NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-1713-22
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
TINA LUNNEY,
Defendant-Appellant. _______________________
Submitted April 15, 2024 – Decided September 5, 2024
Before Judges Gilson and Bishop-Thompson.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 10-01-0190.
Jennifer Nicole Sellitti, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief).
Theodore N. Stephens, II, Essex County Prosecutor, attorney for respondent (Braden Bendon Couch, Assistant Prosecutor, of counsel and on the brief).
Appellant filed a pro se supplemental brief. PER CURIAM
Defendant Tina Lunney appeals from a January 2, 2023 order denying her
petition for post-conviction relief (PCR) following an evidentiary hearing. After
reviewing the arguments, the record, and the applicable law, we affirm.
I.
In January 2010, a grand jury indicted defendant on charges of first-degree
murder, N.J.S.A. 2C:11-3(a)(1), (2) (count one); fourth-degree unlawful
possession of a weapon, N.J.S.A. 2C:39-5(d) (count two); and third-degree
possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count
three). A jury convicted defendant on all counts. Defendant was subsequently
sentenced to a forty-year prison term with an eighty-five percent parole
disqualifier pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2, on the
murder conviction. The other two convictions were merged with the murder
conviction.
The details of defendant's offenses are recounted thoroughly in our
unpublished opinion affirming defendant's conviction and sentence on direct
appeal, which need not be repeated here. State v. Lunney, No. A-0774-13 (App.
Div. Apr. 21, 2016). Defendant appealed the denial of her motion to suppress a
July 27, 2009 statement to the police. In the direct appeal, we concluded: (1)
A-1713-22 2 the record made "clear that the motion judge considered the lack of recordation
of the Miranda1 warnings and waiver as a factor in analyzing whether defendant
understood and waived her rights knowingly, voluntarily, and intelligently"; (2)
defendant was "neither cognitively nor incapable of abstract comprehension";
(3) the record amply supported the judge's findings that "defendant's statements
were logical, relevant, and she thoughtfully and appropriately answered the
questions asked"; and (4) defendant did not adduce "credible evidence of
specific police conduct rendering her statement involuntary." Lunney, slip op.
at 5, 11, 12. We also rejected defendant's argument that she neither
acknowledged nor understood her Miranda warnings because she signed the
Miranda waiver form after it was read to her in its entirety. Id. at 12.
Defendant's petition for certification was denied. State v. Lunney, 227 N.J. 240
(2016). The United States Supreme Court denied defendant's petition for
certiorari on October 2, 2017. Lunney v. New Jersey, 138 S. Ct. 56 (2017).
In October 2017, defendant filed a PCR petition, asserting claims of
ineffective assistance of counsel. Following oral argument, the PCR court
determined that defendant established ineffective assistance of counsel on two
1 Miranda v. Arizona, 384 U.S. 436 (1966).
A-1713-22 3 claims and granted an evidentiary hearing to address the trial counsel's failure
to present a diminished capacity or an insanity defense on the murder charge
and whether counsel misled defendant about the strength of the State's case
causing defendant to reject the plea.
After conducting an evidentiary hearing on those two discrete issues, in a
May 28, 2019 written opinion, the PCR court denied defendant's motion. The
court found that "the record [was] bereft of any grounds to find that defense
counsel's trial strategy of not invoking the insanity defense or a defense of
diminished capacity. There was a reasonable basis for trial counsel's strategic
decision not to invoke either defense." As to the second claim regarding
counsel's advice and defendant's rejection of the plea, the court determined that
defendant failed to meet her burden on the first prong under Strickland v.
Washington, 466 U.S. 668, 686 (1984) and State v. Fritz, 105 N.J. 42, 58 (1987).
We affirmed the denial of defendant's two claims but remanded the matter for
the PCR court to address other arguments not considered in the court's written
opinion. State v. Lunney, No. A-5524-18 (Jan. 18, 2022). Defendant's petition
for certification was denied by our Supreme Court. State v. Lunney, 251 N.J.
473 (2022).
A-1713-22 4 In defendant's PCR counsel's brief, she asserted:
I. WHEN TRIAL COUNSEL OPENED THE DOOR TO PSYCHIATRIST DR. PAUL'S REPORT, HE UNDERMINED HIS CLIENT'S DEFENSE.
II. TRIAL COUNSEL FAILED TO PRESENT A DIMINISHED CAPACITY OR INSANITY DEFENSE TO THE HOMICIDE CHARGE.
III. TRIAL COUNSEL WAS INEFFECTIVE BY DENYING HIS CLIENT THE OPPORTUNITY TO TESTIFY AT THE MIRANDA HEARING.
IV. TRIAL COUNSEL FAILED TO ASK THE TRIAL COURT TO REOPEN THE MIRANDA HEARING AFTER DETECTIVE PRACHAR'S INCONSISTENT TESTIMONY AT TRIAL.
V. TRIAL COUNSEL FAILED TO OBJECT TO THE STATE'S PREJUDICIAL REMARKS DURING CLOSING.
VI. BECAUSE TRIAL COUNSEL MISLED PETITIONER AS TO THE STRENGTH OF THE STATE'S CASE, PETITIONER REJECTED THE STATE'S PLEA OFFER.
VII. TRIAL COUNSEL WAS INEFFECTIVE WHEN HE ALLOWED THE TRIAL COURT TO IMPROPERLY EXCLUDE HIS CLIENT FROM CERTAIN PRETRIAL PROCEEDINGS.
VIII. DEFENSE COUNSEL'S CUMULATIVE ERRORS DENIED DEFENDANT A FAIR AND RELIABLE TRIAL.
In defendant's supplemental self-represented brief, she argued:
A-1713-22 5 I. PETITIONER'S ASSIGNED COUNSEL PROVIDED CONSTITUTIONALLY INEFFECTIVE ASSISTANCE A[T] TRIAL BY FAILING TO EFFECTIVELY CROSS[-]EXAMINE THE PROSECUTION WITNESSES.
II. EVIDENCE SEIZED BY POLICE WITHOUT A WARRANT FROM PETITIONER'S POCKETBOOK WAS USED AS EVIDENCE DURING HER INTERROGATION AND AT TRIAL, INSTEAD OF BEING SUPPRESSED, VIOLATING PETITIONER'S CONSTITUTIONAL PROTECTION AGAINST UNREASONABLE SEARCH AND SEIZURE.
III. THE STATE'S FAILURE TO TURN OVER TO THE DEFENSE THE RESULTS OF THE HANDWRITING ANALYSIS ON THE ALLEGED SUICIDE NOTE WAS A VIOLATION OF BRADY V. MARYLAND.[2]
In accordance with our opinion, on remand the PCR court heard oral
argument in December 2022. Following the argument, the PCR court denied
defendant's petition on January 2, 2023. In its opinion, the court found that
based on the testimony of defense counsel and defendant at the evidentiary
hearing, an evidentiary hearing was not warranted. The court further found that
the dismissal of defendant's ineffective assistance of counsel claims based on
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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-1713-22
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
TINA LUNNEY,
Defendant-Appellant. _______________________
Submitted April 15, 2024 – Decided September 5, 2024
Before Judges Gilson and Bishop-Thompson.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 10-01-0190.
Jennifer Nicole Sellitti, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief).
Theodore N. Stephens, II, Essex County Prosecutor, attorney for respondent (Braden Bendon Couch, Assistant Prosecutor, of counsel and on the brief).
Appellant filed a pro se supplemental brief. PER CURIAM
Defendant Tina Lunney appeals from a January 2, 2023 order denying her
petition for post-conviction relief (PCR) following an evidentiary hearing. After
reviewing the arguments, the record, and the applicable law, we affirm.
I.
In January 2010, a grand jury indicted defendant on charges of first-degree
murder, N.J.S.A. 2C:11-3(a)(1), (2) (count one); fourth-degree unlawful
possession of a weapon, N.J.S.A. 2C:39-5(d) (count two); and third-degree
possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count
three). A jury convicted defendant on all counts. Defendant was subsequently
sentenced to a forty-year prison term with an eighty-five percent parole
disqualifier pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2, on the
murder conviction. The other two convictions were merged with the murder
conviction.
The details of defendant's offenses are recounted thoroughly in our
unpublished opinion affirming defendant's conviction and sentence on direct
appeal, which need not be repeated here. State v. Lunney, No. A-0774-13 (App.
Div. Apr. 21, 2016). Defendant appealed the denial of her motion to suppress a
July 27, 2009 statement to the police. In the direct appeal, we concluded: (1)
A-1713-22 2 the record made "clear that the motion judge considered the lack of recordation
of the Miranda1 warnings and waiver as a factor in analyzing whether defendant
understood and waived her rights knowingly, voluntarily, and intelligently"; (2)
defendant was "neither cognitively nor incapable of abstract comprehension";
(3) the record amply supported the judge's findings that "defendant's statements
were logical, relevant, and she thoughtfully and appropriately answered the
questions asked"; and (4) defendant did not adduce "credible evidence of
specific police conduct rendering her statement involuntary." Lunney, slip op.
at 5, 11, 12. We also rejected defendant's argument that she neither
acknowledged nor understood her Miranda warnings because she signed the
Miranda waiver form after it was read to her in its entirety. Id. at 12.
Defendant's petition for certification was denied. State v. Lunney, 227 N.J. 240
(2016). The United States Supreme Court denied defendant's petition for
certiorari on October 2, 2017. Lunney v. New Jersey, 138 S. Ct. 56 (2017).
In October 2017, defendant filed a PCR petition, asserting claims of
ineffective assistance of counsel. Following oral argument, the PCR court
determined that defendant established ineffective assistance of counsel on two
1 Miranda v. Arizona, 384 U.S. 436 (1966).
A-1713-22 3 claims and granted an evidentiary hearing to address the trial counsel's failure
to present a diminished capacity or an insanity defense on the murder charge
and whether counsel misled defendant about the strength of the State's case
causing defendant to reject the plea.
After conducting an evidentiary hearing on those two discrete issues, in a
May 28, 2019 written opinion, the PCR court denied defendant's motion. The
court found that "the record [was] bereft of any grounds to find that defense
counsel's trial strategy of not invoking the insanity defense or a defense of
diminished capacity. There was a reasonable basis for trial counsel's strategic
decision not to invoke either defense." As to the second claim regarding
counsel's advice and defendant's rejection of the plea, the court determined that
defendant failed to meet her burden on the first prong under Strickland v.
Washington, 466 U.S. 668, 686 (1984) and State v. Fritz, 105 N.J. 42, 58 (1987).
We affirmed the denial of defendant's two claims but remanded the matter for
the PCR court to address other arguments not considered in the court's written
opinion. State v. Lunney, No. A-5524-18 (Jan. 18, 2022). Defendant's petition
for certification was denied by our Supreme Court. State v. Lunney, 251 N.J.
473 (2022).
A-1713-22 4 In defendant's PCR counsel's brief, she asserted:
I. WHEN TRIAL COUNSEL OPENED THE DOOR TO PSYCHIATRIST DR. PAUL'S REPORT, HE UNDERMINED HIS CLIENT'S DEFENSE.
II. TRIAL COUNSEL FAILED TO PRESENT A DIMINISHED CAPACITY OR INSANITY DEFENSE TO THE HOMICIDE CHARGE.
III. TRIAL COUNSEL WAS INEFFECTIVE BY DENYING HIS CLIENT THE OPPORTUNITY TO TESTIFY AT THE MIRANDA HEARING.
IV. TRIAL COUNSEL FAILED TO ASK THE TRIAL COURT TO REOPEN THE MIRANDA HEARING AFTER DETECTIVE PRACHAR'S INCONSISTENT TESTIMONY AT TRIAL.
V. TRIAL COUNSEL FAILED TO OBJECT TO THE STATE'S PREJUDICIAL REMARKS DURING CLOSING.
VI. BECAUSE TRIAL COUNSEL MISLED PETITIONER AS TO THE STRENGTH OF THE STATE'S CASE, PETITIONER REJECTED THE STATE'S PLEA OFFER.
VII. TRIAL COUNSEL WAS INEFFECTIVE WHEN HE ALLOWED THE TRIAL COURT TO IMPROPERLY EXCLUDE HIS CLIENT FROM CERTAIN PRETRIAL PROCEEDINGS.
VIII. DEFENSE COUNSEL'S CUMULATIVE ERRORS DENIED DEFENDANT A FAIR AND RELIABLE TRIAL.
In defendant's supplemental self-represented brief, she argued:
A-1713-22 5 I. PETITIONER'S ASSIGNED COUNSEL PROVIDED CONSTITUTIONALLY INEFFECTIVE ASSISTANCE A[T] TRIAL BY FAILING TO EFFECTIVELY CROSS[-]EXAMINE THE PROSECUTION WITNESSES.
II. EVIDENCE SEIZED BY POLICE WITHOUT A WARRANT FROM PETITIONER'S POCKETBOOK WAS USED AS EVIDENCE DURING HER INTERROGATION AND AT TRIAL, INSTEAD OF BEING SUPPRESSED, VIOLATING PETITIONER'S CONSTITUTIONAL PROTECTION AGAINST UNREASONABLE SEARCH AND SEIZURE.
III. THE STATE'S FAILURE TO TURN OVER TO THE DEFENSE THE RESULTS OF THE HANDWRITING ANALYSIS ON THE ALLEGED SUICIDE NOTE WAS A VIOLATION OF BRADY V. MARYLAND.[2]
In accordance with our opinion, on remand the PCR court heard oral
argument in December 2022. Following the argument, the PCR court denied
defendant's petition on January 2, 2023. In its opinion, the court found that
based on the testimony of defense counsel and defendant at the evidentiary
hearing, an evidentiary hearing was not warranted. The court further found that
the dismissal of defendant's ineffective assistance of counsel claims based on
the alleged inadequate advice in connection with the State's plea offer and the
failure to present an insanity or diminished capacity defense at trial were
2 Brady v. Maryland, 373 U.S. 83 (1963). A-1713-22 6 rejected on direct appeal and, therefore, were procedurally barred pursuant to
Rule 3:22-5.3
II.
On appeal, defendant raises the following argument in her counsel's brief:
THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE DEFENDANT ESTABLISHED A PRIMA FACIE CLAIM THAT TRIAL COUNSEL WAS INEFFECTIVE FOR ABRIDGING HER CONSTITUTIONAL RIGHT TO TESTIFY AT THE MIRANDA HEARING; IN THE ALTERNATIVE, THIS MATTER MUST BE REMANDED BECAUSE THE PCR COURT FAILED TO STATE SEPARATELY ITS FINDINGS OF FACT AND CONCLUSIONS OF LAW REGARDING THIS CLAIM.
In her self-represented brief, defendant argues:
I. EVIDENCE SEIZED BY POLICE WITHOUT A WARRANT FROM DEFENDANT[']S POCKETBOOK WAS USED AS EVIDENCE DURING HER INTERROGATION AND AT TRIAL INSTEAD OF BEING SUPPRESSED VIOLATING DEFENDANT[']S CONSTITUTIONAL PROTECTION AGAINST UNREASONABLE SEARCH AND SEIZURE.
II. THE STATE WITHHELD EXCULPATORY HANDWRITING ANALYSIS RESULTS.
3 The court's January 2, 2023 order contains a typographical error and incorrectly cites Rule 3:22-25; rather than Rule 3:22-5. A-1713-22 7 III. TRIAL COUNSEL ASSIGNED PROVIDED CONSTITUTIONALLY INEFFECTIVE ASSISTANCE AT TRIAL BY FAILING TO EFFECTIVELY CROSS-EXAMINE THE PROSECUTION WITNESS.
Our review of a PCR claim after a court has held an evidentiary hearing
"is necessarily deferential to [the] court's factual findings based on its review of
live witness testimony." State v. Nash, 212 N.J. 518, 540 (2013). Nonetheless,
we review the legal conclusions of a PCR court de novo. State v. Harris, 181
N.J. 391, 420 (2004). The de novo standard of review also applies to mixed
questions of fact and law and when the PCR court does not conduct an
evidentiary hearing. Ibid. (citing McCandless v. Vaughn, 172 F.3d 255, 265 (3d
Cir. 1999)).
"[A] prior adjudication on the merits ordinarily constitutes a procedural
bar to the reassertion of the same ground as a basis for post-conviction review."
State v. Preciose, 129 N.J. 451, 476 (1992) (citing R. 3:22-5). The application
of these standards requires the "'[p]reclusion of consideration of an argument
presented in [PCR] proceedings . . . if the issue raised is identical or substantially
equivalent to that adjudicated previously on direct appeal.'" State v. Marshall,
173 N.J. 343, 351 (2002) (quoting State v. Marshall, 148 N.J. 89, 150 (1997)).
A-1713-22 8 A PCR claim is based upon the "same ground" as a claim already raised
by direct appeal when "the issue is identical or substantially equivalent" to the
issue previously adjudicated on the merits. State v. McQuaid, 147 N.J. 464, 484
(1997) (internal quotation marks and citations omitted). "Ordinarily, PCR
enables a defendant to challenge the legality of a sentence or final judgment of
conviction by presenting contentions that could not have been raised on direct
appeal." State v. Afandor, 151 N.J. 41, 49 (1997) (citing McQuaid, 147 N.J. at
482-83).
Rule 3:22-5 provides that "[a] prior adjudication upon the merits of any
ground for relief is conclusive whether made in the proceedings resulting in the
conviction or in any post-conviction proceeding . . . or in any appeal taken from
such proceedings." Therefore, a PCR petition is not "an opportunity to relitigate
a claim already decided on the merits." McQuaid, 147 N.J. at 483.
Applying these principles, the PCR court correctly determined that the
remaining issues presented in defendant's PCR petition on remand were
previously adjudicated on direct appeal. We agree. We considered and rejected
defendant's arguments related to her state of mind and the waiver of Miranda
rights. Defendant renewed those arguments in her PCR petition. We also hold
A-1713-22 9 defendant's argument that the State withheld exculpatory handwriting analysis
was improper under Rule 3:22-4 because it was not raised on direct appeal.
We are satisfied from our review of the record that defendant failed to
make a prima facie showing of ineffectiveness of counsel on any of her asserted
claims. Moreover, we are satisfied the PCR court appropriately concluded
defendant's remaining PCR claims did not warrant a further evidentiary hearing.
See Preciose, 129 at 462-63.
Affirmed.
A-1713-22 10