STATE OF NEW JERSEY VS. ROBERT CASONÂ (09-03-0374, MIDDLESEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-2594-15T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ROBERT G. CASON, a/k/a
ROBERT CASON, ROBERT GUY
CASON, R. GUY CA'SON,
ROBERT GUY CASOM, JAMES
WISON,
Defendant-Appellant.
_________________________________
Submitted June 7, 2017 – Decided July 14, 2017
Before Judges Accurso and Lisa.
On appeal from Superior Court of New Jersey,
Law Division, Middlesex County, Indictment No.
09-03-0374.
Joseph E. Krakora, Public Defender, attorney
for appellant (Steven M. Gilson, Designated
Counsel, on the brief).
Andrew C. Carey, Middlesex County Prosecutor,
attorney for respondent (Nancy A. Hulett,
Assistant Prosecutor, of counsel and on the
brief).
Appellant filed a pro se supplemental brief.
PER CURIAM
Defendant, Robert G. Cason, appeals from the December 3, 2015
order denying his petition for post-conviction relief (PCR), and
declining to conduct an evidentiary hearing.
Tried to a jury, defendant was convicted of second-degree
eluding, N.J.S.A. 2C:29-2b, and the disorderly persons offense of
resisting arrest, N.J.S.A. 2C:29-2a(1) (as a lesser included
offense of third-degree resisting arrest, N.J.S.A. 2C:29-2a(3),
which was charged in the indictment). Defendant was sentenced to
three years' imprisonment for eluding, and a concurrent term of
six months imprisonment for resisting arrest.
Defendant appealed and we affirmed his conviction and
sentence. State v. Cason, No. A-4236-11 (App. Div. June 18, 2014).
The Supreme Court denied defendant's petition for certification.
220 N.J. 100 (2014).
Defendant filed a pro se PCR petition on February 24, 2015.
He asserted, generally, ineffective assistance of trial counsel.
PCR counsel was assigned, and a brief was filed under counsel's
name. The matter came before Judge Alberto Rivas for oral argument
on December 1, 2015. Defendant's PCR counsel informed the judge
that defendant was the true author of the brief submitted under
counsel's name and indicated that defendant wished to personally
argue the case. The judge granted the request.
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Essentially, defendant contended that his trial counsel did
not conduct an adequate investigation in preparing for trial. He
supported his argument by pointing out minor inconsistencies in
the testimony of various witnesses, minor inconsistencies between
the testimony of a police officer and the contents of that
officer's report, and the like.
The judge noted that defendant's trial counsel had cross-
examined the witnesses thoroughly, pointing out such
inconsistencies. The judge also noted that defendant had filed
no affidavits or certifications in support of his PCR petition,
by individuals possessing personal knowledge, setting forth what
facts would have been disclosed by a more thorough investigation
and how those facts would have had the probability of changing the
outcome of the trial.
Further, the judge pointed out that defendant was essentially
convicted by his own words, having told the police in the aftermath
of the incident that he was sorry for not stopping when he was
signaled to do so and admitting that he knew he was on the suspended
list and had an outstanding warrant, but wanted to get his car
home. Rather than pulling over along the highway, he drove to the
apartment complex where he lived, at which time he finally stopped.
His statement to the police had been ruled admissible after a
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Miranda1 hearing. Defendant testified at trial and further
acknowledged that he saw the police lights and heard the sirens,
as a result of which he knew he was supposed to stop, but he did
not. At trial, he also acknowledged that he knew his license was
suspended, but denied that he was aware a warrant was outstanding
for unpaid traffic tickets.
Defendant also criticized the trial strategy developed by his
trial counsel. That strategy was to downplay the events,
characterizing them as a traffic violation and a motor vehicle
stop, as opposed to criminal activity. The judge noted that this
was a sound strategy in light of the evidence the State was
expected to present, including defendant's admissions in his
statement to the police.
Judge Rivas found defendant's arguments unpersuasive. He
outlined the controlling legal principles, including the two-prong
Strickland/Fritz2 test, which requires a showing of deficient
performance by trial counsel and a likelihood that, but for the
deficient performance, the result of the trial might have been
different. As to trial strategy, the judge noted that courts must
1
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d
694 (1966).
2
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L.
Ed. 2d 674 (1984); State v. Fritz, 105 N.J. 42 (1987).
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be highly deferential and avoid second guessing strategic
decisions made at the time of trial, citing State v. Savage, 120
N.J. 594, 617 (1990).
Judge Rivas concluded:
None of the arguments that are raised by
Mr. Cason require an evidentiary hearing at
this time. There is no factual dispute
regarding [defense counsel's] performance.
Like I said, much of the arguments raised by
Mr. Cason in his brief and his oral argument
focuses on minute issues and differences of
perception, which do not rise to a level to
call into question the quality of the
performance or the trial.
A defendant must do more than just make
bald assertions that he was denied ineffective
assistance of counsel. He must allege facts;
facts sufficient to demonstrate counsel's
allegedly substandard performance. In order
to do that, the application must be supported
by affidavits or certifications, none of which
were filed in this particular case.
The test is: But for the counsel's
error, the result would be different.
Strickland, [supra, 466 U.S. at 694, 104 S.
Ct. at 2068, 80 L. Ed. 2d at 698.]
Mr. Cason has failed to show that his
counsel performed deficiently under
constitutional standards. He has failed to
show there's a reasonable likelihood of
success on the merits. And based on what has
been stated on the record, the [c]ourt having
considered the moving papers, the [c]ourt
finds that Mr. Cason's petition for post-
conviction relief has not adduced sufficient
evidence to warrant an evidentiary hearing or
to require a finding of ineffective assistance
of counsel. Defendant's request for post-
conviction relief is denied at this time.
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On appeal, in the brief filed by defendant's counsel, a single
argument is presented:
THIS MATTER MUST BE REMANDED FOR AN
EVIDENTIARY HEARING BECAUSE DEFENDANT
ESTABLISHED A PRIMA FACIE CLAIM OF TRIAL
COUNSEL'S INEFFECTIVENESS FOR FAILING TO
ADEQUATELY INVESTIGATE HIS CASE.
Defendant has filed a supplemental pro se brief, in which he raises
the following additional arguments:
POINT [I]
THE TRIAL AND RESULTING CONVICTION VIOLATED
THE STATE'S DOCTRINE OF FUNDAMENTAL FAIRNESS.
ASIDE FROM HAVING EXCULPATORY VALUE, THE
WEATHER REPORTS HAD IMPEACHMENT VALUE IN ITS
NON-DISCLOURE BY THE STATE AND COUNSEL. A
VIOLATION OF [DEFENDANT]'S DUE PROCESS RIGHTS,
WHICH WAS COMPOUNDED BY THE SUPERIOR COURT'S
DENIAL OF A[] HEARING ON DECEMBER 1[,] 2015.
POINT [II]
COUNSEL ERROR: INEFFECTIVENESS OF COUNSEL
FAILURE TO MITIGATE.
POINT [III]
MATERIALLY INCONSISTENT STATEMENTS BY THE
STATE[']S WITNESS CREATING A DEPRIVATION OF
DUE PROCESS.
POINT [IV]
INSUFFICIENT EVIDENCE TO PROVE AN ATTEMPT TO
ELUDE.
POINT [V]
HEARSAY STATEMENTS BY THE PRINCIP[AL] AND
ASSISTING OFFICERS.
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POINT [VI]
THE COURT ERRED ON DECEMBER 1[,] 2015 BY NOT
CONSIDERING PROSECUTORIAL MISCONDUCT AS A
PROBATIVE MITIGATING FACTOR FOR DEPRIVATION OF
DUE PROCESS.
Defendant's arguments are completely lacking in merit and do
not warrant discussion in a written opinion. R. 2:11-3(e)(2). We
nevertheless offer the following brief comments.
Defendant's unsupported assertion that his attorney failed
to adequately investigate the case is not sufficient to entitle
him to post-conviction relief or to an evidentiary hearing. Such
an assertion must be supported by an affidavit or certification,
made on personal knowledge, stating the facts which would have
been found if a more thorough investigation had been conducted,
and how those facts might have changed the outcome. State v.
Cummings, 321 N.J. Super. 154, 170-71 (App. Div.), certif. denied,
162 N.J. 199 (1999). Merely raising allegations of ineffective
assistance, without competent evidence sufficient to establish the
required prima facie showing, does not entitle a defendant to an
evidentiary hearing. Id. at 170.
Nothing in the trial record evidenced a lack of familiarity
with the facts in the case on the part of trial counsel. Indeed,
the record demonstrates the opposite. We agree with Judge Rivas
that trial counsel employed a sound strategy in light of the
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evidence with which he would be confronted. This included
defendant's admission. And, trial counsel executed that strategy
very competently in the manner in which he conducted himself
throughout the trial.
Evidentiary hearings may be granted on a PCR petition if the
defendant establishes a prima facie case of ineffective assistance
of counsel. State v. Preciose, 129 N.J. 451, 462 (1992). Such
hearings are only required if resolution of disputed issues are
"necessary to resolve the claims for relief." R. 3:22-10(b).
Hearings shall not be granted if they "will not aid the court's
analysis of the defendant's entitlement to post-conviction
relief," or "if the defendant's allegations are too vague,
conclusory or speculative." R. 3:22-10(e)(1) and (2). In order
to establish a prima facie case, a defendant must demonstrate a
reasonable likelihood that he or she will ultimately succeed on
the merits. State v. Marshall, 148 N.J. 89, 157-58, cert. denied,
552 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997).
Defendant's contentions are indeed vague, conclusory and
speculative. They are unsupported by competent evidence setting
forth specific facts that are in dispute. There was no basis in
this case for an evidentiary hearing, and Judge Rivas correctly
declined to conduct such a hearing.
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We affirm substantially for the reasons expressed by Judge
Rivas in his oral opinion of December 1, 2015.
Affirmed.
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