STATE OF NEW JERSEY VS. TIM MCGEACHY (10-06-1064, HUDSON 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NOT FOR PUBLICATION WITHOUT THE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-2097-17T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
TIM MCGEACHY, a/k/a
TIMOTHY MCGEACHY,
Defendant-Appellant.
______________________________
Submitted February 25, 2019 – Decided March 7, 2019
Before Judges Sabatino and Haas.
On appeal from Superior Court of New Jersey, Law
Division, Hudson County, Indictment No. 10-06-1064.
Joseph E. Krakora, Public Defender, attorney for
appellant (Andrew P. Slowinksi, Designated Counsel,
on the briefs).
Esther Suarez, Hudson County Prosecutor, attorney for
respondent (Erin M. Campbell, Assistant Prosecutor,
on the brief).
PER CURIAM
After a jury convicted defendant Tim McGeachy of second-degree
reckless manslaughter (count one) and fourth-degree burglary (count five), a
judge sentenced him to an extended twenty-year term on count one, subject to
the 85% parole ineligibility provisions of the No Early Release Act, N.J.S.A.
2C:43-7.2, and to a consecutive eighteen-month term on count five. State v.
McGeachy, Docket No. A-0454-13 (App. Div. Mar. 1, 2016) (slip op. at 1-2),
certif. denied, 226 N.J. 213 (2016). On direct appeal, we affirmed defendant's
conviction, but remanded to enable the "trial court to again consider its
sequencing of the consecutive sentences in light of State v. Ellis, 346 N.J. Super.
583, 597 (App. Div.), aff'd, 174 N.J. 535 (2002)." 1
Defendant now appeals from the December 8, 2017 Law Division order
denying his petition for post-conviction relief (PCR). We are constrained to
reverse and remand because the trial court did not address all of the contentions
defendant raised in his petition, make adequate findings of fact and conclusions
of law in connection with its rulings, or conduct an evidentiary hearing.
1
On remand, the trial court imposed the same sentence, and defendant appealed.
We heard the appeal on our Excessive Sentence Oral Argument calendar
pursuant to Rule 2:9-11, and affirmed defendant's sentence. State v. McGeachy,
Docket No. A-1602-16 (App. Div. May 3, 2017).
A-2097-17T4
2
The parties are fully familiar with the facts the developed at trial, which
are set forth at length in our decision on direct appeal. McGeachy, slip op. at 4-
12. Therefore, we need only briefly summarize the most salient facts here.
The State's witnesses testified that defendant beat up the victim, J.S., after
the victim allegedly stole cell phones that had been delivered to defendant's
former home. Id. at 6-8. They stated that defendant "'pound[ed]' the victim, hit
him in the face and chest, knocked him to the ground, and continued to strike
him after he lay bleeding and unconscious on the ground." Id. at 16 (alteration
in original). J.S. was admitted to the hospital, where his progress notes indicated
he had suffered an orbital fracture. Id. at 8. "[I]t was [also] noted that J.S. had
human immunodeficiency virus (HIV) and very little ability to fight infection."
Id. at 9.
J.S. remained in the hospital for approximately thirty days. Id. at 9-10.
Testing revealed that "J.S. did not suffer a major brain injury and did not receive
neurosurgical intervention." Ibid. However, J.S. "developed a sepsis infection"
about a week after his admission to the hospital, "went into septic shock" fifteen
days later, and died ten days after that. Id. at 10.
The victim's "treating doctors certified his death as being from natural
causes, including a sepsis infection and acquired immune deficiency syndrome
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(AIDS)." Ibid. They saw no need to refer the matter to the medical examiner,
and released the body to a funeral home where it was embalmed. Ibid. Shortly
thereafter, the prosecutor's officer "arranged for the body to be transferred to the
medical examiner's office" and John Stash, M.D., a forensic pathologist,
performed an autopsy. Ibid.
After being qualified at trial as an expert in forensic pathology, Dr. Stash
"concluded that the cause of death was complications of blunt force head trauma,
with HIV as a contributing factor. Dr. Stash determined that the manner of death
was homicide." Ibid.
The issue of causation was "an essential element of the offense of reckless
manslaughter[.]" Id. at 14. However, defense counsel2 did not present any
expert testimony at trial to rebut Dr. Stash's medical opinions. About a year
before the trial began, counsel retained a medical expert, who reviewed Dr.
Stash's report, and prepared a report of his own challenging Dr. Stash's
conclusions. However, this expert also prepared an earlier report which
contradicted his own findings and, because the State could readily attack his
2
At various times throughout the trial court proceedings, defendant was
represented by four different attorneys. Because we have no reason to
distinguish among the attorneys involved, we do not.
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4
credibility at trial, defense counsel determined he could no longer rely upon the
expert. Nothing in the trial record indicates that defense counsel thereafter
sought to retain a new expert during the year that followed. In addition, counsel
did not attempt to call the victim's treating physicians at trial, even though they
both reported that the victim's death was the result of natural causes, rather than
blunt force trauma, and he did not introduce any of the victim's medical records
in evidence.
Defendant submitted two certifications in support of his petition for PCR,
together with a brief prepared by his PCR counsel, along with numero us
supporting exhibits. Defendant's primary argument was that trial counsel
provided ineffective assistance because he failed to call a medical expert on his
behalf.3 However, he also raised nine additional arguments in support of his
request for PCR. Specifically, defendant argued that defense counsel provided
ineffective assistance by failing to: (1) investigate the out-of-court
identification procedures the police used to identify him as the person who beat
the victim; (2) investigate witnesses who could support the defense at trial,
3
Defendant raised a similar contention in his pro se supplemental brief he filed
in his direct appeal. Id. at 3-4. We concluded that this claim "rest[ed] upon
evidence outside the record" and, therefore, was "not ripe for direct review." Id.
at 25.
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including the victim's treating physicians, an individual who identified someone
else as a suspect, and several alleged alibi witnesses; (3) challenge
"photographic blood evidence"; (4) seek to have the trial judge recused for
reasons set forth in the certifications; (5) obtain a sequestration order when it
became clear that the State was going to call the victim's sister, who was present
in the courtroom during the trial, as a witness; (6) visit the crime scene to seek
witnesses and other evidence; and (7) challenge the State's motion to sentence
him as a persistent offender to an extended term. Defendant also argued that (8)
his attorney improperly conceded that the victim suffered a bone fracture near
his eye, and (9) his sentence on the remand was illegal on double jeopardy
grounds.
Defendant also presented three arguments concerning his appellate
attorney. He alleged that this attorney provided ineffective assistance by failing
to: (1) correct an inaccurate statement in the appellate brief concerning why
defendant went to the victim's apartment; (2) consult with defendant regarding
the factual and legal arguments to be raised on appeal; and (3) file a reply brief
to address any of the State's contentions.4
4
Defendant attempted to file an overlength pro se reply brief, but we denied his
motion to do so.
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6
In a short written opinion, the trial court denied defendant's petition
without conducting an evidentiary hearing.5 Only one paragraph of the decision
addresses defendant's arguments concerning his attorney's performance at trial.
The court stated:
In the present case, [defendant] argues that his
counsel's performance was clearly deficient because
counsel failed to do the following: 1) properly review
the case; 2) perform adequate investigation; 3) pursue
witnesses that could have provided exculpatory
testimony[;] and 4) trial counsel's failure to call a
medical expert on behalf of the defendant. [Defendant]
makes these claims absent any evidentiary support.
[Defendant] neither provides the names of any of the
alleged witnesses that could have provided exculpatory
testimony, nor does he shed light as to what the alleged
exculpatory testimony was. Additionally, the [S]tate
provided a medical expert that provided expert
testimony regarding the medically relevant facts of the
case. [Defendant] has failed to articulate any different
testimony a medical expert provided by the defense
would have provided. [Defendant] has failed to assert
any specific facts that would satisfy the Strickland6 test.
In light of this failure, the court must presume that
counsel's performance was within the range of
reasonable professional assistance, as the holding in
Strickland requires. Therefore, [defendant] is unable to
establish the requirement of the first prong: deficient
performance.
5
The decision incorrectly states that defendant "allege[d] that he [w]as provided
ineffective assistance of plea counsel." (Emphasis added).
6
Strickland v. Washington, 466 U.S. 668 (1984).
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7
The court also rejected defendant's claim that his appellate attorney
provided him with ineffective assistance. However, the court mistakenly
addressed an argument that defendant did not make, rather than the ones he did.
The court stated that defendant asserted his appellate counsel was ineffective
because he "fail[ed] to file his pro se [merits] brief." The court concluded that
"this claim [was] false" because we noted in our opinion on direct appeal that
defendant had filed a supplemental merits brief. However, defendant's argument
was that his attorney should have filed a reply brief of his own to rebut the State's
contentions. Thus, the court did not address any of the arguments defendant
raised in his petition concerning his appellate counsel.
The court determined not to conduct an evidentiary hearing, stating only
that defendant "ha[d] not shown any credible evidence to support his claim."
This appeal followed.
On appeal, defendant raises the following contentions:
POINT I
THE PCR COURT SHOULD HAVE HELD THAT
DEFENDANT'S RIGHT TO EFFECTIVE
ASSISTANCE OF COUNSEL WAS VIOLATED BY
HIS TRIAL COUNSEL'S FAILURE TO
INVESTIGATE AND PREPARE ADEQUATELY
FOR TRIAL, PRESENT NECESSARY EXPERT
MEDICAL TESTIMONY, AND OTHERWISE
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PROVIDE A COMPETENT DEFENSE. (U.S.
CONST. AMEND. VI; N.J. CONST. ART. I, ¶ 10).
(a) Defendant Was Entitled to Relief Under
Controlling Legal Principles Governing Petitions
for [PCR] Pursuant to R. 3:22-2 et seq.
(b) Trial Counsel Provided Ineffective Assistance by
Failing to Present a Medical Expert Witness to
Testify that the Decedent Died of Natural Causes
as Determined by His Treating Physicians.
(c) Trial Counsel Provided Ineffective Assistance by
Failing to Call an Appropriate Witness to Admit
the Victim's Medical Records Demonstrating that
His Death Was Due to Natural Causes. (Not
Raised Below).
(d) Trial Counsel Provided Ineffective Assistance by
Failing to Investigate and Present Testimony of
Witnesses Who Could Have Provided
Exculpatory Evidence.
POINT II
THE PCR COURT FAILED TO ADDRESS OR
ACKNOWLEDGE MANY OF THE ARGUMENTS
PRESENTED BY DEFENDANT IN SUPPORT OF
HIS PETITION, VIOLATING DEFENDANT'S
RIGHT TO DUE PROCESS AND THE
REQUIREMENTS OF RULE 3:22-11 AND RULE 1:7-
4(a).
POINT III
THE PCR COURT SHOULD HAVE HELD THAT
DEFENDANT WAS ENTITLED TO AN
EVIDENTIARY HEARING AT WHICH THE
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9
MEDICAL AND LAY WITNESSES DEFENSE
COUNSEL FAILED TO CALL AT TRIAL COULD
HAVE BEEN PRESENTED.
POINT IV
THE PCR COURT SHOULD HAVE HELD THAT
DEFENDANT WAS DENIED THE RIGHT TO
EFFECTIVE ASSISTANCE OF APPELLATE
COUNSEL (U.S. CONST. AMEND. VI; N.J. CONST.
ART. I, ¶ 10).
We begin by summarizing the trial court's obligations in resolving
petitions for PCR. When petitioning for PCR, the defendant must establish "by
a preponderance of the credible evidence" that he or she is entitled to the
requested relief. State v. Nash, 212 N.J. 518, 541 (2013) (quoting State v.
Preciose, 129 N.J. 451, 459 (1992)). To establish a prima facie claim of
ineffective assistance of counsel, the defendant is obliged to show not only the
particular manner in which counsel's performance was deficient, but also that
the deficiency prejudiced his right to a fair trial. Strickland, 466 U.S. at 687.
When deciding a petition for PCR, the court must "make specific fact
findings as required by Rule 1:7-4(a) and state [its] conclusions of law" on each
of the defendant's contentions. State v. Thompson, 405 N.J. Super. 163, 172
(2009); see also Rule 3:22-11 (requiring a court to "state separately its findings
of fact and conclusions of law" when making a final determination of a PCR
A-2097-17T4
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petition). "Anything less is a 'disservice to the litigants, the attorneys, and the
appellate court.'" Thompson, 405 N.J. Super. at 172 (quoting Curtis v. Finneran,
83 N.J. 563, 569-70 (1980)).
Thus, PCR petitions "cannot be disposed of out of hand." State v. Odom,
113 N.J. Super. 186, 189 (App. Div. 1971). While the court need not author a
lengthy written opinion, or deliver an hour-long oral ruling to meet the
requirements of Rule 1:7-4(a) in every case, it must always state what specific
facts formed the basis of the decision, and then weigh and evaluate those facts
in light of the governing law "to reach whatever conclusion may logically flow
from" those facts. Slutsky v. Slutsky, 451 N.J. Super. 332, 357 (App. Div.
2017). Because justice requires no less, "[a]ll conclusions must be supported."
Ibid.The mere raising of a claim for PCR does not entitle the defendant to an
evidentiary hearing, and the defendant "must do more than make bald assertions
that he [or she] was denied the effective assistance of counsel." State v.
Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999). However, an evidentiary
hearing should be conducted where the defendant has established a prima facie
showing in support of the requested relief. Preciose, 129 N.J. at 462.
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When determining whether to grant an evidentiary hearing, the trial court
must consider the facts in the light most favorable to the defendant. Id. at 462-
63. "If there are disputed issues as to material facts regarding entitlement to
post-conviction relief, a hearing should be conducted." State v. Russo, 333 N.J.
Super. 119, 138 (App. Div. 2000). We review a trial court's decision to grant or
deny a defendant's request for a hearing under an abuse of discretion standard.
Id. at 140.
Applying these principles, we conclude that the trial court failed to
address all of defendant's arguments in support of his petition for PCR, or to
make adequate findings of fact and conclusions of law concerning the
contentions it did consider. The court also mistakenly exercised its discretion
by denying defendant's request for an evidentiary hearing.
Defendant raised nine separate arguments in support of his claim that his
trial attorney provided him with ineffective assistance, and an additional
contention that his resentence on the burglary charge was illegal. He also
presented three grounds supporting his assertion that his appellate counsel on
direct appeal was ineffective. However, the court only briefly mentioned four
of the arguments concerning the trial attorney, and none of the assertions
A-2097-17T4
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defendant raised about his appellate counsel. Therefore, a remand is required
so that all of defendant's contentions can be considered.
In the two conclusory sentences in its opinion that addressed three of
defendant's arguments, the court stated that defendant failed to demonstrate that
his attorney failed to properly review the case, perform an adequate
investigation, or pursue witness who might have provided exculpatory
testimony. In support of this blanket conclusion, the court merely stated that the
claims lacked evidentiary support, apparently because defendant "provide[d]
neither the names of any of the alleged witnesses that could have provided
exculpatory testimony, nor d[id] he shed light as to what the alleged exculpatory
testimony was."
In his petitions and supporting documentation, however, defendant
provided the names of the victim's treating physicians, who contradicted the
medical examiner's views as to the cause of the victim's death; the name of an
individual who stated defendant was not the perpetrator; and the names of
several other individuals, who he asserted would supply him with an alibi.
Therefore, the record does not support the court's findings concerning these
three issues.
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The court next rejected defendant's argument that his attorney should have
retained a new expert to challenge the medical examiner's conclusions. The
court reasoned that a defense expert was not necessary because the State
provided an expert of its own to supply "the medically relevant facts of the case."
We disagree.
In Thompson, the defendant asserted that his trial attorney was ineffective
because he failed to retain an expert to rebut the testimony of the State's expert
witness. 405 N.J. Super. at 167. As in this case, the trial court "summarily
concluded" that counsel's failure to retain an expert did not meet the Strickland
test because there was "'compelling uncontroverted facts in the case'" to support
the State's position on the scientific issues involved in the case. Id. at 171-72.
However, we observed that "the facts were 'uncontroverted' because [defense]
counsel failed to make such an inquiry and retain an expert" to rebut the State's
expert proofs. Id. at 172. Therefore, we held that an evidentiary hearing was
needed to determine why defense counsel failed to secure an expert to assist
defendant at trial. Ibid.Under these circumstances, we conclude that an evidentiary hearing was
clearly required in this case to address the issue of defense counsel's failure to
retain a new expert. The question of causation of the victim's death was the
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critical issue to be resolved at trial. Defense counsel obviously knew it was
important to attempt to contradict the opinions expressed by the medical
examiner, and retained an expert to do so. When the expert's credibility was
called into question, the attorney determined that the expert could not be used
at trial. In the year that followed, however, defense counsel seems to have taken
no steps to secure a new expert, even though there were at least two treating
physicians who had expressed a different view on the issue of causation, thus
indicating that retaining a replacement was not an impossible task. 7 Viewing
these facts in the light most favorable to defendant, they presented a creditable
prima facie case of ineffective assistance and, therefore, the court should have
conducted an evidentiary hearing.
Because all of defendant's contentions must be reviewed anew on the
remand, we do not limit the hearing to the issue concerning the medical expert.
Rather, the trial court should conduct a hearing, review all of defendant's claims,
and render a new decision, supported by specific findings of fact and
conclusions of law concerning each one.
7
While there may have been strategic reasons to justify counsel's approach, an
evidentiary hearing, including the testimony of defendant's former counsel if
feasible, was required to develop a fuller record on that issue.
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In remanding this matter, we make clear that nothing within this opinion
forecasts any views on the merits of any of defendant's arguments nor on the
question of whether his trial or appellate attorneys provided him with ineffective
assistance under the Strickland test. We say no more than that because the trial
court failed to address all of defendant's contentions, provide adequate fin dings
of fact and conclusions of law, or conduct an evidentiary hearing, the issues
presented are not ripe for appellate review.
Reversed and remanded. We do not retain jurisdiction.
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