STATE OF NEW JERSEY VS. DASHAND D. CHASE (10-01-0139, 11-03-0681 AND 12-03-0734, ATLANTIC COUNTY AND STATEWIDE) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE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-0400-18T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DASHAND D. CHASE,
Defendant-Appellant.
_______________________
Submitted October 2, 2019 – Decided November 21, 2019
Before Judges Sabatino and Natali.
On appeal from the Superior Court of New Jersey, Law
Division, Atlantic County, Indictment Nos. 10-01-
0139, 11-03-0681, and 12-03-0734.
Joseph E. Krakora, Public Defender, attorney for
appellant (Steven M. Gilson, Designated Counsel, on
the brief).
Damon G. Tyner, Atlantic County Prosecutor, attorney
for respondent (John J. Santoliquido, Assistant
Prosecutor, of counsel and on the brief).
Appellant filed a pro se supplemental brief.
PER CURIAM
Defendant Dashand D. Chase appeals from a June 14, 2018 order denying
his petition for post-conviction relief (PCR) without an evidentiary hearing. We
affirm in part, reverse in part, and remand for further proceedings.
Defendant was charged in three indictments with first and second-degree
robbery, witness tampering, and related charges arising out of an incident at
Bally's Casino in Atlantic City. Except for a single charge of conspiracy to
commit armed robbery, on which the jury hung, defendant was convicted on all
the remaining counts in the indictments. 1
The trial judge, who was also the PCR judge, sentenced defendant to an
aggregate sentence of fifty years of imprisonment with a period of parole
ineligibility of twenty-nine years, five months, and fourteen days. We affirmed
defendant's convictions and sentence on direct appeal, State v. Chase, No. A-
1209-12 (App. Div. Aug. 14, 2015), and the Supreme Court denied certification.
State v. Chase, 224 N.J. 246 (2016).
Subsequently, on a joint application to reconsider defendant's sentence,
the court resentenced defendant to an aggregate twenty-five-year term of
1
The first indictment also charged co-defendant Tony L. Burnham ("Burnham")
with conspiracy and robbery-related charges. The jury was unable to reach a
verdict on the charges against Burnham.
A-0400-18T1
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imprisonment with a period of parole ineligibility shortly in excess of sixteen
years. The court also assessed applicable fines and penalties. An excessive
sentencing panel of our court affirmed defendant's sentence but remanded the
matter for the court to amend the judgment of conviction "to include the proper
number of jail credits . . . and/or gap-time credits . . . ."
Defendant filed a pro se PCR petition which he supplemented with a letter
brief and appendix. Defendant was appointed PCR counsel but subsequently
requested that the court permit him to prosecute his pro se petition without the
assistance of appointed counsel. The court granted defendant's application and
heard oral arguments, after which it denied defendant's petition in a June 14,
2018 written decision and accompanying order. Defendant filed a motion for
reconsideration, which the court denied in a July 12, 2018 letter opinion and
order
In the PCR court's June 14, 2018 written opinion, it first determined that
defendant's petition was timely filed. The court then addressed the arguments
raised by defendant's previously appointed PCR counsel, as well as those raised
in defendant's supplemental letter brief.2
2
The parties have not submitted the brief submitted by defendant's PCR
counsel. In its written decision, the PCR court catalogued the issues raised by
(continued)
A-0400-18T1
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First, PCR counsel maintained that defendant's trial counsel was
ineffective for failing to impeach the victim, who was the State's key witness,
with a prior inconsistent statement made to a detective and which was contained
in a police report. Second, PCR counsel argued that defendant's trial counsel
was ineffective for failing to object to the State's use of a redacted printout from
defendant's Myspace web page. Defendant also maintained that the State altered
the document, made misrepresentations to the court, and without the improper
alteration, he would have been exonerated as the accurate document implicated
Burnham. Third, PCR counsel maintained defendant's trial counsel was
ineffective for failing to challenge the complaint-warrants as they were forged,
not appropriately executed by a judicial officer, and there was an absence of
probable cause for his arrest.
In addition, the PCR court identified the following arguments raised by
defendant in his pro se petition: "(1) his conviction should be reversed because
there was an issue with the jury charge; specifically that the [c]ourt erroneously
included lesser[-]included offenses in the jury charge; (2) the State failed to
prove certain elements of the convicted offenses and therefore the [c]ourt should
PCR counsel and no party on appeal has claimed that the court failed to address
any issue raised by PCR counsel.
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have granted his motion for a judgment notwithstanding the verdict; (3) the
[g]rand [j]ury transcripts presented at trial were not provided to . . . [defendant]
. . .; (4) [the investigating detective's] police report should have been admitted
as evidence; and (5) . . . the State coached [the victim's] testimony in order to
frame . . . [defendant]."
With respect to the three arguments raised by defendant's PCR counsel,
the court characterized trial counsel's performance as "thorough, lawyerly, and
targeted" and not "outside the range of professionally competent assistance."
The court comprehensively addressed each argument individually and
concluded defendant failed to satisfy either prong of the two-part test for
ineffective assistance of counsel established in Strickland v. Washington, 466
U.S. 668 (1984), and adopted by the New Jersey Supreme Court in State v. Fritz,
105 N.J. 42 (1987) (Strickland/Fritz). In addition, the court determined that
defendant failed to establish he was entitled to relief under United States v.
Cronic, 466 U.S. 648 (1984).
With respect to defendant's pro se arguments, the court concluded that the
claims were procedurally barred under Rule 3:22-3, as they should have been
raised on direct appeal. In addition, the court determined that defendant failed
to raise properly, or establish, a claim for ineffective assistance of counsel with
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respect to certain of his pro se claims. Finally, relying on State v. Preciose, 129
N.J. 451, 462 (1992), the court concluded that because defendant failed to
establish a prima facie case for ineffective assistance of counsel, an evidentiary
hearing was not warranted. This appeal followed.
Defendant, in his pro se brief, raises the following points:
POINT ONE
DURING OPENING STATEMENT A FACT WAS
CLEARLY ADMITTED THAT REQUIRED AN
ACQUITTAL.
POINT TWO
PERJURIOUS TESTIMONY WAS USED BY THE
STATE TO DEPRIVE THE DEFENDANT OF HIS
FREEDOM.
POINT THREE
THE STATE ALTERED THE MYSPACE PRINTOUT
BECAUSE IT IDENTIFIED CO-DEFENDANT
BURNHAM AS THE SECOND ROBBERY
SUSPECT.
In addition, defendant's PCR counsel raises the following issue:
THIS MATTER MUST BE REMANDED FOR AN
EVIDENTIARY HEARING BEAUSE DEFENDANT
ESTABLISHED A PRIMA FACIE CASE OF TRIAL
AND APPELLATE COUNSELS' FAILURE TO
PURSUE THE TRIAL COURT'S ERRONEOUS
SECOND-DEGREE ROBBERY CHARGE TO THE
JURY.
A-0400-18T1
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We find no merit to the contentions raised by defendant in his pro se brief
and affirm for the reasons stated by the PCR judge in his twenty-three-page
written decision of June 14, 2018. We agree with the PCR judge that the
defendant failed to establish either prong of the Strickland/Fritz test with respect
to those claims and similarly failed to establish that defendant's claims warrant
relief under Cronic.
In addition, we note that the manner in which defendant characterizes the
issues on appeal are different than how he presented the arguments to the PCR
court in his supplemental letter brief. We are satisfied, however, from our
review of the record that these issues were either raised by defendant 's previous
PCR counsel or defendant in some iteration and addressed by the PCR court.
Accordingly, we considered the arguments on the merits and have not
considered any of defendant's pro se arguments waived. See Nieder v. Royal
Indem. Ins. Co., 62 N.J. 229 (1973).3
We reach a slightly different conclusion, however, with respect to the sole
issue raised by defendant's PCR counsel. Defendant contends that his trial
counsel was ineffective for consenting at the charge conference that the jury
3
We do, however, consider any other argument raised before the PCR court but
not briefed on appeal to be waived. See N.J. Dep't of Env. Prot. v. Alloway
Twp., 438 N.J. Super. 501, 505 n.2 (App. Div. 2005).
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should be instructed on second-degree robbery when "[t]he underlying crime
allegedly committed by defendant constituted first-degree robbery . . . [and]
there existed no rational basis for a second-degree robbery [charge] as evidenced
by the victim's testimony . . . ." He further argues, relying on State v. McKinney,
223 N.J. 475 (2015), that the inclusion of the second-degree robbery charge was
plainly erroneous and suggests jury confusion caused by the improper
introduction of the second-degree robbery offense in the jury charge. Defendant
also contends his appellate counsel was constitutionally ineffective for failing
to raise the issue on direct appeal.4
In McKinney, our Supreme Court analyzed a first-degree robbery
conviction where the trial judge mistakenly instructed the jury with first and
second-degree robbery, when only first-degree robbery had been charged in the
indictment. Id. at 499. Although the judge in that case issued a curative
instruction, he did not clarify that if the jury found the defendant did not commit
robbery with a weapon, then the jury should find him not guilty of first-degree
robbery. Id. at 500-01. The Court affirmed the reversal of the defendant's
conviction, and further instructed trial courts in instances of discovered error in
4
Based on the record on appeal, it does not appear that defendant raised before
the PCR judge the ineffectiveness of his appellate counsel. That claim is
therefore not properly before us.
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a jury instruction to specifically "inform the jury that it must find the defendant
not guilty if it fails to find an element beyond a reasonable doubt." Id. at 502.
With respect to defendant's argument that his counsel was ineffective
when he failed to object to the second-degree robbery charge, the PCR court
concluded that the "claim should have been addressed on direct appeal pursuant
to [Rule] 3:22-3." The court also maintained that defendant "failed to show trial
counsel's ineffectiveness during the charge conference [and] [t]herefore, the
[c]ourt conclude[d] that any issue regarding the jury charge [was] barred under
[Rule] 3:22-3." We disagree with the court's conclusion that defendant's
argument was procedurally barred under Rule 3:22-3.
"Under New Jersey case law, petitioners are rarely barred from raising
ineffective-assistance-of-counsel claims on post-conviction review." Preciose,
129 N.J. at 459. Although defendant could have raised the underlying trial error
in the proceedings resulting in the conviction, see Rule 3:22-4, he could not have
raised his attorney's ineffectiveness to present those errors. "Our courts have
expressed a general policy against entertaining ineffective-assistance-of-counsel
claims on direct appeal because such claims involve allegations and evidence
that lie outside the trial record." Preciose, 129 N.J. at 460. Consequently,
"[i]neffective-assistance-of-counsel claims are particularly suited for post-
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conviction review because they often cannot reasonably be raised in a prior
proceeding." Ibid. (citing R. 3:22-4).
In addition, we have previously explained that ineffective assistance of
counsel claims are not barred by Rule 3:22-4:
[I]neffective assistance of counsel claims, particularly
ineffective assistance of appellate counsel, are
congruous with the exceptions to the procedural bar of
R. 3:22-4 because they (1) implicate issues that could
not have been reasonably raised in prior proceedings;
(2) involve infringement of constitutional rights; or (3)
present exceptional circumstances involving a showing
of fundamental injustice.
[State v. Moore, 273 N.J. Super. 118, 125 (App. Div.
1994).]
Furthermore, although Rule 3:22-3 provides that a PCR proceeding "is not
. . . a substitute for appeal from conviction," it has been observed that "such
claims as ineffective assistance of trial counsel . . . are ordinarily not barred by
this rule since direct appeal does not provide an appropriate remedy." Pressler
& Verniero, Current N.J. Court Rules, cmt. on R. 3:22-3 (2019) (citing
Preciose).
Here, defendant claims his counsel was ineffective for failing to object at
the charge conference to the inclusion of the second-degree robbery charge.
That alleged error in counsel's assistance is not a claim typically raised on direct
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appeal as it involves evidence and allegations outside of the record. In sum,
defendant's ineffective assistance of counsel claim was not procedurally barred.
See State v. O'Neil, 219 N.J. 598, 616 (2014) (reversing conviction on
ineffective assistance grounds where counsel failed to object to a jury charge
that would have "almost certainly [led] to the reversal of defendant's aggravated-
manslaughter conviction").
We acknowledge the distinctions between the facts here and those
presented in McKinney. In McKinney, all counsel and the court agreed that
second-degree robbery charge should not be included in the jury charge. Id. at
484. Here, the second-degree charge was included in the first indictment and
defendant did not object to the court's instruction on the second-degree charge.
Nevertheless, as we understand defendant's claims, he maintains that the
erroneous inclusion of the second-degree charge could have led to jury
confusion.
Our opinion should not be interpreted as an indication that we agree with
the merits of defendant's claim that his counsel was ineffective for failing to
object to the inclusion of the second-degree charge or that the defendant was
prejudiced. We stress that we are reversing only that portion of the court's June
14, 2018 order to the extent it concluded defendant's claims were procedurally
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barred by Rule 3:22-3. On remand, the court should address the merits of
defendant's claim that his trial counsel was ineffective for failing to object to the
inclusion of the second-degree jury charge under both prongs of the
Strickland/Fritz test and determine if an evidentiary hearing is necessary.
To the extent not specifically addressed, defendant's remaining arguments
are without sufficient merit to warrant discussion in a written opinion. R. 2:11-
3(e)(2).
Affirmed in part, reversed in part, and remanded for further proceedings
consistent with this opinion. We do not retain jurisdiction.
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