STATE OF NEW JERSEY VS. DANA HARRIS, SR. (07-04-0543, MERCER COUNTY AND STATEWIDE) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2008-16T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DANA HARRIS, SR.,
Defendant-Appellant.
__________________________
Argued September 20, 2018 – Decided October 2, 2018
Before Judges Fuentes, Accurso and Vernoia.
On appeal from Superior Court of New Jersey, Law
Division, Burlington County, Indictment No. 07-04-
0543.
Charles P. Savoth, III, Designated Counsel, argued the
cause for appellant (Joseph E. Krakora, Public
Defender, attorney; Charles P. Savoth, III, on the
briefs).
Randolph E. Mershon, III, Assistant Prosecutor, argued
the cause for respondent (Angelo J. Onofri, Mercer
County Prosecutor, attorney; Laura Sunyak, Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Dana Harris, Sr., appeals from an order denying his post-
conviction relief (PCR) petition without an evidentiary hearing. Because we are
convinced the PCR court correctly determined defendant did not establish a
prima facie claim of ineffective assistance of his trial counsel, we affirm.
I.
Defendant was charged in an indictment with first-degree robbery,
N.J.S.A. 2C:15-1; third-degree possession of a weapon for an unlawful purpose,
N.J.S.A. 2C:39-4(d); fourth-degree unlawful possession of a weapon, N.J.S.A.
2C:39-5(d); and fourth-degree certain persons not to possess weapons, N.J.S.A.
2C:39-7(a). He waived his right to a trial by jury and proceeded to a bench
trial.
The evidence showed that on February 3, 2007, a Hamilton Township
grocery store manager was operating one of the store's five cash registers when
an individual, later identified as defendant, asked to purchase a plastic bag. The
manager sold defendant the plastic bag, and defendant walked away. A few
minutes later the manager saw defendant walk through an aisle past an
unattended cash register, carrying packages of meat in his hands. The manager
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observed defendant proceed to a nearby bagging table and put the packages in
the plastic bag.
The manager had not seen defendant pay for the meat, so he requested that
defendant produce a receipt. In response, defendant took the bag, in which he
had placed the packages of meat, and ran out of the store.
The manager followed defendant down the street outside of the store, and
then down a side street. According to the manager, defendant "reached down to
a pile of garbage [that was on the sidewalk] and grabbed a board." As defendant
continued to flee, he held the bag of meat in one hand and the board in his other
hand. The manager continued pursuing defendant, yelled for him to stop and
told defendant to "give it up," meaning return the stolen merchandise to the
manager. Defendant "turned around," and the manager stood six or seven feet
away from him. Defendant then swung the board in an attempt to strike the
manager, but missed him.
The force of defendant's motion in swinging the board carried him toward
the manager, who grabbed defendant's coat in order to prevent defendant from
having "another opportunity to swing at [him] again." The manager grabbed
defendant's jacket, and defendant, who had dropped the board, struck the
manager with a fist on the right side of the manager's head.
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A store security guard arrived and physically subdued defendant. Several
minutes later, Hamilton Township police officers arrived. They conducted a pat
down search of defendant and recovered from his jacket fourteen bags of shrimp
he had stolen from the grocery store. The total value of the items defendant
stole from the store was approximately $110. The police recovered the board
defendant swung at the store manager.
The judge found defendant not guilty of first-degree robbery, but
determined he was guilty of the lesser-included offense of second-degree
robbery and each of the remaining charges. After merger of the offenses , the
court sentenced defendant to an aggregate seven-year term subject to the
requirements of the No Early Release Act, N.J.S.A. 2C:43-7.2. We affirmed
defendant's convictions and sentence on direct appeal. State v. Harris, No. A-
0607-08 (App. Div. May 5, 2010).
Two years later, defendant filed a pro se PCR petition asserting ineffective
assistance of his trial counsel. Defendant claimed his trial counsel's
performance was deficient because: defendant was denied the opportunity to
discuss and prepare his case with his counsel; counsel did not obtain a complete
copy of the discovery materials; counsel "failed to subpoena the only witness"
and therefore denied defendant his right of confrontation; counsel did not keep
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defendant informed of the "nature and course of the charges"; and counsel failed
to adequately communicate with defendant during the proceedings.
Defendant's assigned PCR counsel argued trial counsel was ineffective by
failing to provide defendant with a complete copy of the discovery materials.
He also asserted that trial counsel failed to conduct an adequate investigation of
the incident and failed to discuss trial strategy with defendant. Last, he argued
trial counsel was ineffective by failing to subpoena the grocery store security
guard who assisted the store manager in subduing defendant, and failing to meet
with defendant prior to sentencing.
After hearing argument, the PCR court issued a written decision denying
the PCR petition without an evidentiary hearing. The court determined
defendant failed to present sufficient evidence establishing that either his trial
counsel's performance was deficient or that any of counsel's purported errors
prejudiced defendant. This appeal followed.
On appeal, defendant presents the following arguments for our
consideration:
POINT I
DEFENDANT WAS DENIED HIS
CONSTITUTIONAL RIGHT TO EFFECTIVE
ASSISTANCE OF PRETRIAL AND TRIAL
COUNSEL, WHEN THEY FAILED TO ARGUE
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SELF-DEFENSE IN ACCORDANCE WITH N.J.S.A.
2C:3-4 AND THE LESSER CHARGE OF
SHOPLIFTING IN ACCORDANCE WITH N.J.S.A.
2C:20-11(B).
POINT II
THE PCR COURT ERRED IN DENYING THE
DEFENDANT'S PETITION FOR POST-
CONVICTION RELIEF WITHOUT AFFORDING
HIM AN EVIDENTIARY HEARING TO FULLY
ADDRESS HIS CONTENTIONS HIS PRETRIAL
AND TRIAL COUNSEL FAILED TO ADVISE HIM
OF TRIAL STRATEGY AND DEFENSES,
ULTIMATELY RESULTING IN A FAR GREATER
SENTENCE [THAN] WAS APPROPRIATE.
POINT III
PCR COUNSEL DENIED DEFENDANT EFFECTIVE
ASSISTANCE OF COUNSEL, CONSTITUTING
PLAIN ERROR, WHEN COUNSEL FAILED TO
RAISE THE COMPLAINED OF ERRORS OF
PRETRIAL AND TRIAL COUNSEL IN PETITION
BRIEFS, [AND] AT PCR ARGUMENT.
We review the legal conclusions of a PCR court de novo. State v. Harris,
181 N.J. 391, 419 (2004) (citing Manalapan Realty, L.P. v. Twp. Comm. of
Manalapan, 140 N.J. 366, 378 (1995)). The de novo standard of review applies
to mixed questions of fact and law. Id. at 420. Where, as here, an evidentiary
hearing has not been held, it is within our authority "to conduct a de novo review
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of both the factual findings and legal conclusions of the PCR court." Id. at 421.
We apply that standard here.
An evidentiary hearing on a PCR petition is required where a defendant
establishes a prima facie case for PCR under the standard established by the
United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 686
(1984), and the existing record is inadequate to resolve defendant's claim, State
v. Porter, 216 N.J. 343, 354 (2013) (citing R. 3:22-10(b)); see also State v.
Preciose, 129 N.J. 451, 462-63 (1992). Under Strickland, a defendant first must
show that his or her attorney's handling of the matter "fell below an objective
standard of reasonableness." Strickland, 466 U.S. at 688; see also State v. Fritz,
105 N.J. 42, 58 (1987). A defendant also must show there exists a "reasonable
probability that, but for counsel's unprofessional errors, the result of the
proceeding would have been different." Strickland, 466 U.S. at 694; see also
Fritz, 105 N.J. at 60-61.
Courts hearing a PCR petition should grant evidentiary hearings to resolve
ineffective-assistance-of-counsel claims if a defendant presents a prima facie
claim in support of post-conviction relief. Preciose, 129 N.J. at 462. To
establish a prima facie claim a defendant must do more than make bald
assertions that he or she was denied effective assistance of counsel; he or she
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must allege specific facts sufficient to demonstrate counsel's alleged
substandard performance. State v. Cummings, 321 N.J. Super. 154, 170 (App.
Div. 1999). PCR petitions must be "accompanied by an affidavit or certification
by defendant, or by others, setting forth with particularity," State v. Jones, 219
N.J. 298, 312 (2014), "facts sufficient to demonstrate counsel's alleged
substandard performance," ibid. (quoting Porter, 216 N.J. at 355).
Defendant argues for the first time on appeal that his pretrial and trial
counsel1 were ineffective by failing to argue that he acted in self-defense in
accordance with N.J.S.A. 2C:3-4, and failed to request that the court consider
the lesser-included charge of shoplifting in accordance with N.J.S.A. 2C:20-
11(b). Defendant's failure to raise the issue before the PCR court requires
rejection of it here because we generally do not consider issues raised for the
first time on appeal unless they "go to the jurisdiction of the trial court or
concern matters of great public interest." State v. Robinson, 200 N.J. 1, 20
(2009) (quoting Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973)).
1
Defendant had an attorney who represented him during certain pretrial
proceedings and another attorney who represented him during other pretrial
proceedings and trial. For purposes of the analysis of defendant 's claims on
appeal, it is unnecessary to distinguish between his two counsel, and he does not
distinguish them. In any event, the primary focus of his ineffective assistance
of counsel claims is the attorney who represented him at trial.
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Moreover, in neither defendant's PCR petition nor his brief on appeal does
he identify any evidence in the trial record supporting the justification of self-
defense under N.J.S.A. 2C:3-4. "A person may justifiably use force against
another if he 'reasonably believes that such force is immediately necessary for
the purpose of protecting himself against the use of unlawful force by such other
person on the present occasion.'" State v. Galicia, 210 N.J. 364, 389 (2012)
(quoting N.J.S.A. 2C:3-4(a)). However, "[i]t is generally accepted that one who
provokes or initiates an assault cannot escape criminal liability by invoking self-
defense as a defense to a prosecution arising from the injury done to another.
The right to self-defense is only available to one who is without fault." State v.
Rivers, 252 N.J. Super. 142, 149 (App. Div. 1991). The justification of "self-
defense is . . . unavailable if a lesser degree of force could have been used to
respond to an attack." Galicia, 210 N.J. at 390.
Here, there is no evidence the manager possessed any weapons, threatened
the use of force, or first used force against defendant. The manager did nothing
more than pursue defendant and request that he stop and return the stolen items.
The evidence showed the manager stood six or seven feet away from defendant
when defendant chose to swing the board in an attempt to assault the manager.
In response, the manager simply grabbed defendant's coat to prevent him from
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swinging the board again. There is no evidence supporting an actual , honest,
reasonable belief by defendant that he needed to use the force of a board or his
fist to protect himself against the use of force by the manager. See Galicia, 210
N.J. at 389 (quoting State v. Perry, 124 N.J. 128, 161 (1991)) ("To avail himself
[or herself] of the justification of self-defense, the actor must have an 'actual,
honest, reasonable belief' in the necessity of using force."). The evidence
showed only that defendant was attempting to flee from his commission of a
theft, and initiated an unprovoked and unjustified assault on the manager to
avoid apprehension. Under such circumstances, the justification of self-defense
was unavailable to him. Rivers, 252 N.J. Super. at 149.
An attorney is not ineffective by failing to assert a legal argument that
lacks merit. State v. O'Neal, 190 N.J. 601, 619 (2007); State v. Worlock, 117
N.J. 596, 625 (1990). Trial counsel's performance was not deficient by failing
to assert a defense that had no basis in the evidence, and defendant has not, and
could not, demonstrate he suffered any prejudice as a result of his counsel's
failure to raise a meritless defense. Thus, defendant's contention his counsel
were ineffective by failing to assert the justification of self-defense fails under
both prongs of the Strickland standard.
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We also reject defendant's contention his trial counsel was ineffective by
failing to request that the court consider the offense of shoplifting, N.J.S.A.
2C:20-11(b), as a lesser-included offense under the robbery charged in the
indictment. The argument is unavailing because it is undermined by the record.
See State v. Alexander, 233 N.J. 132, 142-43 (2018). In his summation, defense
counsel argued defendant's taking of the meat and shrimp from the store was a
theft that was completed when he left the store. He also argued the theft
constituted shoplifting and stated that, "[i]f the [c]ourt looks at the shoplifting
statute, and the [c]ourt could look at the shoplifting statute as a lesser included
offense . . . ." Thus, trial counsel clearly argued the court should consider
shoplifting as a lesser-included offense.
Defendant next reprises his contention that his trial counsel's performance
was deficient in what defendant characterizes as "the fundamental trilogy of
deficiencies: trial counsel failed to discuss trial strategy or defenses; [trial
counsel] failed to prepare a defense; and [trial counsel] failed to adequately
communicate throughout the case." "Although a demonstration of prejudice
constitutes the second part of the Strickland analysis, courts are permitted
leeway to choose to examine first whether a defendant has been prejudiced . . .
and if not, to dismiss the claim without determining whether counsel's
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performance was constitutionally deficient." State v. Gaitan, 209 N.J. 339, 350
(2012).
Defendant's assertions concerning the alleged trilogy of his trial counsel's
deficiencies are untethered to any demonstration of prejudice. His PCR petition
and submissions to the PCR court are unencumbered by any affidavit,
certification or any other competent evidence establishing a reasonable
probability that but for his counsel's alleged errors, the result of his trial or
sentencing proceeding would have been different. See Strickland, 466 U.S. at
694. Indeed, defendant's submissions to the PCR court and on appeal are bereft
of any evidence satisfying the second prong of the Strickland standard. A
petitioner must establish both prongs of the Strickland standard to obtain a
reversal of the challenged conviction. Strickland, 466 U.S. at 687; Fritz, 105
N.J. at 52. Defendant's failure to establish that he was prejudiced under the
second prong of the Strickland standard requires denial of his PCR petition,
Strickland, 466 U.S. at 700, without an evidentiary hearing, ibid.; Porter, 216
N.J. at 355.
Last, we reject defendant's contention that his PCR counsel was
ineffective by failing to argue before the PCR court that trial counsel was
ineffective by failing to argue self-defense and for the trial court's consideration
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of the lesser-included offense of shoplifting. For the reasons noted and based
on the trial and PCR records, we are convinced there is no merit to the claim
trial counsel was ineffective by failing to argue self-defense or for consideration
of the lesser-included offense of shoplifting. PCR counsel was not ineffective
by failing to make a meritless argument concerning trial counsel's performance.
See O'Neal, 190 N.J. at 619. Thus, the record on appeal is devoid of any
evidence showing PCR counsel's performance was deficient because he did not
assert that trial counsel erred by failing to argue self-defense or for consideration
of the lesser-included offense of shoplifting, Strickland, 466 U.S. at 688; Fritz,
105 at 58, or that there is a reasonable probability that but for PCR counsel's
purported errors, the result of the PCR proceeding would have been different,
Strickland, 466 U.S. at 694; Fritz, 105 N.J. at 60-61.
Any remaining arguments we have not expressly addressed are without
sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed.
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