the applicable law, and we are satisfied that neither has sufficient merit to warrant discussion in a written opinion.   R. 2:11–3(e)(2).

In similar fashion, we decline to address defendant's argument that the trial court's denial of PCR was erroneous because not procedurally barred by Rules 3:22–4 and 3:22–5.   The court did reach the claims on the merits.   Therefore, we do not address this argument further.   R. 2:11–3(e)(2).

Lastly, defendant contends that the court erred by not conducting an evidential hearing.   If a defendant establishes a prima facie case for post-conviction relief, such hearings are necessary.   R. 3:22–10(b).  They are not required, however, where no such showing is made.  Cummings, supra, 321 N.J.Super. at 170.   Given that no such showing is made here, no hearing was required.

Affirmed.

FOOTNOTES

FN1. Defendant was charged with first-degree robbery;  the jury found defendant guilty of this lesser-included offense..  FN1. Defendant was charged with first-degree robbery;  the jury found defendant guilty of this lesser-included offense.

FN2. During defendant's sentencing hearing, the same trial judge calculated defendant's prior arrests at forty-one..  FN2. During defendant's sentencing hearing, the same trial judge calculated defendant's prior arrests at forty-one.

FN3. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L. Ed.2d 674 (1984)..  FN3. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L. Ed.2d 674 (1984).

PER CURIAM