STATE OF NEW JERSEY VS. RAVEN S. HARRIS (09-01-0041, HUDSON COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE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-4447-18
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
RAVEN S. HARRIS, a/k/a/
RAVEN HARRIS,
Defendant-Appellant.
________________________
Submitted January 11, 2021 – Decided April 14, 2021
Before Judges Fasciale and Susswein.
On appeal from the Superior Court of New Jersey, Law
Division, Hudson County, Accusation No. 09-01-0041.
Joseph E. Krakora, Public Defender, attorney for
appellant (Marc R. Ruby, Designated Counsel, on the
brief).
Esther Suarez, Hudson County Prosecutor, attorney for
respondent (Lillian Kayed, Assistant Prosecutor, on the
brief).
PER CURIAM
Defendant appeals from an April 11, 2019 order denying her petition for
post-conviction relief (PCR). Defendant argues that her plea counsel rendered
ineffective assistance by failing to obtain store surveillance video of the crime
and by failing to apply for pretrial intervention (PTI). Judge Sheila A. Venable
entered the order denying PCR and rendered a seventeen-page written decision.
Judge Venable found that the petition is time-barred under Rule 3:22-12(a)(1).
Judge Venable nonetheless considered defendant's petition on the merits and
concluded that defendant failed to establish a prima facie case sufficient to order
an evidentiary hearing much less to vacate defendant's guilty plea. We affirm
substantially for the reasons set forth in Judge Venable's thorough and
thoughtful written opinion.
I.
We presume the parties are familiar with the relevant facts and procedural
history leading to this appeal. We therefore only briefly summarize those
circumstances, which are fully recounted in Judge Venable's written opinion. In
January 2009, defendant waived indictment and pled guilty to stealing a wallet
containing $600 at a UPS store at which she was a new employee. The wallet
belonged to another UPS employee. After the theft was reported, defendant
received a telephone call from a UPS loss prevention specialist who investigated
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the incident. Defendant came back to the store and returned the stolen wallet.
She initially returned only $500 of the $600 that had been stolen, but eventually
returned the remaining $100.
Defendant pled guilty to third-degree theft pursuant to a plea agreement
and on April 3, 2009 received the recommended sentence of three years
probation. Defendant did not file a direct appeal and successfully completed
probation. In October 2018—almost ten years after sentencing—defendant filed
a pro se PCR petition.
Defendant raises the following arguments for our consideration:
I. SINCE HARRIS HAS DEMONSTRATED
EXCUSABLE NEGLECT FOR HER UNTIMELY
PETITION, THE FIVE-YEAR STATUTE OF
LIMITATIONS SHOULD BE RELAXED, AND
EVEN IF HARRIS DID NOT DEMONSTRATE
EXCUSABLE NEGLECT, JUSTICE STILL
REQUIRES RELAXATION OF THE STATUTE
II. THIS MATTER SHOULD BE REMANDED FOR
AN EVIDENTIARY HEARING, BECAUSE HARRIS'
DEFENSE COUNSEL DID NOT EFFECTIVELY
REPRESENT HER, AS DISCUSSED UNDER SUB-
HEADINGS A & B
A. THE CRIMINAL DIVISION'S FINDING
THAT HARRIS' ATTORNEY'S FAILURE TO
REQUEST HIGHLY RELEVANT VIDEO
FOOTAGE, FELL BELOW THE STANDARD
OF CARE, IS INCONSISTENT WITH THE
DECISION DENYING HARRIS'
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INEFFECTIVE-ASSISTANCE-OF-COUNSEL
CLAIM
B. HARRIS WAS ENTITLED TO APPLY FOR
PRE-TRIAL INTERVENTION, DESPITE
HAVING A JUVENILE RECORD, AND THE
CRIMINAL DIVISION'S HOLDING
IMPROPERLY SPECULATED THAT HER
APPLICATION WOULD HAVE BEEN
DENIED
II.
We begin our analysis by acknowledging the legal principles governing
this appeal. PCR is not a substitute for direct appeal. R. 3:22-3. Rather, it
serves the same function as a federal writ of habeas corpus. State v. Preciose,
129 N.J. 451, 459 (1992). When petitioning for PCR, a defendant must
establish, by a preponderance of the credible evidence, that he or she is entitled
to the requested relief. Ibid. The defendant must allege and articulate specific
facts that "provide the court with an adequate basis on which to rest its decision."
State v. Mitchell, 126 N.J. 565, 579 (1992).
Rule 3:22-12(a)(1) provides that a PCR petition must be filed within five
years after the date of the entry of the judgment of conviction being challenged.
That five-year deadline may be relaxed if the petition "alleges facts showing that
the delay beyond said time was due to defendant's excusable neglect and that
there is a reasonable probability that if the defendant's factual assertions were
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found to be true enforcement of the time bar would result in a fundamental
injustice[.]" R. 3:22-12(a)(1)(A).
Both the Sixth Amendment of the United States Constitution and Article
1, paragraph 10 of the State Constitution guarantee the right to effective
assistance of counsel at all stages of criminal proceedings. Strickland v.
Washington, 466 U.S. 668, 686 (1984) (citing McMann v. Richardson, 397 U.S.
759, 771 n.14 (1970)); State v. Fritz, 105 N.J. 42, 58 (1987). To establish a
violation of the right to the effective assistance of counsel, a defendant must
meet the two-part test articulated in Strickland. Fritz, 105 N.J. at 58. "First, the
defendant must show that counsel's performance was deficient." Strickland, 466
U.S. at 687. "Second, the defendant must show that the deficient performance
prejudiced the defense." Ibid.To meet the first prong of the Strickland/Fritz test, a defendant must show
"that counsel made errors so serious that counsel was not functioning as the
'counsel' guaranteed the defendant by the Sixth Amendment." Ibid. Reviewing
courts indulge in a "strong presumption that counsel's conduct falls wit hin the
wide range of reasonable professional assistance[.]" Id. at 689. Furthermore,
in determining whether defense counsel's representation was deficient,
"'[j]udicial scrutiny . . . must be highly deferential,' and must avoid viewing the
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performance under the 'distorting effects of hindsight.'" State v. Norman, 151
N.J. 5, 37 (1997) (quoting Strickland, 466 U.S. at 689).
The second Strickland prong is especially demanding. Counsel's errors
must create a "reasonable probability" that the outcome of the proceedings
would have been different than if counsel had not made the errors. Strickland,
466 U.S. at 694. This "is an exacting standard." State v. Gideon, 244 N.J. 538,
551 (2021) (quoting State v. Allegro, 193 N.J. 352, 367 (2008)). "Prejudice is
not to be presumed," but must be affirmatively proven by the
defendant. Ibid. (citing Fritz, 105 N.J. at 52, and Strickland, 466 U.S. at 693.).
Furthermore, to set aside a guilty plea based on ineffective assistance of counsel,
a defendant must show "'that there is a reasonable probability that, but for
counsel's errors, [the defendant] would not have pled guilty and would have
insisted on going to trial.'" State v. DiFrisco, 137 N.J. 434, 457 (1994)
(alteration in original) (quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985)).
Short of obtaining immediate relief, a defendant may show that an
evidentiary hearing is warranted to develop the factual record in connection with
an ineffective assistance claim. Preciose, 129 N.J. at 462–63. The PCR court
should grant an evidentiary hearing only where (1) a defendant is able to prove
a prima facie case of ineffective assistance of counsel, (2) there are material
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issues of disputed fact that must be resolved with evidence outside of the record,
and (3) the hearing is necessary to resolve the claims for relief. R. 3:22-10(b).
To meet the burden of proving a prima facie case, a defendant must show a
reasonable likelihood of success under the Strickland test. Preciose, 129 N.J. at
463.
As a general proposition, we defer to a PCR court's factual findings "'when
supported by adequate, substantial and credible evidence.'" State v. Harris, 181
N.J. 391, 415 (2004) (quoting Toll Bros., Inc. v. Twp. of W. Windsor, 173 N.J.
502, 549 (2002)). However, when the PCR court does not hold an evidentiary
hearing, we "may exercise de novo review over the factual inferences drawn
from the documentary record[.]" Id. at 421 (citing Zettlemoyer v. Fulcomer,
923 F.2d 284, 291 n.5 (3d Cir. 1991)).
III.
Because we affirm for the reasons explained in Judge Venable's cogent
and comprehensive written opinion, we need not re-address defendant's
arguments at length. We add the following comments.
We agree that defendant's petition is time-barred and that she failed to
demonstrate excusable neglect to justify filing the petition almost five years
after the expiration of the five-year deadline. Defendant claims she was not
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notified at sentencing of the right to file a PCR petition or the time frame for
doing so. We recognize, as did Judge Venable, that the appellate rights form
defendant received at the sentencing hearing did not include notice of the time
limitation for PCR petitions. Defendant pled guilty and was sentenced before
that form was revised in 2010. We therefore accept defendant's claim that she
had not been advised of her right to file a petition for PCR and the time frame
within which to do so. We do not believe, however, that all defendants
sentenced before the form was revised are entitled to file late petitions. In this
instance, we agree with Judge Venable that defendant has not demonstrated that
enforcement of the deadline would constitute a fundamental injustice. We
appreciate that defendant now regrets having an adult criminal conviction on her
record. An untimely PCR petition, however, is not a substitute for an application
for expungement. We nonetheless elect to review defendant's PCR contentions
on their merits, as did Judge Venable.
Judge Venable concluded that plea counsel's investigation was deficient
for failing to obtain the UPS store surveillance video of the theft. We agree.
That surveillance video was explicitly mentioned in the police report and
counsel was obligated to obtain the video and review it. However, we also agree
with Judge Venable that defendant was not prejudiced by counsel's inadequate
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investigation. The record shows that an eyewitness claimed to have observed
defendant exiting the room from which the co-worker's wallet was taken and
defendant returned the stolen wallet after being contacted by the store loss
prevention specialist. The video therefore was not exculpatory, and only depicts
what defendant admitted to in the plea colloquy.
In these circumstances, the outcome would not have been different had
counsel obtained the surveillance video. Despite defendant's current claim, we
believe it is implausible that she would have rejected the favorable plea offer
and gone to trial based on the store surveillance video in view of the
overwhelming evidence of guilt as reflected in the undisputed fact that she had
possession of the stolen wallet.
We also agree with Judge Venable that defendant has failed to establish
that she probably would have been admitted to PTI had counsel made application
to that program on defendant's behalf. Defendant—who was eighteen years old
at the time of the theft—had a very serious juvenile record that includes
adjudications for robbery, aggravated assault, and violation of probation. See
State v. Brooks, 175 N.J. 215, 228 (2002) (permitting prosecutor to consider
juvenile adjudications of delinquency when evaluating PTI applications).
Defendant's claim that she would have been admitted to PTI had she applied is
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mere speculation. Defendant has thus failed to establish that the prosecutor
would probably have consented to PTI had an application been made, or that the
prosecutor's exercise of discretion would have been overruled under the patent
and gross abuse standard of judicial review. See State v. Leonardis, 71 N.J. 85,
121 (1976). Accordingly, defendant has failed to establish prejudice under the
second prong of the Strickland/Fritz test.1
We add that there is no basis for conducting an evidentiary hearing.
Accepting that plea counsel's performance was deficient, there are no material
issues of disputed fact that must be resolved with evidence outside of the record.
Accordingly, a hearing is not necessary to resolve defendant's claims for relief.
Preciose, 129 N.J. at 462; R. 3:22-10(b).
To the extent we have not addressed them, any remaining arguments
raised by defendant lack sufficient merit to warrant discussion in this opinion.
R. 2:11-3(e)(2).
Affirmed.
1
In view of the apparent likelihood the prosecutor would have rejected an
application for PTI based on defendant's significant and then-recent juvenile
history, we need not decide whether counsel's failure to apply for PTI constitutes
constitutionally deficient assistance under the first prong of the Strickland/Fritz
test. Cf. State v. Worlock, 117 N.J. 596, 625 (1990) (citing Strickland, 466 U.S.
at 688; Fritz, 105 N.J. at 52) ("The failure to raise unsuccessful legal arguments
does not constitute ineffective assistance of counsel.").
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