STATE OF NEW JERSEY VS. CHARLES RICHARDSON (07-02-0168, PASSAIC 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NOT FOR PUBLICATION WITHOUT THE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-0718-16T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
CHARLES RICHARDSON,
Defendant-Appellant.
______________________________
Submitted May 10, 2018 – Decided June 18, 2018
Before Judges Rothstadt and Gooden Brown.
On appeal from Superior Court of New Jersey,
Law Division, Passaic County, Indictment No.
07-02-0168.
Joseph E. Krakora, Public Defender, attorney
for appellant (Richard Sparaco, Designated
Counsel, on the brief).
Camelia M. Valdes, Passaic County Prosecutor,
attorney for respondent (Marc A. Festa, Senior
Assistant Prosecutor, of counsel and on the
brief).
PER CURIAM
Defendant Charles Richardson appeals from the denial of his
petition for post-conviction relief (PCR) without an evidentiary
hearing. For the reasons that follow, we affirm.
Defendant was convicted by a jury of first-degree murder,
N.J.S.A. 2C:11-3(a)(1) and (2), and related weapons offenses,
N.J.S.A. 2C:39-4(a), N.J.S.A. 2C:39-5(b). The sentencing court
imposed an aggregate sentence of fifty years subject to an eighty-
five percent period of parole ineligibility under the No Early
Release Act, N.J.S.A. 2C:43-7.2.
Defendant appealed and we affirmed his convictions in an
unpublished opinion. State v. Richardson, No. A-1467-10 (App.
Div. July 15, 2013) (slip op. at 6). Defendant did not file a
petition for certification with the Supreme Court.
The facts underlying defendant's convictions are set forth
in our opinion and need not be repeated here. See Richardson,
slip op. at 6-10.
Defendant filed a PCR petition on June 5, 2014, in which he
argued ten different reasons why he received ineffective
assistance of counsel during his trial. Those reasons included
counsel's failure to impeach a detective using prior sworn
testimony, not making certain objections during trial, making
improper references to a popular movie, failing to call witnesses,
failing to investigate or consult with defendant, giving "expert
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testimony" in his opening, failing to file a pre-trial motion for
severance or requesting that the "court voir dire the jury
concerning their safety," and improperly advising defendant about
the State's plea offer.
A brief and amended petition were submitted on behalf of
defendant in November 2015. In this brief, defendant raised
additional claims that trial counsel was ineffective by failing:
to call witnesses who had knowledge that it was the victim who had
a gun, not defendant; discuss the State's plea offer with defendant
or advise him of his maximum exposure if he was convicted; discuss
the benefit and detriment to defendant if he chose to testify at
trial; and call an expert regarding "bullet fragments recovered
at the scene." He also argued his petition was not procedurally
barred.
The PCR court denied defendant's petition by order filed on
July 8, 2016, after placing a decision on the record, in which the
court addressed each of defendant's arguments. As to the claim
that trial counsel failed to call "self-defense witnesses," the
court concluded that "there's nothing that's been submitted which
establishes that defense counsel even knew of the existence of
these witnesses . . . ." Moreover, he found that the decision to
not present witnesses that placed defendant at the scene would
have contradicted defendant's alibi defense, which trial counsel
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pursued up to the day of trial. The court also observed that
these witnesses were being identified years after defendant's
trial, conviction and our affirmance of his convictions, without
any reasons why they did not come forward sooner, other than no
one contacted them. In addition, as to the alleged witness
defendant identified in his petition who knew that defendant and
the victim had past disagreements, the judge observed it was a
proper strategic decision not to introduce that witness, even if
known to trial counsel, because the witness would have supplied a
motive for the crime.
Turning to defendant's contentions about trial counsel's
failure to tell defendant about plea offers, the PCR court
concluded that the claims were belied by the record, including a
pretrial memorandum that defendant signed indicating his maximum
exposure and the State's plea offer. The PCR court also addressed
defendant's allegation that although counsel in fact discussed
with him his right to testify at trial, trial counsel improperly
discouraged him from testifying despite defendant's belief that
he would have been persuasive. The PCR court concluded that if
defendant's allegation was true, the trial attorney made a proper
strategic decision in light of defendant's prior convictions,
which would have been used to impeach defendant. The court also
found defendant's contention that trial counsel failed to file a
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severance motion was equally belied by the fact that his co-
defendant filed the motion, which the trial court denied.
The PCR court also addressed defendant's argument that
counsel was ineffective because he failed to call a ballistic
expert, and concluded that it was an appropriate strategic
decision.1 Finally, the PCR court considered defendant's claim
regarding voir diring the jury about their safety, and found,
under the circumstances, there was nothing "inadequate about"
counsel not "pressing that issue."
Defendant presents the following issues for our consideration
in his appeal.
POINT I
DEFENDANT WAS ENTITLED TO AN
EVIDENTIARY HEARING WHERE TRIAL
COUNSEL FAILED TO INVESTIGATE AND
CALL VARIOUS WITNESSES TO ESTABLISH
THAT THE VICTIM POSSESSED A GUN AT
THE SCENE OF THE SHOOTING IN SUPPORT
OF A DEFENSE OF SELF-DEFENSE OR FOR
A JURY CHARGE OF THE LESSER-INCLUDED
OFFENSE OF PASSION/PROVOCATION
MANSLAUGHTER.
POINT II
DEFENDANT WAS ENTITLED TO AN
EVIDENTIARY HEARING WHERE TRIAL
COUNSEL FAILED TO COMMUNICATE A PLEA
OFFER TO THE DEFENDANT PRIOR TO
1
We observe that defendant did not support his argument with an
expert's report that identified exactly what the expert would have
testified to at trial.
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DECIDING ON WHETHER OR NOT TO
PROCEED TO TRIAL.
POINT III
DEFENDANT WAS ENTITLED TO AN
EVIDENTIARY HEARING ON HIS CLAIM OF
INEFFECTIVE ASSISTANCE OF COUNSEL
FOR COUNSEL'S FAILURE TO ADEQUATELY
ADVISE HIM OF THE ADVANTAGES AND
DISADVANTAGES OF TESTIFYING IN HIS
OWN DEFENSE.
POINT IV
DEFENDANT WAS ENTITLED TO AN
EVIDENTIARY HEARING ON HIS CLAIM
THAT TRIAL COUNSEL WAS INEFFECTIVE
IN FAILING TO RETAIN A BALLISTICS
EXPERT TO EXAMINE THE PROJECTILES
DISCOVERED OUTSIDE THE VEHICLE.
We are not persuaded by any of these arguments and affirm
substantially for the reasons expressed by the PCR court in its
compressive oral decision. We add only the following brief
comments.
The standard for determining whether counsel's performance
was ineffective for purposes of the Sixth Amendment was formulated
in Strickland v. Washington, 466 U.S. 668, 687 (1984), and adopted
by our Supreme Court in State v. Fritz, l05 N.J. 42, 49 (l987).
In order to prevail on a claim of ineffective assistance of
counsel, defendant must meet the two-prong test of establishing
both that: (l) counsel's performance was deficient and he or she
made errors that were so egregious that counsel was not functioning
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effectively as guaranteed by the Sixth Amendment to the United
States Constitution; and (2) the defect in performance prejudiced
defendant's rights to a fair trial such that 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 687, 694.
We conclude from our review of the record that defendant
failed to make a prima facie showing of ineffectiveness of counsel
within the Strickland-Fritz test. Accordingly, the PCR court
correctly concluded that an evidentiary hearing was not warranted.
See State v. Preciose, 129 N.J. 451, 462-63 (1992).
Affirmed.
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