Opinion
DOCKET NO. A-1871-11T4
03-03-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ALEEM L. HAMMOND a/k/a ALLEN JOHNSON, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Jill G. Kail, Designated Counsel, on the brief). Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Alexis R. Agre, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Sapp-Peterson and Lihotz.
On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 02-04-0433.
Joseph E. Krakora, Public Defender, attorney for appellant (Jill G. Kail, Designated Counsel, on the brief).
Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Alexis R. Agre, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Aleem L. Hammond appeals from a June 1, 2011 Law Division order denying his petition for post-conviction relief (PCR) alleging ineffective assistance of trial counsel. Following our consideration of the arguments presented, we affirm substantially for the reasons set forth in Judge Jeanne T. Covert's thorough and well-reasoned twenty-five page opinion.
Defendant was charged in Indictment No. 02-04-0433 with first-degree armed robbery, N.J.S.A. 2C:15-1a(1) (count one); second-degree aggravated assault, serious bodily injury, N.J.S.A. 2C:12-1b(1) (count two); fourth-degree aggravated assault, pointing a firearm, N.J.S.A. 2C:12-1b(4) (count three); second-degree possession of a weapon for unlawful purpose, N.J.S.A. 2C:39-4a (count four); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b (count five); fourth-degree manufacturing, transporting, disposing, and defacing weapons and dangerous instruments, N.J.S.A. 2C:39-9 (count six); fourth-degree resisting arrest, N.J.S.A. 2C:29-2 (count seven); third-degree possession of a controlled dangerous substance (CDS), with intent to distribute, N.J.S.A. 2C:35-5a(1) and b(3) (count eight); third-degree possession of CDS, N.J.S.A. 2C:35-10 (count nine); and third-degree hindering apprehension, N.J.S.A. 2C:29-3b(4) (count ten). Prior to trial, count eight was dismissed. Of the remaining charges, the first four counts were severed to be tried together, but separately from the other charges.
Following the denial of his motion to suppress the weapon and CDS, defendant entered into a plea agreement providing that he plead guilty to counts five and nine and in exchange, the State would dismiss counts six, seven, and ten. He was sentenced to a two-year probationary sentence subject to serving 364-days in the Burlington County Jail. Thereafter, a unanimous jury convicted defendant of counts one through four, for which defendant was sentenced to an aggregate term of fifteen years, subject to the eighty-five percent period of parole ineligibility imposed by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. He appealed his conviction and sentence, which we affirmed in an unpublished opinion. State v. Hammond, No. A-0090-05 (App. Div. Feb. 16, 2007) (slip op. at 11).
Defendant filed his petition for PCR on July 6, 2010. Following oral argument, Judge Covert denied the request and memorialized her determination in an order filed on June 1, 2011.
On appeal, defendant contends an evidentiary hearing was necessary and Judge Covert failed to analyze "trial counsel's performance in his representation leading up to the plea, the structuring of the plea and sentence, and the effects of that plea and sentence on the subsequent trial on other charges involving the same incident." Further, he maintains the judge did not analyze appellate counsel's "fail[ure] to address issues that arose as a result of the plea that had a devastating impact on the subsequent trial." More specifically, defendant argues:
POINT I.
THE ORDER DENYING DEFENDANT'S MOTION FOR POST-CONVICTION RELIEF MUST BE REVERSED.
A. Trial counsel was ineffective when he pled defendant to Counts Five and Nine of Indictment 02-04-0433 as severed, resulting in a criminal record which the prosecution could use against defendant in his subsequent trial for the same incident.
B. Trial counsel was ineffective when he failed to prepare for trial, investigate, or to call witnesses.
C. Trial counsel was ineffective when he failed to subpoena Frederick Smith, brother of the victim, denying defendant critical testimony regarding circumstances of how defendant was identified.
D. Appellate counsel was ineffective.
E. The PCR court erred in finding that defendant had a felony record prior to the convictions on Counts Five and Nine of Indictment 02-04-0433; and in finding that defendant knowingly and voluntarily waived his right to testify.
F. The PCR Court failed to rule on defendant's cumulative error argument.
Judge Covert comprehensively analyzed each of these issues in her opinion. Defendant incorrectly argues the jury would have been told during the trial on counts one through four that his convictions for counts five and nine arose from the same series of events. In fact, the record shows the State conceded all of defendant's prior convictions, including those for counts five and nine, must be sanitized to include only the degrees, dates and sentences for each. Defendant's suggestion "the prejudicial impact of the previous plea" chilled his right to testify as "the State [w]ould [have been] permitted to cross-examine [him] using the felony convictions from the plea agreement if [he] were to testify to something on the stand that was inconsistent with the factual basis he gave during the plea" is meritless. The factual basis was given by defendant under oath, who averred it was the truth. As such, any contradictory statements would be permissible grounds for cross-examination. N.J.R.E. 803(a)(1).
Defendant's contention he was not advised of his right to testify is belied by the record, which reflects he was fully apprised of his right, which counsel explained this right before defendant made his decision whether to take the stand in his own defense.
The remaining arguments, which attack trial counsel's decisions to call proposed witnesses, were fully and properly considered. Defendant's proofs are insufficient to establish ineffective assistance, and instead reflect reasoned trial strategy. State v. Arthur, 184 N.J. 307, 321 (2005) (stating review of the trial decision regarding which witnesses should testify is "an art" warranting a reviewing court's deference unless shown to be prejudicial). Also, the claim counsel failed to obtain surveillance tapes was not accompanied by evidence supporting defendant's position the events in question were captured by the identified video or that the evidence was exculpatory. "To sustain that burden, specific facts" that "provide the court with an adequate basis on which to rest its decision" must be articulated. State v. Mitchell, 126 N.J. 565, 579 (1992). Bald assertions, unaccompanied by evidential support, are insufficient. See State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.) (noting that PCR relief requires more than "bald assertions" by a defendant), certif. denied, 162 N.J. 199 (1999).
The remaining arguments, based on the claims set forth above, also fail. Judge Covert fully reviewed each of these assertions and she found them lacking. Therefore, there is no basis to disturb Judge Covert's legal conclusions, squarely grounded upon clearly delineated factual findings. See State v. Nash, 212 N.J. 518, 540 (2013) ("[W]e will uphold the PCR court's findings that are supported by sufficient credible evidence in the record.") (citations omitted).
We affirm.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION