STATE OF NEW JERSEY VS. RAAFIQ LEONARD (06-06-1717, ESSEX COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: June 12, 2018
• Docket: A-4815-16T1
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-4815-16T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RAAFIQ LEONARD, a/k/a TYRONE DAYE, and FIQ LEONARD,

Defendant-Appellant. ________________________________

Submitted April 26, 2018 – Decided June 12, 2018

Before Judges Simonelli and Rothstadt.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 06- 06-1717.

Joseph E. Krakora, Public Defender, attorney for appellant (Michele A. Adubato, Designated Counsel, on the brief).

Robert D. Laurino, Acting Essex County Prosecutor, attorney for respondent (Lucille M. Rosano, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM Defendant Raafiq Leonard appeals from the denial of his

petition for post-conviction relief (PCR) without an evidentiary

hearing. For the reasons that follow, we affirm.

Defendant was convicted by a jury of first-degree carjacking,

N.J.S.A. 2C:15-2(a)(2); second-degree conspiracy to commit a

carjacking, N.J.S.A. 2C:15-2, N.J.S.A. 2C:5-2(a)(1); third-degree

receiving stolen property, N.J.S.A. 2C:20-7(a); first-degree

robbery, N.J.S.A. 2C:15-1(b); third-degree possession of a

prohibited weapon, N.J.S.A. 2C:39-3(b); and second-degree

possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-

4(a)(1). On October 12, 2007, the sentencing court imposed an

aggregate sentence of twenty years, subject to a No Early Release

Act, N.J.S.A. 2C:43-7.2, parole ineligibility period of eighty-

five percent of his sentence.

Defendant appealed and we affirmed his convictions and

sentence in a published opinion. State v. Leonard, 410 N.J. Super.

182, 190 (App. Div. 2009). The Supreme Court denied his petition

for certification. State v. Leonard, 201 N.J. 157 (2010).

The facts underlying defendant's convictions are set forth

in our earlier opinion and need not be repeated here. See Leonard,

410 N.J. Super. at 184-86.

Defendant filed a PCR petition on May 14, 2012, in which he

argued ineffective assistance of trial and appellate counsel. The

2 A-4815-16T1 court dismissed the petition on June 27, 2012, after it found that

it was procedurally barred by Rule 3:22-3 because it raised issues

that we considered in defendant's direct appeal. Defendant did

not appeal from that order.

Almost four years later, on January 14, 2016, defendant filed

a second PCR petition in which he challenged the first PCR court's

dismissal of his petition. A brief and amended petition were

submitted later on behalf of defendant. In this brief, defendant

argued that he received the ineffective assistance of trial and

appellate counsel. He alleged that trial counsel failed to:

subpoena defendant's "sole alibi-notice witness" to testify at

trial, "object, request a [mistrial], or seek the strongest of

curative instructions" in response to the prosecutor's "prohibited

comments" to the jury about defendant's unemployment, and request

an accomplice liability or lesser-included offense charge. As to

appellate counsel, defendant claimed he failed to raise these same

issues on appeal. Defendant also argued his second petition should

not be procedurally barred because of the "improvident dismissal

of" his first petition and "the importance of" his claims.

After considering counsel's oral argument on January 23,

2017, Judge John I. Gizzo entered an order on April 21, 2017,

denying defendant's petition for PCR without an evidentiary

hearing supported by a nineteen-page written decision. In his

3 A-4815-16T1 decision, Judge Gizzo first addressed defendant's argument that

his petition should be considered his first because the previous

one was dismissed without assigning counsel to him. The judge

rejected that argument as he found that the petition was time-

barred under Rule 3:22-12 because the "case occurred eleven years

ago[,]" and re-litigating the matter "would cause prejudice to the

State[.]" Judge Gizzo also concluded that even if he considered

defendant's second petition as his first, it was still procedurally

barred by Rule 3:22-3 that prevents PCR petitions from being used

as substitutes for appeals, Rule 3:22-4 that bars claims that

could have been raised on direct appeal, and Rule 3:22-5 that bars

the litigation of issues previously raised in prior proceedings.

Although Judge Gizzo found that defendant's claims were

barred, he considered the merits of defendant's claims and found

that defendant failed to establish a prima facie claim of

ineffective assistance of either trial or appellate counsel. The

judge concluded that counsel's actions were the result of

acceptable trial strategy or, even if deficient, would not have

changed the outcome of defendant's trial. Accordingly, the judge

denied defendant's petition and request for an evidentiary

hearing. This appeal followed.

Defendant presents the following issues for our consideration

in his appeal.

4 A-4815-16T1 POINT I

FAILURE OF THE PCR COURT TO GRANT THE DEFENDANT AN EVIDENTIARY [HEARING] ON HIS CLAIMS OF INEFFECTIVE ASSISTANCE COUNSEL.

A. FAILURE TO SUBPOENA ALIBI WITNESS.

B. FAILURE OF COUNSEL TO TAKE ANY ACTION FOLLOWING THE PROSECUTOR'S IMPROPER AND PREJUDICIAL COMMENTS DURING SUMMATION.

C. FAILURE TO REQUEST AN ACCOMPLICE LIABILITY CHARGE.

D. FAILURE OF APPELLATE COUNSEL TO RAISE ISSUES ON APPEAL.

POINT II

THE DEFENDANT'S PETITION WAS NOT PROCEDURALLY BARRED.

Defendant filed a supplemental pro se brief in which he

presents the following arguments:

POINT I

THE PCR COURT ERRED BY INVOKING THE PROCEDURAL BARS, WHEREFORE THE DECISION DENYING THE PCR APPLICATION SHOULD BE REVERSED AND REMANDED FOR AN EVIDENTIARY HEARING.

DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT OF THE EFFECTIVE ASSISTANCE OF COUNSEL,

5 A-4815-16T1 WHEREFORE THE DENIAL OF THE PCR APPLICATION SHOULD BE REVERSED AND REMANDED.

We are not persuaded by any of these arguments, and conclude

that they "are without sufficient merit to warrant discussion in

a written opinion[.]" R. 2:11-3(e)(2). We affirm substantially

for the reasons expressed by Judge Gizzo in his comprehensive

opinion as we agree that defendant's PCR arguments were

procedurally barred and, in any event, he failed to make a prima

facie showing of ineffectiveness of either trial or appellate

counsel within the Strickland-Fritz1 test and, therefore, an

evidentiary hearing was not warranted. See State v. Preciose, 129

N.J. 451, 462-63 (1992).

Affirmed.

1 Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Fritz, 105 N.J. 42, 49 (l987).

6 A-4815-16T1