STATE OF NEW JERSEY VS. TIM MCGEACHY (10-06-1064, HUDSON COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: March 7, 2019
• Docket: A-2097-17T4
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-2097-17T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TIM MCGEACHY, a/k/a TIMOTHY MCGEACHY,

Defendant-Appellant. ______________________________

Submitted February 25, 2019 – Decided March 7, 2019

Before Judges Sabatino and Haas.

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 10-06-1064.

Joseph E. Krakora, Public Defender, attorney for appellant (Andrew P. Slowinksi, Designated Counsel, on the briefs).

Esther Suarez, Hudson County Prosecutor, attorney for respondent (Erin M. Campbell, Assistant Prosecutor, on the brief).

PER CURIAM After a jury convicted defendant Tim McGeachy of second-degree

reckless manslaughter (count one) and fourth-degree burglary (count five), a

judge sentenced him to an extended twenty-year term on count one, subject to

the 85% parole ineligibility provisions of the No Early Release Act, N.J.S.A.

2C:43-7.2, and to a consecutive eighteen-month term on count five. State v.

McGeachy, Docket No. A-0454-13 (App. Div. Mar. 1, 2016) (slip op. at 1-2),

certif. denied, 226 N.J. 213 (2016). On direct appeal, we affirmed defendant's

conviction, but remanded to enable the "trial court to again consider its

sequencing of the consecutive sentences in light of State v. Ellis, 346 N.J. Super.

583, 597 (App. Div.), aff'd, 174 N.J. 535 (2002)." 1

Defendant now appeals from the December 8, 2017 Law Division order

denying his petition for post-conviction relief (PCR). We are constrained to

reverse and remand because the trial court did not address all of the contentions

defendant raised in his petition, make adequate findings of fact and conclusions

of law in connection with its rulings, or conduct an evidentiary hearing.

1 On remand, the trial court imposed the same sentence, and defendant appealed. We heard the appeal on our Excessive Sentence Oral Argument calendar pursuant to Rule 2:9-11, and affirmed defendant's sentence. State v. McGeachy, Docket No. A-1602-16 (App. Div. May 3, 2017). A-2097-17T4 2 The parties are fully familiar with the facts the developed at trial, which

are set forth at length in our decision on direct appeal. McGeachy, slip op. at 4-

12. Therefore, we need only briefly summarize the most salient facts here.

The State's witnesses testified that defendant beat up the victim, J.S., after

the victim allegedly stole cell phones that had been delivered to defendant's

former home. Id. at 6-8. They stated that defendant "'pound[ed]' the victim, hit

him in the face and chest, knocked him to the ground, and continued to strike

him after he lay bleeding and unconscious on the ground." Id. at 16 (alteration

in original). J.S. was admitted to the hospital, where his progress notes indicated

he had suffered an orbital fracture. Id. at 8. "[I]t was [also] noted that J.S. had

human immunodeficiency virus (HIV) and very little ability to fight infection."

Id. at 9.

J.S. remained in the hospital for approximately thirty days. Id. at 9-10.

Testing revealed that "J.S. did not suffer a major brain injury and did not receive

neurosurgical intervention." Ibid. However, J.S. "developed a sepsis infection"

about a week after his admission to the hospital, "went into septic shock" fifteen

days later, and died ten days after that. Id. at 10.

The victim's "treating doctors certified his death as being from natural

causes, including a sepsis infection and acquired immune deficiency syndrome

A-2097-17T4 3 (AIDS)." Ibid. They saw no need to refer the matter to the medical examiner,

and released the body to a funeral home where it was embalmed. Ibid. Shortly

thereafter, the prosecutor's officer "arranged for the body to be transferred to the

medical examiner's office" and John Stash, M.D., a forensic pathologist,

performed an autopsy. Ibid.

After being qualified at trial as an expert in forensic pathology, Dr. Stash

"concluded that the cause of death was complications of blunt force head trauma,

with HIV as a contributing factor. Dr. Stash determined that the manner of death

was homicide." Ibid.

The issue of causation was "an essential element of the offense of reckless

manslaughter[.]" Id. at 14. However, defense counsel2 did not present any

expert testimony at trial to rebut Dr. Stash's medical opinions. About a year

before the trial began, counsel retained a medical expert, who reviewed Dr.

Stash's report, and prepared a report of his own challenging Dr. Stash's

conclusions. However, this expert also prepared an earlier report which

contradicted his own findings and, because the State could readily attack his

2 At various times throughout the trial court proceedings, defendant was represented by four different attorneys. Because we have no reason to distinguish among the attorneys involved, we do not.

A-2097-17T4 4 credibility at trial, defense counsel determined he could no longer rely upon the

expert. Nothing in the trial record indicates that defense counsel thereafter

sought to retain a new expert during the year that followed. In addition, counsel

did not attempt to call the victim's treating physicians at trial, even though they

both reported that the victim's death was the result of natural causes, rather than

blunt force trauma, and he did not introduce any of the victim's medical records

in evidence.

Defendant submitted two certifications in support of his petition for PCR,

together with a brief prepared by his PCR counsel, along with numero us

supporting exhibits. Defendant's primary argument was that trial counsel

provided ineffective assistance because he failed to call a medical expert on his

behalf.3 However, he also raised nine additional arguments in support of his

request for PCR. Specifically, defendant argued that defense counsel provided

ineffective assistance by failing to: (1) investigate the out-of-court

identification procedures the police used to identify him as the person who beat

the victim; (2) investigate witnesses who could support the defense at trial,

3 Defendant raised a similar contention in his pro se supplemental brief he filed in his direct appeal. Id. at 3-4. We concluded that this claim "rest[ed] upon evidence outside the record" and, therefore, was "not ripe for direct review." Id. at 25. A-2097-17T4 5 including the victim's treating physicians, an individual who identified someone

else as a suspect, and several alleged alibi witnesses; (3) challenge

"photographic blood evidence"; (4) seek to have the trial judge recused for

reasons set forth in the certifications; (5) obtain a sequestration order when it

became clear that the State was going to call the victim's sister, who was present

in the courtroom during the trial, as a witness; (6) visit the crime scene to seek

witnesses and other evidence; and (7) challenge the State's motion to sentence

him as a persistent offender to an extended term. Defendant also argued that (8)

his attorney improperly conceded that the victim suffered a bone fracture near

his eye, and (9) his sentence on the remand was illegal on double jeopardy

grounds.

Defendant also presented three arguments concerning his appellate

attorney. He alleged that this attorney provided ineffective assistance by failing

to: (1) correct an inaccurate statement in the appellate brief concerning why

defendant went to the victim's apartment; (2) consult with defendant regarding

the factual and legal arguments to be raised on appeal; and (3) file a reply brief

to address any of the State's contentions.4

4 Defendant attempted to file an overlength pro se reply brief, but we denied his motion to do so.

A-2097-17T4 6 In a short written opinion, the trial court denied defendant's petition

without conducting an evidentiary hearing.5 Only one paragraph of the decision

addresses defendant's arguments concerning his attorney's performance at trial.

The court stated:

In the present case, [defendant] argues that his counsel's performance was clearly deficient because counsel failed to do the following: 1) properly review the case; 2) perform adequate investigation; 3) pursue witnesses that could have provided exculpatory testimony[;] and 4) trial counsel's failure to call a medical expert on behalf of the defendant. [Defendant] makes these claims absent any evidentiary support. [Defendant] neither provides the names of any of the alleged witnesses that could have provided exculpatory testimony, nor does he shed light as to what the alleged exculpatory testimony was. Additionally, the [S]tate provided a medical expert that provided expert testimony regarding the medically relevant facts of the case. [Defendant] has failed to articulate any different testimony a medical expert provided by the defense would have provided. [Defendant] has failed to assert any specific facts that would satisfy the Strickland6 test. In light of this failure, the court must presume that counsel's performance was within the range of reasonable professional assistance, as the holding in Strickland requires. Therefore, [defendant] is unable to establish the requirement of the first prong: deficient performance.

5 The decision incorrectly states that defendant "allege[d] that he [w]as provided ineffective assistance of plea counsel." (Emphasis added). 6 Strickland v. Washington, 466 U.S. 668 (1984). A-2097-17T4 7 The court also rejected defendant's claim that his appellate attorney

provided him with ineffective assistance. However, the court mistakenly

addressed an argument that defendant did not make, rather than the ones he did.

The court stated that defendant asserted his appellate counsel was ineffective

because he "fail[ed] to file his pro se [merits] brief." The court concluded that

"this claim [was] false" because we noted in our opinion on direct appeal that

defendant had filed a supplemental merits brief. However, defendant's argument

was that his attorney should have filed a reply brief of his own to rebut the State's

contentions. Thus, the court did not address any of the arguments defendant

raised in his petition concerning his appellate counsel.

The court determined not to conduct an evidentiary hearing, stating only

that defendant "ha[d] not shown any credible evidence to support his claim."

This appeal followed.

On appeal, defendant raises the following contentions:

POINT I

THE PCR COURT SHOULD HAVE HELD THAT DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL WAS VIOLATED BY HIS TRIAL COUNSEL'S FAILURE TO INVESTIGATE AND PREPARE ADEQUATELY FOR TRIAL, PRESENT NECESSARY EXPERT MEDICAL TESTIMONY, AND OTHERWISE

A-2097-17T4 8 PROVIDE A COMPETENT DEFENSE. (U.S. CONST. AMEND. VI; N.J. CONST. ART. I, ¶ 10).

(a) Defendant Was Entitled to Relief Under Controlling Legal Principles Governing Petitions for [PCR] Pursuant to R. 3:22-2 et seq.

(b) Trial Counsel Provided Ineffective Assistance by Failing to Present a Medical Expert Witness to Testify that the Decedent Died of Natural Causes as Determined by His Treating Physicians.

(c) Trial Counsel Provided Ineffective Assistance by Failing to Call an Appropriate Witness to Admit the Victim's Medical Records Demonstrating that His Death Was Due to Natural Causes. (Not Raised Below).

(d) Trial Counsel Provided Ineffective Assistance by Failing to Investigate and Present Testimony of Witnesses Who Could Have Provided Exculpatory Evidence.

POINT II

THE PCR COURT FAILED TO ADDRESS OR ACKNOWLEDGE MANY OF THE ARGUMENTS PRESENTED BY DEFENDANT IN SUPPORT OF HIS PETITION, VIOLATING DEFENDANT'S RIGHT TO DUE PROCESS AND THE REQUIREMENTS OF RULE 3:22-11 AND RULE 1:7- 4(a).

POINT III

THE PCR COURT SHOULD HAVE HELD THAT DEFENDANT WAS ENTITLED TO AN EVIDENTIARY HEARING AT WHICH THE

A-2097-17T4 9 MEDICAL AND LAY WITNESSES DEFENSE COUNSEL FAILED TO CALL AT TRIAL COULD HAVE BEEN PRESENTED.

POINT IV

THE PCR COURT SHOULD HAVE HELD THAT DEFENDANT WAS DENIED THE RIGHT TO EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL (U.S. CONST. AMEND. VI; N.J. CONST. ART. I, ¶ 10).

We begin by summarizing the trial court's obligations in resolving

petitions for PCR. When petitioning for PCR, the defendant must establish "by

a preponderance of the credible evidence" that he or she is entitled to the

requested relief. State v. Nash, 212 N.J. 518, 541 (2013) (quoting State v.

Preciose, 129 N.J. 451, 459 (1992)). To establish a prima facie claim of

ineffective assistance of counsel, the defendant is obliged to show not only the

particular manner in which counsel's performance was deficient, but also that

the deficiency prejudiced his right to a fair trial. Strickland, 466 U.S. at 687.

When deciding a petition for PCR, the court must "make specific fact

findings as required by Rule 1:7-4(a) and state [its] conclusions of law" on each

of the defendant's contentions. State v. Thompson, 405 N.J. Super. 163, 172

(2009); see also Rule 3:22-11 (requiring a court to "state separately its findings

of fact and conclusions of law" when making a final determination of a PCR

A-2097-17T4 10 petition). "Anything less is a 'disservice to the litigants, the attorneys, and the

appellate court.'" Thompson, 405 N.J. Super. at 172 (quoting Curtis v. Finneran,

83 N.J. 563, 569-70 (1980)).

Thus, PCR petitions "cannot be disposed of out of hand." State v. Odom,

113 N.J. Super. 186, 189 (App. Div. 1971). While the court need not author a

lengthy written opinion, or deliver an hour-long oral ruling to meet the

requirements of Rule 1:7-4(a) in every case, it must always state what specific

facts formed the basis of the decision, and then weigh and evaluate those facts

in light of the governing law "to reach whatever conclusion may logically flow

from" those facts. Slutsky v. Slutsky, 451 N.J. Super. 332, 357 (App. Div.

2017). Because justice requires no less, "[a]ll conclusions must be supported."

Ibid.

The mere raising of a claim for PCR does not entitle the defendant to an

evidentiary hearing, and the defendant "must do more than make bald assertions

that he [or she] was denied the effective assistance of counsel." State v.

Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999). However, an evidentiary

hearing should be conducted where the defendant has established a prima facie

showing in support of the requested relief. Preciose, 129 N.J. at 462.

A-2097-17T4 11 When determining whether to grant an evidentiary hearing, the trial court

must consider the facts in the light most favorable to the defendant. Id. at 462-

63. "If there are disputed issues as to material facts regarding entitlement to

post-conviction relief, a hearing should be conducted." State v. Russo, 333 N.J.

Super. 119, 138 (App. Div. 2000). We review a trial court's decision to grant or

deny a defendant's request for a hearing under an abuse of discretion standard.

Id. at 140.

Applying these principles, we conclude that the trial court failed to

address all of defendant's arguments in support of his petition for PCR, or to

make adequate findings of fact and conclusions of law concerning the

contentions it did consider. The court also mistakenly exercised its discretion

by denying defendant's request for an evidentiary hearing.

Defendant raised nine separate arguments in support of his claim that his

trial attorney provided him with ineffective assistance, and an additional

contention that his resentence on the burglary charge was illegal. He also

presented three grounds supporting his assertion that his appellate counsel on

direct appeal was ineffective. However, the court only briefly mentioned four

of the arguments concerning the trial attorney, and none of the assertions

A-2097-17T4 12 defendant raised about his appellate counsel. Therefore, a remand is required

so that all of defendant's contentions can be considered.

In the two conclusory sentences in its opinion that addressed three of

defendant's arguments, the court stated that defendant failed to demonstrate that

his attorney failed to properly review the case, perform an adequate

investigation, or pursue witness who might have provided exculpatory

testimony. In support of this blanket conclusion, the court merely stated that the

claims lacked evidentiary support, apparently because defendant "provide[d]

neither the names of any of the alleged witnesses that could have provided

exculpatory testimony, nor d[id] he shed light as to what the alleged exculpatory

testimony was."

In his petitions and supporting documentation, however, defendant

provided the names of the victim's treating physicians, who contradicted the

medical examiner's views as to the cause of the victim's death; the name of an

individual who stated defendant was not the perpetrator; and the names of

several other individuals, who he asserted would supply him with an alibi.

Therefore, the record does not support the court's findings concerning these

three issues.

A-2097-17T4 13 The court next rejected defendant's argument that his attorney should have

retained a new expert to challenge the medical examiner's conclusions. The

court reasoned that a defense expert was not necessary because the State

provided an expert of its own to supply "the medically relevant facts of the case."

We disagree.

In Thompson, the defendant asserted that his trial attorney was ineffective

because he failed to retain an expert to rebut the testimony of the State's expert

witness. 405 N.J. Super. at 167. As in this case, the trial court "summarily

concluded" that counsel's failure to retain an expert did not meet the Strickland

test because there was "'compelling uncontroverted facts in the case'" to support

the State's position on the scientific issues involved in the case. Id. at 171-72.

However, we observed that "the facts were 'uncontroverted' because [defense]

counsel failed to make such an inquiry and retain an expert" to rebut the State's

expert proofs. Id. at 172. Therefore, we held that an evidentiary hearing was

needed to determine why defense counsel failed to secure an expert to assist

defendant at trial. Ibid.

Under these circumstances, we conclude that an evidentiary hearing was

clearly required in this case to address the issue of defense counsel's failure to

retain a new expert. The question of causation of the victim's death was the

A-2097-17T4 14 critical issue to be resolved at trial. Defense counsel obviously knew it was

important to attempt to contradict the opinions expressed by the medical

examiner, and retained an expert to do so. When the expert's credibility was

called into question, the attorney determined that the expert could not be used

at trial. In the year that followed, however, defense counsel seems to have taken

no steps to secure a new expert, even though there were at least two treating

physicians who had expressed a different view on the issue of causation, thus

indicating that retaining a replacement was not an impossible task. 7 Viewing

these facts in the light most favorable to defendant, they presented a creditable

prima facie case of ineffective assistance and, therefore, the court should have

conducted an evidentiary hearing.

Because all of defendant's contentions must be reviewed anew on the

remand, we do not limit the hearing to the issue concerning the medical expert.

Rather, the trial court should conduct a hearing, review all of defendant's claims,

and render a new decision, supported by specific findings of fact and

conclusions of law concerning each one.

7 While there may have been strategic reasons to justify counsel's approach, an evidentiary hearing, including the testimony of defendant's former counsel if feasible, was required to develop a fuller record on that issue. A-2097-17T4 15 In remanding this matter, we make clear that nothing within this opinion

forecasts any views on the merits of any of defendant's arguments nor on the

question of whether his trial or appellate attorneys provided him with ineffective

assistance under the Strickland test. We say no more than that because the trial

court failed to address all of defendant's contentions, provide adequate fin dings

of fact and conclusions of law, or conduct an evidentiary hearing, the issues

presented are not ripe for appellate review.

Reversed and remanded. We do not retain jurisdiction.

A-2097-17T4 16