NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-0159-18T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
TOBY D. WELLINGTON, a/k/a TOBY DEAN WELLINGTON, and TROY WELLINGTON,
Defendant-Appellant. ______________________________
Submitted November 4, 2019 – Decided December 31, 2019
Before Judges Sabatino and Natali.
On appeal from the Superior Court of New Jersey, Law Division, Warren County, Indictment No. 10-03-0106.
Joseph E. Krakora, Public Defender, attorney for appellant (Howard Woodley Bailey, Designated Counsel, on the brief).
Richard T. Burke, Warren County Prosecutor, attorney for respondent (Dit Mosco, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Toby Wellington appeals from a June 26, 2018 Law Division
order denying his petition for post-conviction relief (PCR) without an
evidentiary hearing. We affirm.
I.
We summarized the evidence elicited at defendant's trial when we
affirmed defendant's convictions for second-degree conspiracy to commit armed
robbery, first-degree armed robbery, and second-degree possession of a weapon
for an unlawful purpose. State v. Lane, No. A-0584-11 (App. Div. Feb. 27,
2014), certif. denied, State v. Lane, 219 N.J. 628 (2014). For context, we briefly
restate the pertinent evidence as supplemented by additional facts gleaned from
the PCR proceeding.
On November 4, 2009, Jignesh Patel was working in the Greenwich
Township delicatessen he owned. While Patel and his brother were making
sandwiches, a man wearing a white hoodie walked into the deli and stood by the
register. When Patel went to attend to the customer, the man told Patel to open
the drawer of the cash register. After Patel asked the man to repeat the
statement, the man displayed a wood-handled gun and again told Patel to open
the register and emphasized that he was "not kidding." Patel opened the register,
A-0159-18T3 2 and the gunman reached over the counter, grabbed cash out of the drawer, and
ran out of the deli.
During the incident, Sergeant David Voll of the Greenwich Township
Police Department happened to be in the deli, seated at a table in the rear. Patel's
brother told Voll that they had just been robbed. Voll ran outside and saw a
"slight gray color four door [vehicle], which [he] thought was a Pontiac,"
traveling at a fast rate of speed through the parking lot. After exiting the parking
lot, the vehicle headed westbound. Voll radioed a description of the vehicle to
his dispatcher and returned to police headquarters where he retrieved his vehicle
and headed in pursuit of the Pontiac.
As confirmed by his statements on 911 transcripts, Voll was unable to see
the license plate number of the vehicle, but he did inform his dispatcher that the
vehicle had a Pennsylvania license plate. Acting on the information available
at that time, another police officer stopped a vehicle matching the physical
description provided by Voll, but with a Pennsylvania plate number different
from the one later furnished by an eyewitness. Upon further investigation, the
police officer cleared that vehicle.
Conor O'Brien, a regular customer of the deli, testified at trial that he was
with Russell Bruch and Lori Kocher when a white male wearing a "designer
A-0159-18T3 3 kind of hoodie" bumped into Kocher as he exited the deli, and proceeded to enter
a grayish blue "late 90 early 2000 . . . four door . . . Pontiac Grand Am or
Bonneville." O'Brien stated that after he witnessed the man in the hoodie enter
the vehicle, he memorized the license plate of the vehicle and "began to tell
[Bruch] to find [him] a pen . . . to write it down because [he] remembered it, but
. . . wanted to write it down to be sure."
He further testified that after he and Bruch wrote down the license plate
number, Bruch gave the number to the store owner who O'Brien believed was
on the phone with police. O'Brien stated that he also told police officers of the
license plate "[a]t a later time." According to PCR counsel, Detective Michael
Patricia was the investigating officer who the State claimed received the license
plate number from a witness at the scene.
New Jersey State Police (NJSP) Trooper Susan Stafford-Mistretta
received a dispatch relating to an armed robbery and was told to look for a
Pontiac with a Pennsylvania license plate. Mistretta proceeded to the
Northampton Street Bridge, connecting Phillipsburg, New Jersey, to Easton,
Pennsylvania, where she observed a vehicle fitting the description of the
Pontiac. She radioed dispatch and other police units that she had the suspect
vehicle in sight and followed the Pontiac across the bridge. After several blocks,
A-0159-18T3 4 the Pontiac accelerated and began to exceed the speed limit. Mistretta activated
her lights, but the car failed to stop and made an abrupt left turn. After a short
distance, the Pontiac stopped and the driver and a passenger, later identified as
defendant and George Lane, got out of the vehicle and ran.
NJSP Trooper Jack Fuhrmann joined Mistretta in the pursuit and pulled
up behind where she had parked. He observed the driver and passenger get out
of the Pontiac and run in opposite directions. He saw both men again about
twenty minutes later after they had been arrested and identified defendant as the
driver and Lane as the passenger.
NJSP Trooper Craig Hyson responded to the location in Easton where the
Pontiac stopped and joined in the search. Along with NJSP Sergeant Robert
Paruta and Captain Michael Vangelo of the Easton Police, Hyson found Lane
hiding in an alley between two buildings, approximately two blocks from where
the Pontiac was abandoned.
Easton Police Detective Thomas Beiser also joined in the pursuit of
defendant. After walking through a wooded area, Beiser spotted defendant and
ordered him at gunpoint to raise his hands and stop. After other officers
responded to the area, defendant was taken into custody. Beiser recovered $170
in cash from the area where he first spotted defendant.
A-0159-18T3 5 The Pontiac was towed from Easton to the county impound yard and
secured. Detective Sergeant Rich Hummer obtained a warrant to search the
vehicle. During the search, a white hooded sweatshirt was found on the floor
behind the driver's seat. A hockey mask, a baseball cap, and an envelope
addressed to defendant by a Pennsylvania county human services office were
found in the trunk. A second sweatshirt, hooded and black, was found in the
vehicle. Hummer took photographs of the vehicle and the items recovered
during the search. When Hummer showed the photograph of the white
sweatshirt to Patel, he identified it as the one worn by the person who robbed
him.
Detective James McCormick of the Warren County Prosecutor's Office
testified at trial that the owner of the Pontiac was Kelly Thompkins, who lived
in Pennsylvania. The license plate on the Pontiac was not registered to the
vehicle. Thompkins testified that she owned the Pontiac, but her daughter,
Kendra, who had been living with defendant and was pregnant with his child,
was the one who used the car.
Defendant was charged in a multi-count indictment with second-degree
conspiracy to commit armed robbery, contrary to N.J.S.A. 2C:5-2(a)(1) and
N.J.S.A. 2C:15-1(a)(2); first-degree armed robbery, contrary to N.J.S.A. 2C:15-
A-0159-18T3 6 1(a)(2); second-degree possession of a weapon for an unlawful purpose, contrary
to N.J.S.A. 2C:39-4(a); and third-degree receiving stolen property, contrary to
N.J.S.A. 2C:20-7.
At trial, the court was made aware that a juror might have witnessed
defendant handcuffed and shackled while walking down the hallway during a
recess. The court voir dired the juror at sidebar on the record to discuss the
alleged incident and asked whether the juror came in contact with any of the
attorneys, parties, or anyone during the break, to which the juror answered in
the negative. The juror indicated that he or she merely "stepped out of the
bathroom and an officer was there."
According to the trial transcript, defendant's counsel made no remarks
during the court's sidebar conversation with the juror. When defendant
subsequently reiterated his alleged encounter to the court, however, the court
asked which juror defendant observed, and his counsel responded that it was the
same juror the court questioned "[a]t the end of the lunch break."
The State dismissed the receiving stolen property charge and the jury
convicted defendant of the remaining counts. The court sentenced defendant on
the armed robbery charge to a term of twelve years with an 85% period of parole
ineligibility pursuant to the No Early Release Act. See N.J.S.A. 2C:43-7.2. The
A-0159-18T3 7 court sentenced defendant on the conspiracy and weapons charge to a term of
five years, to be served concurrently with the armed robbery conviction. As
noted, we affirmed defendant's convictions on direct appeal, but remanded to
correct the judgment to reflect the mergers of the conspiracy and weapons
convictions into the armed robbery conviction.
Defendant filed a timely pro se PCR petition alleging ineffective
assistance of counsel. His assigned counsel subsequently filed an amended
verified petition for PCR and accompanying brief that incorporated by reference
the arguments in defendant's pro se brief and sought relief on additional grounds.
In PCR counsel's brief, defendant maintained that: 1) his Fifth and Sixth
Amendment rights to be present and confront witnesses were violated when the
court and prosecutor held ex parte discussions with a juror, 2) the trial court
erred in failing to assess mitigating factors on the grounds raised in defendant's
pro se petition, 3) the court should have conducted an evidentiary hearing
because he established a prima facie case of ineffective assistance and other
constitutional violations, and 4) his PCR petition was not procedurally barred
by Rule 3:22-4 or Rule 3:22-5.
PCR counsel also claimed defendant's counsel was ineffective for failing
to: 1) request a hearing on juror impartiality and to remove a potentially biased
A-0159-18T3 8 juror, 2) call Detective Michael Patricia and Russell Bruch as witnesses, 3)
investigate and introduce 911 transcripts or recordings into evidence, 4) file a
motion for discovery and a Brady1 motion, 5) request a Wade2 hearing, 6)
request a cross-racial jury instruction, 7) prepare a meaningful investigation and
defense at trial, 8) ask witnesses certain questions that he requested, and 9) that
all such errors, even if independently harmless, when viewed cumulatively,
deprived him of his rights under the federal and state constitutions. Defendant
also claimed that but for his attorney's ineffective assistance, the result of the
proceeding would be different as he would have been acquitted.
After hearing oral arguments, Judge H. Matthew Curry issued a
comprehensive written opinion and accompanying order denying defendant's
petition. The court first rejected defendant's Fifth and Sixth Amendment claims
as procedurally barred by Rule 3:22-4, finding that defendant should have raised
such claims on direct appeal. The court noted defendant "knew of the alleged
ex parte communication between the . . . court and the juror at the time of the
appeal, as clearly it had been placed on the record the day that it occurred," and
"knew which witnesses were called at trial." The court also noted that defendant
1 Brady v. Maryland, 373 U.S. 83 (1963). 2 United States v. Wade, 388 U.S. 218 (1967). A-0159-18T3 9 did not cite any new rule of constitutional law that would entitle defendant to
PCR.
Judge Curry also concluded that defendant failed to satisfy the two-part
test for ineffective assistance of counsel detailed in Strickland v. Washington,
466 U.S. 668 (1984), and adopted by the New Jersey Supreme Court in State v.
Fritz, 105 N.J. 42 (1987) (Strickland /Fritz). The court noted that to establish a
claim for ineffective assistance, a "defendant must show that counsel's
performance was deficient," and that "the deficient performance prejudiced the
defense." Fritz, 105 N.J. at 52 (quoting Strickland, 446 U.S. at 687).
As to the first prong, Judge Curry rejected defendant's claim that his
counsel was constitutionally ineffective for failing to request a hearing on juror
impartiality and to remove a potentially biased juror who allegedly "[saw] him
in handcuffs in the hallway during a recess." The court stated that there could
have been "a reasonable justification for [his trial counsel] not moving for such
a hearing," including that the "hearing was unnecessary," that "the juror didn't
see . . . defendant," that the juror "remained capable of being objective," or that
"such a motion would have been futile." Judge Curry also concluded that "given
the weight of the evidence against [him], there [was] little to no reasonable
A-0159-18T3 10 probability that the outcome of the trial would have been any different " had
counsel proceeded as defendant now requested.
The court similarly rejected defendant's claim that his trial counsel was
ineffective because she failed to call Patricia and Bruch as witnesses. Judge
Curry held that defendant's assertions similarly failed under both prongs of the
Strickland/Fritz test because he did not specifically identify what testimony
Patricia or Bruch would have provided that would have been beneficial to him,
and he did not present sufficient evidence to surmount the strong presumption
that his counsel's performance was reasonable under the circumstances. The
court noted that without any evidence as to what these two witnesses would have
testified to, there was insufficient proofs to establish with a reasonable
probability that the proceeding would have concluded differently, and
defendant's assertion that he would have been exonerated was "speculative, at
best."
Judge Curry also rejected defendant's claim that his counsel was
ineffective for allegedly failing to investigate and introduce the 911 transcripts
or recordings into evidence. The court reasoned that defendant failed to
establish, in light of the substantial evidence supporting his guilt, that
introducing the 911 transcripts would have affected the jury's verdict.
A-0159-18T3 11 On appeal, defendant identifies the following arguments for our
consideration:
POINT I
THE [PCR] COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR [PCR] WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTIONS THAT HE FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION FROM TRIAL COUNSEL[.]
A. THE PREVAILING LEGAL PRINCIPLES REGARDING CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL, EVIDENTIARY HEARINGS, AND PETITIONS FOR [PCR][.]
B. DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL WHEN HIS ATTORNEY FAILED TO OBJECT TO THE COURT'S EX-PARTE COMMUNICATIONS WITH THE STATE AND A JUROR AFTER DEFENDANT WAS SEEN BY THE JUROR IN PRISON GARB, HANDCUFFS[,] AND SHACKLES[.]
C. DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL WHEN HIS ATTORNEY FAILED TO CALL TWO WITNESSES TO TESTIFY ABOUT HOW THE LICENSE PLATE NUMBER WAS OBTAINED AND WHO PROVIDED IT TO THE POLICE[.]
POINT II
THE COURT MISAPPLIED ITS DISCRETION IN APPLYING [RULE] 3:22-4 AS A PROCEDURAL
A-0159-18T3 12 BAR AGAINST THE DEFENDANT'S FILING FOR [PCR].3
II.
We review the legal conclusions of a PCR court de novo. State v. Harris,
181 N.J. 391, 419 (2004) (citing Manalapan Realty, LP v. Twp. Comm. of
Manalapan, 140 N.J. 366, 378 (1995)). The de novo standard of review applies
to mixed questions of fact and law. Harris, 181 N.J. at 420. Where, as here, an
evidentiary hearing has not been held, it is within our authority "to conduct a de
novo review of both the factual findings and legal conclusions of the PCR court."
Id. at 421. We apply that standard here.
An evidentiary hearing on a PCR petition is required where a defendant
establishes a prima facie case for PCR under the standard established by the
United States Supreme Court in Strickland, 466 U.S. at 686, and the existing
record is inadequate to resolve defendant's claim. State v. Porter, 216 N.J. 343,
354 (2013) (citing R. 3:22-10(b)); see also State v. Preciose, 129 N.J. 451, 462-
3 Defendant has neither raised on appeal, nor briefed, the majority of the arguments he made before the PCR court. We, accordingly, deem those issues waived. See Pressler & Verniero, Current N.J. Court Rules, cmt. 5 on R. 2:6-2 (2019) ("[A]n issue not briefed is deemed waived."); Telebright Corp. v. Dir., N.J. Div. of Taxation, 424 N.J. Super. 384, 393 (App. Div. 2012) (deeming a contention waived when the party failed to include any arguments supporting the contention in its brief). A-0159-18T3 13 63 (1992). Under Strickland, a defendant first must show that his or her
attorney's handling of the matter "fell below an objective standard of
reasonableness." Strickland, 466 U.S. at 688; see also Fritz, 105 N.J. at 58. A
defendant also must show there exists a "reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding would have been
different." Strickland, 466 U.S. at 694; see also Fritz, 105 N.J. at 60-61. A
failure to satisfy either prong of the Strickland/Fritz standard requires the denial
of a PCR petition. Strickland, 466 U.S. at 700; State v. Nash, 212 N.J. 518, 542
(2013); Fritz, 105 N.J. at 52.
III.
Based upon these principles and our review of the record, we affirm the
court's June 26, 2018 order substantially for the reasons expressed by Judge
Curry in his comprehensive written opinion. As the PCR court correctly
concluded, defendant failed to establish a prima facie case of ineffective
assistance of counsel and thus an evidentiary hearing was not required. See
State v. Preciose, 129 N.J. at 462-63 (1992). We add the following comments
to amplify the court's decision.
In point I.B., defendant argues that his trial counsel's representation was
constitutionally deficient because "his attorney failed to object to the court's ex
A-0159-18T3 14 parte communication with a juror who was questioned about seeing [defendant]
in prison clothing and shackles." He further claims that his counsel was
ineffective for failing to request a hearing on "juror impartiality" and by failing
to request removal of the potentially biased juror. 4 We disagree.
First, the factual predicate for defendant's claim is based on his allegation
that a juror saw him "shackled and handcuffed." On this point, during his trial
defendant addressed the court directly and stated that, "I would just like to note
. . . that when we were going out I directly ran into juror number [eight] to the
point where I could identify him as being juror number [eight] and he looked me
in my eye . . . ." Defendant further stated that "[he felt] that's highly prejudic[ial]
for [the juror] to see [him] in handcuffs . . . [while] walking down the hall," and
that he "just want[ed] it on the record." The court, however, specifically
explained to defendant that it "questioned the juror at side[]bar . . . [and asked]
whether or not he had seen you or anybody else," but that "the juror denied that
he had seen anybody."
4 In point II, defendant also argues that the court misapplied Rule 3:22-4 when it concluded that defendant's petition was procedurally barred. Because we agree with Judge Curry that defendant's petition failed to satisfy the Strickland/Fritz test, we need not address whether any of defendant's claims were also barred by Rule 3:22-4. A-0159-18T3 15 Second, defendant contends that his counsel was not present when the
court conducted its voir dire of the juror. That claim, however, is also
unsupported by the trial or PCR record. Indeed, defendant failed to provide an
affidavit, certification, or statement from his counsel or any other witness, to
support his claim that his counsel was absent during the court's voir dire with
the juror. In addition, neither the court nor any other counsel noted counsel's
absence. Further, when defendant addressed the court, the court asked him
which juror he was referring to and his counsel stated that defendant was
referring to the same juror discussed "[a]t the end of the lunch break." That
exchange fully supports the conclusion that counsel was present during the
sidebar conversation with the court.
In light of the fact that the juror specifically stated that he did not see
defendant, there was no basis for counsel to file an application to excuse the
juror or for other relief. We also note that defendant failed to establish that his
right to a fair trial was in any way impacted or that the jury's decision would
have been different, particularly where the evidence of guilt against defendant
was overwhelming. See also State v. Sykes, 93 N.J. Super. 90, 94 (App. Div.
1966) (holding that absent a showing of prejudice, the fact that jurors saw a
A-0159-18T3 16 prisoner handcuffed outside the courtroom as a precaution against escape did
not entitle prisoner to PCR).
IV.
Finally, in point I.C., defendant argues his counsel was constitutionally
ineffective for failing to call Patricia and Bruch to testify regarding how police
obtained the license plate number of the vehicle he was driving. We again
disagree.
Specifically, defendant claims that Patricia's and Bruch's "testimony
would establish several facts that were important to the defense," as Bruch
"never stated [in his interview with police] that he had provided the license plate
number to [them]." Defendant further claims that his trial counsel failed to
question Bruch at trial to establish whether he wrote down the license plate
number and to whom who he relayed it. He further claims that Patricia's
testimony was vital because he was the investigating police officer at the crime
scene, but he was never called to testify as to the accuracy of the license plate
number or how that number was relayed to police.
We agree with Judge Curry that these claims also fail to satisfy the two-
prong Strickland/Fritz test because among the other trial evidence supporting
defendant's guilt, the 911 transcript indicated that shortly after the robbery an
A-0159-18T3 17 eyewitness provided police the license plate number matching the plate on
defendant's vehicle.
As to Patricia, Judge Curry acknowledged that Voll testified during the
grand jury proceedings that "O'Brien provided . . . Patricia with the license plate
number," but at trial, O'Brien testified that Bruch, not he, "provided the license
plate number to the storeowner who provided it to someone else, likely the
police." In addition to providing the license plate number to Bruch, however,
O'Brien testified that he also gave the license plate number to police at a later
time. Thus, defendant's argument that Patricia's testimony might demonstrate
inconsistencies in the accuracy of the plate number or how it was relayed was
hardly significant, as O'Brien's testimony was not incompatible with the
conclusion that an eyewitness communicated the information to police.
As to Bruch, defendant points only to Bruch's pretrial statement where he
failed to identify defendant's license plate number. According to the transcript
of his statement, however, Bruch was neither questioned about the license plate
number nor did he deny giving the number to anyone at an earlier time.
Furthermore, police interviewed Bruch at 1:37 p.m., but the 911 transcript
confirms that police received the correct license plate number from an
eyewitness sometime between 12:38 p.m. and 12:44 p.m.
A-0159-18T3 18 Defendant also asserts that the his trial counsel was ineffective because
she "fail[ed] to investigate and introduce the 911 transcripts." 5 The record
indicates, however, that at the start of a February 28, 2011 motion hearing, the
court asked defendant's counsel whether defendant had an opportunity to "see
the tape." Defendant's counsel responded that "[they] were just listening to the
. . . audio of the 911 call," but that it "goes on quite some" and they would
continue reviewing it "during the break."
Further, it is unclear how the introduction of the 911 transcript would have
benefited defendant. According to the transcript, police officers initially pulled
over a vehicle with a license plate number different from the plate number given
to police because it matched the physical description of the suspect vehicle
provided by Voll who was in the deli at the time of the incident. The transcript
then indicated that an eyewitness at the deli subsequently provided the actual
license plate of the suspect vehicle to police officers. As noted, the evidence of
defendant's guilt was overwhelming, and defendant failed to establish how the
outcome of the trial would have been different had his counsel submitted the
911 transcripts into evidence.
5 We note that defendant's merits brief fails to include a point heading addressing this specific argument as required by Rule 2:6-2(a)(6). We glean his argument from the body of his brief. A-0159-18T3 19 Affirmed.
A-0159-18T3 20