State of New Jersey v. Anthony Wyatt ( 2024 )

NOT FOR PUBLICATION WITHOUT THE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-2683-22
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ANTHONY WYATT, a/k/a
ANTHONY C. WYATT,
ANTHONY C. WYATT-SCALES,
ANTHONY C. WYATT SCALES,
RYAN E. MARRLOW,
ANTHONY C. SCALES,
ANTHONY C. SCALES WYATT,
and ANTHONY C. SCALES-WYATT,
Defendant-Appellant.
_____________________________
Submitted October 2, 2024 – Decided October 22, 2024
Before Judges Marczyk and Paganelli.
On appeal from the Superior Court of New Jersey, Law
Division, Camden County, Indictment No. 17-07-1923.
Jennifer N. Sellitti, Public Defender, attorney for
appellant (Susan Brody, Designated Counsel, on the
brief).
Grace C. MacAulay, Camden County Prosecutor,
attorney for respondent (Jason Magid, Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Anthony Wyatt appeals from the denial of his petition for post-
conviction relief (PCR) after an evidentiary hearing. Since the PCR court's
decision was supported by sufficient evidence in the record and the correct
application of the law, we affirm.
Because we stated the facts and procedural history in our affirmance of
defendant's direct appeal, State v. Wyatt, No. A-5517-17 (App. Div. Sept. 23,
2019) (slip op.),1 and in our consideration of defendant's appeal of the denial of
PCR without an evidentiary hearing, State v. Wyatt, No. A-0427-21 (App. Div.
Jan. 10, 2023) (slip op.) we do not repeat them in full here. Instead, we repeat
only the facts and issues necessary to place our decision in context.
"Police were called to investigate a disturbance" and "encountered
defendant." Wyatt, No. A-0427-21 (slip op. at 1). "Defendant was observed
pulling a silver gun from his sweatshirt and then walking toward shrubbery,
1
The New Jersey Supreme Court denied certification of the judgment in A-
5517-17, State v. Wyatt, 240 N.J. 557 (2020).
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2
where he discarded his gun." Ibid. The "police officers subsequently arrested
defendant and recovered the gun he had thrown in the bushes." Id. at 1-2.
"Defendant was indicted for [among other things] certain persons not
permitted to have weapons, N.J.S.A. 2C:39-7(b)(1) . . . ." Id. at 2. "In the second
part of the bifurcated [trial], defense counsel stipulated defendant had been
previously convicted of third-degree possession of a controlled dangerous
substance (CDS) with the intent to distribute." Ibid. Defendant was convicted
on the certain persons not permitted to have weapons charge.
In his petition for PCR, "[d]efendant argued trial counsel was ineffective
by failing to request the trial judge to sanitize the information related to his prior
conviction utilized in the certain persons count." Ibid.
We noted:
Unless the defendant stipulates, the prior crimes should
be sanitized. Thus, the trial court should refer to them
as crime(s) of the appropriate degree. For example, if
the offense were aggravated sexual assault, the court
would indicate that defendant previously was convicted
of a crime of the first degree. Nothing prevents a
defendant, however, from choosing to inform the jury
of the name of the prior crime of which he/she was
convicted. State v. Bailey, 231 N.J. 474, 487 (2018)
(quoting Model Jury Charges (Criminal), "Certain
Persons Not to Have Any Firearms (N.J.S.A. 2C:39-
7(b)(1)" at 1 n.4 (rev. June 13, 2005))).
[Id. at 5.]
A-2683-22
3
During the trial, "defense counsel stipulated both that defendant had previously
been convicted of a predicate crime enumerated in N.J.S.A. 2C:43-7.2(d) and
agreed the jury would be told of the specific crime—third-degree possession of
CDS with an intent to distribute." Id. at 8.
In our remand opinion, we stated:
[t]rial counsel's decision to allow the jury to be told
defendant was convicted of third-degree possession of
CDS with an intent to distribute raise[d] a fact issue that
need[ed] to be addressed at a hearing to determine
whether this was trial strategy or deficient performance
under prong one of Strickland/Fritz.2
[Id. at 10.]
Further, we noted:
when a defendant stipulates to an offense, the jury
should be instructed only that the defendant was
convicted of a predicate offense, and the prosecution is
limited to announcing to the jury that the defendant
ha[d] committed an offense that satisfie[d] the statutory
predicate-offense element. Model Jury Charges
(Criminal), "Certain Persons Not To Have Any
Firearms (N.J.S.A. 2C:39-7(b)(1))" at 1 n.6. It is
possible a defendant would want to make the jury aware
of the underlying offense to minimize its impact and to
prevent the jury from speculating. However, based on
the record before us, it [wa]s not clear why defense
counsel stipulated for the jury to be advised of
2
Strickland v. Washington, 466 U.S. 668 (1984); State v. Fritz, 105 N.J. 42(1987).
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defendant's record beyond the fact he was convicted of
a predicate offense.
[Id. at 10-11.]
On remand, the PCR court held an evidentiary hearing. Defendant's trial
counsel and defendant testified. The PCR court found trial counsel's testimony
was credible:
because she was honest about the deficiencies in her
recollection, but to the extent she could remember
conversations, she remembered with enough detail to
convince the court that hers were accurate
recollections. In addition, [she] was calm and direct in
her responses, both during direct and cross-
examination. She never became defensive, did not
exhibit any body language to indicate that she was
nervous during questioning, and spoke clearly and with
confidence. During cross-examination, there was
nothing to indicate that [she] had any motive to deceive,
there was no evidence of bias, and she ha[d] no interest
in the outcome of the proceeding. Moreover, [her]
testimony was corroborated by the transcript from the
bifurcated trial.
To the contrary, the PCR court found:
defendant's testimony to be not credible. Defendant
grabbed at his wrist and began to twist his wrist in the
cusp of his opposite hand while he testified. Also, the
court f[ound] defendant's testimony clouded by his
interest in the outcome. The court d[id] not find
defendant's testimony about there being no discussions
about the stipulation and no discussion about his desire
to have the jury know that he is not a violent offender
to be credible. When defendant testified on direct, he
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began to list a parade of deficiencies his attorney had
committed, including those not at issue in the original
PCR, which indicated to the court that defendant was
overstating his case.
Applying well-established caselaw, the PCR court found defendant "failed
to rebut the strong presumption that trial counsel's decision to stipulate to the
2008 drug conviction fell within the wide range of reasonable professional
assistance." The court credited counsel's explanation "that she stipulated to the
offense, along with the type of conviction, so that the jury would know that
defendant did not have a prior violent history." Moreover, the PCR court found
counsel's decision "was . . . a strategic [one] to prevent inflaming the jury against
defendant." The court stated "[d]efendant ha[d] failed to show that defense
counsel did not thoroughly investigate the law and facts or failed to consider all
possible options regarding the stipulation." Therefore, the court found "that
defendant failed to prove by a preponderance of the evidence that trial counsel's
performance fell below the objective standard of Strickland."
"Our standard of review is necessarily deferential to a PCR court's factual
findings based on its review of live witness testimony." State v. Nash, 212 N.J.
518, 540 (2013). Therefore, "we will uphold the PCR court's findings that are
supported by sufficient credible evidence in the record." Ibid. We "'give
deference to those findings of the trial judge which are substantially influenced
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by his opportunity to hear and see the witnesses.'" Ibid. (quoting State v.
Johnson, 42 N.J. 146, 161 (1964)). Our "reading of a cold record is a pale
substitute for a trial judge's assessment of the credibility of a witness he has
observed firsthand." Ibid. However, "[u]nder established rules of appellate
review, we are not bound by and give no deference to the legal conclusions of
the PCR court." State v. Harris, 181 N.J. 391, 415 (2004) (citing Toll Bros., Inc.
v. Twp. of W. Windsor, 173 N.J. 502, 549 (2002)).
PCR provides a "built-in 'safeguard that ensures that a defendant [is] not
unjustly convicted.'" Nash, 212 N.J. at 540 (quoting State v. McQuaid, 147 N.J.
464, 482 (1997)). A defendant petitioning for PCR must "establish his [or her]
right to 'relief by a preponderance of the credible evidence.'" Id. at 541 (quoting
State v. Preciose, 129 N.J. 451, 459 (1998)).
Here, defendant's PCR petition was predicated on his claim that his trial
counsel was ineffective, and therefore he must satisfy the two-prong test
enunciated in Strickland; see also Fritz.3 A failure to satisfy either prong
requires the denial of a PCR petition. Strickland, 466 U.S. at 700.
3
"The Sixth Amendment of the United States Constitution and Article 1,
paragraph 10 of the New Jersey Constitution require that a defendant received
'the effective assistance of counsel' during a criminal proceeding." State v.
Porter, 216 N.J. 343, 352 (2013).
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Under the first prong, defendant must establish "counsel's performance
was deficient," that is, "that counsel made errors so serious that counsel was not
functioning as the 'counsel' guaranteed" by the Constitutions. Strickland, 466
U.S. at 687. The first prong requires a showing that "counsel's representation
fell below an objective standard of reasonableness." Id. at 688. "[T]he [PCR]
court should recognize that counsel is strongly presumed to have rendered
adequate assistance and made all significant decisions in the exercise of
reasonable professional judgment." Id. at 690. "[T]he defendant must overcome
the presumption that, under the circumstances, the challenged action 'might be
considered sound trial strategy.'" Id. at 689 (quoting Michel v. Louisiana, 350
U.S. 91, 101 (1955)). "[S]trategic choices made after thorough investigation of
law and facts relevant to plausible options are virtually unchallengeable." Id. at
690.
Under the second prong, a defendant must establish "the deficient
performance prejudiced the defense." Id. at 687. Under the second prong, the
defendant must show "that counsel's errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable." Ibid. That is, "there is
a reasonable probability that, but for counsel's unprofessional errors, the result
of the proceeding would have been different." Id. at 694. Further, because
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prejudice is not presumed, Fritz, 105 N.J. at 52, the defendant must demonstrate
"how specific errors of counsel undermined the reliability" of the proceeding,
U.S. v. Cronic, 466 U.S. 648, 659 n.26 (1984).
Applying these well-established principles, we are convinced defendant
failed to establish by the preponderance of the evidence a right to PCR. We are
satisfied the PCR judge's findings of fact were supported by substantial and
credible evidence in the record. Moreover, recognizing our deference to the
PCR judge's credibility determinations, we accept his finding that trial counsel's
testimony was more credible than defendant's testimony. Thus, counsel's trial
strategy was not ineffective assistance of counsel. In addition, since satisfied
trial counsel's representation was not ineffective, defendant cannot establish
prejudice under the second prong of Strickland. Therefore, defendant's petition
for PCR was properly denied.
Affirmed.
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