STATE OF NEW JERSEY VS. JAMES PINNOCKÂ (03-09-0888, PASSAIC COUNTY AND STATEWIDE)(RECORD IMPOUNDED)

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE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-1140-15T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JAMES PINNOCK,
Defendant-Appellant.
____________________________
Submitted June 7, 2017 – Decided June 29, 2017
Before Judges Alvarez and Accurso.
On appeal from Superior Court of New Jersey,
Law Division, Passaic County, Indictment No.
03-09-0888.
Joseph E. Krakora, Public Defender, attorney
for appellant (Kisha M. Hebbon, Designated
Counsel, on the brief).
Camelia M. Valdes, Passaic County
Prosecutor, attorney for respondent
(Christopher W. Hsieh, Chief Assistant
Prosecutor, of counsel and on the brief).
Appellant filed a pro se supplemental brief.
PER CURIAM
Defendant James Pinnock appeals from the dismissal of his
petition for post-conviction relief (PCR), contending he
established a prima facie case of ineffective assistance of
counsel requiring an evidentiary hearing. Because the trial
judge correctly determined the evidence insufficient to sustain
defendant's burden, we affirm.
Defendant was convicted by a jury of first-degree
kidnapping, N.J.S.A. 2C:13-1b(1); two counts of first-degree
robbery, N.J.S.A. 2C:15-1a(2) and (3); three counts of first-
degree aggravated sexual assault, N.J.S.A. 2C:14-2a(3), (4) and
(5); third-degree terroristic threats, N.J.S.A. 2C:12-3b; third-
degree possession of a firearm for an unlawful purpose, N.J.S.A.
2C:39-4a; and third-degree unlawful possession of a handgun,
N.J.S.A. 2C:39-5b, in connection with his and a co-defendant's
sexual assault of a college student walking alone in Paterson on
an August evening in 2003. The judge sentenced him to an
aggregate forty-year prison term subject to the periods of
parole ineligibility and supervision mandated by the No Early
Release Act, N.J.S.A. 2C:43-7.2.
We affirmed defendant's conviction on direct appeal but
remanded for reconsideration of defendant's sentence, to address
merger and to correct the judgment of conviction, State v.
Pinnock, No. A-6649-06 (App. Div. Mar. 8, 2010). The Supreme
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Court denied defendant's petition for certification, 202 N.J. 45(2010). On remand, the judge imposed the same aggregate
sentence, which we reviewed on a sentencing calendar, R. 2:9-11,
and affirmed. The Supreme Court again denied defendant's
petition for certification. State v. Pinnock, 209 N.J. 99(2012).
Defendant filed a petition for post-conviction relief based
on claims of ineffective assistance of trial and appellate
counsel as well as certain trial errors. Defendant claimed his
trial counsel failed to prepare him to testify at trial and
coerced him into not testifying on his own behalf, despite his
lack of any criminal record. He further argued that the
evidence was insufficient to support the kidnapping conviction,
and that an error in the verdict sheet permitted the jury to
convict him of kidnapping despite failing to find he acted
knowingly.
Defendant claimed appellate counsel failed to argue the
evidence was insufficient to support the jury's verdict, and had
counsel done so that defendant's conviction would have been
reversed. In a pro se submission, defendant reiterated
counsel's argument about error in the verdict sheet and
contended newly discovered evidence proved his innocence.
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After hearing argument by counsel, the judge issued a
written opinion denying the petition on the basis that defendant
had failed to establish a prima facie claim for relief. See
State v. Preciose, 129 N.J. 451, 462-64 (1992). The judge
determined defendant's claims regarding the sufficiency of the
evidence and the verdict sheet were barred by Rule 3:22-5
because they had already been raised and adjudicated, or by Rule
3:22-4(a) because they could have been raised and adjudicated on
direct appeal. See State v. Nash, 212 N.J. 518, 546 (2013).
Despite finding the claims procedurally barred, the judge
nevertheless considered them on the merits and found both claims
wanting.
The judge rejected defendant's claim that his counsel had
coerced him into not testifying because it was clearly
contradicted by defendant's lengthy colloquy with the trial
judge and defense counsel on the record at trial, which the
judge quoted in his opinion denying the petition. The judge
rejected defendant's claim that his appellate counsel had been
ineffective because he found defendant's arguments as to trial
error without merit and thus not capable of having affected the
outcome of the appeal.
The judge further rejected defendant's contention of newly
discovered evidence proving his innocence. He concluded that
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defendant's "bare allegations, without any supporting
certifications or argument, clearly fall markedly short for
post-conviction relief."
On appeal, defendant presents the following arguments
through counsel:
POINT I
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S
PETITION FOR POST-CONVICTION RELIEF WITHOUT
AFFORDING HIM AN EVIDENTIARY HEARING TO
DETERMINE THE MERITS OF HIS CONTENTION THAT
HE WAS DENIED THE RIGHT TO THE EFFECTIVE
ASSISTANCE OF COUNSEL.
A. The Prevailing Legal Principles
Regarding Claims Of Ineffective Assistance
Of Counsel, Evidentiary Hearings And
Petitions For Post-Conviction Relief.
B. Trial Counsel Rendered Ineffective Legal
Representation By Virtue Of Him Advising
Defendant Not To Testify At Trial Without
First Discussing Defendant's Proposed Trial
Testimony And Possible Cross-Examination
Questions With Him.
C. Appellate Counsel Rendered Ineffective
Legal Representation By Virtue Of His
Failure To Raise The Issue Of Trial Court
Errors On Appeal.
D. Defendant Is Entitled To A Remand To The
Trial Court To Afford Him An Evidentiary
Hearing To Determine The Merits Of His
Contention That He Was Denied The Effective
Assistance Of Trial And Appellate Counsel.
He raises the following additional arguments by way of his
pro se supplemental brief:
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POINT ONE
THERE WAS A MISCARRIAGE OF JUSTICE[.] THE
CLAIMS SHOULD NOT HAVE BEEN PROCEDURALLY
BARRED WHEN THE STATE WAS RELIEVED OF THE
HEAVY BURDEN OF PROVING ESSENTIAL ELEMENTS
OF FIRST-DEGREE KIDNAPPING AND THE "SAFE
PLACE" ELEMENT IS OMITTED FROM THE JURY
CHARGE AND THE VERDICT SHEET DID NOT RECORD
IF THERE WAS A UNANIMOUS VERDICT ON 2C:13-
1b(1)/2C:2-6 UNLAWFULLY REMOVED OR
UNLAWFULLY CONFINED OR 2C:13-1b(2)/2C:2-6
UNLAWFULLY REMOVED OR UNLAWFULLY CONFINED
AND THE TRIAL JUDGE FOUND THE GENERAL
VERDICT OF GUILT IN A JURY TRIAL BECAUSE THE
VERDICT SHEET DID NOT RECORD WHICH THEORY
THE DEENDANT WAS CONVICTED OF DUE PROCESS
VIOLATION.
POINT TWO
MISCARRIAGE OF JUSTICE[.] INSUFFICIENT
EVIDENCE TO CONVICT DEFENDANT ON COUNT 3 AND
COUNT 4[.] STATE CANNOT PROVE THE ESSENTIAL
ELEMENTS IN THE COURSE OF COMMITTING A THEFT
AND SHARED INTENT AND NOT KNOWINGLY
COMMITTING COUNT 2 THE INTENT TO COMMIT THE
THEFT DURING OR BEFORE THE USE OF FORCE
CANNOT BE PROVEN BY THE STATE BEYOND A
REASONABLE DOUBT WITH THE ACQUITTAL OF COUNT
2[.] THIS CLAIM WAS NOT BARRED BY THE COURT
UNDER RULE 3:22.
A judge's decision as to whether to hold an evidentiary
hearing on a PCR petition alleging ineffective assistance of
counsel is discretionary. Preciose, supra, 129 N.J. at 462. No
hearing is required unless defendant has established a prima
facie case, that is, a reasonable likelihood of success under
the test established in Strickland v. Washington, 466 U.S. 668,
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687-88, 694, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693,
698 (1984).
Under the Strickland two-part test, a defendant must
establish, first, that "counsel's representation fell below an
objective standard of reasonableness," and, second, that "there
is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have
been different." Ibid. A defendant must do more than
demonstrate that an alleged error might have "had some
conceivable effect on the outcome of the trial," instead, he or
she must prove that the error is "so serious as to undermine our
confidence in the jury's verdict." State v. Sheika, 337 N.J.
Super. 228, 242 (App. Div.), certif. denied, 169 N.J. 609(2001).
Our review of this record convinces us that Judge Taylor
carefully considered each of defendant's claims. The judge's
findings are well supported by sufficient credible evidence in
the record. State v. Locurto, 157 N.J. 463, 472 (1999). We
agree, on the basis of those findings, that defendant failed to
demonstrate that the performance of his trial or appellate
counsel was substandard or that, but for any of their alleged
errors, the result would have been different as required by
Strickland. Accordingly, we affirm substantially for the
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reasons expressed by Judge Taylor in the comprehensive written
statement of reasons accompanying his order of August 20, 2015,
denying defendant's petition.
Affirmed.
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